PROPERTY LAW

PRE- CLASS ASSIGNMENT

GROUP 6
1) Students to study the case of Ude v Nwara. Power of Attorney.

CASE SUMMARY ON POWER OF ATTORNEY

UDE v. NWARA (1993) 2 NWLR (Pt. 278) 647

This case was a fallout of one the numerous abandoned properties cases resulting
from the Nigeria Civil War. The case related to a property situate at No 2 Umuoji
Street Port Harcourt (now No 2 Ekpeye Street) which was allegedly abandoned by the
Appellant, Gregory Obi Ude due to the Civil War but later released to him by the
Rivers State Abandoned Property Authority for a lease of seven years subject to
renewal. The 1st Respondent contended that the property was sold to him by the
Rivers State Government and he sought to interfere with the Appellant’s enjoyment of
the property, occasioning the action. The 2nd Respondent, Attorney General of Rivers
State contended inter alia that the grant of the power of attorney by the Appellant
without his consent was a contravention of the State Land Law.

The Supreme Court held that the argument of the 2nd Respondent lost sight of the
timely nature of a power of attorney. The Court in the words of Nnaemeka Agu JSC
(as he then was) described Power of Attorney as a document, usually but not always
necessarily under seal, whereby a person seized of an estate in land authorizes another
person (the donee), who is called his attorney to do in the stead of the donor anything
which the donor can lawfully do, usually spelt out in the Power of Attorney. The
Court held that a power of attorney merely warrants and authorizes the donee to do
certain acts in the stead of the donor and so is not an instrument which transfers,
limits, charges or alienates any title to the donee, rather it could be a vehicle whereby
these acts could be done by the donee for and in the name of the donor to a third
party. So even if it authorizes the donee to any of these acts to any person including
himself, the mere issuance of such a power is not an alienation per se or parting with
possession. It is not a document of alienation. It is only after, by virtue of the Power
of Attorney, the donee leases or conveys the property, the subject of the power, to any
person including himself then there is an alienation.
2. Question 2
What is Power of Attorney? Is Power of Attorney mandatory in property transactions?

As it relates to Real Property Law, it was held by the Supreme Court in UDE V
NWARA that it is as a document, usually but not always necessarily under seal,
whereby a person seized of an estate in land (the donor) authorizes another person
(the Donee), who is called his attorney to do in the stead of the donor anything which
the donor can lawfully do, usually spelt out in the Power of Attorney.

The person who donates the power is called the “donor” (principal) while the person
to whom the power is donated is called the “donee”(attorney). Power of attorney can
be conferred on more than one person; however it’s necessary to spell out each
person’s function to avoid conflict.

When in respect of family or community property, the head of the family/community

must be present either as a sole donor or a co-donor.

2. II) Is power of attorney mandatory in any property transaction?

The choice of a Power of Attorney as an instrument of delegation naturally comes as
an option in the following circumstances:

By the combined effect of Sections: 46&47 CA, s141 PCL, Chime v Chime – Power
of attorney is not mandatory in land transaction (it is not a matter of cause) but may
be exigent in certain circumstances:

Where the donor for some reasons may not be able to carry out the act personally
either due to unavailability as a result of being physically away from the property or
being engaged in busy schedules which makes it impossible for him to devote time to
handling the property, he may require another person to represent him – Ezeigwe v.
Awudu (2008) 11 NWLR (Pt. 1097); Chime v. Chime (supra); Ude v. Nwara
(supra).
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.
Ill health or physical impairments may also make the appointment of an attorney
imperative.
Where it is to secure interest of a purchaser pending the perfection of title of
purchaser or performance of an obligation owed the donee.
Where a mortgage is by demise or sub-demise, under the Conveyancing Act pending
the payment of mortgage sum – Re White Rose Cottage
Vast estate: s46, 47 CA and s141 PCL; Chime v Chime

3. Identify the parties and their status in attorney relationship

Generally, parties in a Power of Attorney relationship include:
A) Donor
B) Donee
The parties in a Power of Attorney are referred to as Donor/Principal ( the party who
donates power to another) and a Donee/Agent ( the party whom power is donated to).
Strictly speaking, there is only one party in a Power of Attorney relationship. This is
why a Power of Attorney is often referred to as ‘’Deed Poll’’. Hence, it can be
implied that the donee is not a party because the donor and donee do not have
corresponding rights as it is in a contract. The characterization of the donor and the
donee as parties is merely for descriptive purposes.

