It has become an integral part of man’s existence on earth to
desire to sell or acquire properties like land in his lifetime.
This is usually considered to be a form of investment of a man’s
wealth or resources. It also serves as a sort of tangible
collateral to its owner particularly in the event of an ugly
turn-around of a man’s fortunes. In Nigeria, apart from customary
land transactions which must not be evidenced on paper or
documented, land transactions are expected to be captured in a
documented form. This is in line with the relevant provisions of
law regulating land transactions in Nigeria.
Unarguably, the permitted and safest mode of transferring
ownership of land in Nigeria is by a document known as Deed. It
could be a deed of gift, transfer, assignment or conveyance as the
case may be. This is in so far as there is a sufficient certainty
or complete agreement of the parties involved, the property to be
transacted over, the consideration or purchase price of the
property and the nature of interest to be granted as held by the
Court of Appeal (Jos Division) in the case of GEGE V.
NANDE (2006) 10NWLR; Pt. 988, pg 265. Accordingly, a
deed is a formal instrument of sale by which the unexpired residue
or remaining interest in a property like land is transferred or
conveyed to another who becomes the owner or vendor.
However, there is recently an increasing but unhealthy resort by
land sellers and purchasers alike to the improper use of the
instrument of Power of Attorney as a means of transferring
ownership of land. This is a sorry situation and must be condemned
in the strongest and earliest possible terms before it entirely
wrecks the ship of land transactions in Nigeria thereby occasioning
a litany of bitter litigations over land ownership as is currently
the case.
To start with, a Power of Attorney is a document or instrument
in writing, usually but not necessarily in the form of a deed, by
which a person called the ‘Donor’ appoints another known as ‘Donee’
and confers authority and/or powers on the donee to do or perform
certain acts on behalf of the donor. A Power of Attorney is infact
an instrument of delegation and not alienation which can be
deployed for a long list of purposes; for instance, to prosecute or
defend a suit in court, to enter into an agreement, to negotiate or
sign a contract, to execute a project, to sell a property or to
attend a meeting on behalf of the donating authority. The common
denominator in a Power of Attorney is that the acts to be performed
by the donee are confined to the ones expressly or impliedly
authorized and exhaustively contained in the donating instrument.
It must be noted that if the Power of Attorney authorizes a certain
donee to execute a deed, then the donating instrument must be by a
deed and must be signed and sealed. This is the position of the
court in ABINA V. FARHAT (1938) 14NLR; Pt.
17.
Unfortunately, the Power of Attorney has been arrogated more
power than the law permitted for it. It has been glorified to the
realm of documents through which ownership of land can be conveyed
or acquired. But this is wrong and procedurally improper. Research
has also revealed that two-third of cases over land in courts today
are traceable to defective titles to land acquired through improper
modes. This is particularly the stock-in-trade of unqualified
estate agents, quack architects, untrained surveyors, uncertified
town planners and even lawyers who engage in such sharp or jankara
practices just to hit quick money.
The abuse arising from the unprofessional use of Power of
Attorney as a document of land ownership transfer is monumental and
only attracts disdain to property and conveyancing practice in
Nigeria. The abundance of conveyancing legislations, the
application of ancient conveyancing laws and the obvious difficulty
in the interpretation of our laws on property and conveyancing
largely contribute to this whole mess. Also, professional
incompetence, high illiteracy rate and the frustrating nature of
the different land registries who have consistently failed to
properly regulate the engagement of professionals in land
transactions is not unconnected to this quagmire which has
bedeviled land administration in Nigeria.
It appears that the Conveyancing Act which is the legislation
regulating land transactions in the east allows the use of Power of
Attorney in land transactions but the Supreme Court has bluntly and
in several decided cases disagreed with this system and further
described the practice as fraudulent. In UDE V. NWARA
(1993) 2NWLR Pt. 278, the Supreme Court held
that ‘a Power of Attorney warrants and authorizes the
donee to do certain acts in the stead of the donor and so is not an
instrument which confers, transfers, limits, charges or alienates
any title to land to the donee. It only acts as a vehicle through
which these acts could be done’. Also in AMADI V.
