An Overview of the Power of Attorney in Nigeria

A Power of Attorney (POA) is a legally binding document that allows a person to appoint another person on his behalf concerning private matters, finance, real estate, business, and more. The person appointing is called Principal/Donor and the apointee is called Attorney-in-fact/Agent. This power can be conferred on anyone be it a legal practitioner or a layman. 

 


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The power of attorney is frequently used in the event of a principal's illness or disability, or when the principal can't be present to sign necessary legal documents for financial transactions. A power of attorney can end for a number of reasons, such as when the principal dies, the principal revokes it, a court invalidates it, the principal divorces his/her spouse who happens to be the agent or the agent can no longer carry out the outlined responsibilities.

There are different types of POAs that fall under either a general power of attorney or limited power of attorney. A general power of attorney acts on behalf of the principal in any and all matters, as allowed by the state and a  limited power of attorney gives the agent the power to act on behalf of the principal in specific matters or events.




 

For the Power of Attorney to be binding and effective, it must contain the signature and seal of the Donor. Power of Attorney is executed to allow someone else act on your behalf when you are not available or capable to act for yourself as a result of illness, travel, defense, etc. 

There are four (4) types of POA.

General Power of Attorney: Here, the agent can perform almost any act as the principal. 

Special/Limited Power of Attorney: Here, the agent has specific powers limited to a certain area. 

Ordinary Power of Attorney: valid as long as the principal is competent and capable to make his own decisions. 

Durable Power of Attorney: valid regardless of whether the principal is competent, it will remain in effect even if he becomes incapacitated. 

A Power of Attorney is valid until the principal revokes it or dies.

ALL YOU NEED TO KNOW ABOUT A POWER OF ATTORNEY IN NIGERIA

Meaning and Nature of a Power of Attorney

A Power of Attorney is a document of delegation that is usually but not always necessarily under seal. This document basically allows a person (donor) to authorize another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do lawfully spelt out in the power of attorney. In other words, is a formal legal instrument by which a person called the donor appoints the donee to perform certain lawful acts on behalf of the donor. UDE V NWARA


A power of attorney given to EXECUTE a DEED must by a DEED. See ABINA V FARHAT. Power of attorney is created by DEED when is under SEAL.


A power of attorney is created by DEED POLL because it is created and executed by one party, who is the DONOR.


FEATURES OF A Power of Attorney

The following are the features of a Power of Attorney

  • It is an instrument of delegation. UDE V NWARA.
  • It does not transfer interest in land
  • It is usually executed by one party (DONOR). That is, it is not inter parties
  • Power of attorney is generally revocable unless it is expressed to be irrevocable


No special mode of creation except it  authorises the attorney to execute a deed


A POA is not an instrument of transfer of title to land and cannot on its own and without more transfer valid title to land. UDE V NWARA;


NB: POA is strictly and exhaustively construed. See NBA v ITEOGU. That is, on the question of the construction of a power of attorney, a power of attorney is strictly and exhaustively construed. See NBA v. ITEOGU (2006) 13 NWLR (Pt. 996) 216;


DIFFERENCES BETWEEN POWER OF ATTORNEY AND CONTRACT FOR SALE OF LAND OR CONVEYANCE:


1. POA does not transfer interest in land, unlike conveyance/formal contract for sale of land


2. POA is usually executed by one party, unlike conveyance/formal contract of sale


3. POA need not be exchanged to be valid, while in contract of sale exchange is mandatory unless both parties are represented by the same solicitor.


4. Consideration is not mandatory in POA, unlike contract for sale of land.


5. POA may not require Governor's consent since no interest is transferred, while conveyance requires consent since it involves transfer of legal interest.


NOTE: a power of attorney may either be GENERAL or SPECIFIC


Particulars of Information Required to Draft a Power of Attorney:

To draft a Power of Attorney, you need the following:

  • Particulars of the donor
  • Particulars of the donee
  • Particulars of the attesting witnesses


            4. Particulars of the property involved


            5. Purpose of the POA and the powers to be donated


            6. Whether or not the POA is given for valuable consideration


            7. Whether or not the of POA shall be irrevocable


            8. Duration/period of the irrevocability


            9. Status of the donor


            10. Extent and scope of powers donated


            11. Where the power of attorney is to be used.


ESSENTIALS/FORMALITIES OF A POWER OF ATTORNEY


1. Writing: It must be a written document which need not necessarily be under seal. Unwritten POA cannot be attested or registered. Writing removes it from all doubts as to the extent of powers donated. Importance of it being in writing was emphasized in ABUBAKAR V WAZIRI. (2008) 14 NWLR (Pt. 1108) 507


2. Execution/ Signing: the donor must execute the POA. With regards to execution, note the following:


Execution by family Head when family property is involved: A POA given in respect of family property must be executed by the FAMILY HEAD with one of the donors. See AJAMOGUN V OSHUNRINDE. That is, where a power of attorney is to be given in respect of family property, the power must be granted by the family head either acting alone or together with other principal members as failure to obtain the concurrence of the family head render the POA void. See AJAMOGUN v. OSHUNRINDE


Where a power of attorney has been properly executed in favour of an attorney to deal with family property, the attorney does not subsequently need the consent of the family head or principal members before he can validly sell the property. See OJO v. ANIBIRE (2004) ALL FWLR (Pt. 214) 176 where it was held that where members of a family donate a power of attorney to a donee to deal with their family land, the donee does not subsequently need the consent of the family head or principal members before he can sell the land.


