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23 Jan

PL-PRACTICE WEEK 5 POWER OF ATTORNEY

WEEK 5 — POWER OF ATTORNEY.

:: MEANING OF POWER OF ATTORNEY. A formal instrument of delegation by which a person (donor) authorises another (donee) to act for him (for certain things listed in the power of attorney). Ude v Nwara, Chime v Chime 46 CA. 141 PCL.

:: FEATURES OF POWER OF ATTORNEY.

It is an instrument of delegation-Chime v Chime. Donor can still act with respect to the land. The only issue that arises is priority-Vulcan Gasses v Gesselschaft.

– It only delegates power to act and DOES NOT transfer title in landUde v Nwara.

– It is usually construed strictly

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

It should be granted in Writing Section 46 CA,  141 PCL.

It must be executed– illiterate jurat should be executed for illiterate-Ezeigwe v Awudu.

It should be under seal: if the donee is empowered by the POA to execute a deed on the donor’s behalf-Vulcan Gases v Gesellshaft, Abina v Farhat.

  • It should be attested to: by a capacitated natural person who is not a party to the POA-Coles v Trecothick. Section 118 Evidence Act presumes due attestation where the POA was executed before (and authenticated by) a Notrary Public, Court Judge or representative of Nigeria-Ayiwoh v Akorede[1].

– Registration: POA dealing with transfer of interest in land transactions should be registered else it would generally be inadmissible in evidence-Abubakar v Waziri.

:: STATE THE 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 (I) given for valuable consideration and expressed to be irrevocable (until consideration is realised). OR (ii) whether or not given for valuable consideration is 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.

  1. General (to cover all issues pertaining to the subject matter) or Specific (to cover particular acts) Chime v Chime.

:: WHEN IS POWER OF ATTORNEY 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 witness 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: May be;

Express; – Implied; where it is impossible to execute the POA (e.g. donee has done what the Attorney should- Chime v Chime)

– 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.

  1. 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-Ayiwoh v Akorede.

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.

  1. 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-Agbo v Nwikolo (1973).

 

[1] POA held inadmissible where executed before Solicitor’s Clerk. But in Melwani v Five Stars Industries Ltd the court noted that the presumption in Section 118 EA could be salvaging.

Isochukwu

Quite eccentric really

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