Power of Attorney in Nigeria

There might arise situations where people are physically or legally incapable of managing their affairs due to distance or the sheer amount of effort involved in doing so , a situation that has given rise to a legal instrument known as a Power of Attorney.

This article will thus be looking at the following subtopics :-

– What a Power of Attorney is.

– The types of Power of Attorney grants in Nigeria.

– The use of a Power of Attorney.

– If and/or how Powers of Attorney can be revoked.

– When a Power of Attorney cannot be revoked.

What exactly is a Power of Attorney?

A Power of Attorney is a legal mechanism in the form of a grant from one party known as a Donor/Principal to another party known as a Donee/Agent to act for the donor as his legal alter ego in the management of his affairs on his behalf. 

This can be explained with a scenario of a Mr.A, by virtue of being based abroad, grants a Power of Attorney or authorisation as a Donor to another party, Mr.B, to, for example, appear as his legal alter ego as representative for the purpose of a lawsuit in which Mr.A is suing another party in a Nigerian court.

Mr.B will make depositions, stand in the witness box, and be cross-examined by the other party’s lawyer as if he’s actually Mr.A by virtue of being his legal alter ego and representative for the purpose of that lawsuit.

What are the types of Powers of Attorney in Nigeria?

A Power of Attorney can either be :-

– a general Power of Attorney (granting the donee the authorization to represent the donor in managing his entire affairs);

– a specific Power of Attorney (granting the donee the authorization to represent the donor in carrying out alter ego representation services for a specific & restricted purpose, asset or function)

Who can grant or receive a Power of Attorney in Nigeria?

A Power of Attorney can be granted or received by an individual of sound mind and capacity above the age of 18 or a corporation. A Power of Attorney can also be received by professionals trained in the specific competence required as the function of a Power of Attorney grant.

How are Powers of Attorney made?

A Power of Attorney can be made:-

– orally;

– by writing (expressly via a preferably notarized Deed or letter of appointment).

Note that when the Power of Attorney concerns landed property (especially as a debt charge), the Power of Attorney shall be documented as a Deed and becomes registrable with the relevant land title registration agency in a state.

What are the situations that require a Power of Attorney?

The following situations require a Power of Attorney :

– Signing contractual documents on behalf of a donor unable to physically sign them.

– Property & Estate management on behalf of a donor.

– Commencing and appearing in court for the purpose of litigation (including cross-examination).

– Paying a debt owed to a donee(this will then give the donee the right to manage his assets until his debt is fully satisfied).

Can a Power of Attorney in Nigeria be revoked and if it can, how exactly?

Yes, a Power of Attorney can be revoked in one of the following ways:

– Orally (Express revocation) :- This involves the donor simply revoking the Power of Attorney through verbal communication with the donee.

– Implied revocation :- This is done by the donor carrying out the very functions he authorised the donee to carry out. In other words, the donor simply revokes the Power of Attorney by his actions without telling the donee anything.

– By reason of legal incapacity due to death, insanity, bankruptcy (the operation of law).

When, if at all, can a Power of Attorney be deemed irrevocable?

A Power of Attorney becomes irrevocable even if a donor loses legal capacity due to death or insanity when it is given for consideration (in satisfaction of a debt) until the debt has been satisfied. This debt can include payment for the Power of Attorney service being rendered by the donee/agent.

Can a Power of Attorney be used as a valid document for Sale of Land transactions?

No, they cannot be used for Land sale because the relevant laws in Nigeria and its component states require that Land transactions be documented as Deeds of Assignment or Conveyance signifying an unconditional transfer of titles to land. 

Powers of Attorney can only be used as a charge on land for the purpose of satisfying a debt, which is why they are best suited for Land Development Joint Venture contracts between Land owners and Real Estate Development companies. 

Conclusion :- Powers of Attorney remain a simple Legal mechanism for overcoming the problems associated mainly with a lack of professional expertise or physical incapacity due to distance.