OVERVIEW OF A POWER OF ATTORNEY IN NIGERIA
MEANING AND NATURE OF A POWER OF ATTORNEY
A Power of Attorney is a document usually but not always necessarily under seal whereby a person (donor) 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 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, which is the DONOR.
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 TODRAFT POWER OF ATTORNEY:
1. Particulars of the donor.
2. Particulars of the donee
3. 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:
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
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
Recital - optional
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.
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.
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
CHARLES C. NKWOKA, ESQ.
Legal practitioner/Property Consultant
CHAMAN LAW FIRM,
31, Afolabi Aina, Street, Allen, Ikeja, Lagos