Commitment Towards Young Lawyers and Law Student Advancement

Tuesday 20 December 2016

PROPERTY LAW PRACTICE: POWER OF ATTORNEY



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.
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
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

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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