However, regardless of whether of whether a donee is seen as an actual party or not;

both parties must be possess the legal capacity to enter the relationship. It is only legal
persons that can donate Power of Attorney or be appointed Attorneys, I.e only persons
who can sue and be sued. In National Bank of Nigeria Limited v. Korban Brothers
Nigeria Limited, where the court held that the donee was not a person in law. The
legal capacity of both parties must subsist throughout the duration of the relationship.

4. When do you advice Power of Attorney in a transaction?

The transfer of Power of Attorney may be advised in any of the following situations:
A)Unavailability of the donor
If you want to sell or buy a property,file a suit in court of defend one filed against
you; enter into an agreement; negotiate and sign a contract or any transaction that the
stipulates must be done by you in person. You can empower your lawyer through the
Power of Attorney to carry out transactions on your behalf as if same were done by
you.
B). Where expert skills of donee is required
C) Title is not transferred but donor wants donee to deal
with the land
D) Donee to execute other instruments – section 46(1)
CA, Section 141(1) PCL
E) Donee simply relies on it as the final instrument of conveyance
F) To secure interest of a purchaser pending the
perfection of title of purchase or performance
G) May be required where a mortgage is by sub-demise

5. Identify category of persons that give and can be given Power of Attorney in landed
property transaction.
It is only persons in law that can give and be given Power of Attorney (persons that
can sue and be sued). A person can only appoint an attorney to do, for and on his
behalf, acts that he may himself lawfully do because a power of attorney or the
appointment of an agent cannot be used to cure a legal disability suffered by the
donor/principal. Hence, the ability to give and be given Power of Attorney is only
ascribed to certain persons. A non juristic person cannot give or be given Power of
Attorney. Anyone who is legally capable can donate Power of Attorney, however,
infants, bankrupts, mentally incapable persons and and enemy alien( those who
cannot transact in enemy territory) cannot grant Power of Attorney as a result of these
disabilities.

6. Draft the execution clause of a Deed executed by an Attorney.

SIGNED,SEALED AND DELIVERED by the Assignor…………through his Lawful
Attorney , Mr………….by the virtue of a Power of Attorney dated.....day of....20.....
and registered as No………Page………Volume……..of the Ebonyi State Land
Registry

…………………………………….
Signature

7. List the clauses in a Power of Attorney

Clauses in a power of attorney include:

1. Commencement clause
2. Date clause
3. Recital clause
4. Appointment clause
5. Power and authority clause
6. Omnibus or General Power clause
7. Irrevocability Clause
8. Testimonium Clause
9. Execution Clause
10. Attestation and Authentication
11. Franking

8.Comment on whether Power of Attorney must always be by Deed or otherwise.

A power of attorney is an instrument in writing, usually but not necessarily by Deed,

by which the principal called 'donor' appoints an agent called"donee"and confers
authority and Powers on the donee to perform certain acts on behalf of the donor. A
Power of Attorney is useful for many purposes, for example, it may be to collect
money on behalf of the donor or the donor may appoint a donee to represent him at a
meeting, etc. However if the authority conferred by the donor on the donee empowers
him donee to execute a Deed, then the Power of Attorney must be by Deed. In Abina
v Farhat," a Deed for a lease was executed by a donee whose authority was conferred
verbally, the court held that the deed could not be enforced.

