Power of attorney -Usually, when we talk about a Power of Attorney in Nigeria, it is in relation to land matters, but the use of a power of attorney is very broad. The Nigerian courts have defined a Power of Attorney in different cases. One definition from the Supreme Court says that:
“… 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 done may be either general or special.”Wali, JSC, Chime v. Chime, (2001) LPELR-24858(SC)(at page 33, paras. D-E.
Sometimes, when you are about to undergo serious medical procedure like surgery, you may be given a document asking you to sign a Power of Attorney where you appoint a person to take decisions on your behalf should any complications arise during the procedure and you are unable to do so for yourself. Some years ago, this was an issue with same-sex couples in America. When one partner was sick and could not make decisions on their own, the other partner could not make decisions on their behalf because there was no legal relationship between them. Instead the closest family member would be the one to act on behalf of the patient/partner, unless there was a Power of Attorney. Even estranged family members had more authority than a partner of many years to make the decisions that needed to be made by/for the patient.
A Power of Attorney can also be used by a proprietor or company to confer powers to a manager to act on behalf of the proprietor or company. It is also used with elderly family members who give certain powers over their affairs to their children or other persons. In giving powers, the donor (principal) cannot give the donee (attorney) more powers than he lawfully has. For instance, in the sale of property, the donor must be a person that has title to the property and can legally sell the property.
The words of a Power of Attorney are strictly construed so it is important for a donor to know exactly what powers he wants to confer and what the limits of the powers will be. Usually, before a lawyer drafts a Power of Attorney for his client, he will ask a series of questions of the donor so that at the end of the day what is stated in the Power of Attorney is the true intention of the donor.
A Power of Attorney can be revoked expressly, impliedly or by operation of law. An express revocation leaves one without doubt. The revocation is communicated, usually in writing, that the powers have been revoked. The form of an express revocation will depend on how the Power of Attorney was created. If it was created by a deed, then the revocation must also be done by deed.
An implied revocation will arise from the actions of the donor. Where the donor gives a Power of Attorney to a donee and then still goes ahead to deal with the subject matter of the Power of Attorney in a way that makes it impossible for the Donee to effect his authority under the Power. The fact of the donor giving a Power of Attorney does not extinguish his right to do the same act or do with his property what he wishes. For instance, where a land owner gives a Power of Attorney to an agent to sell their land and then goes ahead to sell the land himself, before the agent has done so, it can be implied that the Power of Attorney has been revoked. In the case of Chime v. Chime, Wali, JSC, stated thus:
“… 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.”Wali, JSC, Chime v. Chime, (Supra. at page 34, para. A.)
Revocation by operation of law simply means that the law provides certain circumstances that automatically revoke a Power of Attorney. If the donor dies, becomes insane or bankrupt, or suffers any other legal incapacity while the Power of Attorney is still valid, then those situations will revoke the Power of Attorney. There are however exceptions to this general rule such as where the Power of Attorney is coupled with an interest, it is irrevocable until the interest is exhausted. That means, for instance, that if the donor grants the donee power to collect rents from his properties to set off a debt owed to the donee, the Power of Attorney is not revoked until the debt sum has been realised by the donee.
When using a Power of Attorney to deal with land matters, there are quite a few rules, and in some instances those rules vary from state to state. In this regard, it is important to know that a Power of Attorney does not confer interest in land. Therefore, on the purchase of land, where the seller grants the buyer a Power of Attorney, as is the usual practice, the buyer must perfect their title to that land in the form prescribed by law.
Kaine Agary
“… 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 done may be either general or special.”Wali, JSC, Chime v. Chime, (2001) LPELR-24858(SC)(at page 33, paras. D-E.
Sometimes, when you are about to undergo serious medical procedure like surgery, you may be given a document asking you to sign a Power of Attorney where you appoint a person to take decisions on your behalf should any complications arise during the procedure and you are unable to do so for yourself. Some years ago, this was an issue with same-sex couples in America. When one partner was sick and could not make decisions on their own, the other partner could not make decisions on their behalf because there was no legal relationship between them. Instead the closest family member would be the one to act on behalf of the patient/partner, unless there was a Power of Attorney. Even estranged family members had more authority than a partner of many years to make the decisions that needed to be made by/for the patient.
A Power of Attorney can also be used by a proprietor or company to confer powers to a manager to act on behalf of the proprietor or company. It is also used with elderly family members who give certain powers over their affairs to their children or other persons. In giving powers, the donor (principal) cannot give the donee (attorney) more powers than he lawfully has. For instance, in the sale of property, the donor must be a person that has title to the property and can legally sell the property.
The words of a Power of Attorney are strictly construed so it is important for a donor to know exactly what powers he wants to confer and what the limits of the powers will be. Usually, before a lawyer drafts a Power of Attorney for his client, he will ask a series of questions of the donor so that at the end of the day what is stated in the Power of Attorney is the true intention of the donor.
A Power of Attorney can be revoked expressly, impliedly or by operation of law. An express revocation leaves one without doubt. The revocation is communicated, usually in writing, that the powers have been revoked. The form of an express revocation will depend on how the Power of Attorney was created. If it was created by a deed, then the revocation must also be done by deed.
An implied revocation will arise from the actions of the donor. Where the donor gives a Power of Attorney to a donee and then still goes ahead to deal with the subject matter of the Power of Attorney in a way that makes it impossible for the Donee to effect his authority under the Power. The fact of the donor giving a Power of Attorney does not extinguish his right to do the same act or do with his property what he wishes. For instance, where a land owner gives a Power of Attorney to an agent to sell their land and then goes ahead to sell the land himself, before the agent has done so, it can be implied that the Power of Attorney has been revoked. In the case of Chime v. Chime, Wali, JSC, stated thus:
“… 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.”Wali, JSC, Chime v. Chime, (Supra. at page 34, para. A.)
Revocation by operation of law simply means that the law provides certain circumstances that automatically revoke a Power of Attorney. If the donor dies, becomes insane or bankrupt, or suffers any other legal incapacity while the Power of Attorney is still valid, then those situations will revoke the Power of Attorney. There are however exceptions to this general rule such as where the Power of Attorney is coupled with an interest, it is irrevocable until the interest is exhausted. That means, for instance, that if the donor grants the donee power to collect rents from his properties to set off a debt owed to the donee, the Power of Attorney is not revoked until the debt sum has been realised by the donee.
When using a Power of Attorney to deal with land matters, there are quite a few rules, and in some instances those rules vary from state to state. In this regard, it is important to know that a Power of Attorney does not confer interest in land. Therefore, on the purchase of land, where the seller grants the buyer a Power of Attorney, as is the usual practice, the buyer must perfect their title to that land in the form prescribed by law.
Kaine Agary
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