Providing Answers to Some Controversial Issues Relating to Use of Power of Attorney in Real Property Transactions in Nigeria (Part 1)

Abstract

Power of Attorney is a legal document by which one person (known as the donor or principal) appoints another person (known as the attorney or donee) to act as an agent of the principal for purposes of performing certain acts on behalf of the principal who himself is legally capable of performing the said actions. The authority delegated vide a power of attorney may be general or specific in nature. A power of attorney is usually but not necessarily under seal. Although the donor of a power of attorney may by some positive act or acts, terminate or revoke the power at any time, a power of attorney is generally deemed terminated/revoked when either the principal or the attorney dies or otherwise becomes legally incapacitated. In real property transactions, powers of attorney are routinely granted to enable the donee to undertake a variety of transactions on behalf of the donor, but, it may not be used to directly confer, transfer, alienate, limit, or otherwise charge title in a real property. As simple and clear as these basic principles appear, so many controversies usually arise in their practical application to given circumstances, mainly because some of the principles, concepts, procedures and judicial pronouncements relating to use of powers of attorney, especially in real property transactions, are oftentimes either grossly misunderstood, misinterpreted, or misrepresented. This paper is an attempt at analyzing or clarifying some of these principles and pronouncements with a view to projecting them in line with established practice, extant law and rules, so as to minimize or eliminate these controversies and thereby promote clarity and a better understanding of these among practitioners, stakeholders and the general public. Vigorous efforts are made in the paper to provide workable answers to questions relating specifically to misuse or abuse of powers of attorney for transfer of title to land, revocability and irrevocability of powers of attorney, formalities of powers of attorney, whether a donee of a power of attorney is entitled, in exercise of the power under the instrument, to convey title in the property to himself, among many others issues.