Can a Power of Attorney Transfer Title to Land?

There has been a raging controversy whether a Power of Attorney can be used to alienate or transfer title to land and this controversy has even been made worse by practices adopted by some solicitors in some parts of the country where Power of Attorney is being used as a document to transfer and convey title to land. 

There are irrevocable Power of Attorney and revocable Power of Attorney. It is where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged. See the case of Reigate v. Union Manufacturing Co. (Ramsbottom) (1918) 1 K. B. 592 C. A. 

Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. See the case of Slatter v. Railway Commissioners (New South Wales) (1931) 45 C.L.R. 68. But it is not irrevocable merely because the agent has an interest in the exercise of it. Also, the death of the principal only deprives the agent to act only in cases of revocable Power of Attorney and not where the power is irrevocable. See the case of Chime v. Chime (2001) 3 NWLR (Pt. 701) 527 at 554-555. However, where the consideration is realized, the Power of Attorney becomes revocable.

In this article we have put forward the position of the law in line with the case of Ude v. Nwara (1993) 2 SCNJ 47 at 66-67 or (1993) 2 NWLR (Pt.278) p.638-664 as to whether a Power of Attorney can be used to alienate or transfer title to land to educate land purchasers as well as persons intending to engage in future land transactions for proper guidance to obtain requisite legal, proper and appropriate document validly acceptable in law to transfer title to land.

What is Power of Attorney?

The Black’s Law Dictionary, 7th Edition by Bryan A. Garner defines “Power of Attorney” at page 1191 thereof as: 

“An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor – also termed letter of attorney.”

The Learned Author went on to define the various categories of Power of Attorney to include the following: 

(a) General Power of Attorney which is a Power of Attorney that authorizes an agent to transact business for the principal;

(b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and this is also termed “Power of Attorney coupled with interest”;

(c) Special Power of Attorney which is such Power of Attorney that limits the agent’s authority to specific matter(s). 

At page 1189 the term “power coupled with interest” is defined as: 

“A power to do some act, conveyed along with an interest in the subject matter of the power. A power coupled with an interest is not held for the benefit of the principal, and it is irrevocable due to the agent’s interest in the subject property. For this reason, some authorities assert that it is not a true agency power; also termed power given as security proprietary.” 

At page 1190 of the same text, the Learned Author quoted an analysis of the concepts of power coupled with an interest otherwise known as “Power given as security,” “Proprietary Power;” or “Naked Power” by Harold Giff Reuschlein & William A. Gregory, at page 99 para. 47 (1990) Edition of the text “The Law of Agency and Partnership” where it is stated thus: 

“Suppose that the principal borrows money from the agent and by way of security authorizes the agent to sell Blackacre if the loan is not repaid and pay himself out of the proceeds. In such case there is no more reason why the principal should be permitted to revoke than if he had formally conveyed or mortgaged Blackacre to the agent. Hence it would be highly unfair to the agent to allow the principal to revoke. The reason why such a case is not properly governed by the considerations usually making an agency revocable is that this is in reality not a case of agency at all. In a normal agency case the power is conferred upon the agent to enable him to do something for the principal while here is given to him to enable him do something for himself. Coupled with an interest means that the agent must have a present interest in the property upon which the power is to operate.”

It is clear that mere filial or moral obligation to donate an Irrevocable Power of Attorney cannot amount to valuable consideration. The position of the law is that once an Irrevocable Power of Attorney coupled with interest (valuable consideration) in favour of the donor is given, it is irrevocable to the extent that the consideration which is given is unrealized. Where the consideration is realized the Power of Attorney becomes revocable. 

It is important to note that Power of Attorney on its own cannot extinguish the title of the donor since the donee remains an agent of the donor. See the case of Chime v. Chime (2001) 3 NWLR (Pt. 701) pg. 527; Onyeani & Anor v. J.C. Avaja (2011) LPELR 3835CA. Thus, it is only where the authority of an agent is given by deed, or for valuable consideration for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. 

Nature of Power of Attorney:

By its very nature and intendment, a Power of Attorney does not convey title, rather a Power of Attorney is the authority given to the donee, to exercise certain powers on behalf of the donor. It does not transfer any interest in the land neither does it alienate the land in favour of the donee no matter how flamboyantly written the contents of the Power of Attorney was drawn, it is merely an instrument of delegation of power. See Black’s Law Dictionary, 7th Edition by Bryan A. Garner and the decision in Nwachukwu v.  Awka MFB Ltd (2016) LPELR-41053CA; Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 or (1993) 2 SCNJ 47; Chime v. Chime (2001) 3 NWLR (Pt. 701) 527. 

The Supreme Court in the case of Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 held that:

 “A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so it is not an instrument which confers transfers, limits, charges or alienates any title to the done rather it could be a vehicle where these acts could be done by the donee for and in the name of the donor to a third party…” 

Thus, the production of Power of Attorney is not one of the ways recognized in the case of Idundun v. Okumagba (1976) 9-10 SC 227, 246-250 for proof of title to land and this authority has been followed by a host of other cases.

