PROPERTY LAW

PROPERTY LAW PRACTICE IN NIGERIA IN BRIEF

By 

Adebayo Adekola.

LL.B, BL, ASM, ACIS.

A. INTRODUCTION

Property law practice in Nigeria is broad. Its scope spans meaning of property and property law practice in Nigeria, various transactions on property, the laws and sources of the laws applicable to property law practice in Nigeria. At least to lawyers in the legal practice in Nigeria these are the core areas of Property law practice and it spreads to Administration of estate.

Property has several meanings. However, for the purposes of this write up the meaning will be limited to the right of person to real and personal property, any estate or interest in any property, real or personal, any debt, anything in action, and any other or interest. SECTION 2(1) CONVEYANCING ACT, 1881. Basically, property law practice in Nigeria focus on dealings and laws applicable to such dealings in tangible or real property: land, anything attached to land, or any interest in land, land of any tenure, tenements, corporal or incorporeal and houses and other buildings and individual shares in lands.

SECTION 2(ii) CONVEYANCING ACT, 1881 and SECTION 18 INTERPRETATION ACT, LAWS OF FEDERATION, 2004. It must be noted that property law is different from it practice. The laws are the various legislations governing the dealings in property. The practice is what is referred to as conveyance which includes “assignment, donation of power, lease, mortgage, charge, assent, vesting, declaration, disclaimer, release, demise or settlement and other assurance made by deed”. . SECTION 2(v) CONVEYANCING ACT 1881 AND SECTION 2(1) PROPERTY AND CONVEYANCING LAW, 1959

B. METHODS OF ACQUIRING LAND IN NIGERIA

Nigeria just like any other nation in the world has her own history of land acquisition, developing overtime, leaving behind the on desirable methods and leaving those that are found ok and compactable with the realities of the modern world. These are some of the methods:-

1. FIRST SETTLEMENT: this method of acquiring land in Nigeria is by deforestation of land by the first settlers on such land. They obtain the right of ownership over a land by being the first person(s) to settle on it. Most family land in Nigeria cities today was obtained through these means. This was obtainable during the early 90’s and hardly obtainable presently.

2. CONQUEST: The conqueror of a tribe in tribal wars takes over the land of the conquered tribe. This is no longer obtainable in Nigeria. It has long ceased.

3. CUSTOMARY GRANTS: This is a process by which community heads gives land to a person usually a member of that community as compensation to a person for his contributions to the development of such community. This is still obtainable in Nigeria in towns and villages.

4. GIFTS OF LAND: This is a voluntary transfer of land made gratuitously to a recipient without any consideration paid by him. This is done in Nigeria as a means of attracting investors into a community, though some community(s) do prefer giving lands to their sons and daughters to use for investment while they are reluctant to give out land as gift to non natives or foreigners.

5. SALE OF LAND: This is a complete transfer of interest in land by a seller to a purchaser for a given price. This is the most common and popular means of acquiring ownership in Nigeria. Infact sales of land have become a commercial venture and means of livelihood, income and employment generation in the Nigerian society. However some remote communities in Nigeria will never sell their lands to non natives of their community. Infact, it is a taboo. To them, land and everything on and upon it should only be transferred from one generation to the other within same community and nothing more.

6. INHERITANCE OF LAND: This is a transfer by devolution from one person to another through the instrument of wills and assent.

C. WAYS OF PROVING TITLE TO LAND BEFORE A COURT OF LAW IN NIGERIA

In AJIBOLA V. ISHOLA (2006) ALL FWLR PART 331, P.1209 AT 1230 AND IDUNDUN V. OKUMAGBA (196) 9-10 SC the court listed the following as way of proving title before a court of law in Nigeria.

1. By traditional evidence

2. By production of duly authenticated documents of title

3. By act of selling, leasing and renting out part of the land or farming on it

4. By act of long possession and enjoyment of the land

5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

D. APPLICABLE LAWS TO PROPERTY LAW PRACTICE IN NIGERIA

1. CUSTOMARY LAW: This is a set of rules of conduct existing, recognized and obeyed as binding to persons and things in a particular locality or community at the relevant and material time. These rules and customs vary from one society to another. i.e. In Igbada Efon Community in Oyo State, it is a taboo to sell land to a non native of that community. In Benin kingdom in Edo State, no sells of land can be effected without the consent of the king. In same Benin, sells of land doesn’t translate automatic sales of any economic tree on such land. The trees are usually sold separately.

