PROPERTY LAW PRACTICE 2016/2017 WEEK 5: POWER OF ATTORNEY TASKs

COUNCIL OF LEGAL EDUCATION

NIGERIAN LAW SCHOOL

LAGOS CAMPUS

PROPERTY LAW PRACTICE DEPARTMEMNT

2016/2017 ACADEMIC SESSION

WEEK 5: POWER OF ATTORNEY

FRIDAY, DECEMBER 09, 2016

TASKS

Enefaa Chamberlain lives at 45, Teller Road, Onitsha and he is the sole importer of Latung laptops in Nigeria. He also has interests in real estate, telecommunications and agro-allied businesses. He is from Bayelsa State, Nigeria. He purchased the following properties through his estate consultant, Prince Ignatius Bako, of Brock Estate Brokers and Property Consultants:

(1)   The 4-bedroom duplex at 22, Bank Road, Ikoyi, Lagos with Title number: LO/986597;

(2)   The sixty-feet wide warehouse at 31, Kreku Street, Auchi Road, Benin City, Edo State;

(3)   The block of six flats at 44, Apple Avenue, Enugu, Enugu State;

(4)   A vacant plot of Land at Kilometre 77, Zaria-Kano Road, Kaduna, Kaduna State; and

(5)    The two-winged duplex at 13, Works Road, Wuse, Abuja registered as 87/87/2011

Enefaa Chamberlain retained the services of Prof Owena Briggs, SAN, under a general retainership, which began in 2012. In view of the economic recession in the country, Enefaa Chamberlain has decided to source for funds to expand and boost the liquidity of his businesses. To this end, he intends to do the following:

a.      Obtain a loan of N350 million from Nigeria Agric Bank Plc (having its head office at 61 Abba Crescent, Area 10, Garki, Abuja), and plans to use the property in Ikoyi as security for the loan.

b.      Dango Ventures Nigeria (a business outfit owned by Mr Terry Bam) has agreed to purchase the property in Enugu for N210 million;

c.       Mr Terry Bam is personally negotiating purchase of the property in Benin City, Edo State.

d.      Enefaa Chamberlain has just rounded off negotiations with the National Secretariat of National Association of Nigerian Students (NANS) in respect of the right wing of the property in Wuse, Abuja. NANS intends to take the property for a term of seven years, for use as its national headquarters.

e.      Den-Cruz Nigeria Limited (of 13, Asokoro Road, Wuse, Abuja) has agreed with Enefaa Chamberlain to take the second wing of the property in Wuse on a three-year lease, which the company plans to use as the official residence for its Managing Director, Dr Oyin Mogaji.

Meanwhile, Enefaa Chamberlain has instructed his lawyer (Prof Briggs) to immediately undertake the following legal jobs:

(a)   to draft a document, for the purpose of authorizing Brock Consulting Limited to find a buyer and sell the property in Kaduna for a sum not less than N70 million within six months of receiving the instructions; and

(b)   to draft a document to contain specific instructions on disposal of Enefaa Chamberlain`s assets and properties on Enefaa Chamberlain`s death. Enefaa Chamberlain wishes to be buried inside the sitting room of his residential house at 45, Teller Road, Onitsha, when he dies. He wishes also that his three children, Tom Chamberlain (19 years old), Mary Chamberlain (13 years old) and Rita Chamberlain (22 years), together with his friend, Prince Jibola Jaja to be in charge of managing his estate, after his death. Enefaa Chamberlain would want Prof Briggs to also reflect these wishes in the said written instructions.

For these two instructions, Prof Briggs has written Enefaa Chamberlain for a professional fee of N500,000:00 and has asked Enefaa Chamberlain to make a down payment to him N300,00 “on account.” Enefaa Chamberlain intends to object to Prof Briggs` demand for N500,000:00 as professional fees. Enefaa Chamberlain is of the opinion that since Prof Briggs has been collecting N1 million annually from him (Enefaa Chamberlain) as retainership fee, he is not obliged to pay Prof Briggs any other fees for the work he has just given to Prof Briggs.

Answer the following questions, based on the above scenario:

1. Identify the instances of delegation or proposed delegation of authority in the above scenario, stating the respective (or proposed) Donor(s) and Donee(s) and the extent or scope of powers donated in each instance. How would you respond to a suggestion by one of your classmates that such delegation of authority, could alternatively be effected orally? Your answer must be supported with legal authorities.

2. Describe the nature of the document Mr. Enefaa Chamberlain would need to execute for purposes of validly conferring the proposed powers on Brock Consulting Limited. With the aid of legal authorities, comment briefly on the effects (if any) of donating such or similar powers to Brock Estate Brokers & Property Consulting.

3. Assuming you are Professor Owena Briggs, list out the particulars of information you would obtain from the affected parties/persons, for purposes of preparing the document referred to in answer to question (2) above. Mention any precaution/s Professor Briggs needs to take and the ethical considerations he must observe for purposes of taking such instructions, in view of the peculiar nature of the transaction.

4. Draft the document referred to in question (2) above, to meet professional standards, assuming Brock Consulting Limited has its head office at 56, Ogiro Crescent, Wuse, Abuja. How would it affect the concluding part of the document you prepared if the power is being donated to Prince Ignatius Bako of Brock Estate Brokers & Property Consultants, located at 11, Dengiwa Avenue, Ikeja, Lagos?

5. Comment briefly on any special precautionary measures that should be taken by a Legal Practitioner while drafting the document referred to in question 3 above, assuming the document is for use in South Africa. Would it make any difference that such measures were not taken? Give reasons for your answer.

