ANSWER TO QUESTION 7 OF PROPERTY LAW WEEK 5 TASK: POWER OF ATTORNEY
LEGAL ISSUES
·
Revocation of Power of Attorney that was
neither expressed to be irrevocable nor given for any consideration
·
Actions taken by the donee upon an
ignorance of the death of the donor
·
Protection of third party who
participated in a in a transaction upon ignorance of the death of the donor.
General rule is that a Power of
Attorney is revocable unless stated otherwise. In the case of UBA V
REGISTER OF TILES the court
stated that a Power of Attorney is deemed revoked by operation of law if
the donor suffers death, insanity, bankruptcy or other legal disability. And
every transaction entered into by the donee after the revocation of power shall
be void based on the general principle of NEMO
DAT QUOD NON HABEAT (YOU CANT GIVE WHAT
YOU DON’T HAVE) In the case of
ADEGBOKUN V AKINSANYA the court held that a Power of Attorney made by deed
can only be revoked by deed. [OE1]
(However, by virtue of Section
142(1) PROPERTY AND CONVEYANCY LAW which provides that any person
making any payment or doing any act
in good faith in pursuance of
a power of attorney shall not
be liable of the payment or act by reason that before the payment or act the donor of
the power had died or become subject to legal disability or revocation was not
at the time of the payment or act known to the person making or doing same.[OE2]
In the scenario above
following the general rule since the document is not expressed to be
irrevocable nor given for any consideration, the power donated to Brocks
Consulting Limited is deemed to be revoked upon the death of Mr. Enefaa
Chamberlain a day to the conclusion of the transaction following the decision
of the court in UBA V REGISTER OF TITLES
this renders the transaction between the company and Madam Lokpta Nta void
based on the principle of NEMO DAT QUOD NON HABEAT
However, by virtue of Section
142(1) PROPERTY AND CONVEYANCY LAW which seems to be an exception to the
general rule, the donee Brock Consulting Limited and purchaser Madam Lokpta Nta
acted in good faith in pursuance of the power of Attorney and had no notice of
the death of Enefaa Chamberlain. This will exonerate her and donee from
liability in respect of the completion of the transaction after the death of
Mr. Chamberlain[OE3]
In conclusion, my
advice to the parties is that the law protects the action taken upon ignorance
of the death of the donor. The transaction between Brocks Consulting Limited
and Madam Lokpta Nta will be deemed valid since they had no notice and acted in
good faith.
7B) PRECAUTIONARY STEPS TO INSIST UPON
CONCLUSION OF THE TRANSACTION
1.
STATUTORY DECLARATION which should be in
form of an affidavit done by the attorney to the effect that he has not
received any notice or information of the revocation of such power of attorney
by death or otherwise. It should be made immediately or within 3 months after
any such payment or act. This will be taken to be a conclusive proof of such
non-revocation at the time when such payment or act was made or done. See
Section 142(2) PCL S.48 CA
2.
A CLAUSE should be included in the deed
of assignment in relation to the transaction betwn the donee and Purchaser
which should state that neither the attorney nor the purchaser became aware of anything
that may deprive us of the power to act. This will be a conclusive
proof they acted in good faith and protect the interest of the purchaser[OE4]
7c) POWER OF ATTORNEY
EXPRESSED TO BE IRREVOCABLE FOR A PERIOD OF TIME
General rule is that Power of
Attorney is naturally revocable. However, by virtue of Section 144(1) PCL, provides
that a power of Attorney expressed to be irrevocable for a fixed time not
exceeding one year shall not be revoked for and during that fixed time either
by anything done by the donor of the power without the concurrence of the donee
of the power or by death or any legal disability of the donor. This was
affirmed in the case of LABEDI V ODULANA that death or legal disability of the
donor does not revoke a power of attorney that is expressed to be irrevocable.[OE5]
In
this instant case Mr Enefaa Chaamberlain died within within the fixed time of the
irrevocability of the Power of Attorney, following the position of the law in
Section 144(1) PCL and the decision of the court in LABEDI V ODULANA his death
does not revoke the power granted.
7c)
on the other part of the question the
validity of the transaction on November 08/2016
The
implication of this is that the status of the power of Attorney will change
from being irrevocable to revocable. And the position of the law is that the
appointment made by deed can only be revoked by deed. SEE ADEGBOKUN V AKINSANYA
and also through Operation of Law (Death, insanity, Bankruptcy)
In
the instant case after the expiration of the fixed time, there was no
revocation of the power in any of the aforementioned ways; therefore the
transaction on November 8 2016 by the parties is valid[OE6]
7d) ACTION OF
PURCHASER UPON NOTICE OF DEATH OF DONOR IN A POWER OF ATTORNEY EXPRESSED TO BE
IRREVOCABLE FOR CONSIDERATION AND DURATION OF TIME
The general rule is
that a Power of Attorney is revocable upon the death of the donor, this is
under the operation of law.
However, the
combination of provision Section 143(iii) and 144(iii) of PCL both provides that a Power of Attorney
expressed to be irrevocable for consideration or the instance of a given period
of time shall not be revoked or affected even by the notice of the death of the
donor without the concurrence of the donee. This was affirmed in the case of LABEDI V ODULANA that death, legal
disability of the donor cannot revoke the power of Attorney in this instance.
In the instant case,
even though Madam Lokpta Nta is aware of the death of Mr. Enefaa Chamberlain it
does not affect the transaction since the power of attorney given was expressed
to be irrevocable for consideration and duration of four moths which is still
under the purview of the one year under Section 144 PCL, and the donee have not
consented to the termination of the Power of Attorney.
[OE1]This
Position of Law is based on the Principle that A Power of Attorney can’t cure a
legal disability of the donor.
[OE2]This
is simply an exception to the general rule. Please take note that two major
factors that will exonerate purchaser from liability are:
1) GOOD
FAITH
2) LACK
OF KNOWLEDGE
PLEASE TAKE NOTE THAT THIS EXCEPTION APPLIES TO POWER
OF ATTORNEY THAT IS REVOCABLE .
[OE3]I
know the question in Ur heart is how do we determine good faith. Section 142(2)
provides for a need of Statutory
declaration which will stand as a conclusive proof of non-revocation at
the time when such payment or act was made or done.
[OE4]Please
note that this is an excerpt from what the Lecturer said in the class am yet to
see the legal authority backing it up but it a good precautionary step.
[OE5]Please
note that what will make the power of attorney revocable in this instance is
when the donee is in concurrence with the donor
[OE6]This
part seems technical, the position of the law is that upon the expiration of
the one year, the Power of Attorney will still continue to exist but the status
it will have will be one of REVOCABLE and can be revoked either
EXPREESLEY(Which should be by deed) IMPLIEDLY (conduct) OPERATION OF LAW:
Death, Insanity, Bankruptcy………
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