NSIRIM (2004) 17NWLR Pt.901; pg 111, it was held that a
purchaser therefore of land with only a Power of Attorney is only
an agent of the real land owner still as the title to the land
still rests wholly and solely on the seller. In a nutshell
therefore, a donee of a Power of Attorney does not possess the
legal personality or locus standi to sue in a land case where the
Power of Attorney stipulates that he is only an agent of the
principal or donor. The donee in such circumstance must sue in the
name of the donor who may no longer be the land vendor having
transferred ownership of the land vested on him. This is the
position of the law in VULCAN GASES LTD V. G.F IND.
A.G (2001) 9NWLR Pt.719; pg 610 and VINZ INT’L (NIG.) LTD V.
MOROHUNDIYA (2009) 11NWLR Pt. 1153; pg 562.
In the light of the above, there is an urgent need to vigorously
educate the Nigerian populace; both elites and illiterates on the
complications already steaming from the use of Power of Attorney to
convey interest in land or acquire same. It is thus important that
purchasers of land anywhere in Nigeria must be smart enough to
consult a professional particularly a lawyer who is seasoned in
land transactions whenever they are engaging in any such
transaction involving land. They must also insist on a deed as
evidence of land ownership transfer. Whether a Power of Attorney is
revocable or irrevocable, it cannot confer clear and marketable
title to land. This is the reason why land purchasers or even
sellers must take great caution not to be swindled or deceived into
accepting a Power of Attorney as an instrument of alienation of
title to land. It is already common knowledge that the popularity
of the use of a Power of Attorney is sequel to the misconceived
fact that it is used to avoid payment of high stamp duties to
government and moreso, it does not require Governor’s consent at
registration. While this may be somewhat true, a Power of Attorney
cannot be safely deemed a substitute for deed in respect of any
land dealing or transaction in Nigeria.
Prince Chigbo Okoli, Esq., DRS.
(ceebeeokoli@gmail.com) is
a legal practitioner, seasoned researcher and certified Dispute
Resolution Specialist with amazing experience cutting across
litigation, alternative dispute resolution and property/real estate
management and practice. He is also into legal resource consultancy
and has over 50 reputable essays and articles to his
credit.
It has become an integral part of man’s existence on earth to
desire to sell or acquire properties like land in his lifetime.
This is usually considered to be a form of investment of a man’s
wealth or resources. It also serves as a sort of tangible
collateral to its owner particularly in the event of an ugly
turn-around of a man’s fortunes. In Nigeria, apart from customary
land transactions which must not be evidenced on paper or
documented, land transactions are expected to be captured in a
documented form. This is in line with the relevant provisions of
law regulating land transactions in Nigeria.
Unarguably, the permitted and safest mode of transferring
ownership of land in Nigeria is by a document known as Deed. It
could be a deed of gift, transfer, assignment or conveyance as the
case may be. This is in so far as there is a sufficient certainty
or complete agreement of the parties involved, the property to be
transacted over, the consideration or purchase price of the
property and the nature of interest to be granted as held by the
Court of Appeal (Jos Division) in the case of GEGE V.
NANDE (2006) 10NWLR; Pt. 988, pg 265. Accordingly, a
deed is a formal instrument of sale by which the unexpired residue
or remaining interest in a property like land is transferred or
conveyed to another who becomes the owner or vendor.
However, there is recently an increasing but unhealthy resort by
land sellers and purchasers alike to the improper use of the
instrument of Power of Attorney as a means of transferring
ownership of land. This is a sorry situation and must be condemned
in the strongest and earliest possible terms before it entirely
wrecks the ship of land transactions in Nigeria thereby occasioning
a litany of bitter litigations over land ownership as is currently
the case.
To start with, a Power of Attorney is a document or instrument
in writing, usually but not necessarily in the form of a deed, by
which a person called the ‘Donor’ appoints another known as ‘Donee’
and confers authority and/or powers on the donee to do or perform
certain acts on behalf of the donor. A Power of Attorney is infact
an instrument of delegation and not alienation which can be
deployed for a long list of purposes; for instance, to prosecute or
defend a suit in court, to enter into an agreement, to negotiate or
sign a contract, to execute a project, to sell a property or to
attend a meeting on behalf of the donating authority. The common
denominator in a Power of Attorney is that the acts to be performed
by the donee are confined to the ones expressly or impliedly
authorized and exhaustively contained in the donating instrument.
