POWER OF ATTORNEY

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:

a)                  Express revocation;

b)                  Implied revocation; and

c)                  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 4^th Respondent (donor) appointed the 1^st 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