POWER OF ATTORNEY

Question 1

What does the case of Ude v Nwara say?

Answer 1

PoA is an instrument in writing by which a person who owns an estate in land, appoints another person as his agent and confers on him authority to perform certain acts on his behalf

Question 2

Name 5 features of a Power of Attorney

Answer 2

Any 5 from these:

1. Instrument of delegation not alienation
2. It is a deed poll
3. Always in writing S4 Statue of Fraud Act
4. Not always by deed
5. Fixed rate of stamping
6. Does not require Governor’s Consent
7. It is registrable

Question 3

When can you not use Power of Attorney?

Answer 3

In marriage or to defend criminal cases

Question 4

When should you grant a Power of Attorney?

Answer 4

1. Where the donor is unavailable
2. Where the donor is impaired by ill health
3. Where the donor does not have expertise
4. Where the estate is cast and the donor cannot deal with it alone

Question 5

What does the case of National Bank of Nigeria Ltd v Korban Brothers Nigeria Limited say?

Answer 5

Both donor and donee must be persons who possess legal capacity to the acts specified in the instruction,ent

Question 6

Who cannot grant a Power of Attorney?

Answer 6

1. A Minor
2. A lunatic
3. An undischarged bankrupt
4. A firm
5. An unregistered Association
6. An enemy alien
7. A company in liquidation

Question 7

Mention the different types of Power of Attorney

Answer 7

Revocable
Irrevocable
Specific
General 
Fixed
Non-fixed

Question 8

List 4 differences between Power of Attorney and Conveyance

Answer 8

Deed Poll v Indenture
Delegation v Alienation
Does not have to be by deed v must be by deed
Doesn’t require Gov’s consent v Gov’s consent needed
Fixed stamping v Stamping ad valorem

Question 9

Difference between power of attorney and contract of sale

Answer 9

Does not transfer interest v Equitable interest transferred
No need to exchange v must be exchanged
No need for consideration v must be supported by consideration

Question 10

Must a power of attorney be by deed?

Answer 10

No, it only needs to be by deed when the donee is given the power to create a deed

Question 11

Does a Power of Attorney require Governor’s Consent?

Answer 11

Not usually but it does in Lagos where it must also be registered if it authorises the execution of an instrument

Question 12

When is power of attorney revocable?

Answer 12

At any time and for any reason as long as the donee has not exercised the power

Question 13

When is power of attorney irrevocable?

Answer 13

When consideration is paid by the donee to the donor. Cannot be revoked until consideration is repaid

Question 14

What is a general power of attorney?

Answer 14

Power granted to cover all areas pertaining to the subject matter

Question 15

When is a power of attorney non-fixed?

Answer 15

When it is valid until revoked or the acts granted power to complete are done

Question 16

How can a Power of Attorney be revoked?

Answer 16

It can be revoked expressly, impliedly or by operation of law

Question 17

What does implied revocation of a PoA entail?

Answer 17

Such revocation can be by acts or conduct

Chime v Chime

Question 18

What does revocation of a PoA by operation of law entail?

Answer 18

Any happening which negated capacity of the donor to grant the power

Question 19

What is the authority which states that “Grant made by an illiterate is void if not accompanied by an illiterate jurat”?

Answer 19

Ezeigwe v Amidu

Question 20

What happens if a Power of Attorney is executed in a foreign jurisdiction?

Answer 20

Failure to have it authenticated does not render it void automatically if there are other means of proving its validity before a court in the jurisdiction it was executed in

Question 21

Melwani v Five star Industries Ltd

Answer 21

Failure to have it authenticated does not render it void automatically if there are other means of proving its validity before a court in the jurisdiction it was executed in

Question 22

What is the implication of execution of Power of Attorney being authenticated by a judge, notary public etc.

Answer 22

The court shall presume that such document was so executed and authenticated
S150 Evidence Act

Question 23

Mention 1 ethical consideration in relation to Power of Attorney

Answer 23

1. Solicitor shouldn’t vary, contradict, or add to the specific provisions of the Power of Attorney NBA v Ifeogu
2. Solicitor should make sure the power granted in the PoA are those instructed by client and nothing more
3. The Solicitor should not advise his client to create an irrevocable PoA instead of a deed pf assignment in order to bypass the need for payment of stamp duty to the Governor

Question 24

Draft the appointment clause of a power of attorney

Answer 24

I, ______ of ____________ (The Donor) HEREBY APPOINT _________ of ___________ (The Donee)

Question 25

Draft an irrevocability clause of a power of attorney

Answer 25

Either
AND I DECLARE that this Power of Attorney shall be irrevocable for a period of ______ months from the date of its execution.

OR

AND I DECLARE that in consideration of the sum of _____________________( ______________ Naira only) already paid by the Donee to the Donor (the receipt of which the Donor acknowledges, this power of attorney shall be irrevocable.