Week 5 Property Law Practice: Power of Attorney
Justice Joust Editorial
Legal Content Team
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- Definition & Nature: It does NOT transfer title; it only delegates authority (Ude v Nwara).
- Capacity: Donor must have legal capacity; Donee must have juristic personality.
- Formalities (WDNF mnemonic): Must be in writing, by deed (if executing a deed), notarized (if abroad), and executed by family head/principal members (for family property).
- Revocation: General rule of revocation by operation of law (death, lunacy, bankruptcy).
- Irrevocability: For valuable consideration (S.143 PCL) vs. for a fixed time not exceeding 1 year without consideration (S.144 PCL).
- Drafting: The 7 mandatory clauses, including the critical Omnibus Clause.
- Execution: Donee executing a deed under S.46 CA 1881 / S.142 PCL 1959.
Week 5: Power of Attorney
A Power of Attorney is one of the most tested, most misunderstood, and most poorly drafted instruments in property transactions. Today, we break down every law, section, and case mentioned in the curriculum regarding this topic.
Master this extensive breakdown, and you will never struggle with drafting, interpreting, or advising on a Power of Attorney (POA) in your Bar Finals or in practice.
Slide 1: Definition, Nature, and Capacity
1. What exactly is a Power of Attorney?
A Power of Attorney is strictly an instrument of delegation, not a document of alienation. It is a formal legal document by which one person (the Donor or Principal) gives another person (the Donee or Attorney) the authority to act on his or her behalf for specific or general purposes.
The Golden Rule
It cannot be used to transfer title or ownership to land. It merely appoints the Donee as an agent to act for the Donor.
The "Vehicle" Case Law
In the landmark case of Ude v. Nwara (1993) 2 NWLR (pt. 278) 638, the Supreme Court clarify that a Power of Attorney is merely a vehicle of delegation and does not, in itself, confer or transfer any title or interest in land to the Donee.
Authorities:
Chime v. Chime (1995) and Ezeigwe v. Awudu (2008).
2. Legal Capacity of the Parties
The Donor
The person granting the power must have the legal capacity to do the act himself. An infant or someone of unsound mind cannot grant a valid Power of Attorney to do what he himself is legally prohibited from doing.
The Donee (Juristic Personality Rule)
The power must be given to a juristic person (a natural person or a duly incorporated entity). In National Bank of Nigeria v. Korban Brothers, the court established that a Power of Attorney must be granted to an entity with juristic personality.
Teacher's Scenario (Name Changed)
"Chief Dimgba wants to sell his property in Kano but is traveling to London. He gives a 'Power of Attorney' to his dog, Bingo, and his unregistered business name, 'Dimgba & Sons Enterprises', to execute the deed."
Verdict: This is completely invalid. A Power of Attorney must be given to a juristic person. Neither a dog nor an unregistered business name has juristic personality.
Slide 2: Formalities and Modes of Creation
This is where students often fail. Does a Power of Attorney always have to be a Deed? No! You must know the distinctions.
General Requirement
There is no special mode of making a Power of Attorney, but the primary requirement is that it must be in writing.
The "Deed for a Deed" Rule
A Power of Attorney need not be by deed unless the Donee (Attorney) is expected to execute a deed on behalf of the Donor.
If the Attorney will be required to sign a Deed of Assignment, a Deed of Lease, or a Deed of Legal Mortgage on behalf of the Donor, the Power of Attorney granting him this authority MUST be created by Deed.
Authorities: Abina v. Farhat and Powell v. London and Provincial Bank. In Abina v. Farhat, the Donee was granted a POA orally and executed a lease exceeding three years under seal (Deed); the court held the lease to be completely invalid.
3. Execution by Specific Persons
- Execution outside Nigeria: If executed outside Nigeria for use in Nigeria, it should be attested to by a Notary Public.
- Family Property: Must be executed by the head of the family and the principal members as donors.
- Illiterate Donors: The document must contain an "Illiterate Jurat" complying with the Illiterates Protection Law.
Exam Tip / Mnemonic for Formalities
W-D-N-F
Writing
Deed
Attestation
Execution
Slide 3: Revocation and Irrevocability
A Power of Attorney is an agency relationship, and the general rule is that it is revocable at any time by the Donor. However, the law provides strict statutory exceptions.