Custom is usually a question of fact which is required to be pleaded and proved by witnesses in any legal proceeding and documents i.e. a written letter cannot be admitted in evidence in prove of a customary law. Black and white is a foreign invention; alien to customary law practice in Nigeria and not acceptable in evidence in prove of customary law OLUBODUN V. LAWAL (2008) ALL FWLR (PT. 438) P. 1468. Sales under native law and custom in Nigeria is complete and valid once there is payment of the purchase price; the presence of witnesses; and allowing the purchaser into possession. ADESANYA V. ADERONMU (2000) FWLR (PT. 15) P. 2492.

2. CASE LAW: These are decisions of the courts in respect of disputes over real property.

3. RECEIVED ENGLISH LAW: This is the law received from England comprising of the principles of common law, doctrines of equity and statutes of general application. The statutes of general application are those enactments of the English parliament that were in existence in England as at January 1, 1900 e.g. Statute of fraud of fraud 1677, Conveyancing Act of 1881, and the Wills Act of 1837.

4. THE 1999 CONSTITUTION: Every citizen has the right to acquire and own immovable property anywhere in Nigeria. The constitution also provides for the enactment of a comprehensive law regulating land dealings: the Land Use Act. SECTION 43, SECTION 44(1), SECTION 44(2)(c)(d), SECTION 315(5)(d) CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

5. LAND USE ACT 1978 – An Act to Vest all Land compromised in the territory of each State (except land vested in the Federal government or its agencies) solely in the Governor of the State, who would hold such Land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agriculture, commercial and other purposes while similar powers will with respect to non urban areas are conferred on Local Governments. SECTION 1 provides that the Governor of each state shall hold the land comprised in such State upon Trust and administer same for the use and common benefit of all Nigerians.. The greatest and highest legal interest a private holder can have on the land is a right of occupancy SECTION 5(1). SECTION 49 precludes the courts from questioning the Governor’s power to grant right of occupancy. SECTION 26 renders void any alienation of interest in land without consent. But of recent there has been an agitation for the urgent review of the Land Use Act, the Act is argued to be as ancient as the lands it seeks to regulate and crude as the tools used in tilling those lands and week as the hands that tilled the said lands. It is proposed that it should be reviewed to meet the exigencies of modern realities.

6. PROPERTY AND CONVEYANCING LAW (PCL) 1959: No sale of land shall be enforced in the area where this law applies: old western region except there is a note of memorandum in writing containing the terms of the sale and signed by the person to be charged. SECTION 67(1) OF PCL; all conveyances of land or interests in land for the purposes of creating any legal estate are void unless they are made by deed which shall either be signed or place his mark on it. Sealing alone is not sufficient SECTION 77(1) AND 78(1) OF PCL; SECTION 97(1) OF PCL;

7. STAMP DUTIES ACT/LAW 2004: There is a Stamp Duty Act for every State which provides for the procedure for stamping of documents within 30 days of the execution of the document.

8. ILLITERATE PROTECTION LAWS (IPL) 1994: Any person who shall write any letter or document, at the request on behalf or in the name of an illiterate person shall also write on such letter or other document his own name as the writer and his address. SECTION 2 OF THE IPL.

9. LAND INSTRUMENT REGISTRATION LAWS (LAGOS): These laws require that the preparation of instruments and documents on sale or transfer of land can only be done by a Legal Practitioner

10. REGISTRATION OF TITLES LAW 2004: This applies to property law dealings in areas like Surulere, Lagos Island, Yaba, Ebuta-metta, Mushin, Apapa and Ikoyi in Lagos state

11. COMPANIES AND ALLIED MATTERS ACT (CAMA): That a company may borrow money for the purpose of its business or objects and many mortgage or charge its undertaking, property and uncalled capital and issue debentures, debenture stocks and other securities for any debt, liability or obligation of the company SECTION 166 OF THE ACT.

E. PROPERTY TRANSACTIONS IN NIGERIA

1. PLEDGE OF LAND: This is where a person referred to generally as the ‘Pledgor’ gives only possession or deposits any land or interest in land to another party, referred to as the ‘Pledgee” as a security in which the person depositing the property binds himself to do or forbear from doing a particular thing. The right of the Pledgor to recover possession of the land remains with him and is never extinguished however how long it might have been in possession of the Pledgee. AKUCHIE V. NWAMADI (1992) 8 NWLR (PT. 258) P. 214 AT 226.

2. GIFT OF LAND: This in property practice is the voluntary transfer or conveyance of any interest in land made gratuitously to a recipient and without any consideration paid by the recipient. Once a gift of land has been made and accepted, the grantor’s right over the land is destroyed and he cannot lay claim to it thereafter.

