LEGAL STATUS AND CHALLENGES OF IRREVOCABLE POWER OF ATTORNEY AS AN INSTRUMENT OF TRANSFER OF TITLE TO LAND IN NIGERIA

Abstract

In land transactions, certain documents serve certain purposes. Whereas a deed of assignment is used when a property owner intends to wholly transfer his title to another person for a consideration, a lease or tenancy is used when the property owner intends that the transferee should enjoy the property for only a period of time. Now, if a property owner wishes to appoint another person to manage his property on his behalf, he will do so through a power of attorney, and in such cases, the donee/attorney can exercise all or any of the powers conferred on him vide the power of attorney, which he could not otherwise have had the legal right to do. However, despite the traditional roles of the above-mentioned documents in land transactions, there is a growing school of thought that the utility of an irrevocable power of attorney can be broadened beyond a mere instrument of delegation, to an instrument of automatic conveyance of title in a property from the donor to the donee, thereby elevating its status to that of an instrument of assignment. This paper therefore critically examines the legal status of an irrevocable power of attorney in land transactions. The researchers find that the decisions of the Supreme Court in Ude v. Nwara and Ezeigwe v Abudu which was followed in Malami v. Ohikhuare to the effect that a power of attorney is a document of delegation and not an instrument of conveyance, constitute the extant position of the law notwithstanding the case of Ibrahim v. Obaje where the apex Court held that a power of attorney can pass title to the donee. The researchers critique the decision of the Supreme Court in Ibrahim v Obaje as it relates to the issue of power of attorney and the distinguishing of the facts of Ude v. Nwara. Apart from the analysis of judicial authorities on the issue, the researchers also discuss the various practical challenges which the use of an irrevocable power of attorney as an instrument of land transfer may pose to land vendors and buyers. In the final analysis, the researchers recommend that lawyers should admonish their clients on the importance of acquiring or transferring title through the appropriate instruments.