Can a Power of Attorney be Used to Transfer Title (to Real Property) from the Donor to the Donee? – By Sylvester Udemezue
POWER OF ATTORNEY IS NOT AN INSTRUMENT OF TRANSFER OF TITLE TO LAND;
- Power of Attorney does not satisfy the ingredients of a good root of title, and as such is not a good title document. Put differently, it is not used to prove title. Root of title is the foundation upon which a person`s title to land is built; the basis/bases of the person`s title. The term “good root of title” is used to refer to a document that may be tendered in court or otherwise produced to prove title or ownership of title to land. To qualify as a good root of title, a document must clearly/precisely describe the property to which it relates; must convey both the legal and equitable interest in the same property; must precisely describe the holder or owner of the title in question; must not be subject to any higher interest; and must have nothing on the face of it to cast any suspicion or doubt on its authenticity. See 63 Conveyancing Act, 1881, and section 88, Property & Conveyancing Law, 1959. See also OGUNLEYE v. ONI (1990) 2 NWLR (pt 135) 745, 752, 774 – 786; OLOJUNDE v. ADEYOJU (2000) SC 118, 135-136, OZUNGWE v. GBISI (1985) 2 NWLR (pt 8) 528, 540.
- A Power of attorney is disqualified as a good root of title because, being no more than an instrument of delegation of authority, it is subject to a higher authority or interest — the interest of the donor or grantor of the power. Besides, Power of Attorney does not confer any (legal or equitable) interest on the Donee (receiver of the Power) in respect of the property concerned. In conclusion, it is not an instrument of transfer of title, but merely of delegation of power/authority — a formal legal instrument (usually but not necessarily under seal) by which one person, called the Donor/Principal, appoints another person, called the Donee/Attorney, to act on behalf of the Donor generally or for specific purposes. See UDE v, NWARA (supra) at page 664-665, where Nnaemeka-Agu, JSC, stated as follows:
“A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and 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.
- Accordingly, even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such power is not, per se, an alienation or parting with possession so far as 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.’”
- Confirming this position, the Court in AMADI v. NSIRIM (2004) 17 NWLR (PT. 901) 111 had this to say: “In regard to exhibit F, the law is that a power of attorney transfers no interest from the donor to the donee. Mr. Cornelius Ike Nwanne has no legal right to the property to entitle him to sell as his own even when the power authorizes him to sell. It is not an instrument which confers, transfers, limits, charges, or alienates any title to the done; 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….See Ude v. Clement Nwara (1993) 2 NWLR (Pt 278) 638….”
- See also CHIME V. CHIME (2001) 3 NWLR (PT. 701) 527 at 549.
- Note however that Power of Attorney may be used, indeed is often (mis)used to afford a purchaser who is yet to perfect his title to the property, but who has registered an irrevocable Power of Attorney in respect of the property, some measure of protection especially against subsequent transactions on the land. This is because registration of a Power of Attorney in respect of any piece of property is sufficient notice to the whole world; this notice is capable of defeating any plea of bona fide purchaser for value without notice. Hence, there is a rampant, lazy, practice among some conveyancers and property law practitioners (arising from a misunderstanding of the limits of the uses of a Power of Attorney) to register a Power of Attorney in favour of a purchaser of land, with a view to enabling the said purchaser to begin to have dealings on the property, pending perfection of his title. In such situations, the purchaser is authorised by the vendor, vide the power of attorney, to do all that the vendor himself may lawfully do in respect of the property.
- However, this, without more, does not mean that the vendor has by virtue, only of his execution of the power of attorney, transferred his estate/title in the property to the purchaser; the purchaser`s interest in the property emanates from the Deed of Assignment (the instrument of conveyance) or other similar documents of transfer, which is yet not perfected, but which nevertheless transfers some interest, albeit equitable, to the purchaser. The power of attorney in this instance is at best described to be coupled with an interest or with a grant, with the result that a Power of Attorney given in such circumstances is, and remains, irrevocable.
