POWER OF ATTORNEY IN NIGERIA

MEANING- Power of Attorney is a document usually but not always necessarily under seal whereby a person seized of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the Power of Attorney.

 

Parties To A Power Of Attorney 

The person who donates the power is called the ‘donor’ (Principal) while the person to whom the power is donated is called the ‘Donee’ (Attorney).

 

Uses Of Poa

1. Remedial device for legal mortgage by sub demise in CA

2. buying and  selling land on behalf of the Donor; 

3. collecting money on behalf of the donor;

4. prosecuting cases in court; 

5. receiving rates, rents, profit a prendre -UDE VS. NWARA 

 

Form Of a POA

Usually, a Power of Attorney is made in a Deed poll (a Deed made by one party) EXCEPT in the following instances it is advisable to be made in Deed Indenture (a Deed made by two or more parties): 

1. When it imposes some obligations on the Donee

2. It is important to have a record of the Donee’ssignature to prevent fraud 

3. It is supported by a consideration 

4. It is coupled with an interest and so it is desirable to be signed by both parties

Basic Features Of POA

1. It is an instrument of delegation -UDE V NWARA ; CHIME V. CHIME

2. It does not alienate or transfer  interest  in Land – AMADI V NSIRIM EZEIGWE V AWUDU

3. It does not require consent provision, since it does not transfer interest in land.

 

Circumstances Requiring Execution of Power Of Attorney

A Power of Attorney is not mandatory in land transaction.  However, circumstances may require a power of Attorney viz

a) Unavailability of the donor-EZEIGWE V.AWUDU;CHIME V.CHIME

b) Physical impairment

c) The need to involve an expert eglawyers by virtue of their knowledge of the law.

d) Where donee is empowered to execute a deed or transfer interest in land 

e) Used to secure purchaser’s interest pending perfection of title of purchaser.

f) Where mortgage is by demise/sub demise under CA pending payment of mortgage sum

 

Capacity Of The Parties

• Both the donor and the donee must be legally capable at the time of appointment as well as during the subsistence of same. National Bank v Korban Brothers Nig) Ltd & Ors.

• A person may appoint an attorney to carry out on his behalf only acts, that he may himself lawfully do.  This is in contrast to ‘agency’ where the principal can appoint a lunatic or insane person to be his agent.

• The appointment of an Attorney cannot be used to cure a disability suffered by the Donor. Ajuwon V Adeoti.

• Therefore the Donor must be legally capable of doing that which he appoints another to do on his behalf. Note: infant, bankrupt, unincorporated entity, insane

• If the authority relates to land, the donor must be the owner of the land.

• Only a juristic person capable of suing and being sued can be appointed a Donee of a power of attorney. 

• a business name or unincorporated body/Association or an Office cannot be appointed as they all lack the legal capacity - Nbn Ltd. V. KorbanBrothers;Ude Vs. Nwara  Chime Vs. Chime

• married women can donate or be a doneeregardless of whether she is an infant or not-s.146 PCL

 

Power Of Attorney Over Family Property  

• It must be executed by the head of the family as one of the donors; otherwise it is VOID-Ajamogun V. Oshurinde  .

• Where a POA is given in relation to family property, then a ‘Recital’ must be included in the actual PA to depict that consent of principal members of the family was obtained.

 

Mode Of Creation Of POA

The mode of creating a power of Attorney depends on the purpose of that Power of Attorney.

Melwani v Five Star Limited 

a) Where the power of Attorney has to do with land, it must be in writing - section 4 Statutes of Fraud 1677.

b) Where the donee is authorized to execute a deed, the instrument authorizing him must be a deed. Abina v Farhat(verbally); Powell v London & Provincial Bank.

​

Appointment of more than one person

Where Power of Attorney is conferred on more than one person, the instrument must specifywhether the donor will be bound by the several acts or joint acts of those persons who are donees; and whether in case of death of one of the donee, the surviving donee can continue to act. Specify how the attorneys will sign, e.g.: together or by some other specified way.

