Power of Attorney plays a crucial and multifaceted role within the legal landscape of Nigeria, serving as an indispensable tool utilized by law firms, corporate entities, and individuals alike to facilitate a wide array of legal transactions and obligations on behalf of principals. This legal instrument, recognized for its efficacy in delegation, embodies the fundamental principle that actions performed through an authorized representative are tantamount to those performed directly by the principal, a concept deeply embedded in Nigerian jurisprudence.
In the context of Nigerian law, the applications of Power of Attorney span a diverse areas of scenarios and purposes. These include but are not limited to:
1. Authorizations granted by Nigerian nationals residing abroad to facilitate comprehensive actions and decisions on their behalf;
2. Facilitation of trust arrangements for the management and distribution of assets; execution of sale deeds and other property transactions;
3. Representation before government authorities for regulatory compliance and administrative purposes;
4 Submission of documents for registration to ensure legal validity and enforceability;
5 Mandates for debt recovery actions, including negotiations and settlements;
6. Representation in court proceedings, empowering attorneys to act as legal representatives in litigation matters;
7. Facilitation of probate processes to ensure the orderly distribution of estates according to legal provisions;
8. Empowerment of landlords to authorize property developers to undertake construction and development activities on their behalf; and
9 Grant of additional discretionary powers to attorneys to handle specific financial, legal, or administrative matters on behalf of the principal.
Given its foundational role in legal practice, it is imperative to explore the perspectives articulated by Nigerian courts regarding the interpretation and application of Power of Attorney. The Supreme Court’s landmark decision in UDE v. UWARA (1993) 2 SCNJ 47 provides critical insights into the legal nature and implications of this instrument. The court emphatically clarified that a Power of Attorney functions primarily as a mechanism of delegation rather than an instrument of transfer or conveyance of property rights. As elucidated by NNAEMEKA AGU JSC in the aforementioned case, the Power of Attorney confers upon the donee the authority to act on behalf of the donor, enabling the execution of specified actions and transactions in the name of the principal. Crucially, however, the issuance of a Power of Attorney does not in itself effectuate any transfer, alienation, or encumbrance of property or rights unless and until such actions are explicitly carried out by the donee under the terms and conditions stipulated in the document.
Therefore, until such time as the donee under an irrevocable Power of Attorney exercises the authority to lease or convey the subject property, including to themselves or to third parties, no legal transfer of ownership or alienation occurs. This legal principle underscores the foundational concept that a Power of Attorney remains inherently a document of delegation, preserving the rights and interests of the principal while enabling authorized representatives to act effectively on their behalf within the confines of the authority granted.
In essence, the Power of Attorney in Nigeria stands as a testament to the principles of agency and delegation within legal practice, providing a robust framework for individuals and entities to navigate complex legal landscapes while safeguarding the interests and rights of principals in diverse transactions and engagements. Its versatility and efficacy make it a cornerstone of legal practice, ensuring the seamless execution of obligations, rights, and responsibilities across various domains of law and governance in Nigeria.
In the case of CHIME v. CHIME (2001) 3 NWLR PART 701 AT 527, the Supreme Court, through WALI JSC’s leading judgment, established that “granting a Power of Attorney to sell property does not strip the donor of their authority over the property until the donee executes the power. The donor retains the right to manage the property until the donee exercises the delegated powers. The Court emphasized that the donor’s rights cannot be overridden by the donee solely due to the delegation of authority. Therefore, as long as the donee has not acted, the donor retains the ability to exercise the same powers. Once the donor exercises these powers, the donee’s authority under the Power of Attorney ceases”.
Additionally, in MUSTAPHA v. C.A.C (2019) 10 NWLR PT. 1680 AT 359, the Supreme Court clarified that “when an individual grants Power of Attorney to another to litigate on their behalf, the donee cannot initiate legal proceedings in their own name but must act as the agent of the donor. Even if the appellant was authorized to prosecute a case on behalf of clients, they could only do so in the name of the donor and not in their personal capacity”
The Supreme Court reaffirmed this principle in MUHAMMED v. FARMERS SUPPLY CO. (KDS) LTD (2019) 17 NWLR PART 1701 AT 196, stating that “merely executing a Power of Attorney regarding land does not signify complete alienation beyond the equitable interest created in favor of the attorney. The Court held that in the case at hand, the Power of Attorney executed was not proof of land alienation”
Regarding Power of Attorney in Nigeria, it is essential to note:
1. A Power of Attorney is a formal document where one person (the donor) grants another (the donee) authority to act on their behalf for specific purposes.
