WHAT IS THE IMPORTANCE AND EFFECT OF POWERS OF ATTORNEY IN LAND TRANSACTIONS?

The importance and effect of powers of attorney that you should know.

CHAMAN LAW FIRM

2/13/2022 4 min read

WHAT IS THE IMPORTANCE AND EFFECT OF POWERS OF ATTORNEY IN LAND TRANSACTIONS?

The Power of Attorney was defined as a formal instrument of delegation by which a person (donor) authorizes another (donee) to act for him (for certain things listed in the power of attorney).

FEATURES OF POWER OF ATTORNEY

1.      It is an instrument of delegation. Donor can still act with respect to the land. The only issue that arises is priority.

2.      It only delegates power t act and DOES NOT transfer title.

3.      It is usually construed strictly.

4.      It is usually executed by one party. Note that donor must be a person in law.

5.      It should be granted in Writing.

6.      It must be executed illiterate jurat should be executed for illiterate.

7.      It should be under seal: if the donee is empowered by the POA to execute a deed on the donor's behalf.

8.      It should be attested to: by a capacitated natural person who is not a party to the POA. The Evidence Act presumes due attestation where the POA was executed before (and authenticated by) a Notrary Public, Court Judge or representative of Nigeria.

9.      Registration: POA dealing with transfer of interest in land transactions should be registered else it would generally be inadmissible in evidence.

TYPES OF POWER OF ATTORNEY

1. Revocable or Irrevocable:

·         Revocable power of attorney which can be. revoked at any time (expressly, impliedly or by operation of law).

·         Irrevocable power of attorney being that (1) given for valuable consideration and expressed to be irrevocable (until consideration is realised). OR (ii) whether or not given for valuable consideration expressed to be irrevocable for a period (not exceeding 12 months).

·         Irrevocability is not vitiated by death, lunacy, insanity, etc. until the time elapses or consideration is realised whichever the case may be.

2. General (to cover all issues pertaining to the subject matter) or Specific (to cover particular acts)[12].

WHEN POWER OF ATTORNEY IS REQUIRED.

When donor is unavailable to personally attend to his estate; - donor does not possess skill and expertise Authorise dealing with land without actual transfer of title; - Secure interest of purchaser pending performance or perfection of title: May be required where mortgage is by sub demise; - used to evade certain things like tax.

EXPLAIN THE PARTS OF A POWER OF ATTORNEY.

1. Commencement;

- Date;

- Recital;

-Appointment Clause (designates who the attorney is);

- Power/Authority Clause (the scope of his authority);

- Irrevocability Clause (where necessary).

2. Testimonium "in witne whereof,"; execution and Attestation "signed, sealed and Delivered by the above..."; (Illiterate Jurat where necessary)

3. Stamping;

- Registration;

- Governor's Consent;

- Completion (i.e. that purchaser is entitled to have the POA instrument or an undertaking for safe custody where the power relates to other transactions deed also to be engrossed therein.

REVOCATION OF POWER OF ATTORNEY:

This may be;

- Express;

- Implied; where it is impossible to execute the POA (e.g. donee has done what the Attorney should)[13].

- By Operation of the Law (death, bankruptcy, insanity of the donor).

Note: that irrevocable POA is not affected by Operation of the law... the consideration or time needs to be realised or concurrence of done needed. See Section 144 PCL.

ADVISE ON THE EXECUTION OF A POWER OF ATTORNEY:

The donee (i.e. attorney) should execute the deed in the name of the donor but may execute in his own name especially where statute does not direct otherwise.

Governor's consent should be obtained (where power donated authorises transfer of interest in land/other transactions within ambit governor consent requirement. In Lagos State consent should be obtained for POA relating to sub lease of state land).

It should be stamped and registered (if it authorises. execution of an instrument of transfer). Non registration renders it inadmissible.

If it is executed outside Nigeria, it should be witnessed by a judge or magistrate or (better still) a notary public[14]. Upon concluding the transaction stipulated in the POA, the purchaser is entitled to have the POA instrument.

If POA delegates more than one transaction, purchaser of one transaction a memorandum of execution of the power in his favour should be endorsed on the deed creating the power.

CONSIDERATION OF ISSUES OF ETHICS:

Competent and unambiguous drafting of POA, - Not evade consent requirement by POA instead of Deed, Solicitor-Donee should not draft POA, investigate for defect in or revocation of POA.

Further points to note for POA.

·         The donee must sue in the name of the done-Ojo v Anibire.

·         Donation of family. property requires the consent of the family head Ojo v Anibire..

·         Nonentities cannot create or be appointed-NBN v Korban

·         POA is construed strictly.

·         A POA granted by deed can only be revoked by deed.

·         POA can be invalidated if fraud, duress, undue influence, etc are established.

·         POA held inadmissible where executed before Solicitor's Clerk. But in Melwani v Five Stars Industries Ltd the court noted that the presumption in the Evidence Act could be salvaging.

REFERENCE:

1.Ude v Nwara (1993) NWLR @278 pg 647, Chime v Chime (2001) 3 NWLR (PT 701) 527 AT 549, 46 Conveyancy Act, and 141 Property and Conveyancing Law, 1959.

2. Chime v Chime[Supra].

3. Vulcan Gasses v Gesselschaft (SC 67/1995)[2001] NGSC 15.

4. Ude v Nwara[Supra].

5. Section 46 Conveyance Act, 1881 and 141 Property and Conveyancing Law, 1959.

6. Ezeigwe v Awudu 3 PLR/2001/138 (CA).

7. Vulcan Gases v Gesellshaft, Abina Farhat[Supra].

8. Coles v Trecothick (1804) 9 Ves 234.

9. Section 118 Evidence Act, 2011.

10. Ayiwoh v Akorede (1951) 20 NLR 4 at 5.

11. Abubakar v Waziri (2008)14 NWLR (Pt. 1108) 507.

12. Chime V Chime [Supra].

13. Chime V Chime [Supra].

14. Ayiwoh v Akorede[Supra].

15. Agbo v Nwikolo (1973) 3 ESCLR.

16. (2002) LPELR-SC.15/1994.

17. Section 118 Evidence Act, 2011.

 

 

WRITTEN BY: CHAMAN LAW FIRM TEAM

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