3. SALE OF LAND: This is an agreement whereby the vendor sells and the purchaser buys the land for a consideration paid by the purchaser.

4. LEASES OR LEASEHOLD: This is a written agreement which allows a property owner (landlord) to allow another (tenant) to use the property for a specified period of time.

5. LICENSE: Permission to engage in a certain activity, granted by the appropriate authority.

6. MORTGAGE AND CHARGE OF LAND: This is generally the conveyance of a legal or equitable interest in a property with a provision for redemption, that is, the conveyance shall become void or the interest shall be re-conveyed upon the repayment of the loan – PER AMAIZU JCA, IN B.O.N LTD V. AKINTOYE (1999) 12 NWLR (PT. 392) P. 403.

7. DONATION OF POWER: This is an agency relationship by which a person gives power to another to act on his behalf doing all that the person donating the power may lawfully do on his behalf.

F. CONCLUSION.

Property law practice in Nigeria is broader than what has just been discussed in this write up. This write up is a quick point of reference to all the major aspect of property law practice in Nigeria. It is a good pointer for a primary study of property law practice. Legal practitioners in Nigeria take special interest in property law practice because of its relevance to the society and the ultimate financial benefit derivable from property dealing in Nigeria and across the globe.

Meanwhile as attractive as property law practice is, it is capital intensive from the consultation of a good lawyer, legal documents and investment in property as a whole. While government is making it easy to carry on property law practice in Nigeria i.e. registration and search. It has not being able to bring down the high cost of property and property dealings.

However, it won’t be a misdirection if I take my time to correct some misplaced priority on the part of party(s) to most property law transactions in Nigeria. Property law practice to the ‘’unlearned’’ involves to a landlord or landlady just collecting of his Rents when due and writing of quit notice on default by the tenant. To the tenant it is nothing more than just paying the house rent and thereafter calling on the landlord to effect some repairs whenever there is one. Both the landlord and the tenant obviously out of ignorant usually fail to identify and enforce their rights as implied from their relationship and expressed in the form of covenants in the tenancy agreement.

While to the mortgagee it is about having a property as a security for a loan from the bank. Although, the banks are usually too smart and understands the terms of the mortgage agreement. They have and pay team of lawyers to conduct all the legal activities without feeling the financial burden. On the other hand, the mortgagee for lack of proper legal advice or greed usually contacts lawyers who have inadequate understanding of the principles of Mortgage practice thereby putting the Mortgagee at a very bitter state.

These sad situations pointed out above bears it head also with the Donor, the Donee and the third party under a power of attorney, The purchaser and the seller in Alienation of Interest in Property/Sales of property, leasee and leasor in Leasehold etc. No doubt that to avoid these bitter situations pointed out above, party(s) in any property transaction must avoid greed and consult very competent lawyers for legal consultations before the transaction and legal service during and after the transaction. Also, in consulting lawyers in Nigeria, party(s) to property transactions should Endeavour to consult only legal practitioners who have been duly called to the bar as barrister and solicitor of Supreme Court of Nigeria and have the competence to carry through with a reasonable correctness all the legal steps involved in such property transaction.

There are many lawyers ’’ big and small’’ as the unlearned will always prefer to classify Nigerian lawyers using the material possessions within such lawyers disposal i.e. size of the cars they ride in or office they use not taking efforts to know if they have been called to the bar and have the competence to effect such transactions without causing future pains, waste of time and money that will eventually result to calling a Competent lawyer to fight the legal battle in court.

Although there is yet to be a legal pronouncement on the statutes of legal documents and property transactions effected by Fake lawyers that have been discovered and prosecuted in Nigeria. But my humble opinion is that sure transactions will be a nullity meanwhile Ignorant has never been a good defence in law.

POWER OF ATTORNEY IN REAL PROPERTY LAW PRACTICE IN NIGERIA

By 

Adebayo Adekola.

LL.B, BL, ASM, ACIS.

1.      INTRODUCTION

Although the real property law practice in Nigeria must have gotten most if not all its principles and guiding roadmaps from the English law of real property but it has not only hinged a reputation and redeemed itself as not been a hook and sinker by the reforming principles of modern times and modern property law practice. Funny enough these reforming principles and modern real property law practice did not just find their ways into the Nigerian laws; they have become notorious through judicial pronouncement. And the Nigeria real property law practice is the better for it. Although reforming the law is more than needed as the laws governing property law practice has not only become old and out of tone with modern realty, it provisions have become absurd and injurious and worthless.