- It could therefore be concluded that Power of Attorney, standing alone, is incapable of transferring any interest in land to the donee. This position is further buttressed in the case of ACB v. IHEKWOABA (2004) FWLR (PT 194) 555 and EZEIGWE v. AWUDU (2008) ALL FWLR (PT 434) 1529.
ANY DOCUMENT USED TO TRANSFER TITLE TO LAND CANNOT BE VALIDLY REFERRED TO AS A POWER OF ATTORNEY:
Still on Power of Attorney, please note that where there is any provisions in any document under seal and titled “Power or Attorney” which indicates that the document is used to convey Mr A’s title (interest in land) to Mr B, the document automatically ceases to be a Power of Attorney”* and immediately translates to a Deed of Assignment or Memorandum of Sale or Sale of Land Agreement or Contract for Sale of Land, as the case may be, depending on whether the transaction is or is not under seal. 👉🏿 In other words, it is not the title/name/heading of a land document that determines the nature of the document; it is the purpose the document serves, the function it performs and the uses to which it is deployed. 👉🏿 Thus, if I use a document for purposes of TRANSFER of TITLE to land, but I give the document the heading of “Power of Attorney,” the document is not and cannot be properly regarded as a power of Attorney but a Deed of Assignment. 👉🏿 A Power of Attorney, properly so called, is not an instrument of transfer of title/estate in land. 👉🏿 To determine whether a document is a Power of Attorney, the material consideration is to look at its use, the purpose for which it is prepared in the particular instance in which it’s being used. 👉🏿 ”Lawyer wey dey behave like doctor na suwegbe. Lawyer wey dey behave like lawyer na Pako” (Fela). 👉🏿 Similarly, if Sylvester Udemezue (a shoemaker by occupation) jumps into a Danfo Bus (not one chance ooo) and begins to shout *”Oshodi, Oshodi, one one fifty, one one fifty; hold your change,”* Sylvester Udemezue, although originally trained as a shoemaker and meant to do the work of a shoemaker, has now become a BUS CONDUCTOR in that particular instance, having taken up the work of a conductor and actually fulfilling that purpose (of a conductor). 👉🏿 Mr. Sylvester (shoemaker) found doing the work of a bus conductor is no longer to be addressed as a shoemaker but as a Conductor. 👉🏿 This is because in this particular instance, he plays the role of a Conductor, and as such, may only be seen and addressed as Conductor. 👉🏿 Let’s now go on a little further analogy-ride: 1. Section 567 (1) of the Companies & Allied Matters Act, provides that anyone who occupies the position of a director or performs the functions of a director in a company shall be treated by LAW as a Director, irrespective of whatever name called. 👉🏿 In other words, if a company employs you as an auditor and you turn around and begin to play the role of a director or to function as a director, even though not appointed as a director, the law would see you as a director and all the duties and functions of a director would apply to you. 2. Further, Rule 8 of the RPC, 2007 provides that a lawyer who is an employee of any organization/establishment shall not appear in court AS AN ADVOCATE on behalf of the organization/establishment, unless the lawyer is employed as a lawyer in a government legal department. 👉🏿 You see, if you’re a lawyer, where you’re employed in an organization IN A DIFFERENT CAPACITY, say as a PRO, you’re to function in that capacity (and not function as a lawyer). 3. Moreover, in litigation, it is said (it is a truism) that where a court of law statutorily or legally lacks jurisdiction to hear and determine a case before it, not even the CONSENT of all the parties could validly confer such (legally nonexistent) jurisdiction on the court. 👉🏿 Similarly, since the law has assigned Power of Attorney the sole function/jurisdiction of being ONLY an instrument of delegation of authority, and not an instrument of transfer of title to or interest in land, not even the consent or acquiescence or agreement of parties to a conveyancing transaction could validly confer on power of Attorney a status/role or function different from the one (the sole role) assigned to it by law. That is the law. 