It must be noted that if the Power of Attorney authorizes a certain
donee to execute a deed, then the donating instrument must be by a
deed and must be signed and sealed. This is the position of the
court in ABINA V. FARHAT (1938) 14NLR; Pt.
17.
Unfortunately, the Power of Attorney has been arrogated more
power than the law permitted for it. It has been glorified to the
realm of documents through which ownership of land can be conveyed
or acquired. But this is wrong and procedurally improper. Research
has also revealed that two-third of cases over land in courts today
are traceable to defective titles to land acquired through improper
modes. This is particularly the stock-in-trade of unqualified
estate agents, quack architects, untrained surveyors, uncertified
town planners and even lawyers who engage in such sharp or jankara
practices just to hit quick money.
The abuse arising from the unprofessional use of Power of
Attorney as a document of land ownership transfer is monumental and
only attracts disdain to property and conveyancing practice in
Nigeria. The abundance of conveyancing legislations, the
application of ancient conveyancing laws and the obvious difficulty
in the interpretation of our laws on property and conveyancing
largely contribute to this whole mess. Also, professional
incompetence, high illiteracy rate and the frustrating nature of
the different land registries who have consistently failed to
properly regulate the engagement of professionals in land
transactions is not unconnected to this quagmire which has
bedeviled land administration in Nigeria.
It appears that the Conveyancing Act which is the legislation
regulating land transactions in the east allows the use of Power of
Attorney in land transactions but the Supreme Court has bluntly and
in several decided cases disagreed with this system and further
described the practice as fraudulent. In UDE V. NWARA
(1993) 2NWLR Pt. 278, the Supreme Court held
that ‘a Power of Attorney warrants and authorizes the
donee to do certain acts in the stead of the donor and so is not an
instrument which confers, transfers, limits, charges or alienates
any title to land to the donee. It only acts as a vehicle through
which these acts could be done’. Also in AMADI V.
NSIRIM (2004) 17NWLR Pt.901; pg 111, it was held that a
purchaser therefore of land with only a Power of Attorney is only
an agent of the real land owner still as the title to the land
still rests wholly and solely on the seller. In a nutshell
therefore, a donee of a Power of Attorney does not possess the
legal personality or locus standi to sue in a land case where the
Power of Attorney stipulates that he is only an agent of the
principal or donor. The donee in such circumstance must sue in the
name of the donor who may no longer be the land vendor having
transferred ownership of the land vested on him. This is the
position of the law in VULCAN GASES LTD V. G.F IND.
A.G (2001) 9NWLR Pt.719; pg 610 and VINZ INT’L (NIG.) LTD V.
MOROHUNDIYA (2009) 11NWLR Pt. 1153; pg 562.
In the light of the above, there is an urgent need to vigorously
educate the Nigerian populace; both elites and illiterates on the
complications already steaming from the use of Power of Attorney to
convey interest in land or acquire same. It is thus important that
purchasers of land anywhere in Nigeria must be smart enough to
consult a professional particularly a lawyer who is seasoned in
land transactions whenever they are engaging in any such
transaction involving land. They must also insist on a deed as
evidence of land ownership transfer. Whether a Power of Attorney is
revocable or irrevocable, it cannot confer clear and marketable
title to land. This is the reason why land purchasers or even
sellers must take great caution not to be swindled or deceived into
accepting a Power of Attorney as an instrument of alienation of
title to land. It is already common knowledge that the popularity
of the use of a Power of Attorney is sequel to the misconceived
fact that it is used to avoid payment of high stamp duties to
government and moreso, it does not require Governor’s consent at
registration. While this may be somewhat true, a Power of Attorney
cannot be safely deemed a substitute for deed in respect of any
land dealing or transaction in Nigeria.
Prince Chigbo Okoli, Esq., DRS.
(ceebeeokoli@gmail.com) is
a legal practitioner, seasoned researcher and certified Dispute
Resolution Specialist with amazing experience cutting across
litigation, alternative dispute resolution and property/real estate
management and practice. He is also into legal resource consultancy
and has over 50 reputable essays and articles to his
credit.