So, as in the case of other areas of law in Nigeria, explaining real property law in Nigeria is historical. Although, the Nigerian law of real property has never established a simple definition for itself. The Nigerian legal system has created a means by which an individual through another person can execute or deal with interest in property transactions in Nigeria without him being personally involved. The person empowered to act on behalf of another person carries with him all the powers as instructed in the legal instrument given to him. He becomes the hand carrying on the act, the feet walking toward fulfilling of the acts and the mind directing the execution of the act without the person that empowered him to act on his behalf losing a sweet: moving his hands and feet or tasking his mind. His physical presence is never needed, although he is always present. His physical efforts are never needed whilst his desires are being achieved.  

This medium created by the Nigeria legal system which I have just explained in the paragraph above is called Donation of Power of Attorney while the instrument that materializes from the legal relationship of Donation of power of attorney is called Power of Attorney. There is no doubt that the medium of donation of Power of Attorney and power of attorney itself have their own peculiar nature and feature differentiating them from other legal relationship and legal documents dealing in property transaction and transfer of power in dealing with property transactions.  

The person donating a power of attorney is called the “Donor” while the person it is donated to is the “Donee”. Any person who is not legally disqualified can donate a power of attorney. And such power can donate in respect of any deal which may be to perform a specific task or for the performance of a general task, transaction or deal on behalf of the Donor.  Also, Donation of power of attorney can be to any person who is not under any legal disability to receive such power. It could also be revocable or irrevocable. These, in brief are the salient features of Donation of power of attorney and power of attorney in Nigeria property transaction which will be elaborated later in the piece.   

In this piece, readers will avail themselves of reading and analyzing the factors considered before a donor can resort to donation of power of attorney, before a donee can successfully have a power of attorney donated to him, before both the donor and the donee can be said to have a legal relationship and the benefits and liabilities accruable to both the donor and the donee as individuals to one another, separately and jointly to a third party. Likewise the rights  of the donor and the donee separately and jointly against a third party acting on a power of attorney, identification of the various power of attorney: specific, general, revocable and irrevocable power of attorney, principles that must be considered in donation of the power of will all be exposed in this piece.

2.      DONATION OF POWER OF ATTORNEY

For proper understanding of donation of power of attorney, it won’t be out of place to use brief facts of some judicial decisions. It will best show some property transactions that have involved the donation of power of attorney.

The facts of the case of UDE VERSUS NWARA (1993) 2 NWLR PART 278 is an interesting one and for this reason, I will recur the words of NNAEMEKA-AGU, J.S.C. in stating the facts of the case. He considered the cases of all the parties as thus

“The Plaintiff’s case as revealed by his statement of claim was that before the Nigerian Civil war he was granted a lease of a plot of land at No. 2 Umuoji Street, Pon Harcourt (now called No. 2 Ekpeye Street) by the Rivers State government. Through his attorney, Mr. S.E. Anusionwu, he developed the plot by erecting a storied building on it. During the civil war the property was treated as abandoned property by the Rivers State Government and managed by the Rivers State Abandoned property Authority, but that it was duly released to him after the civil war and, through his attorney, he managed the property and paid all necessary rates. When the original lease which was for 7 years expired on the 31st of December, 1971, the government promised the plaintiff, through his attorney, that it would renew the lease: In 1983 the 1st defendant came to the premises of the plot in dispute and interfered with plaintiffs possession of the property by harassing plaintiff’s tenants therein, claiming that he had bought the property from the Government (2nd defendant). Hence the plaintiff sued the defendants.

1st defendant’s case as revealed by his statement of defence is that the property in dispute was state land, the 7-year lease of which to the plaintiff had expired on 31st December, 1971, and was never renewed. He denied that plaintiff’s attorney erected a building on the land. He contended, without admitting, that if the plaintiff gave a power of attorney to Mr. Anusionwu, it lapsed on the expiry of the lease. He denied that the property was released to the plaintiff, and contended that, if there was such a release, it expired on the expiry of the lease and that the said management of the property and any payment of rates did not create any interests in the property in favour of the plaintiff. He denied that the Ministry of Lands ever agreed to renew the lease. Rather, the property reverted to the 2nd defendant. He had offered to purchase the property from the government in consideration of the sum of N52,000.00 and his offer was accepted, after which he paid the sum of N5,200.00 as part of the purchase price; also N520.00 as legal fees and N40.00 as non-refundable deposit for forms to the Government. Thereafter he entered into an agreement with the Government to purchase the property.