2. The donee must be a person recognized in law, capable of suing and being sued.
3. If the authority involves executing a deed, it must be under seal.
4. Courts interpret Powers of Attorney strictly.
5. An irrevocable Power of Attorney remains so if given for consideration until the consideration is fulfilled or for a specified period not exceeding 12 months.
6. The death, lunacy, insanity, or bankruptcy of the donor does not invalidate the powers exercised by the donee of an irrevocable Power of Attorney until the consideration is fulfilled or the time expires.
7. The Attorney generally executes deeds in the name of the donor, unless statutory requirements dictate otherwise.
8. A Power of Attorney can be revoked expressly, impliedly, or by operation of law. “This DEED OF ASSIGNMENT made the… day of… 2024, between ABC, by his Attorney Adedamola O. Sanusi Esq. Although notarization is not strictly required, attestation by a notary public, judge, or magistrate is necessary for presumed due execution.
10. A Power of Attorney executed outside Nigeria must be witnessed by a Notary Public, Judge, or Magistrate.
Finally Note: A Notary Public is a legal professional who certifies deeds and documents, recognized internationally.
ESSENTIAL FEATURES OF POWER OF ATTORNEY
The following further explains essential features of a power of attorney.
1. A Power of Attorney is subject to a fixed stamp duty as per the Stamp Duties Laws applicable in different states. Additionally, it must be registered under the relevant Land Instruments Registration Laws. Failure to register can result in its inadmissibility as evidence in court, similar to other legal deeds. The process of stamping must precede registration, and both are mandatory when the Power of Attorney involves transactions concerning land or real estate.
2. State Land Laws mandate obtaining the Governor’s consent for transactions involving the transfer of interest in state lands through a Power of Attorney. This requirement is crucial for subleases or Certificates of Occupancy.
3. Upon purchasing a property through a Power of Attorney, the buyer has the right to receive the original document or an acknowledgment for its production, along with assurances of its safe custody. If the Power of Attorney pertains to other transactions that cannot be physically transferred, the buyer should request a memorandum confirming the execution of the power in their favor on the original deed.
4. The recipient of a Power of Attorney cannot initiate legal proceedings in their own name but must act on behalf of the principal. If the power includes the authority to execute a conveyance, such as a Deed of Assignment, it should specify the attorney’s authority in a manner prescribed by law, typically starting with a formal legal introduction.
5. Revocation of a Power of Attorney granted by deed must also be done formally through a deed. Granting another Power of Attorney on the same subject matter does not automatically revoke the original. Any subsequent grants of Power of Attorney in such circumstances are considered legally invalid.
6. A Power of Attorney can be declared invalid if it is proven to have been obtained through fraud, coercion, undue influence, or is involved in illegal activities.
7. When interpreting a Power of Attorney, courts adopt a strict approach. Attorneys and their legal representatives are advised to meticulously examine the document before execution to ensure it confers all necessary powers required for the intended purposes. The courts do not accept oral evidence to expand upon the powers granted in the document.
8. The powers delegated to the attorney must be sufficiently detailed to encompass all intended actions, as courts do not allow oral evidence to supplement the powers specified in the document. Commonly used clauses such as “And my attorney may do all other things as I may lawfully do” do not extend the attorney’s authority beyond the explicit terms laid out in the Power of Attorney document.
CONCLUSION
The Power of Attorney in Nigeria is a crucial legal instrument enabling individuals to delegate authority for various legal transactions. It operates under the principle of delegation rather than transfer of property rights, as clarified by Nigerian courts. It spans diverse applications, including property transactions, litigation representation, and estate management. Key principles include strict interpretation by courts, requirements for due execution and registration, and distinctions between irrevocable and revocable powers. Understanding these nuances ensures effective use while safeguarding the rights and interests of principals in legal contexts.
REFERENCES
CASE LAWS
1. MUHAMMED v. FARMERS SUPPLY CO. (KDS) LTD (2019) 17 NWLR PART 1701 AT 196,
2. MUSTAPHA v. C.A.C (2019) 10 NWLR PT. 1680 AT 359,
3. CHIME v. CHIME (2001) 3 NWLR PART 701 AT 527,
4. UDE v. UWARA (1993) 2 SCNJ 47
SECONDARY SOURCES
•https://lawpavilion.com/blog/power-of-attorney-in-nigeria-the-law-the-power-and-the-practice/
