UNIT 3

POWER OF ATTORNEY

A power of attorney (POA) is a legal instrument whereby one person called the "donor" or "principal" authorizes another person called the "donee" or "agent" to act on their behalf in legal or financial matters, including matters related to property. In Nigerian law, the power of attorney plays a crucial role in property transactions, especially when the principal cannot be physically present to execute certain acts. The provisions governing the power of attorney in Nigeria are mainly found in the powers of attorney act, 1882 which regulates the creation, revocation, and scope of powers of attorney in Nigeria provided under section 4 that a power of attorney given for valuable consideration is irrevocable, meaning the donor cannot unilaterally revoke the power unless the parties agree otherwise, see also the conveyancing act, 1881 which provides under section 9(3) that a power of attorney dealing with property matters must be executed as a deed, meaning it must be signed, sealed, and delivered by the donor and also the land use act, 1978 which governs land ownership in Nigeria and plays an important role in property transactions involving a power of attorney under section 22 requires the governor’s consent for the alienation of interests in land, which includes transactions carried out under the authority of a power of attorney. The types of power of attorney includes the following:

1. General power of attorney: this confers broad powers on the donee to act on behalf of the donor. For example, a principal may authorize the donee to manage all their property.
2. Special power of attorney: this grants specific, limited authority to the donee for particular tasks, such as selling a specific piece of land.
3. Revocability: A power of attorney is generally revocable at any time by the donor unless it is expressly stated to be irrevocable. However, where the power of attorney is given for valuable consideration, it may be irrevocable. See section 4 of the powers of attorney act, 1882.
4. Termination: A power of attorney can be terminated by the following:
   
   >
   1. Revocation by the donor.
   2. Death, insanity, or bankruptcy of either the donor or the donee.
   3. The completion of the act for which the power was conferred.

CHARACTERISTICS OF A POWER OF ATTORNEY

1. Authority granted: The power of attorney confers specific authority to the agent to act on behalf of the principal in relation to the subject matter specified in the instrument. This could range from selling land, managing property, or signing legal documents.
2. Formalities: A power of attorney must be in writing, and for it to be effective in property matters, it should be under seal, that is, executed as a deed. See section 9(3) of the conveyancing act, 1881. The document should also be properly stamped and registered where applicable, particularly if it affects interests in land.

USE OF POWER OF ATTORNEY IN PROPERTY TRANSACTIONS

The power of attorney is frequently used in property law practice to facilitate the sale, lease, or mortgage of land when the principal is unavailable or unable to execute the transaction personally. The donee is vested with authority to execute documents, sign contracts, and perform any acts that the principal would have done. See the case of Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 where the court held that a power of attorney does not transfer an interest in land to the donee; it merely authorizes the donee to act on behalf of the donor. The court emphasized that the legal title remains with the donor, and the donee is simply an agent.

REGISTRATION OF POWER OF ATTORNEY

In property transactions involving land, the power of attorney must be registered where it is intended to operate as an instrument for the alienation of land. This is provided for in the registration of titles law and is crucial for its admissibility in court. Non-registration renders the power of attorney inadmissible in evidence for property dealings. See the case of Ajibulu v. Ajayi (2014) 2 NWLR (Pt. 1380) 485 where the court stated that the power of attorney must be duly executed, stamped, and where applicable, registered to be admissible as evidence in property transactions. This highlights the importance of compliance with statutory requirements and the case of Agu v. Nnaji (2000) 13 NWLR (Pt. 682) 316 where the court made it clear that a power of attorney does not need to be registered unless it operates as an instrument transferring an interest in land. This case further clarifies that a power of attorney, in itself, does not convey land but empowers the donee to carry out acts regarding the land.

REVOCATION AND LIMITATION

A donor may revoke a power of attorney at any time by giving notice to the donee. However, where the power of attorney is coupled with an interest, that is, given for valuable consideration, it is irrevocable without the consent of the donee. Practical considerations are where the revocation of a power of attorney must be communicated to the donee and relevant third parties and the revocation does not affect acts already performed by the donee while the power of attorney was valid unless fraud is established.

CONCLUSION

The power of attorney is a vital tool in property law practice, allowing individuals to delegate authority to others for the handling of property transactions. While it simplifies the process, it must be executed and used with caution, complying with statutory requirements and formalities to avoid disputes. Courts in Nigeria have consistently affirmed that a power of attorney does not transfer ownership but merely authorizes the agent to act on behalf of the principal. Proper registration, where applicable, and careful drafting are essential to ensure that the instrument fulfills its intended purpose.