The 2nd defendant repeated most of the averments of the 1st defendant. He further contended that the grant of a power of attorney by the plaintiff to’ Mr. Anusionwu without the consent of the 2nddefendant was in contravention of the mandatory provisions of the State Land Law an express covenant in the lease. It was also contended that the property in dispute had never in law been abandoned property, so it could not have beenreleased to the plaintiff and its release to him by the Abandoned Property Authority could not be relied upon. On the expiry of the lease of the property,the 2nd defendant was entitled to sell it and did sell it to the 1st defendant,he averred”.

From the facts of this case, it is obvious and clear that a donor through his attorney can be granted lease of property by a government or individual. The attorney acted on behalf of the donor in developing the said property on behalf of the donor, dealing with the government, paying rates, receiving the property when it was released after the civil war, negotiating for the renewal of the lease after the original lease of seven years expired and sued on the donor’s behalf when the first defendant seems to be disturbing his peaceful possession.

While in JACOBS VERSUS MORRIS (1902) 1 CH 816 the fact is that

The plaintiff carried on business as a tobacco merchant in Melbourne, Australia, under a firm name. He also had a London office bearing the firm name, at which the business of purchasing and paying for goods in London and shipping them to Melbourne was carried on. While absent in Australia he appointed an agent at the London office under a power of attorney, describing him (the plaintiff) as of Melbourne trading as a tobacco merchant under the firm name, and authorizing the agent for him (the plaintiff) and in his name, or in his trading name, "to purchase and to make any contract for the purchase of any goods in connection with the business carried on by me as aforesaid," and to make such purchase either for cash or on credit, with power to modify or cancel the contracts for purchase, and "where necessary in connection with any purchase made on my behalf as aforesaid, or in connection with my said business," to make, draw, sign, accept, or indorse any bills of exchange or promissory notes which should be requisite or proper in the premises, and to sign the plaintiff's name or his trading name to any cheques on his banking account in London.

The agent, purporting to act under the power of attorney, obtained a loan of 4000l. from the defendants, a firm of cigar merchants in London who had previously had frequent business dealings, including loan transactions, with the plaintiff. On applying for the loan the agent, who was well known to the defendants, represented that the power of attorney authorized him to borrow money, and that the loan was required for the purposes of the plaintiff's business. At the same time he produced to them the power itself, but, being satisfied with his assurances, they did not read it. On receiving the 4000l. the agent handed to the defendants as security bills of exchange for the amount accepted in his own name per pro the plaintiff's firm. He then paid the 4000l. into the plaintiff's London banking account, drew it out by cheques drawn by him under the power, and applied it to his own use.

The plaintiff, being at that time in Australia, had no knowledge of the loan transaction. In an action by him against the defendants to restrain them from negotiating the bills upon the ground that they had been accepted without his authority, and upon a counter-claim by the defendants

See also Chime versus Chime (2001) 3 NWLR (Pt. 701) p. 527.

 

3.      POWER OF ATTORNEY

As it can be seen in the introductory part of this work, power of attorney has no other definition than being a legal document authorizing a person to act on behalf of another. The person authorizing the power is said to be ‘’donating a power of attorney’’ and he is referred to in law as ‘’the Donor’’ while the person he is donating the power to is called ‘’the Donee”. This donation of power of attorney creates an agent and principle relationship between the donor and the donee. The donor is the principal and the donee is the agent. Though it is often not found fashionable in legal drafting to have a power of attorney designating the donor as the principal and the donee as the agent but seriously there is nothing really wrong with such drafting. I say nothing is wrong because the introductory part of every legal document one way or the other shows what it is. Infact the content of every document would be construed by the court by what it intends. Whatever is contemplated between the parties to a written agreement is to be looked for in the first instance in the agreement to which they subscribed: EBUN OMOREGIE V. BP CEMENT FAVRIC (1962) 1 ALL NLR 156 Though I disagree with the proponent of not finding the designation of the donor as principal and the donee as agent unfashionable and that it is not elegant drafting. Well, what is elegant drafting in real legal practice is surely very objective. At least from my little experience with some top law firms in Ibadan and Lagos before attending law school, during the law school programme and after the law school as an intern and from copies of drafts paraded by colleagues from other parts of the country. Infact, we think every legal drafting from our law firm is better no matter how inelegant the words and font used.

