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 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. 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.’”

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.

I 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.

Sylvester UDEMEZUE

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