1. Revocation by Operation of Law
The relationship can be revoked by operation of law if the Donor:
- Dies.
- Becomes bankrupt.
- Suffers from lunacy/insanity.
A Donor can also explicitly revoke the Power of Attorney by executing a Deed of Revocation, provided the original power was given by deed.
Exception 1: Valuable Consideration
If a Power of Attorney is given for valuable consideration and is expressed to be irrevocable in the instrument, it shall not be revoked at any time, either by anything done by the donor without the concurrence of the donee, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor.
Authority:
Section 8 of the Conveyancing Act 1882, and Section 143 of the PCL 1959.
Exception 2: Fixed Time
If a POA, whether given for valuable consideration or not, is expressed to be irrevocable for a fixed time therein specified, not exceeding one year from the date of the instrument, then it cannot be revoked during that fixed time. During that time, death/lunacy/bankruptcy does not affect the purchaser or donee.
Authority:
Section 9 of the Conveyancing Act 1882, and Section 144 of the PCL 1959.
Teacher's Scenario (Name Changed)
"Madam Kikelomo owes Mr. Chinedu N10 Million. She executes a Power of Attorney over her Victoria Island property to Mr. Chinedu, expressed to be given for valuable consideration and irrevocable, so he can sell the house and recover his money. The next day, Madam Kikelomo dies."
Verdict: Under Section 143 of the PCL (applicable in Lagos) and Section 8 of the CA 1882, the death of Madam Kikelomo does not revoke the Power of Attorney because it was given for valuable consideration and made absolutely irrevocable.
Slide 4: Drafting the Clauses of a Power of Attorney
You must know how to draft every single clause. A Power of Attorney is traditionally a Deed Poll, meaning it is usually made and executed by one party (the Donor).
The 7 Mandatory Clauses:
Commencement, Date, and Parties
Appointment Clause
This is embedded in the commencement above ('HEREBY appoint... to be my true and lawful Attorney...').
Power/Authority Clause
This is a statement of the specific things the Attorney may do. They must be exhaustive because courts construe them strictly (Chime v. Chime).
Omnibus Power Clause
Because courts interpret powers strictly, you must include a catch-all phrase to cover incidental acts.
Irrevocability Clause (If applicable)
This protects third parties and the Donee, invoking the statutory protections of the CA and PCL.
Testimonium
Execution and Attestation Clause
Because it is a Deed Poll, usually only the Donor signs.
Slide 5: Execution of Deeds by the Attorney (Donee)
When the Attorney finally uses this power to sell the land and execute the final document (e.g., Deed of Assignment) for a purchaser, how does he sign it?
The Legal Rule:
By virtue of Section 46 of the Conveyancing Act 1881, and Section 142 of the Property and Conveyancing Law 1959, the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor.
However, standard conveyancing practice dictates that he signs showing he is acting for the Donor.
Drafting the Execution by the Attorney
"SIGNED, SEALED AND DELIVERED by the within-named ASSIGNOR, [Donor's Name], THROUGH HIS LAWFUL ATTORNEY, [Donee's Name], by virtue of a Power of Attorney dated [Date] and registered as [Registration Details]."
🚨 Serious Exam Tip on Time and Perfection
If you are drafting a Power of Attorney in the exam, pay strict attention to the Irrevocability time limit. If you are drafting it to be irrevocable without consideration, do not exceed 12 months (1 year) from the date of the instrument, otherwise it loses the statutory protection under Section 9 of the CA 1882 and Section 144 of the PCL 1959.
Also, remember that a Power of Attorney is a registrable instrument under the Land Registration Law of Lagos State 2015, and must be filed at the Register of Power of Attorney.
Practice Resource
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Get the clean, exam-ready Power of Attorney drafting clauses and execution formats in a professional PDF layout.
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Try this quick 3-question Joust taken straight from our past questions database.
Property Law Week 5 Mini-Joust
In the landmark case of Ude v. Nwara, what did the Supreme Court definitively state regarding the nature of a Power of Attorney and its ability to transfer title?
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