A donee cannot delegate the power unless the instrument expressly confers the power on the donee to do so – Amadi v. Nsirim.

 

 

FORMALITIES OF POWER OF ATTORNEY

1. Writing

It is a document in writing. It cannot be given orally  - ABINA V FARHAT

Reasons: i. Attestation and Registration

​​ii. helps remove doubts as to extent of powers conferred.

It need not to be by deed.  Exception: where the Power of Attorney is given to do an act which entails execution of a deed.

 

2. Execution/Signing 

➢ Where one is by a POA empowered to execute a deed, it must be by deed-AbinaV. Farhat; Powell V.London Provincial Bank

➢ Where donor is illiterate or blind; there must be illiterate jurat- Ezeigwe V. Awudu

 

3. Sealing

The normal rules as to sealing applies.

 

4. Attestation

➢ Advisable but not mandatory.

➢ By Judge, Notary public or Magistrate. 

➢ Where executed outside Nigeria should be attested to by a notary public-Hutcheon V. Mannington; Ayiwoh V.Akorede.

This Raises the presumption of due  execution – s.150 EA

 

5. Stamping and registration

➢ It requires a fixed rate of stamping. But usually the Registry assesses the document, per value of the consideration offered. (land)

➢ The LIRL of some states define instrument to include Power of Attorney. Where this is the case, it becomes registrable. And except registered, it cannot be pleaded or given in evidence.

 

CONSTRUCTION OF A POWER OF ATTORNEY

➢ A Power of Attorney is construed strictly and exhaustively as any extrinsic evidencecannot be admitted to establish additional powers given to the Donee not stated in the power of attorney. RE BRYANT.

➢ Thus, oral evidence would not be admitted to contradict the powers expressly given in a PA-NBA v Iteogu

➢ In a Power of Attorney, the general power clause does not confer any additional power to the Donee so a solicitor must exhaustively list out the Donee’s powers and without ambiguity. ABINA V. FAHART  

➢ the Power of Attorney  must be drawn in a form that will ensure that no difficulty is experienced when dealing with third parties. JACOBS VS. MORRIS 

 

REVOCATION OF POWER OF ATTORNEY

1. Express Revocation 

2. Implied Revocation 

3. Revocation By Operation of Law

 

(1) Express Revocation

➢ The form of appointment of a Doneedetermines the form to be used in revoking it 

➢ A lower form than that used in creating of POA cannot be used to validly revoke a POA

➢ For instance a Donee appointed by a Deed can only be removed by a Deed and not a mere letter. Adegbokun V. Akinsanya; Ojugbele V. Olasoji

➢ An apoinment made merely in writing but not by deed cannot be revoked orally.

➢ A Donee appointed by a letter can be revoked by a Deed which is a form higher than the mode of his appointment. 

 

(2) Implied Revocation

➢ This occurs where the Donor after giving a Power of Attorney to a Donee, still goes ahead and deals with the subject matter of the POA in such a manner that makes it impossible for the Donee to effect his authority under the Power.

➢ The fact that a donor gave a Power of Attorney does not mean that the Donor cannot himself do the act-.Chime V. Chime.

 

(3) Revocation By Operation Of Law

➢ Power of Attorney is deemed revoked by operation of law ​if the Donor suffers death, insanity, bankruptcy, winding up(companies), dissolution (partnerships) or other legal incapacity during the subsistence of the power. Abina Vs. Farhat;Uba Vs. Registrar Of Titles

➢ Before death of the donor can terminate, the death must have been known to the donee. Anything done without such knowledge is valid.

➢ Note also that power of attorney can be invalidated if fraud, duress or undue influence is established. (whether or not valuable consideration has been furnished)- AGBO V. NWIKOLO

 

IRREVOCABILITY OF POWER OF ATTORNEY

There are two instances where a POA will be irrevocable:

1. Where a Power of attorney (a) is given for valuable consideration and (b) is expressed to be irrevocable, the following rule shall apply in favour of a purchaser, namely:

i)​The POA cannot be revoked by the Donor(or by his death or other legal incapacity), except with the consent of the Donee,

ii)​Any act done under such POA shall be as valid as if done when no such things had happened,

iii)​Neither the Donee nor the purchaser shall be affected by notice of anything done by the Donor without Donee`s consent nor by the death or other incapacity of the Donor.

s.8 (1) CA

s.143 (1) PCL

UBA V. Registrar Of Titles. 

