There are times when you want to: sell or buy a property; file a suit in court or defend one filed against you; enter into an agreement; negotiate and sign a contract, execute a project and a host of other commercial transactions the law stipulates must be done by you in person, but unfortunately, you are abroad or due to circumstances beyond your control you unavailable or incapable.
Don’t give up, I have good news for you, the law gives you an option to empower your Lawyer or any competent legal personality via a legal document called Power of Attorney to carry out transactions on your behalf, as if such transactions were done by you in person.
Meanwhile, here are twenty-one things you need to know about Power of Attorney in Nigeria:
1. A Power of Attorney is a formal instrument by which one person grants authority to another to act for him or her, or act in his or her stead for certain purposes. The person giving the authority or power is called the donor, while the person to whom the authority or power is given is called the donee.
2. Only a person in law (i.e. someone who can sue and be sued) can be an Attorney
3. The authority to the Attorney must be under seal when the Attorney is authorised to execute a deed.
4. The court construes a Power of Attorney strictly.
5. A Power of Attorney will be irrevocable not by terming it irrevocable but ,If it is given for consideration and it remains irrevocable until the consideration is realized. If it is given for a period of time (usually not more than 12 months); it is irrevocable until the period expires.
6. The power exercised by the donee of an irrevocable Power of Attorney isnot vitiated irrespective of the death, lunacy, insanity, bankruptcy ofthe donor until the consideration is realized, or the time expires.
7. The Attorney should execute the deed in the name of the donor, but may execute it in his own name, except where any statute directs that the deed is to be executed in the name of the estate owner.
8. A Power of Attorney may be revoked either:
(a) Expressly; or
(b) Impliedly; or
(c) By operation of law.
9. Although attestation is not a strict requirement of a Power of Attorney, it is necessary that a Power of Attorney be attested to by a notary public, judge or magistrate for the presumption of due execution.
10. The Power of Attorney, if executed outside Nigeria, must be witnessed by either a Notary Public or a Judge or Magistrate.Note: A Notary Public is a legal practitioner who attests or certifies Deeds and other documents. A Notary Public by the Law of Nations has credit everywhere.
11. A Power of Attorney attracts a fixed stamp duty under the Stamp Duties Laws of the various states.
12. Power of Attorney is also a registrable instrument under the relevant Land Instruments Registration Laws. Non-registration renders it inadmissible in evidence in court like any other Deed.
13. Stamping precedes registration and both are required when the Power of Attorney confers interest in land or landed property.
14. The various state Land Laws provide for the acquisition of the Governor's consent to transactions involving alienation of interest in land. A Power of Attorney relating to sub-lease of State lands or certificate of occupancy must have the consent of the Governor.
15. The Purchaser of a property pursuant to a Power of Attorney is entitled to have the instrument creating the power delivered to him, if it related to one transaction or an acknowledgment for production and an undertaking for safe custody.
16. Where the power relates to other transactions and, as such cannot be released, in such a case, the purchaser should request that a memorandum of the execution of the power in his favour be endorsed on the Deed creating the Power of Attorney.
17. The donee of a Power of Attorney cannot sue in his own name but must sue in the name of the principal.
18. Where a donee is given power to execute a conveyance such as a Deed of Assignment, the commencement will read:
"This DEED OF ASSIGNMENT made the .... day of …..2014, between ABC, by his Attorney Akintunde Esan".
19. A Power of Attorney granted by Deed must be revoked by Deed. If the donor grants another Power of Attorney in respect of the same subject-matter, it cannot be taken to be an implied revocation of the original one.
20. The subsequent grant of a Power of Attorney is invalid.
21. A Power of Attorney can be invalidated if fraud, duress, undue influence or an illegality is established.
Akintunde Esan, LL.B (IFE)BL, ChMC, ACMC
Managing Partner,
ASE OLODUMARE CHAMBERS
Ase Olodumare Chambers is a Law Firm and Legal Services Provider engaged in the provision of commercial, corporate,property and litigation services and solutions to domestic and international clients.
We draft and review Property Transfer Instruments such as Agreements, Deeds and Leases.
We also draft and review different types of Business Agreements for:
▪ Outsourcing ▪ Agency ▪ Services Providers ▪ Construction/Project Development ▪ Manufacturing/Distribution ▪ Power of Attorney ▪ Technology Transfer/Assignment ▪ Trademark Licence ▪ Letters of Employment ▪ Branding/Marketing/Merchandising ▪ Online Transactions ▪ Hire Purchase ▪ Lease ▪ Content Providers ▪ Partnership ▪ Confidentiality/Non-Disclosure/Non Circumvention/Non-Compete ▪Website Hosting ▪ Multimedia Development ▪ Computer Programme/Software ▪ Sale and Purchase ▪ Joint Venture ▪ Equipment ▪ Franchise ▪ Dealership ▪ Supply
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