ILLITERATE JURAT: where the donor is an illiterate the POA must be in line with Illiterate Protection Act. Failure to comply with the illiterate jurat renders the POA invalid. See GILBERT EZEIGWE v AWAWA AWUDU (2008) 11 NWLR (PT. 1097) 158


3. SEAL: A POA by deed must be signed, sealed and delivered. Where it is executed by an individual, the intention to seal was sufficient; but where the deed is executed by a corporate body, it must be under seal.  section 163 EA 2011, SECTION 71 AND 74 CAMA, section 98 PCL.


4. Attestation: it is advisable but not compulsory to attest. When attested to by a Judge, Notary Public, Magistrate, it raises a presumption of due execution under Section 150, E.A 2011. Attestation before a NOTARY PUBLIC is advisable when POA is to be used outside Nigeria. See MELWANI v. FIVE STARS INDUSTRIES LTD (2002) ALL FWLR (PT 94) 31


5. Stamping and Registration: where the land Instrument Registration Law of a state defines POA as an instrument, it must be registered-- see UZOECHI V ALINOR; AKINBADE v. ELEMOSHO. Thus, registration of a POA depends on whether it is defined as a Registrable instrument. See section 2 land instrument registration


Where a power of attorney is a registrable instrument and it is not duly registered, such non-registration renders it inadmissible in evidence to prove title to land or matters pertaining to interest in land. See OJUGBELE v OLASOJI, it will not constitute notice to the whole world. It will lose priority.


WITH REGARDS TO STAMPING; a POA attracts a fixed stamp duty. It does not attract an ad valorem duty.


6. Governor's Consent: where POA is used to alienate interest in land, it is registrable instrument. See s. 7(b) of State Land Law of Lagos.


USES OF POWER OF ATTORNEY


v  Buying and selling land on behalf of the donor


v  Collecting money on behalf of the donor


v  Receiving rates, rents on behalf of the donor


v  Prosecuting cases in court, except the defence in criminal cases. The accused cannot authorize another to stand for him.


REASONS FOR POWER OF ATTORNEY


Unavailability of the donor


Ill-health or other physical impairment making it difficult for the donor to run his  affairs


Where the expert skill of the donee is required


Maybe required where a mortgage is by sub demise in CA states.


Secure interest of a purchaser pending the perfection of title of purchase.


CAPACITY OF PARTIES TO A POWER OF ATTORNEY


Only legal persons can donate a POA or be appointed attorneys. See NATIONAL BANK OF NIG LTD v. KORBAN BROTHERS.


The donor and donee must have legal capacity both at the time of the creation of the POA and all through the subsistence of the power as the capacity must span through the period of power of attorney.


A power of attorney cannot be used to cure a legal disability suffered by the donor. Thus, a person can only appoint an attorney to do, for and on his behalf, acts that he may himself lawfully do because a power of attorney or the appointment of an agent cannot be used to cure a legal disability suffered by the donor/principal


Therefore, as a result of their legal disabilities, the following persons cannot grant a POA:


Infant


Bankrupt

An insane person found to be so by a court

Unincorporated entity - National Bank (Nig) Ltd v. Korban Bros (Nig) Ltd.


The following persons cannot be appointed as a donee

  • Partnership firms
  • Unincorporated entity
  • A Bankrupt
  • An insane person adjudged so by a court.

Therefore, bodies registered under Part B of CAMA such as OKWOR & CO etc cannot appoint or be appointed attorney as Part B of CAMA does not confer legal personality. But OKWOR LTD etc can appoint or be appointed attorney because a body incorporated under Part A of CAMA is a legal person.


It is better to appoint attorneys by their names and it is so advised. This is good to avoid the situation in National Bank of Nigeria Ltd v. Korban Brothers where the “Manager, National Bank of Nigeria (Ilorin Branch)” was appointed an attorney.


It is possible for two or more persons to come together, jointly and severally, as donors to appoint one or more persons as their attorneys. Where two or more persons are appointed as attorneys by the same instrument, the donor should expressly state whether he is to be bound only by the joint acts of the donees or by the acts of any of the donees. He should also state what would happen in the event of the death of one of the donees, whether the other donee can continue to act.


CONSTRUCTION OF A POWER OF ATTORNEY

A power of attorney is strictly and exhaustively construed by the courts to ensure that the donee does not exceed the powers donated to him and act ultra vires. See NBA v. ITEOGU. Therefore, the authority conferred by a POA must be strictly adhered to.


If the donee exercises the power in excess of the powers granted to him and outside the reasonable scope of his special and incidental powers, the donor will not be bound by it and he will not  be liable to third parties.


The donee cannot also add to, vary or contradict the specific provision of the POA. See NBA v ITEOGU;


In construing the general clause in a POA, the EJUSDEM GENERIS rule will apply. See ABU v KUYABANA (2001) ALL FWLR (Pt. 70) 1520. Thus, the omnibus clause in a power of attorney does not confer any additional powers on the donee. It must be construed in terms of the specific powers already given as held in ABINA V FARHAT.


PRECAUTIONARY MEASURES TO BE TAKEN


·         Ensure that the POA confers on the donee all powers necessary to achieve the object of the power donated,


·         The POA should be drawn in such a way as to ensure that no difficulty will be encountered when dealing with third parties.


Revocation of power of attorney


There are three ways of revoking power of attorney. These are:


1. Express revocation: this can be in various ways depending on the type of power of attorney


If power of attorney is oral it can be revoked orally, in writing and by deed.


