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September 13, 2018 8:07 am
"The other point is that before a Power of Attorney can be irrevocable it must be given in
financial and NOT filial consideration as was done in this case as the Appellant did not pay
any money to the Donor-her father. The definition of "good consideration" in Black's law
Dictionary 7th Edition indicates that it must be "valuable consideration". It is clear that mere
filial or moral obligation to donate an Irrevocable Power of Attorney cannot amount to
valuable consideration.
The position of the law is that once an Irrevocable Power of Attorney coupled with interest
(valuable consideration) in favour of the Donor is given, it is irrevocable to the extent that
the consideration which is given is unrealized. Where the consideration is realized the Power
of Attorney becomes revocable. The Power of Attorney on its own cannot extinguish the title
of the Donor since the Donee remains an agent of the Donor. See CHIME v. CHIME (2001) 3
NWLR Pt. 701 Pg. 527; ONYEANI & ANOR v. J.C. AVAJA (2011) LPELR 3835(CA). It is clear that
it is only where the authority of an agent is given by deed, or for valuable consideration for
the purpose of effectuating any security, or of protecting or securing any interest of the
agent, it is irrevocable during the subsistence of such security or interest. In NICHOLAS
OKERE v. THERESA AKALUKA (2014) LPELR 24287 (CA) Agube JCA opined as follows:-
"Now, Black's Law Dictionary 7th Edition by Bryan A. Garner defines "Power of Attorney" at
page 1191 thereof as: "An instrument granting someone authority to act as an agent or
attorney-in-fact for the grantor - Also termed letter of attorney. 2. The authority so granted."
The Learned Author went on to define the various categories of Power of Attorney to include
for the sake of this Appeal, the following:
(a) General Power of Attorney which is a Power of Attorney that authorizes an agent to
transact business for the principal.
(b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and
this is also termed "Power of Attorney coupled with interest."
(c) Special Power of Attorney which is such power of Attorney that limits the agent's
authority to specific matter(s).
At page 1189 the term "Power coupled with interest" is defined as:
"A power to do some act, conveyed along with an interest in the subject matter of the power.
A power coupled with an interest is not held for the benefit of the principal, and it is
irrevocable due to the agent's interest in the subject property. For this reason, some
authorities assert that it is not a true agency power. - Also termed power given as security
proprietary."
At page 1190 of the same text, the Learned Author quoted an analysis of the concepts of
power coupled with an interest otherwise known as "Power given as security," "Proprietary
Power;" or "Naked Power" by Harold Giff Reuschlein & William A. Gregory, at page 99 para.
47 (1990) Edition of the text "THE LAW OF AGENCY AND PARTNERSHIP" where it is stated
thus:
"Suppose that the principal borrows money from the agent and by way of security authorizes
the agent to sell Blackacre if the loan is not repaid and pay himself out of the proceeds. In
such case there is no more reason why the principal should be permitted to revoke than if he
had formally conveyed or mortgaged Blackacre to the Agent. Hence it would be highly unfair
to the Agent to allow the principal to revoke. The reason why such a case is not properly
governed by the
considerations usually making an agency revocable is that this is in reality not a-case of
agency at all. In a normal agency case the power is conferred upon the Agent to enable him
to do something for the principal while here is given to him to enable him to something for
himself.
Coupled with an interest means that the Agent must have a present interest in the property
upon which the power is to operate.
I agree absolutely with definitions from my brother and learned author given above."
Per OGUNWUMIJU, J.C.A. (Pp. 23-26, Paras. A-C) INOSAKWE v. NWOKEDI & ANOR CITATION: (2018) LPELR-45054(CA)
