power of attorney

Question 1

what is POA

Answer 1

A power of attorney is an instrument of delegation that the principal the donor uses to give authority to the donee to excercise some actions on his behalf

Question 2

Features of a POA

Answer 2

1. It is an instrument of delegation
2. It is executed by one person
3. It is not an instrument of conveyance
4. It does not extinguish the right of the owner
5. It could be for valuable consideration
6. It specifies the powers which the donee as an agent of the donor can exercise
7. It could be for a fixed period of time
8. The donee incurs no liability as long as they act within the bounds of law ude v nwara
9. It is revocable except where it is expressed to be revocable

Question 3

Importance and need of POA

Answer 3

1. Where the donor is unavailable either as a result of being physically away or due to a busy schedule
2. Ill heath or physical impairment making it difficult for the donor to handle the affairs of his property
3. The need to involve an expert e.g lawyers by their knowledge of the law
4. Where it is to secure interest of a purchase pending the perfection of the title of the purchaser or performance of an obligation
5. Where the estate is vast and cannot be effectively managed by the donor s46,47 CA and s 141 PCL CHIME V CHIME
6. It may be required where a mortgage is by subdemise under the CA pending payment of mortgage sum.

Question 4

Does a POA transfer any interest or title to the donee

Answer 4

No

Question 5

distinguish between a poa and a contract of sale

Answer 5

1. Contract of sale convey interest Poa does not
   2.Poa may not require governors consent but contract of sale always requires the consent of the Governor
2. Poa is usually executed by one person while contract of sale is executed by two or more persons
3. Contract of sale is mandatorily executed by deed while Poa may not be by deed
4. Sale of land is only for land while Poa. Ma be for any transaction.

Question 6

distinguish between a poa and a conveyance or assignment

Question 7

types of poa

Answer 7

revocable or irrevocable : a revocable Poa is one that may be revoked at anytime and for any reason as long as the donee has not exercised the power
And irrevocable Poa is one granted with
- consideration
A fixed time rate
Or has an irrevocable clause

general or specific: it is general where the powers are broadbke stated to cover issue pertaining to the subject matter
While specific or limited POA is where
The power is given in respect of particular act to be done by the donee

Example of a general power is an authority on the the donee “to do anything he can lawfully do”
A specific power would be to let premise to tenant and collect rent only.

Question 8

parties in a poa and capacities

Answer 8

A party in a poa has to be a Juristic
National bank of Nigeria Ltd v Morgan
Generally there is only one party in the deed of poa and that in the donor

Parties that don’t have capacity :
Infant
Persons of unsound mid
Undischarged bankrupt

Question 9

when can a POA be executed by more than one person the donor

Question 10

situations when POA can be used in land dealing

Answer 10

A. The title is not necessarily convened or assigned to the donee to let property and collect rent
B. In The said instrument the donee is granted the power to execute other instrument to assign or convey interest to other parties
C. Where the donee is granted power which is coupled with interest to deal with land I.e to Convey interest in land untill the interest for which it was given is realized
D. The donee simply relied on the POA as the final instrument of conveyance

Question 11

execution of POA

Answer 11

1) it is executed by donor only
2) where a poa is executed outside the country it must be attested by
Notary public
Ambassador
Magistrate
Judicial officers
3) when the don’t is blind or illiterate a jurat must be inserted
4) where Poa is empowered to execute a deed it must be by deed
5) where a Poa is created in respect of family property it must be executed by the head of the family as one of the donor otherwise it is void

Question 12

Perfection of a POA

Answer 12

1)stamping : stamping is necessary for it to be admissible in court. It will
Be stamped 30 days after execution
2) Registration: Poa is registrable within 60 days after its execution. this depends on whether it qualifies as instrument under the land registration law applicable to the state
Benjamin v Kalio

Question 13

validity of POA

Answer 13

It must be in writing
All actions must be executed in the name of the donor
It must be sealed Abija v farhart
It must be attested shown v akorede
It must be registered

Question 14

REVOCATION OF POWER OF ATTORNEY

Answer 14

A poa can be revoked by
a) express revocation : the donor can elect to revoke the power because by its nature a poa is revocable at any time unless coupled with an interest ( where the appointment is by deed the power must be revoked by deed)

b)Implied revocation: where the donor has gone to excercise the power given to the donee making it impossible for the donee to effect his authority

c)revocation by operation of law : where the donor either dies, becomes bankrupt or of unsound mind
Except when it is coupled with interest or if for a fixed period it not affect the power

Question 15

where a POA is irrevocable

Answer 15

1. Where the poa is given for valuable consideration and expressed to be irrevocable s143 PLC s8(1)CA
   Such a poa cannot be revoked untill the benefit for which it was conferred has been repaid uba b registration of title
2. When the poa is for a fixed period not exceeding 12 months whether given for consideration of nor s144 PCL s 9(1) CA
   3.where it has an irrevocable clause

Question 16

how to make a irevocable POA revocable

Answer 16

1. Where POa is coupled with consideration, it becomes revocable once the consideration has been satisfied
2. Where the pos is subject to an interest it becomes revocable once the interest has been exhausted
3. Where the Poa has an irrevocable clause it becomes revocable after the expiration of one year

Question 17

CONSTRUCTION OF POA

Answer 17

The donee can only excercise such power that were expressly stated in the POa this is to ensure the donee doesn’t exceed the power given to him.

Question 18

Protection of Third Parties

Answer 18

The third party is protected under POA subject to the following conditions

A. If the third party is a Bonafide purchaser without notice of the revocation

B. When the third paty is aware but the donee makes a statutory declaration within 3 months to the effect that he has not recieved any notice or information or revocation of POA. This will be regarded as conclusive proof of such non revocation at the time when such payment or act was made

Question 19

ethical consideration of a legal practitioner in drafting Power of attorney

Answer 19

1. Ensuring specific power are clearly and unambiguously stated in the POA. General clauses should be interpreted according to the ejusdem generis rule
2. When representing a purchase the lawyer should investigate to confirm that the power has not been revoked due to the donors death or disability, to the knowledge of the donee
3. Duty to and document that is preparing them r10 RPC
4. Adhering strictly to client instructions and promptly accounting for and reporting any client fund.

Question 20

parts of a power of attorney

Answer 20

1)commencement
2)date
3)party
4)appointment clause
5)power clause
6)irrevocable clause
7)testimonium
8) execution and attestation