If power of attorney is in writing, it can only be revoked in writing or deed


If the power of attorney is by deed, it can only be revoked by deed; ABINA v FARHAT; OJUGBELE v. OLASOJI


Where there is an express revocation, the attorney’s authority does not cease and is not revoked until he receives a NOTICE OF REVOCATION. Thus, until the notice of revocation of the attorney’s authority is received by him, the attorney who acts pursuant to his power contained in the POA is not liable to the donor or to any third party


2. Implied revocation: A POA is said to be revoked by implication in situations where the donor makes it impossible for the power to be realised or exercised by the donee to the extent that the power becomes extinguished.  For instance, where the donor goes ahead to exercise the powers donated as in CHIME v. CHIME .In such instance, the POA will be revoked impliedly where the donor deals with the subject matter of the power in a manner that makes it impossible for the donee to exercise the powers. See CHIME v. CHIME (2001) 3 NWLR (pt. 701) 527;


Revocation of a POA by implication is possible because the fact that a POA has been granted by a donor does not extinguish the right of the donor or prevent him from personally exercising the powers donated. See CHIME v. CHIME (2001) 3 NWLR (pt. 701) 527;


Thus, both the donor and the donee can exercise the powers donated. If both the donor and the attorney exercised the power and had sold to different persons, the priority rule will govern it as the only issue that will arise is the priority in the competing sales. See AMADI v. NSIRIM (2004) 17 NWLR (Pt. 901) 111


However, if a donor grants another power of attorney in respect of the same subject matter, it cannot be taken to be an implied revocation of the original one. The subsequent grant of power of attorney is invalid. ADEGBOKAN V AKINSANYA.


3. Revocation by operation of the law: it occurs in the following cases

  • Death of the donor
  • Insanity of the donor
  • Bankruptcy of the donor
  • And other disability that would deny donor capacity. See UBA v. Registrar of Titles. This is because a power of attorney cannot cure a legal disability of the donor


4. Revocation by renunciation: this is when the donee renounces the power granted to him


5. NB: Also power of attorney can be invalidated if fraud, duress, misrepresentation or undue influence is established. See AGBO v. NWIKOLO


Types of Power of Attorney

A power of attorney could either be general or specific. It is general when it is broadly stated to cover the issues relating to the subject matter. It is specific when it is given in respect of specific and particular acts to be done by the donee. In either case, it could be revocable or irrevocable


1. Revocable power of attorney: this is the power of attorney that can be revoked at any time, the various ways of revoking power of attorney are: express revocation, implied revocation and revocation by operation of law.


2. Irrevocable power of attorney: a POA is generally revocable. However, there are three (3) statutory exceptions under which a POA could be irrevocable in order to curb injustice done on third party. They are:


a. Where a power of attorney is given:


ü  for valuable consideration and/coupled with a grant/with an interest,


ü   And it is expressed in the instrument creating it to be irrevocable, then in favour of the purchaser, that power shall not be revoked by the donor either by anything done by him without the consent and concurrence of the donee or by the death, disability, or bankruptcy of the donor until the consideration or interest is realised. See section 8(1) CA and section 143(1)(i) PCL. LABABEDI V ODULANA.


Flowing from the above, any act done by the donee at any time in pursuance of the power shall be valid as if the donor had not revoked the power and as if the death, disability or bankruptcy of the donor had not happened. See section 143(1)(ii) PCL


Also flowing from the above, the donee and the purchaser (third party) shall not, at any time, be prejudicially affected by notice of anything done by the donor without the consent and concurrence of the donee or of the death, disability or bankruptcy of the donor. See section 143(1)(iii) PCL


Under this provision, the POA can only be revoked with the consent and concurrence of the attorney.


NOTE: a POA coupled with grant or an interest is irrevocable until the interest for which it is given is exhausted, AND such remains irrevocable except with the concurrence of the Donee, of the third parties affected by the exercise of power.


DURATION: A POA expressed to be irrevocable for a fixed period, not exceeding one year, remains irrevocable for the period stated, whether or not it is given for valuable consideration.Thus, in favour of purchaser, the power shall not be revoked during that fixed period of time either by anything done by the donor without the consent and concurrence of the donee or by the death, disability or bankruptcy of the donor. See section 9(1) CA and section 144(1)(i) PCL.


Flowing from the above, any act done by the donee during that fixed period of time in pursuance of the power shall be valid as if the donor had not revoked the power and as if the death, disability or bankruptcy of the donor had not happened. See section 144(1)(ii) PCL


Also flowing from the above, the donee and the purchaser (third party) shall not, during that fixed period of time, be prejudicially affected by notice of anything done by the donor without the consent and concurrence of the donee or of the death, disability or bankruptcy of the donor. See section 144(1)(iii) PCL


The irrevocable power of attorney for a fixed period of time is not revoked by the means of revocation of power of attorney stated above. See Lababedi v. Odulana. When a power of attorney is made irrevocable for 12 months, at the expiration of 12 months, the power of attorney is not automatically revoked, but shall stand revocable and it can be revoked by any of the usual means of revocation. Same rule applies to that coupled with interest. When a power of attorney made irrevocable for a period exceeding 12 months say 24 months, the 24 months would be construed as 12 months and it will stand revocable at the end of 12 months.


Further note: the POA Irrevocable for a fixed period of time, usually 12 months is not automatically revoked at the expiration of 12 months unless it is revoked by any of the means of revocation. Thus any act in favor of the purchaser done on the 13th month is valid.


·         A Power of attorney coupled with an interest is irrevocable until the interest for which it was granted is realised. It can only be revoked with the consent and concurrence of the attorney.