Where the Power of Attorney is coupled with an interest, it is irrevocable until the interest is exhausted/realized – Lababedi v. Odulana

VALUABLE CONSIDERATION + EXPRESSION OF IRREVOCABILITY

 

2. Where a PA (whether given for valuable consideration or not) is expressed to be irrevocable for a period fixed therein, not exceeding one year from the date of the PA, then in favour of a purchaser –

i)​The PA cannot be revoked by the Donor (or by his death or other legal incapacity) within the period so fixed, except with the consent of the Donee,

ii)​Any act done under such PA within the period so fixed shall be as valid as if done when no such things had happened,

iii.​Neither the Donee nor the purchaser shall be affected by notice of anything done by the Donor within the period so fixed without Donee`s consent nor by the death or other incapacity of the Donor within the period so fixed.

s.9(1) CA 

s.144(1) PCL

+/- VALUABLE CONSIDERATION + EXPRESSION OF IRREVOCABILITY + FIXED PERIOD (not exceeding 1 year)

 

PROTECTION OF THIRD PARTIES -S.9 & 10 CA;71 CA Ss 142, 143 PCL

Any payment made, or act done by any person pursuant to a PA remains valid and effective notwithstanding that before the making of the payment or doing of the act, the Donor had died or otherwise become incapacitated, provided that –

​a)​The person making the payment or doing the act acted in good faith, and 

​b)​He had no notice of the Donor`s incapacity or revocation of donee’s power at the time of making the payment or doing the act.

NOTE:

i)​A statutory declaration by the person making the payment or doing the act immediately before the payment or within three months of such payment or act shall be conclusive proof that he had no such knowledge and of non-revocation of the PA before the payment or act

ii)​This section shall apply to probate or Letters of admin granted a person for other person(s) as if payment made or acts done under the grant had been made under a PA –  proviso to s.142 (2)

iii)​This section does not affect rights against payee, of any person interested in the money so paid, who shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him. 

DISTINCTION BETWEEN POWER OF ATTORNEY AND A CONVEYANCE

S/N	POWER OF ATTORNEY		CONVEYANCE
1	Donor and done as the parties		Vendor and Purchaser
2	Does not transfer interest in land		Transfers  interest or title in land
3	Governors  consent is not required (except  in Lagos where it is required)		Requirement of governor’s consent is mandatory SS. 21 & 22 Land Use Act
4	Usually executed by one party thus a deed pole		Usually executed by both parties thus a deed indenture
5	It is an instrument of delegation		It is an instrument of transfer
6	No special mode of creation		A conveyance  must be by deed
7	It need not contain a recital		Must contain a recital
8	May or may not be revocable		A conveyance is not revocable  except if delivered  in escrow and the condition could not be fulfilled.
9	A power of Attorney  may be executed  in respect of any subject matter		A conveyance must be for interest in land.
10	The donee cannot sue in his own name but in the name of the donor Melwani v Five Stars Ltd.		Any cause of action can be instituted in the name o the parties
DIFFERENCES BETWEEN POWER OF ATTORNEY AND CONTRACT OF SALE OF LAND
		POWER OF ATTORNEY		CONTRACT OF SALE OF LAND
1		Does not  transfer  interest in land		Transfers  equitable interest in land
2		Usually executed by one party		Usually executed by both parties
3		PA does not always require consideration		Requires consideration to be valid
4		Must  not be exchanged between the parties		It must be exchanged between the parties to be valid
5		Does not necessarily attract stamp duty but attracts a fixed duty		Attracts a stamp duty (ad valorem) S. 28 Stamp Duties Act