9. Comment and distinguish between revocable and irrevocable Power of Attorney.

When can Power of Attorney be expressed to be irrevocable?
A power of attorney can be made orally or expressly stated in writing by a letter of
appointment. Usually, Power of Attorney must have an expiry date contained in the
agreement; the Donor can revoke it, expressly, implicitly or by the operation of the
law.
A revocable Power of Attorney allows you (Donor) to rescind/revoke the powers
granted to the recipient (Donee) at any time or at the occurrence of a specific event.
The Donee cannot act on the Donor’s behalf once the Donor revokes the
authority.The Donor can also exercise the power where the Donee has not yet
exercised the power. In Chime vs Chime, where the 4th Respondent (Donor)
appointed the Respondent as Donee to sell his property, before the sale, the Donor
sold the property. The court held that the fact that a Power of Attorney to alienate
property is given does not divest the donor of the power to deal with the property so
long as the Donee had not yet executed his power of sale before disposition by the
donor.
Whereas, an irrevocable Power of Attorney means that the Donor cannot simply
rescind/revoke the Power of Attorney at any time and without the consent of the
Donee. This means, the Donor waives/gives up his or her rights to rescind/revoke the
Power of Attorney in relation to the specified subject matter for which the powers
were granted for. In simple words, the termination of irrevocable Power of Attorney is
only possible with the Donee’s consent. It will not revoke by death, unsound mind or
bankruptcy of the Donor.
9.II) When can Power of Attorney be expressed to be irrevocable?
Power of Attorney is irrevocable in the following circumstances:
 Where the power is given for value or is given as security and expressed to be
irrevocable, the power cannot be revoked until the benefit for which it was
conferred has been repaid.
 Where the power is expressed to be for a fixed period- whether given for a
valuable consideration or not. The Donee is entitled to exercise the powers within
that fixed period of time and the Power of Attorney is irrevocable within that time
and it cannot be vitiated by the death, disability or bankruptcy of the Donor.

10. List and explain the grounds for revocation of Power of Attorney by operation of
law.
One of the ways by which a power of attorney may be revoked is by the operation of
the law. A power of attorney would be deemed to be revoked by the operation of the
law if the donor suffers death, insanity, or bankruptcy. See the case of Abina v. Farhat
(1938)NLR p.17
a. Death: An existing power of attorney becomes invalid upon the death of a
principal. This is because the deceased person no longer owns anything for the donee
to handle for them ad they can no longer legally hold money or property. A deceased
person lacks the capacity to hold money or any property as whatever they own during
their lifetime devolves to their estate upon death. Thus only the executors or
administrators of the estate of the deceased person have the power to the deal with
such properties during the probate process and not the donee of the power of attorney.

b. Bankruptcy: Once a person is declared bankrupt, it deprives him of legal capacity.

Thus, where there is an existing power of attorney and there is an order of bankruptcy
made on the person of the donor, such power of attorney becomes revoked by the
operation of the law.

c. Insanity - In law, a person of unsound mind cannot grant another person the power
to act in his or her place as it deprives such a person of legal capacity in all
ramifications. In line with the foregoing, where the donor of an existing power of
attorney becomes of unsound mind, the power of attorney becomes null and void .

An EXCEPTION to the above mentioned however is that where the power is coupled
with interest/consideration or it is fixed for a period of time not exceeding 12 months,
then the death, lunacy, or bankruptcy of the
donor WILL NOT AFFECT THE POWER. See the case of Chime v. Chime (2001) 3
NWLR (Pt. 701) 527
11. Comment on the power of the Donor of Power of Attorney to revoke the power
and the limitation, if any in law.
A power of attorney is revocable at any time by the donor. This is due to the fact that
a power of attorney is governed by the rules of agency. Accordingly, in keeping with
the rule that he who hires reserves the right to fire; the donor can expressly fire the
donee or revoke the power.
However, although a donor of a power of attorney has the right to revoke such power
of attorney at will, there are some instances where he might be prevented from except
using such powers. Such instances may include:

 . Where a power of attorney was expressly given for a specific duration, with or
without consideration, such power of attorney cannot be revoked unless the time
specified has elapsed. Such specified period must however not exceed 12 months
from the date the instrument was made. See section 143 of the Property and
conveyancing law and Section 8(1) of the Conveyancing Act.
 . Where a power of attorney is given for valuable consideration and is expressed
to be irrevocable, the power of attorney cannot be terminated by the donor until
the benefit for which it has been conferred is repaid. See section 144 of the
Property and Conveyancing Law and Section 9(1) of the Conveyancing Act.