1⃣Power 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.
2⃣A 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. 3⃣Accordingly, 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.’”
4⃣Confirming 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….”
5⃣See also CHIME V. CHIME (2001) 3 NWLR
(PT. 701) 527 at 549.
6⃣ 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.
7⃣However, 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.
8⃣ 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.
9⃣I shall, shortly my offer my humble opinion
on the legal import of the decision in IBRAHIM. V. OBAJE
(2019) NWLR (pt 1660) as it relates to use and operation
of Power of Attorney.
Respectfully,
Sylvester UDEMEZUE
(UDEMS)