Section 47 CA and 142(1) PCL, offer protection to a bonafide Purchaser for value without notice. Thus, a person doing any act in pursuance of a POA, shall not be liable in respect of the act by reason that before that act, the donor had died or become subject to disability or had revoked the power, if these facts was not at the time of exerting the powers known to the donee.


The donee should further make a statutory declaration immediately before or  within three months after exercising such powers that he had not received any notice or information of the revocation of such power of attorney by death or otherwise. Section 142(2) PCL.


DUTIES OF A LAWYER DRAFTING POWER OF ATTORNEY (POA)


1.      A solicitor drafting a POA should ensure that specific powers are expressly stated without ambiguity since such powers are construed strictly. In other words, a general or omnibus clause is usually construed along the ejusdem generis rule.


Investigate if there was a previous power of Attorney.


A solicitor acting for a purchaser relying on POA should investigate to ensure that the power has not been revoked by death, disabilities of the donor to the knowledge of the donee.


A solicitor should follow his client's instruction strictly and account and report client's money promptly.


A power of attorney not prepared by a solicitor should not be franked by him.


A solicitor should not advice a Clint to create a POA, rather than a conveyance to escape  section 22 of the LUA.


A solicitor who is a donee of the POA  should not in the same capacity draft the POA.


FORMAL PARTS OF POWER OF ATTORNEY


Commencement


Date


Appointment clause


Recital - optional


Authority clause


Irrevocable clause


Testimonium


Execution


Attestation


Generally attestation is not mandatory in power of attorney. However attestation by a judge, notary public or magistrate is presumed to be duly executed - s. 150 Evidence Act. A power of attorney intended to be used outside the country should be attested to by a notary public for easy acceptance in the country of use. This is because a notary public has credit all over the world as held in HUTCHEON V MANINGTON. However non-attestation does not make the POA invalid. MELWANI V FIVE STAR INDUSTRY LTD.


Stamping and Registration


Generally power of attorney attracts a fixed stamp duty of N50.00. Whether or not a power of attorney is registrable depends on whether it qualifies as a registrable instrument under the Land Instrument Registration Law applicable to the state where it is used. In Uzoechi v. Alinnor upon objection to the non-registration of a power of attorney, the court held that it need not be registered because under the Land Instrument Registration Law of Rivers state, it is not a registrable instrument. In Lagos and Abuja, it is a registrable instrument - s. 15 Land Instrument Registration Law of Lagos. Power of attorney attracts stamp duties under the Stamp Duties Act.Check the current law in lagos state.


CONSENT


In LAGOS, a POA relating to a sub-lease of State lands or certificate of Occupancy must have the consent of the governor. See 5(9)(b)(iii) of the Lagos State Land Law.


General principles of law regarding power of attorney


Abina v. Farhat


A power of attorney to execute a deed must be under a deed. In that case the donee had been granted power of attorney orally and he had executed a lease exceeding three years under deed. The court held the lease to be invalid.


Chime v. Chime


The fact that a power of attorney was given by the donor of his power to alienate the property does not divest the donor of the power to deal with the property. The fact that a person has executed a Power of Attorney in favour of another, does not divest him of the power to deal with that same property. This case is instructive in the IMPLIED REVOCATION of Powers of Attorney.


Ude v. Nwara


A power of attorney is an instrument of delegation only and does not transfer the interest of the donor to the donee but only authorises the donee to transfer such interest.


Ojugbele v. Olasoji: revocation of POA expressly


When a power of attorney is not registered then it is not admissible. That is, if the Land Instrument Registration Law of that particular state defines a Power of Attorney as a registrable instrument, then failure to register the said Power of Attorney will render it inadmissible in court., Akingbade v Elemosho.


Uzoechi v. Alinnor


Whether a power of attorney is a registrable instrument is dependent on the Land Instrument Registration Law of the various states. For instance, the State Land Law of Lagos defines “instrument” to include Powers of Attorney. Therefore, Powers of Attorney are registrable instruments in Lagos. Similarly, under section 3 of the Land Instrument Registration Law of Northern Nigeria as applicable in Plateau State, a Power of Attorney is a registrable land instrument. By section 15 thereof, for such Power of Attorney to be relied on in Court, it must be duly registered. IT MUST BE NOTED THAT ONLY POWERS OF ATTORNEY MADE BY DEED ARE REGISTRABLE. However, such unregistered Power of Attorney can be pleaded and given in evidence in other cases not relating to or affecting the land which is the subject of the Power of Attorney. See also AKINBADE v. ELEMOSHO


Ajamogun v. Oshunrinde


The power of attorney not given or executed by the head of family or with his express consent is void and any act purported to be done under it is of no effect whatsoever. The family head must participate in the execution of a power of attorney in respect of family property either as sole donor or a co-donor with other principal members of the family.


Ezeigwe v. Awudu


A power of attorney by an illiterate person must have an illiterate jurat. An irrevocable power of attorney is not a document conferring title to the property in issue on the donee. It would still be necessary for the donee to prove title to the property where title is in issue. Indeed the existence of the irrevocable power of attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the power.


The only document that can prove any passing of the title to the donee would be a conveyance or an assignment. In appellant's claim for declaration of title to land, he relied on an irrevocable power of attorney granted by the respondent in favour.


SAMPLE DRAFT OF A POWER OF ATTORNEY TO EXECUTE A SUB-LEASE [DEED] IRREVOCABLE FOR SIX MONTHS.