Meaning and Essence of Power of Attorney:

The word “power” is normally used in the sense of an authority given to a person to dispose of property which is not his and for the purpose of this article, see the cases of Freme v. Clement (1881) 18 Ch.D 499 at p.504; Re: Armstrong (1886) 17 Q.B.D 521. Thus, the person giving the power is called the “donor” and the person to whom the power is given is called the “donee”.

In the case of Ude v. Nwara (1993) 2 SCNJ 47 at 66-67 or (1993) 2 NWLR (Pt.278) p.638/664 as per Nnaemeka Agu JSC stated succinctly the law thus:-

“A Power of Attorney is a document, usually but not always necessarily under seal, whereby a person (the donor) seised 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 do lawfully, usually clearly spelt out in the Power of Attorney. Such acts may extend from receiving and suing for rates, and rents from, to giving seisin to third parties. It may be issued for valuable consideration or may be coupled with interest. In either case, it is usually made to be irrevocable either absolutely or for a limited period.” See sections 8 and 9 of the Conveyance Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law.”

 A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so it is not an instrument which confers, 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 do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far it is categorized as a document of delegation, 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 alienation.

Whether an Attorney can act on behalf of his deceased Principal to transfer valid title to a third party?

In law, a Power of Attorney will automatically terminate upon the death of the donor unless expressed to be ‘irrevocable’ and thus the donee acts only in pursuant to the powers conferred on him by the donor in the life time of the donor and can be ratified and valid in law. Thus, it neither authorizes nor covers acts carried out either after the death of the donor or acts expressly forbidden therein. 

It is only where a Power of Attorney is expressed to be ‘irrevocable’ and the donee has offered some consideration and thus having an interest to protect in the subject matter of the Power of Attorney that it would continue to operate and be binding even upon the death of the donor but not otherwise. 

In the case of Chime v. Chime (2001) 3 NWLR (Pt. 701) 527, the Supreme Court held thus:

“It is where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged.” See also the cases of Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271at p. 292 – 294; Nwachukwu v. Awka M. F. B. Ltd (2016) LPELR – 41055 (CA); Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 and Lawani v. Grillo & Ors (2018) LPELR-CA/L/813A/2013.

A Power of Attorney whether granted for consideration or not and coupled with an interest, cannot by itself be held to have conferred the donee with any proprietary right in a land or landed property (or subject matter of the transaction). A Power of Attorney is usually a medium by which proprietary interest in a property the subject matter of the transaction can be transferred, and until the donee has exercised his right of transfer, the absolute title to the property would still be held to reside in the donor. See the cases of Chime v. Chime (2001) 3 NWLR (Pt. 701) 527; Ude v. Nwara (1993) 2 NWLR (Pt. 277) 638; Nwankwo v. Agwuna (2007) LPELR – 8445 (pg. 18-19, paras. D-C, His Lordship Rt. Rev. Dr. Lucius Ugorji v. Prince B.B. Apugo (2019) LPELR-CA/OW/226/2016, and Nduka & Ors v. Agbai & Ors (2018) LPELR-CA/OW/47/2014.

Conclusion:

It must be stated that a Power of Attorney is not an instrument of transfer in regard to any right, title or interest in immovable property. The Power of Attorney is creation of an agency whereby the grantor authorizes the grantee to do certain acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless made irrevocable in a manner known to law. Even an irrevocable Power of Attorney does not have the effect of transferring title to the grantee. So, Power of Attorney does not convey ownership. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. 

In Innocent Obiora Nwankwo v. Comfort Agwuna (2007) LPELR-8445(CA), Ogebe, J.C.A., (as he then was) opined that: 

“…a Power of Attorney cannot confer title on a donee. It is a mere delegation of the powers of the donor to the donee.” 

Thus, mere possession of a Power of Attorney does not tantamount to valid title to the land. However, the registration of a document does not confer any legitimacy or validity to it if it had no power to convey anything ab initio. See Akpene v. Barclays Bank (1977) NSCC (vol. II) 29 at 36 and Rockonoh Property v. NITEL (2001) 7 SCNJ 225 at 248-250. 

So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: 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. See also the cases of Abu v. Kuyaban (2002) 4 NWLR (Pt. 758) Pg.599; Olorunfemi v. Nigeria Bank Ltd. (2003) 5 NWLR (Pt. 812) pg. 1 and Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) pg. 111. 

What the above means is that until the donee of an irrevocable Power of Attorney leases or conveys the property to himself, then there is no alienation. See also the cases of Derrima Mangibo v. Chief J.I. Ogunide & Anor. (2016) LPELR- 40547CA; Savannah Bank v. Ajilo (1989) 1 SCNJ and Calabar Central Cooperative Thrift and Credit Society Ltd v. Ekpo (2008) 2 SCNJ 307.