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By Sandra Adeniran, Principal Partner

A Power of Attorney (POA) in Nigerian law is a written legal instrument by which one person, the “Donor,” grants another person, the “Donee” or “Attorney,” the authority to act on their behalf in specified legal or financial matters. This authority is delegated, not transferred, meaning the Donor retains ownership and ultimate control. The document must be in writing to be valid under Nigerian law, and its powers are strictly interpreted based on the text.

A POA establishes a formal agency relationship. The person granting the authority is the Principal or Donor, and the person receiving the authority is the Agent, Attorney, or Donee. This tool is fundamental for managing affairs when the Donor is unavailable or wishes to delegate tasks. The legal framework is built upon principles from English common law, Nigerian statutes like the various states’ Property and Conveyancing Laws, and judicial precedents from Nigerian courts.

How a Power of Attorney Works: Types and Execution

The practical application of a Power of Attorney depends on its type and the clarity of its drafting. The process begins with the Donor identifying a trusted person (the Donee) and defining the exact powers they wish to delegate. For example, a business owner in Lagos might grant a POA to a manager to handle banking transactions while they are travelling internationally.

There are two primary types of POA in Nigeria:

• General Power of Attorney: This grants the Donee broad authority to act on the Donor’s behalf in all matters, such as managing finances, properties, and business affairs. Because of its wide-ranging power, it must be used with extreme caution.
• Special or Specific Power of Attorney: This is more common and restricts the Donee’s authority to a specific, defined act or transaction. For instance, a POA created solely to authorise the Donee to sign a Deed of Assignment for the sale of a single, specified property.

For a POA to be valid, it must be in writing, signed by the Donor (or marked with their thumbprint), and attested by a witness. For property transactions, it often requires notarisation and must be stamped within the timeframe stipulated by the Stamp Duties Act to be admissible in court as evidence of the authority granted. A detailed breakdown of the process shows that precision in drafting is essential to avoid future legal challenges.

What a Power of Attorney Is Not: Common Legal Misconceptions

One of the most significant areas of dispute involving POAs stems from misconceptions about what they can legally achieve. Understanding its limitations is as crucial as knowing its purpose. A Power of Attorney is not an instrument of transfer and cannot pass the Donor’s title or interest in property to the Donee.

A Power of Attorney is an instrument of delegation, not donation. It gives the power to act on behalf of the principal, not to take the principal’s property.

Here are critical distinctions:

• It is not a transfer of title: A POA only authorises the Donee to act for the Donor. To transfer ownership of land, a separate instrument like a Deed of Assignment is required, executed under the authority of the POA. The Supreme Court of Nigeria has repeatedly affirmed that a POA does not convey interest in property.
• It is not a Will: A POA is only valid during the lifetime of the Donor and is automatically revoked upon their death. A Will, by contrast, only becomes effective after the Testator’s death.
• It is not a tool for personal or criminal acts: A Donee cannot use a POA to perform acts that are strictly personal to the Donor, such as marrying on their behalf or swearing to an affidavit in their name. Similarly, while we have experience in matters requiring representation at EFCC, this is a distinct legal process; a POA cannot delegate criminal liability or allow a Donee to stand trial for a Donor.
• It is not a good root of title: In property due diligence, a POA serves as evidence of an agent’s authority to sell, but the actual chain of ownership documents (the ‘root of title’) must still be established through deeds and consents as required by property laws like the Conveyancing Act.

When to Use a Power of Attorney and How to End It

A Power of Attorney is necessary in any situation where a person or entity needs to delegate legal or financial authority. For individuals, this often arises from physical absence, illness, or advanced age, making it difficult to manage property sales, banking, or litigation personally. For public and private companies, POAs are a standard tool to authorise employees to execute contracts or manage regional operations without requiring a director to be present for every transaction.

Just as important as its creation is its termination. A Power of Attorney is not permanent unless it is specifically stated to be ‘irrevocable’. An ordinary POA can be revoked in several ways:

• Express revocation by the Donor: The Donor can formally cancel the POA at any time, provided they are of sound mind. This should always be done in writing and communicated to the Donee and relevant third parties.
• Death of the Donor or Donee: The agency relationship ceases upon the death of either party.
• Insanity of the Donor or Donee: Subsequent mental incapacity revokes the authority.
• Completion of the authorised act: A Special POA naturally expires once the specific task is finished.

Confusing a Power of Attorney with a Deed of Assignment is one of the most common and costly mistakes in Nigerian property transactions.

The Donee has a fiduciary duty to act in the Donor’s best interest, keep accurate accounts, and not exceed the authority granted. Misusing a POA can lead to civil liability for the Donee and the nullification of any unauthorised transactions. Given the potential for misuse and the strict legal interpretations, it is vital that the document is drafted with professional precision. For guidance on creating a valid and enforceable Power of Attorney tailored to your specific needs, contact our team for expert guidance.

Related reading

• Nigerian Property Law: Navigating Title & Governor’s Consent.