BY THIS POWER OF ATTORNEY made this______ day of ____20___. I, Chief Charles Chukwuma Nkwoka of 31 Afolabi Aina Street, Allen Ikeja, Lagos (DONOR) APPOINT Mr. Peter Okafor of 5, Arepo Road, Arepo, Ogun State (DONEE) to be my true and lawful attorney and in my name and on my behalf to do all or any of the following acts:


1. To create a term of ten (10) years over my property, the block of four flats at 67, Dare Ojo Street, Arepo, Ogun State, covered by Certificate of Occupancy NO 87679 date 23/11/2009 and registered as 45/45/2098 in favour of Bashir Nuhu& Sons Limited whose registered office is at 45, Nuhu Close, off Shagari Way, Arepo, Ogun State.


2. To commence and conclude the transaction on my behalf and to sign all necessary documents in respect of the transaction with Bashir Nuhu & Sons Limited.


3. To collect from Bashir Nuhu& Sons Limited the  sum of N80 million, the sum being the agreed rent for the property for the first three years of the lease and to remit the money collected into my account less his fees, charges and commission as may be agreed between the two of us.


AND to do all things and to exercise all other powers as are necessary and incidental to the matters above as I may lawfully do.


AND I DECLARE that this Power of Attorney shall be irrevocable for a period of six (6) months from the date of its execution.


OR


AND I DECLARE that in consideration of the sum of #19999 already paid by the donee to the donor (the receipt of which the donor acknowledges), this power of attorney shall be irrevocable


IN WITNESS OF WHICH I, the Donor, has executed this Power of Attorney in the manner below the day and year first above written.


SIGNED, SEALED AND DELIVERED by the within named DONOR


_________________________


CHIEF CHARLES CHUKWUMA NKWOKA


IN THE PRESENCE OF


NAME……….


ADDRESS……….


OCCUPATION……..


SIGNATURE………..


PREPARED BY:


CHARLES C. NKWOKA, ESQ.


Legal practitioner/Property Consultant


CHAMAN LAW FIRM,


31, Afolabi Aina, Street, Allen, Ikeja, Lagos


chamanlawfirm@gmail.com


08065553671, 08024200080


A DRAFT BY REGISTERED TRUSTEES


BY THIS POWER OF ATTORNEY made this ______day of______2013, We the Registered Trustees of Alagbole Progressive Union of Lagos, registered under Part C of the Companies and Allied Matters Act cap C20 LFN, 2004 with registered office at 15, Kano Street, Ikeja, Lagos state (DONOR)of the one part APPOINT Mr. Frank Roberts of 16, Alkali Street, Kaduna, Kaduna state (DONEE) of the other part to be our true and lawful attorney and in our name and on our behalf to do all or any of the following acts:


IN WITNESS OF WHICH the donor has executed this power of Attorney in the manner below the day and year first above written.


THE COMMON SEAL of the Registered Trustees of Alagbole Progressive Union of Lagos was affixed to this POA and it was duly delivered.


IN THE PRESENCE OF:


_________________                                                                          __________________


SECRETARY/TRUSTEE                                                             TRUSTEE


PREPARED BY:


CHARLES C. NKWOKA, ESQ.


Legal practitioner/Property Consultant


CHAMAN LAW FIRM,


31, Afolabi Aina, Street, Allen, Ikeja, Lagos


chamanlawfirm@gmail.com


08065553671, 08024200080


A DRAFT OF THE TESTIMONIUM AND EXECUTION CLAUSES OF SUB-LEASE EXECUTED UNDER POWER OF ATTORNEY.


IN WITNESS OF WHICH the parties have executed this DEED in the manner below the day and year first above written:


SIGNED, SEALED AND DELIVERED by


__________________________________


the lawful attorney of Chief Charles Chukwuma Nkwoka (Assignor) the sub-lessor by virtue of a power of attorney dated____ and registered as num _____page_____ vol _____ of the Lands Registry Office at _____state.


THE COMMON SEAL of Bashir Nuhu& Sons Limited has been affixed pursuant to a resolution dated ______and duly delivered.


IN THE PRESENCE:


________________                                                                            _________________


SECRETARY                                                                                         DIRECTOR


PREPARED BY:


CHARLES C. NKWOKA, ESQ.


Legal practitioner/Property Consultant


CHAMAN LAW FIRM,


31, Afolabi Aina, Street, Allen, Ikeja, Lagos


chamanlawfirm@gmail.com


08065553671, 08024200080


POWER OF ATTORNEY EXECUTED BY HUSBAND AND WIFE


BY THIS POWER OF ATTORNEY made this _____day of____2012, We Mr. Theo Maimako (1) and MrsChideraMaimako (2), both of 63 Kano Street, Ikeja, Lagos state (DONOR) APPOINT Mr. Frank Roberts of 16, Alkali Street, Kaduna, Kaduna state (DONEE) to be our true and lawful attorney and in our name and on our behalf to do all or any of the following acts:


IN WITNESS OF WHICH, We the Donors have executed this Power of Attorney in the manner below the day and year first above written.


SIGNED, SEALED AND DELIVERED


 by within named Donors:


1. ________________


MR. THEO MAIMAKO


2. _________________


MRS. CHIDERA MAIMAKO


IN THE PRESENCE OF


Name


Address


Occupation


Signature


PREPARED BY:


CHARLES C. NKWOKA, ESQ.


