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EFFECT OF A POWER OF ATTORNEY

By Amaka Ezeno, MCLArb

A Power of Attorney is a document, and may be under seal, which authorises a person to act for another person as his agent. The person who donates the power is called the ‘donor’ while the person donated is called the ‘donee’. The power conferred on the donee may be either general or special.

Black’s Law Dictionary 7th Edition by Bryan A. Garner defines “Power of Attorney” at page 1191 thereof as: “An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor – Also termed letter of attorney. 2. The authority so granted.” The Learned Author went on to define the various categories of Power of Attorney to include the following: (a) General Power of Attorney which is a Power of Attorney that authorizes an agent to transact business for the principal. (b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and this is also termed “Power of Attorney coupled with interest.” (c) Special Power of Attorney which is such power of Attorney that limits the agent’s authority to specific matter(s).

In a Power of Attorney, the most important factor is the name and the signature of the donor. Section 118 of the Evidence Act, Laws of the Federal Republic of Nigeria, 199O as amended stipulated that the Power of Attorney must be executed before and authenticated by a Notary Public, or any Court, Judge Magistrate, Consul or Representative of Nigeria or, as the case may be of the President for same to be duly executed and authenticated.

In the case of MR. CHRISTOPHER UGWUS (suing through his Attorney Mr Lawrence Ugwus) V. INSPECTOR ERNEST EKE (2015) LPELR-40921(CA), the Court of Appeal, Per NDUKWE-ANYANWU ,J.C.A ( Pp. 18-20, paras. D-A ), held as follows:”THE Power of Attorney Exhibit R1 was not executed or authenticated before any of the persons listed in Section 118 Evidence Act Cap 112 LFN 1990. The execution of this Power of Attorney does not comply with the provisions of Section 118 Evidence Act Cap 112 LFN 1990. The so called witness to this Power of Attorney was somebody described as a technician. This nomenclature of “technician” does not fall within the scope of people envisaged in Section 118 of the Evidence Act Cap 112 LFN 1990. The Power of Attorney in issue here does not fall under the scope of Section 117 of the Evidence Act Cap 112 LFN 1990. This section only affects countries within the Commonwealth Countries. However, Germany, where the Power of Attorney emanated from, does not belong to the Commonwealth Countries. The Power of Attorney was not executed neither was it authenticated by the right person. There is nothing about the Power of Attorney in issue that conformed with what Section 117 of the Evidence Act Cap 112 LFN 1990 and Section 118 of the Evidence Act Cap 112 LFN 1990 have provided for. The Power of Attorney is therefore inadmissible in Law.”

It is trite law that the right the donee has to exercise on behalf of the donor under a power of attorney, must be a right that belongs to the Donor. It is the right that gives the power to exercise that right. In essence, the power donated to the donee by the donor under a power of attorney must be one that belongs to the donor. A power of attorney donated by the Donor to the donee to exercise rights or powers that the donor do not have will be invalid. As the Supreme Court held in UDE V. NWARA & ANOR (1993) 2 SCNJ 47 , a power of attorney is a document whereby a person seised of an estate in land 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. It merely warrants and authorizes the donee to do certain acts in the stead of the donor. It is a document of delegation of the powers of the donor. The agent can only do the things that his principal can lawfully do. A person cannot either by himself or through an agent validly exercise a right or power he does not have. If he exercises (either by himself or through an attorney or agent) any right or power he does not have, such exercise shall be illegal and void. A fortiori, any delegation or donation of the exercise of a right or power he does not have to an agent or attorney shall be equally illegal and void.”

The law is well settled to the effect that a power of attorney is merely a warranty to the donee to exercise certain powers on behalf of the donor thereof. It does not transfer interest in the land and alienates the land in favour of the donee automatically so far as it is categorised 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 other person including himself then there is an alienation or conveyance. This is the decision of the Supreme Court in the case of Ude v. Nwara (1993) LPELR-3289 (SC); (1993) 1 NSCC 236; (1993) 2 NWLR (Pt.278) 638.

It is inconceivable that the right of the donor over certain property will be subordinated to that of the donee by reason only that he has, as it were, made a delegation of such right to the latter. The better view is that so 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 donee has in fact exercised the power under the Power of Attorney the donor’s power in this regard expires.

The Court of Appeal, Per OBASEKI-ADEJUMO ,J.C.A ( Pp. 43-44, paras. E-F ), held in NWANKWO v. AGWUNA (2007) LPELR 8445 (CA) thus; “Moverover, a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee. In the case of Ude v. Nwara (1993) 2 NWLR (pt 277) 638 at page 665 the Supreme Court had this to say on defining power of attorney: “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 an alienation. See also the cases of Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599, Olorunfemi v. Nig. Bank Ltd. (2003) 5 NWLR (pt 812) 1 and Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) 111.” per OGEBE ,J.S.C ( PP. 4-5, PARA F).”

I therefore advice that any time you purchase a parcel of land, you must make sure you execute the requisite instrument of transfer in order to secure your title to same.