Dugeri EmmanuelIntroduction
The Power of Attorney is an indispensable instrument in the Nigerian law practice. Law offices and other corporate institutions/bodies always have reasons to resort to the use of Power of Attorney to get works done/ perfected on the instructions of clients. It is categorized as a document of delegation.
A legal aphorism that ‘he who does a thing through another person; does it himself/herself’ is deep-rooted in the use of power of attorney.
Power of Attorney by a person giving abroad to authorize all acts on his behalf, Power of Attorney for trust, Power of Attorney for execution of sale deed, Power of Attorney to appear before the government authority, Power of Attorney to present a document for registration, Power of Attorney to recover debt, Power of Attorney for a court case, Power of Attorney for obtaining letters of administration, Power of Attorney by landlord in favour of developers, Power of Attorney granting additional powers to an Attorney and many more are some of the noted instances where it had been widely used in Nigeria.
Since, Power of Attorney is a legal instrument, it won’t be out of proportion to quickly and expeditiously consider in the passing what the Nigerian courts have said about it.
The Supreme Court in UDE v. UWARA (1993) 2 SCNJ 47 stated that a Power of Attorney is a mere instrument of delegation which does not confer, transfer, or limit a change or alienable title to the Donee.
In this case, Nnaemeka Agu JSC said:
“A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee, rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party.
So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession.
So far, it is categorized as a document of delegation: it is only after, by virtue of the Power of Attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is alienation.
What the above means is that until the Donee of an Irrevocable Power of Attorney leases or conveys the property to himself, then there is no alienation. Nothing like that has occurred in this case.”
Also, in CHIME v. CHIME (2001) 3 NWLR pt.701 @527, the Supreme Court, with Wali JSC delivering the leading judgment held that:
“The fact that a Power of Attorney to alienate property is given does not divest the donor of the power to deal with the property so long as the donee had not yet executed his power of sale before disposition by the donor.
The fact that a Power of Attorney has been granted does not prevent the donor of the power from exercising the powers donated. It was inconceivable that the right of a donor will be subordinated to that of a donee, by reason only that he has, as it were made a delegation of such power to the latter.
The better view is that as long as the donee has not exercised the power comprised in the Power of Attorney; it is clearly open to the donor to exercise the same power. Therefore, where the donor has in fact exercised the power, under the Power of Attorney, the donee’s power in this regard expires.”
More so, in MUSTAPHA v. C.A.C (2019) 10 NWLR pt. 1680 @ 359 where the Supreme Court stated that:
“Where a party gives Power of Attorney to a person or counsel to sue on his behalf, the donee of the Power of Attorney has no locus standi to institute an action on behalf of the donor in his own name.
He must sue in the name of the donor as he is merely an agent of the donor. In this case, even if the appellant was given a Power of Attorney to prosecute the suit on behalf of his clients, he could not have sued in his personal name.”
The Supreme Court also reiterated the above position in MUHAMMED v. FARMERS SUPPLY CO. (KDS) LTD (2019) 17 NWLR pt. 1701 @ 196 that the mere fact that the holder of a right of occupancy over a plot of land executed a Power of attorney in respect of the land is not evidence that he has completely alienated the plot of land beyond the equitable interest in the land, which he created in favour of his Attorney.
In this case, the Power of Attorney executed PW’ is not evidence of alienation of the plot of land.
The following tips should be noted about Power of attorney in Nigeria:
A Power of Attorney is a formal instrument by which one person grants authority to another to act for him or her, or act in his or her stead for a certain purposes.
The person giving the authority or power is called the donor while the person to whom the authority or power is called the donee.
Only a person in law (i.e someone who can sue and be sued) can be an Attorney. For example, Moruff O. Balogun, Esq., being a natural person can be an Attorney. Also, Moruff O. Balogun & Co. (REG NO: 3522294) being a registered law firm i.e artificial person can also be an attorney.
The authority of the Attorney must be under seal when the authority is authorized to execute a deed.
The Court construes a Power of Attorney strictly.
A Power of Attorney will be irrevocable not by terming it irrevocable but, if it is given for consideration and it remains irrevocable until the consideration is realized.
If it is given for a period of time (usually not more than 12 months); it is irrevocable until the period expires.
The power exercised by the donee of an irrevocable Power of Attorney is not vitiated irrespective of the death, lunacy, insanity, bankruptcy of the donor until the consideration is realized, or the time expires.
The Attorney should execute the deed in the name of the donor, but may execute it in his own name, except where any statute directs that the deed is to be executed in the name of the estate owner.
A Power of Attorney may be revoked either:
- Expressly; or
- Impliedly; or
- By operation of law.
Although attestation is not a strict requirement of a Power of Attorney, it is necessary that a Power of Attorney be attested to by a notary public, judge or magistrate for the presumption of due execution.
The Power of Attorney, if executed outside Nigeria, must be witnessed by either a Notary Public or a Judge or Magistrate. Note: a Notary Public is a legal practitioner who attests or certifies Deeds and other documents. A Notary Public by the Law of Nations has credit everywhere.
A Power of Attorney attracts a fixed stamp duty under the Stamp Duties Laws of the various states.
Power of Attorney is also a registrable instrument under the relevant Land Instruments Registration Laws. Non-registration renders it inadmissible in evidence in court like any other Deed.
Stamping precedes registration and both are required when the Power of Attorney confers interest in land or landed property.
The various state Land Laws provide for the acquisition of the Governors consent to transactions involving alienation of interest in land.A Power of Attorney relating to sub-lease of State lands or Certificate of Occupancy must have the consent of the Governor.
The Purchaser of a property pursuant to a Power of Attorney is entitled to have the instrument creating the power delivered to him or an acknowledgment for production and an undertaking for safe custody.
Where the power relates to other transactions and, as such cannot be released, in such a case, the purchaser should request that a memorandum of the execution of the power in his favour be endorsed on the Deed creating the Power of Attorney.
The donee of a Power of Attorney cannot sue in his own name but must sue in the name of the principal.
Where a donee is given power to execute a conveyance such as a Deed of Assignment, the commencement will read:
“This DEED OF ASSIGNMENT made the ….. day of …..2023, between ABC, by his Attorney Moruff O Balogun, Esq.
A Power of Attorney granted by Deed must be revoked by Deed.
If the 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 a Power of Attorney is invalid.
A Power of Attorney can be invalidated if fraud, duress, undue influence or an illegality is established.
Construction of Power of Attorney
The court construes a power of attorney strictly. The donee of power of attorney, or his Solicitor should peruse it carefully before execution to see that it, in fact, confers on him the necessary powers required to achieve the intended objects, and that the power of attorney is drawn in a form which will cause no difficulty when dealing with third parties.
The power conferred on the attorneys should be detailed enough to cover all the areas intended by the parties because the court will not admit oral evidence to add to the power contained in the power of attorney.
The inclusion of the words “And my attorney may do all other things as I may lawfully do” commonly included at the conclusion of the power of the attorney will not add to the power of the attorney. This is because the clause will only relate to the specific power granted by the donor and will not enlarge the power.
Courtesy:
Moruff O. Balogun Esq. Ijebu Ode, Ogun State. 08052871414, 09121207712 [WHATSAPP]
Raphael
admin
Chinonso