Legal practitioner/Property Consultant


CHAMAN LAW FIRM,


31, Afolabi Aina, Street, Allen, Ikeja, Lagos


chamanlawfirm@gmail.com


08065553671, 08024200080


DRAFT SAMPLE OF CONCLUDING PART OF DEED OF ASSIGNMENT EXECUTED BY ATTORNEY ON BEHALF OF DONOR


IN WITNESS OF WHICH the parties have executed this deed of assignment in the manner below on the date and year first above written


SIGNED, SEALED AND DELIVERED by


_____________________________


Ola Adams,


(Lawful Attorney of Prof Babatunde (the assignor) by virtue of Power of Attorney dated 09/09/2014 and registered as NO 3 at page 7 in volume 2001 in the Lands Registry, Asaba, Delta State)


IN THE PRESENCE OF:

NAME: _____________________________


ADDRESS: __________________________


OCCUPATION: _______________________


SIGNATURE: _________________________


NOTE:  REGISTRY OFFICE IN ABUJA IS ABUJA GEOGRAPHIC INFORMATION 










A power of attorney is an instrument in writing usually but not necessarily a deed, by which the principal called “donor” appoints an agent called “donee” and confers authority on him to perform certain specified acts or kinds of acts on behalf of the principal – Chime v. Chime (2001) 3 NWLR (Pt. 701) 527.

A power of attorney is useful for many purposes; it may be to collect money on behalf of the donor, to prosecute a case in court or other forms of power of attorney.

Where the authority conferred on the done empowers him to execute a deed, his appointment must be by deed – Abina v. Farhat (1938) 14 NLR 17, where the court held that the deed could not be enforced because it was conferred verbally.(click on the pictures on left or right hand sides for more insights)

FEATURES OF A POWER OF ATTORNEY

1)      It is an instrument of delegation or representation. A power of attorney mirrors an agency relationship but it is sui generis and differs from other commercial agencies because its main aim is to satisfy third parties that the agent has the authority of the donor to deal on a subject-matter., rather than regulating only the relationship between the principal and the agent – Ude v. Nwara (1993) 2 NWLR (Pt. 278) 647.

2)      It does not transfer interest in land. It merely warrants and authorizes the donee to do acts on behalf of a principal. It is only after by virtue of the Power of Attorney that the donee leases or conveys the property to any person including himself which is known as alienation. As long as the donee acts within the scope of the power of attorney, he incurs no liability, and if there is a liability, it is the donor that incurs it – Ude v. Nwara (supra).

3)      Except where it empowers the donee to transfer interest in land or execute a deed, it does not involve a special mode of creation.

4)      It is used to protect a purchaser pending perfection of title to land.

5)      It a vehicle through which those acts could be done by the donee for and in the name of the donor to a third party.

6)      A power of attorney is usually a special instrument in the form of a Deed Poll, that is, an instrument that is executed by only one party.

7)      A power of attorney given in respect of family property must be executed by the head of the family as one of the donors or as the sole donor; otherwise it is void – Ajamogun v. Oshunrinde (1990) 4 NWLR (PT. 144) 407 at 419.

8)      It is revocable except where it is expressed to be irrevocable; and coupled with consideration.



DIFFERENCE BETWEEN POWER OF ATTORNEY AND CONTRACT OF SALE OF LAND

1)      Power of Attorney does not transfer interest in land while contract of sale of land transfers interest in land which is equitable.

2)      Power of Attorney is usually executed by one party while contract for sale of land is executed by both parties.

3)      Power of Attorney does not need to be exchanged to be valid while in contract of sale of land, exchange is mandatory in order for it to be valid (unless both parties are represented by the same solicitor).

4)      Power of Attorney does not have mandatory consideration while contract of sale of land requires consideration.

DIFFERENCE BETWEEN POWER OF ATTORNEY AND A CONVEYANCE

1)      Power of Attorney does not transfer interest in land while conveyance transfers interest in land. Such interest transferred by a conveyance must be legal.

2)      Power of Attorney may not require Governor’s consent while a conveyance always requires the consent of the Governor.

3)      Power of Attorney is not usually executed by one party while in a conveyance, both parties execute it.

IMPORTANCE AND NEED FOR POWER OF ATTORNEY

The choice of a Power of Attorney as an instrument of delegation naturally comes as an option to a Solicitor where a client presents any or all of the problems below, the Solicitor may advice his client on the option of a Power of Attorney to appoint an agent to act in his stead and on his behalf and to do those things which he is unable or incapable of doing:

1)      Where the donor for some reasons may not be able to carry out the act personally due to being engaged in busy schedules or not close to the properties being sought, he may require another person to represent him – Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097); Chime v. Chime (supra); Ude v. Nwara (supra).

2)      Where it is to secure interest of a purchaser pending the perfection of title of purchaser or performance of an obligation owed the donee.

3)      Where a mortgage is by demise or sub-demise under the Conveyancing Act pending the payment of mortgage sum – Re White Rose Cottage (1965) Ch. 940.

4)      Where expert skills of the donee is required such as where a donor donates to an Estate agent or Solicitor the responsibilities to put tenants in possession, collect rent, and evict tenants on a property.

PARTS OF A POWER OF ATTORNEY

1) Commencement Clause – (Date is viewed as part of the commencement). In the days of yore, a Power of Attorney may be commenced with the words:


“KNOW YE ALL MEN BY THESE PRESENTS”


The modern practice is that it is commenced with:


“BY THIS POWER OF ATTORNEY”.

Or

“THIS POWER OF ATTORNEY”.


2) Date Clause – should be left blank as if dated, one must register and stamp within a certain period in order to avoid penalties


“given this……..…day of……………, 2008.

Or

“made on the  ……. day of …………., 2008.


 “is made this  ……. day of ………., 20.... (this is used when adding a recital).


3) Recital Clause – only necessary in Land matters where family head intends on executing a Power of Attorney for the transfer of rights in land.


