POWER OF ATTORNEY

A power of attorney is an instrument in writing usually but not necessarily a deed, by which the principal called “donor” appoints an agent called “donee” and confers authority on him to perform certain specified acts or kinds of acts on behalf of the principal – Chime v. Chime (2001) 3 NWLR (Pt. 701) 527.

A power of attorney is useful for many purposes; it may be to collect money on behalf of the donor, to prosecute a case in court or other forms of power of attorney.

Where the authority conferred on the done empowers him to execute a deed, his appointment must be by deed – Abina v. Farhat (1938) 14 NLR 17, where the court held that the deed could be enforced because it was conferred verbally.

FEATURES OF A POWER OF ATTORNEY

1)      It is an instrument of delegation or representation. A power of attorney mirrors an agency relationship but it is sui generis and differs from other commercial agencies because its main aim is to satisfy third parties that the agent has the authority of the donor to deal on a subject-matter., rather than regulating only the relationship between the principal and the agent – Ude v. Nwara (1993) 2 NWLR (Pt. 278) 647.

2)      It does not transfer interest in land. It merely warrants and authorizes the donee to do acts on behalf of a principal. It is only after by virtue of the Power of Attorney that the donee leases or conveys the property to any person including himself which is known as alienation. As long as the donee acts within the scope of the power of attorney, he incurs no liability, and if there is a liability, it is the donor that incurs it – Ude v. Nwara (supra).

3)      Except where it empowers the donee to transfer interest in land or execute a deed, it does not involve a special mode of creation.

4)      It is used to protect a purchaser pending perfection of title to land.

5)      It a vehicle through which those acts could be done by the donee for and in the name of the donor to a third party.

6)      A power of attorney is usually a special instrument in the form of a Deed Poll, that is, an instrument that is executed by only one party.

7)      A power of attorney given in respect of family property must be executed by the head of the family as one of the donors or as the sole donor; otherwise it is void – Ajamogun v. Oshunrinde (1990) 4 NWLR (PT. 144) 407 at 419.

8)      It is revocable except where it is expressed to be irrevocable; and coupled with consideration.

DIFFERENCE BETWEEN POWER OF ATTORNEY AND CONTRACT OF SALE OF LAND

1)      Power of Attorney does not transfer interest in land while contract of sale of land transfers interest in land which is equitable.

2)      Power of Attorney is usually executed by one party while contract for sale of land is executed by both parties.

3)      Power of Attorney does not need to be exchanged to be valid while in contract of sale of land, exchange is mandatory in order for it to be valid (unless both parties are represented by the same solicitor).

4)      Power of Attorney does not have mandatory consideration while contract of sale of land requires consideration.

DIFFERENCE BETWEEN POWER OF ATTORNEY AND A CONVEYANCE

1)      Power of Attorney does not transfer interest in land while conveyance transfers interest in land. Such interest transferred by a conveyance must be legal.

2)      Power of Attorney may not require Governor’s consent while a conveyance always requires the consent of the Governor.

3)      Power of Attorney is not usually executed by one party while in a conveyance, both parties execute it.

IMPORTANCE AND NEED FOR POWER OF ATTORNEY

The choice of a Power of Attorney as an instrument of delegation naturally comes as an option to a Solicitor where a client presents any or all of the problems below, the Solicitor may advice his client on the option of a Power of Attorney to appoint an agent to act in his stead and on his behalf and to do those things which he is unable or incapable of doing:

1)      Where the donor for some reasons may not be able to carry out the act personally due to being engaged in busy schedules or not close to the properties being sought, he may require another person to represent him – Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097); Chime v. Chime (supra); Ude v. Nwara (supra).

2)      Where it is to secure interest of a purchaser pending the perfection of title of purchaser or performance of an obligation owed the donee.

3)      Where a mortgage is by demise or sub-demise under the Conveyancing Act pending the payment of mortgage sum – Re White Rose Cottage (1965) Ch. 940.

4)      Where expert skills of the donee is required such as where a donor donates to an Estate agent or Solicitor the responsibilities to put tenants in possession, collect rent, and evict tenants on a property.