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September 13, 2018 8:02 am
"In this case, the Appellant relied on Exhibit P1- the Power of Attorney as the document
which vested in her the right of exclusive possession and enjoyment of the disputed
property.
The argument that she claimed only rent and enjoyment of the property without claiming
title cannot hold water since the prayer for injunction effectively means a prayer for title not
withstanding that there is no specific prayer for declaration of title.
In UDE v. UWARA (1993) 2 SCNJ 47, the Supreme Court held that a Power of Attorney is a
mere instrument of delegation which does not confer, transfer or limit a charge or alienate
title to the Donee.
Thus, mere possession of a Power of Attorney does not tantamount to valid title to the land. I
am not discounting the fact that the said Exhibit P1 was registered as No. 3 on Page 3 in
Volume 221 of the Lands Registry in Awka. However, the registration of a document does not
confer any legitimacy or validity to it if it had no power to convey anything ab initio. See
AKPENE v. BARCLAYS BANK (1977) NSCC (Vol. II) 29 at 36; ROCKONOH PROPERTY v. NITEL
(2001) 7 SCNJ 225 at 248-250.
I need to explain further the dictum of Nnaemeka Agu JSC in UDE v. NWARA also cited as
(1993) 2 NWLR Pt. 277 Pg. 638 at Pg. 665 where my Lord said:
"A Power of Attorney merely warrants and authorizes the donee to do certain acts in the
stead of the donor and so 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. So even if it authorizes
the donee to do any of these acts to any person including himself, the mere issuance of such
a power is not per se an alienation or parting with possession. So far, 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. See also the cases of ABU v. KUYABAN (2002) 4 NWLR Pt. 758 Pg.599;
OLORUNFEMI v. NIG. BANK LTD. (2003) 5 NWLR Pt. 812 Pg. 1 and AMADI v. NSIRIM (2004) 17
NWLR Pt. 901 Pg. 111."
What the above means is that until the Donee of an Irrevocable Power of Attorney leases or
conveys the property to himself, then there is no alienation. Nothing like that has occurred in
this case. See also DERRIMA MANGIBO v. CHIEF J.I. OGUNIDE & ANOR. (2016) LPELR- 40547
(CA).
In this case, Exhibit P1 states that Irrevocable Power of Attorney was donated to the
Appellant in Paragraph 11 of Exhibit P1 in consideration of "Fatherly love and affection."
In paragraphs 2, 3, 4, 5 of the said Exhibit P1, the following powers were donated to the
Appellant:
"2. To manage and superintend the management of the said property and to assign to
herself absolutely or to any other person the said property whenever she considers it
necessary to do so.
3. To sell and dispose of all and singular the property together with the appurtenances either
by private contract or by public auction an together or in separate parcels or lots for such
price as she may deem reasonable.
4. To commence, prosecute, enforce, demand, answer, and or oppose application, suits,
claims or any other proceedings whatsoever and demands touching on the said property.
5. To sign and set seal to any instrument, deed delivered pertaining to and to and touching
on the said property and act and deliver any assignment, sublease, mortgage, surrender,
transfer, charge or other deed and to sign or endorse my name upon or to any contract or
any instrument or document whatever with respect to the said property."
As I said earlier, by the opinion of Nnaemeka JSC, supra, the Donee must have assigned or
alienated the property to himself or herself after receipt of Governor's consent to do so,
before it can convey title. See SAVANNAH BANK v. AJILO (1989) 1 SCNJ and Section 22(1) and
Section 26 of the Land Use Act. Also, CALABAR CENTRAL COOPERATIVE THRIFT AND CREDIT SOCIETY LTD v. EKPO (2008) 2 SCNJ 307."
Per OGUNWUMIJU, J.C.A IN OSAKWE v. NWOKEDI & ANOR CITATION: (2018) LPELR-45054(CA)