Recital is rarely found in a Power of Attorney. It is necessary only where the donor seeks to show that he has the consent of other principal members of the family to give the Power of Attorney.


Recital is to Power of Attorney what Preamble is to statute; Recital may be useful in interpretation of the document.


4) Appointment Clause – this will have 3 things: name & address of donor; name & address of donee; and the fact that the donor appointed the donee.


This is the clause appointing the donee. Appointment clause in a Power of Attorney is for identification purpose only. A Power of Attorney being the delegation of power is not an agreement between one person and the other. Rather it provides for the appointment clause, for example:


“I, ABC of 10, Abuja Close, Abuja, HEREBY appoint Mr. XYZ (address should be here) to be my true and lawful Attorney and in my name and on my behalf to do all or any of the following acts or things namely (address must not be a postal address but a residential address)


5) Authority Clause – ends with an omnibus clause which gives no extra powers.


This is a statement or list of the acts to be performed by the donee on behalf of the donor. It should be very clear and exhaustive. One must be meticulous in presenting intentions because, as already stated, the powers conferred on the attorney are construed strictly. The clause usually ends with an omnibus expression (i.e. omnibus clause which gives no additional rights not in the authority clause, but has the effect of giving the donee powers that are necessarily incidental to those contained in the authority clause). It provide thus:


“AND I ALSO DECLARE that my attorney may do all other things as I may lawfully do.”

Or

“AND to do all things necessary and incidental to the matters above as I may lawfully do.”


It should be noted that the inclusion of this does not introduce any powers beyond what is enumerated – Abina v. Farhat (1938) 14 NLR 17.


5) Irrevocability Clause - To take the benefit of the statutory protection of third parties which has already been discussed, it is important that a clause should be inserted to the effect that:


“AND IT IS DECLARED that in consideration of the sum of N50,000.00 (fifty thousand Naira) only be paid to the donor by the donee (the receipt of which the donor hereby acknowledges) this Power of Attorney shall be irrevocable for a period of  ……...  months or years from this date.


Or


“AND I DECLARE that this Power of Attorney shall be irrevocable for a period of twelve months from this date.


It should be noted that consideration need not be adequate, also where there is consideration and the Power of Attorney is not stated to be irrevocable, then it will be valid till the purpose or which the Power of Attorney was made has been fulfilled. Also, a Power of Attorney cannot be valid without a power to revoke, for more than 12 months, where there has been no valuable consideration.


6) Testimonium Clause – a clause is inserted thus:


“IN WITNESS OF WHICH the donor and donee have executed this power of attorney in the manner below the date and year first above written.”


It should be noted that unlike other conveyancing documents, such as assignment, lease and mortgage, the language of power of attorney is in the singular. This is because oftentimes, only the donor executes it. The following example is where the language of a power of attorney is in the singular:


“IN WITNESS WHEREOF I the said (name of donor) have executed this Power of Attorney the day and year first above written.


This is a Deed Poll, deed executed by only one party.  This is why the singular word “I” is used.


7) Execution Clause:


“SIGNED, SEALED AND DELIVERED by…… (Name of the Donor).


This should be done in the name of the donor. 


8) Execution of Deed by an Attorney – The donee may execute in the donor’s name or in his own name, except where statute requires execution in the name of the estate owner. Section 9(5) of the PCL provides that “where any such power for disposing or creating a legal estate is exercisable by a person who is not the estate owner, the power shall, when practicable, be exercised in the name or on behalf of the estate owner.”


Section 141(2) of the PCL provides that statutory direction may be given for execution in the name of the estate owner. In such cases where deed is executed by an attorney in his own name or on behalf of a donor, the donee executes the deed of conveyance on the donor’s behalf, notwithstanding that the donor is the vendor. It is important that detailed particulars of the Power of Attorney are provided in the Execution Clause.  Below is an example of execution by an Attorney (e.g. for deed of assignment)


“SIGNED SEALED AND DELIVERED

by (name of the donee), the lawful Attorney of

(name of donor), the assignor by virtue of

a power of attorney dated 1st January 2008 and Registered as No. 34 Page 21 Vol. 160 of the Lands Registry Office at Lagos.

In the presence of:

Signature:

Name:

Address:

Occupation:”


9) Attestation and Authentication - Attestation facilitates proof of execution. It is important that a Deed be attested to, so that it will be presumed to have been sealed and delivered even when no impression of a seal appears thereon.

The witness(es) must sign the Attestation Clause at the time of the execution of the Deed and not later. Attestation goes thus:


“IN THE PRESENCE OF”

Name:………………………………………………

Address:……………………………………………

Occupation:…………………………………………

Signature/MARK:………..…………………………


TYPES OF POWER OF ATTORNEY

These are several types of Power of Attorney viz:

1. General Power of Attorney is where the powers are broadly provided to cover issues pertaining to the subject-matter e.g. a power given to a donee to do anything he can lawfully do.

2)      Specific Power of Attorney also known as Limited Power of Attorney is where the powers are given in respect of a particular acts to be done by the donee of the power e.g. a power given to a donee to let premises to tenant for rent– Chime v. Chime (supra).

3)      Revocable Power of Attorney is one that can be revoked at any time for any reason, so long as the donee has not exercised the power.

A Power of Attorney may be revoked in any of three ways namely:

  • Express revocation
  • Implied revocation
  • Revocation by operation of law.