👉🏿 Below is the meaning assigned to power of attorney under Nigerian law: “…. A Power of Attorney is a document, and may be under seal, which authorises a person to act for another person as his agent. The person who donates the power is called the ‘donor’ while the person donated is called the ‘donee.’ The power conferred on the done may be either general or special.” Per Wali, JSC, in Chime v. Chime, (2001) LPELR-24858(SC)(at page 33, paras. D-E. 👉🏿 Punch Newspapers has helped to drive this point home: *”When using a Power of Attorney to deal with land matters, there are quite a few rules, and in some instances those rules vary from state to state. In this regard, it is important to know that a Power of Attorney does not confer interest in land. Therefore, on the purchase of land, where the seller grants the buyer a Power of Attorney, as is the usual practice, the buyer must perfect their title to that land in the form prescribed by law.”* (https://www.google.com/amp/s/punchng.com/power-of-attorney/amp/). 👉🏿 A close look at the combined effects of sections 141, 142, 143, & 144 of the Property & Conveyancing Law, 1959, sections 6, 8, & 9 of the Conveyancing Act, 1882, and section 56 of the Lagos State Land Registration Law, 2015 would help us to appreciate this point more clearly. 👉🏿 In short, the rule in Real Property Law Practice is that “you are the JOB you do, not the name you answer.” 👉🏿 A document is known or tagged or described by the job or function it actually performs, not by the name you give it. 👉🏿 If you call it Power of Attorney but uses it to convey interest in land (in the same manner as Deed of Assignment is used), it ceases to be a Power or Attorney but Deed of Transfer/Assignment. 👉🏿 This is what I meant by POWER OF ATTORNEY IS NOT AN INSTRUMENT OF TRANSFER OF TITLE TO LAND. 👉🏿 The role that is legally, statutorily and judiciary assigned to any and every document worthy of that name “Power of Attorney” is to serve only as an instrument of delegation of power/authority; it is a statutory role which cannot be altered unless and until the law is changed to give it another role. 👉🏿 Accordingly, NO DOCUMENT that transfers or purports to transfer title to land can pretend to be a Power or Attorney. 👉🏿 It is legally impossible for Power of Attorney to be used to transfer title to land. Yes! Legally impossible. 👉🏿 And this position is not altered by the parties giving the document the name “Power of Attorney” 👉🏿 Power of Attorney is not used to transfer title to land anywhere in Nigeria. At least, the law has not said so. 👉🏿 Finally, justice and law look more at the SUBSTANCE, the merit, and not at the form. 👉🏿 As *Hon Justice C. OPUTA* said in Aliu Bello v. Oyo State (1986) 5 NWLR (Pt. 45) 826 at 886, *”the picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of justice…”* 👉🏿 See also *State v. Gwarto 1983) 1 SCNLR 142 at 160)* where the Supreme Court declared that *”the Court is more interested in substance than mere form. Justice can only be done if the substance of the matter is examined for reliance on technicalities to the detriment of substantial justice leads to injustice.”* 👉🏿 Both cases were upheld in MFA V INONGHA (2014) LPELR-22010 (SC). ” 👉🏿 Without doubt, our courts have, where the circumstances of a case so desire, shifted away from the narrow technical approach to justice which characterized some earlier decisions and now pursues, instead, the course of substantial justice (CITY ENGINEERING V NIGERIAN AIRPORT AUTHORITY (1999) LPELR-867 (SC)). 👉🏿 This approach is part of the foundation of the reasoning of the apex court in IBRAHIM. V. OBAJE (2019) NWLR (pt 1660) as it relates to use and operation of Power of Attorney. I will discuss the decision next, to offer my humble opinion on whether or not the case has adversely affected the traditional role of Power of Attorney under the Nigerian Law. Put differently, has IBRAHIM v. Obaje altered the position that power of attorney is not an instrument of transfer of title to land? See you in the other “room” for the discussion to continue.
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