6. Highlight briefly whether, and to what extent, each of the following cases affect creation of Power of Attorney in Nigeria:

1. Ude Vs. Nwara (1993) 2 NWLR 638 At Page 664.  
2. Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 At 549.
3. Ajamogun V. Oshunrinde (1990) 4 NWLR (Pt. 144) 407 At 419.
4. Uzoechi Vs. Alinnor (2002) 2 NWLR (Pt 753) 217 At 274
5. Ojugbele V. Olasoji (1982) SC 71
6. Abina V. Farhat (1938) 14 NLR, 17

7. Assuming the document you drafted in answer to question (4) above was executed on 07/08/2016, and was neither expressed to be irrevocable nor given for any valuable consideration. The Directors of Brock Consulting Limited had thereafter executed a formal contract with the buyer of the property and the parties have scheduled to complete the entire transaction by executing the Deed of Assignment on November 08, 2016. Unfortunately, Mr Enefaa Chamberlain, who was then away in London, on vacation, died in a ghastly motor accident in Central London on November 07, 2016. Unaware, that Mr. Enefaa Chamberlain had passed on, the Directors of Brock Consulting Limited and the buyer (Madam Lokpa Nta) had gone ahead to complete the transaction on November 08, 2016. However, by a letter dated November 19, 2016, signed by their Solicitors, and addressed to Brock Consulting Limited, the wife and first son of Mr Enefaa Chamberlain advised Brock Consulting Limited that the authority given to Brock Consulting Limited by Mr. Enefaa Chamberlain had been revoked. Now, answer the following questions:

(a)    Comment of the legal issues and advise the parties on the way out, citing relevant legal authorities.

(b)   Assuming you act as solicitor to Madam Lokpa Nta in the transaction referred to in question 7 (a) above, what precautionary steps should you insist on at the conclusion of the transaction, to protect the interest of your client in view of the fact that you are not dealing with the Mr Enefaa Chamberlain (the owner of the property) directly, but only with his representative? Support your answers with legal authorities.

(c)    Assuming the instrument of delegation referred to in question 7 (a) above had been expressed to be irrevocable for a period of three months, but no valuable was offered for the said irrevocability. Comment on the effect (if any) of the death of Mr Enefaa Chamberlain (on November 06, 2016) on the powers donated, and state whether the subsequent completion of the transaction on November 08, 2016, by the parties could be said to be valid.

(d)   Assuming that in the scenario given in question 7 (a) above, the power was given for consideration and still expressed to be irrevocable for four months, comment on the effect of the (November 06, 2016) death of Mr Enefaa Chamberlain on the transaction, if Madam Lokpa Nta was aware of the death prior to the event of November 08, 2016?

8.      Assuming the Donor of the document you drafted in answer to question 4 above is the Soro Family of 51, Aboyade Street, Ketu, Lagos, with the following as their family representatives: Mr Joe Soro (family head), and Mr. Emeka Soro, Miss. Bola Soro as principal members, answer the following questions:

1. Draft the introductory part (up to the appointment) and the concluding part of the document.
2. Assuming Mr Joe Soro alone donated power to Brock Consulting Limited for purposes of sale of their family property at 67, Ikorodu Road, Ketu, Lagos, comment on the validity of Brock Consulting Ltd undertaking the sale transaction on behalf of the Soro family, and executing the final document required to be executed to complete the transaction.

3. What would be your legal opinion in respect of the validity of the sale transaction referred to in question 8 (b) above, if the power had been donated by only Mr. Emeka Soro and Miss. Bola Soro to the exclusion of Mr Joe Soro?

9.  ​Is a Power of Attorney a registrable instrument? Give reasons for your answer.

10. Assuming the document you drafted in answer to question 4 above was executed and delivered on December 13, 2015 and contains the following clause:

“AND I DECLARE that this Power of Attorney shall be irrevocable for a period of Six years from this date.”

Meanwhile, on September 15, 2016, Mr Enefaa Chamberlain sent a letter to Brock Consulting Ltd, revoking the power. Mr Enefaa Chamberlain later died on October 4, 2016. Advise Brock Consulting Ltd on the legal effect of the letter of September 15, 2016 and Mr Enefaa Chamberlain’s death on October 4 2016 on the powers he had donated.

11.  Assuming the document prepared in answer to question 4 was dated December 13, 2015 and was not given for consideration but expressed to be irrevocable for three years, advise Mr Chamberlain on the validity of his revoking the instrument on January 20, 2017 by a document under seal. Could Mr Chamberlain have validly revoked it by an email letter sent on March 10, 2017?

      INSTRUCTIONS:

1.                   All groups to consider ALL questions in groups.

2.                   Answers to group questions MUST be submitted online (as an attachment) to plp@lawschoollagos.org, not later than 9pm on Thursday, December 08, 2016.

3.                   Hard copy to be submitted to any of the lecturers in the department not later than 9am on Friday, December 09, 2016.

4.                   Each student MUST study the topic (Power of Attorney) in advance, and get ready for presentations in class and to answer questions on the topic as well as on the above tasks.

5.                   Some relevant reading materials:

a)      Real Property Law & Practice In Nigeria (published in 2014 (by Felicia O. Eimunjeze);

b)      Understanding Legal Drafting & Conveyancing) (2012 edition, by Sylvester Imhanobe);

c)       Property Law Practice In Nigeria (3^rd edition 2105 by Y.Y Dadem);

d)      Source Book On Property Law Practice (by Ada Odor & F.J. Oniekoro ).