Express Revocation – Power of Attorney is governed by the rules of agency. Accordingly, in keeping with the rule that he who hires reserves the right to fire, the donor can expressly fire the donee or revoke the power. However, if the appointment is by deed, the power must be revoked by deed – Adegbokun v. Akinsanya (1976) 8 CCHCJ 2163; Ojugbele v. Olasoji (1982) SC 71: here, the appointment and revocation were by deed and the court upheld that revocation.


Implied Revocation – This occurs where the donor after giving a Power of Attorney to a donee, still goes ahead to deal with the subject matter of the Power of Attorney in such a manner that makes it impossible for the donee to effect his authority under the Power. In Chime v. Chime (Supra), the court held that the fact that a donor gave a Power of Attorney does not mean that the donor cannot do it himself.


Revocation By operation of Law – Power of Attorney is deemed revoked by operation of law if the donor suffers death, insanity, bankruptcy or other legal incapacity – Abina v. Farhat (supra); UBA v. Registrar of Titles.

It should be noted 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 (1973) 3 ESCLR.

                                                                                                                                               

STATUTORY EXCEPTIONS TO THE REVOCATION OF POWER OF ATTORNEY BY OPERATION OF LAW


PROTECTION OF THIRD PARTIES

Following legal difficulties and hardships usually associated with revocation by operation of law, two statutory exceptions have been developed to make Power of Attorney irrevocable in certain circumstances, and thereby safeguard the interest of third parties dealing with donee in such a situation.


These two exceptions are found in The Conveyancing Act (CA), 1882; and The Property and Conveyancing Law (PCL). They are:


1) Where the Power of Attorney is given for valuable consideration (i.e. coupled with an interest.

2) Where the Power of Attorney is stated to be irrevocable for a fixed term not exceeding one (1) year.


Where Power of Attorney is given for valuable consideration and in the instrument creating the power, it is expressed to be irrevocable, then in favour of the purchaser, that power shall not be revoked by the donor without the consent of the donee – Section 8 (1) of the Conveyancing Act (CA), 1882; section 143 (1) of the P & CL, 1959; UBA v. Registrar of Titles.


It should be noted that if a power of Attorney is by deed, it cannot be revoked by letter - Abina v. Farhat (supra); Powell v London Provincial Bank.


Death, disability or bankruptcy of the donor cannot revoke the power of attorney in this instance – Lababedi v. Odulana (1973) 4 CCHCJ 98


It should be noted also that a Power of Attorney coupled with grant or an interest (valuable consideration) is irrevocable (this is used most times in Nigeria to effect a sale, where there is a defective title that cannot be passed to a bonafide purchaser for value) until the interest for which it is given is exhausted (i.e the consideration); and such remains irrevocable unless there is concurrence of the donee, of the third party(ies) affected by the exercise of the power i.e., purchaser(s) of property


Where the power of attorney is stated to be irrevocable for a fixed term not exceeding twelve (12) months – A Power of Attorney expressed to be irrevocable for a fixed period, not exceeding one year, remains irrevocable for the period so expressed, whether or not it is given for valuable consideration – Section 9 (1) of the CA, 1882; Section 144(1) of the PCL, 1959.

           

It should be noted also that section 71 of the CA and Section 142(1) of the PCL provides that a bona fide purchaser for value without notice is protected under this section.


4)      Irrevocable Power of Attorney is one that is coupled with interest e.g. a power to grant for a consideration. This could also be for a fixed period of time, though not more than 12 months (whether or not coupled with interest) within which period the Power of Attorney cannot be revoked – section 144(1) of Property and Conveyancing Law (PCL).

EXECUTION OF A POWER OF ATTORNEY


There is no special mode except the grant relates to land.

1)      Where the donee is empowered to execute a deed on behalf of the donor or to transfer interest in land on behalf of the donor, the Power of Attorney must be made by deed – Abina v. Farhat (supra); Powell v. London Provincial Bank (supra).

2)      Where it is executed outside the country, it should be attested by a notary public because there is recognition of acts of Notary public under International Laws – Hutcheon v. Mannignton; Ayiwoh v. Akorede (1951) 20 NLR 4; section 118 of the Evidence Act.

3)      Where there is absence of Notary public, it does not invalidate the authority, the only defect is that the donee cannot rely on presumption of due execution under section 118 of the Evidence Act but will have to establish its execution by other ways – Melwani v. Five Stars Industries Ltd (2002) 3 NWLR (Pt. 753) 217

4)      If the donor is an illiterate, there should be an illiterate jurat, and evidence that the content was read and interpreted to the illiterate. Ezeigwe v. Awudu (2008) All FWLR (Pt. 434) 1529.

UDE v. NWARA (supra)

The moral of this is that English Law applies to property transactions in Nigeria where there is no comparable local legislation or customary law that applies to such a transaction.

The Supreme Court described a Power of Attorney as 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 lawfully do, usually spelt out in the Power of Attorney.

CHIME v. CHIME (supra)

The fact that a Power of Attorney has been granted does not prevent the donor of the power from exercising the powers donated.

In this case, the 4th Respondent (donor) appointed the 1st Respondent as (donee) to sell his property, before the sale, the donor sold the said property. The court held that the fact a Power of Attorney to alienate property is given does not divest the donor of the power to deal with the so long as the donee had not yet exercised his power of sale before disposition by the donor.

EZEIGWE v. AWUDU (supra)

The Power of Attorney was executed before a Magistrate, but not franked by a Legal Practitioner.

The court held that strict compliance with the requirements of section 3 of the law was mandatory and that such non-compliance automatically renders the document in question invalid for the Illiterate Protection Law. It concluded that “the said exhibit ‘A’ cannot be used against the interest of respondent although it was attested to before a Magistrate


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