The document does not necessarily need to be under seal. In UDE V NWARA, [1993] 1 NSCC 236,  NNAEMEKA-AGU, J.S.C. (Delivering the lead judgment): said

’’To begin it, it appears to me that the thrust of theargument lost sight of the time nature of a power of attorney. A power ofattorney is a document, usually but not always necessarily under seal,whereby a person seised of an estate in land authorizes another person (thedonee) who is called his attorney to do in the stead of the donor anythingwhich the donor can do, lawfully usually clearly spelt out in the power ofattorney’’. (Italics mine)

Such act that may require the donation of power of attorney was enunciated further in that case that such acts may extend from receiving and suing for rates and rents from or to third parties.

            This donation of power of attorney creates an agent and principle relationship between the donor and the donee. In this respect the HONORABLE JUSTRICE NNAEMEKA-AGU, J.S.C . in UDE V. NWARA supra described A power of attorney as 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 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.

4.      LIABILTY TO THIRD PARTIES

There is no doubt that the salient principle applicable to agency will apply to donation of power of attorney.  The agent must have authority to act; he must not stand in place of the principal but must act for him. The effect of such acting must be to create legal relations between the principal and the third party although the agent is the instrument by which a contract is brought about, he is not a party to the contract. The contract is that of the principal so long as he was given the authority to act on behalf of his principal. MUTUAL AID SOCIETY LTD V. AKERELE (1966) NMLR 256. 

a.      THE AGENT MUST HAVE AUTHORITY TO ACT

The right of the donee to act on behalf of the donor is the authority conferred on him. However, after a careful assessment of this requirement, I discovered that there are two inter twined angle to having of authority to act. The first refers to the particulars of the donee so appointed and the second is the duties or function he is appointed to execute. Simply put: “who was appointed and what was he appointed for?” It is never the less wise to say that a power of attorney cannot exist without these two requirements. A person even thou appointed in a power of attorney does not have right to execute a function if he is not so authorized to do so. For example Ade appoint Aduni to sell his Toyota Camry car and lease out his duplex in Ikoyi but Aduni rather went on and rented out the Toyota Camry car and sold the duplex in Ikoyi. So also a person not named in a power of attorney cannot claim to have rights/authority to execute a function on behalf of another person. . For example Bayo appoint Jibola to sell his Toyota Camry car and lease out his duplex in Ikoyi but Dami, Jibola’s sister rather went on and sold the Toyota Camry car and leased the duplex in Ikoyi to Uthman. In this second case it is obvious that there is no agency relationship at all between Bayo and Dami since she was not named in the appointment clause of the power of attorney. However, in the first instance, there is an agency relationship between Ade and Aduni to perform some duties but Aduni performed what she was not authorized to perform. In addition even if the person so appointed acts outside his function, the principal can ratify same as his acts and the principal becomes liable. Also, the particular act which gives the cause of action may not be authorized, still if the act is done in the course of employment which is authorized, then the master is liable for the act of his servant: BROWN V. CITIZENS’ LIFE ASSURANCE CO. (1902) 2. N.S.WR. AT 212 CITED WITH APPROVAL BY LORD LINDLEY IN CITIZENS’ LIFE ASSURANCE CO. V, BROWN [1904] A.C. 423AT428 P.C. However, The question whether anything done by an agent has been done in the course of an employment which is authorized is clearly one of fact and in each case the answer must depend on the scope of the agent’s employment; and within the limits of his authority the agent has a discretion as to the manner in which he will discharge his duties. While in the second case there is nothing to ratify because there is no legal relationship between Bayo and Dami the person acting on his own frolic.

The power of attorney must so appoint the donee as the agent of the donor. Usually words like

 “ I…..of ……(‘’Donor’’)appoints …. Of …….. (‘’Donee”) as my lawful attorney”.

The particulars i.e names and address of the donee must be clearly stated in the appointment clause. The clearly stated particulars prevent confusion and create certainty on the identity of the person so appointed. The appointment of the donee is a clear authority for him to act on the duties he is appointed for. The second is that he must perform the task assigned to him. Words like this

 “To do……….”  Represents these tasks.

So, as long as the donee acts within the scope of the power of attorney, he Incurs no personal liability to the third party: any liability is that of the donor: UDE V. NWARA. Supra

b.      HE MUST NOT STAND IN PLACE OF THE PRINCIPAL BUT MUST ACT FOR HIM

The capacity in which he acts must be to act on behalf of the Donor to a third party. He must not represent himself as the donor. Usually in reflecting his capacity in relationship with a third party, it is usually reflected on the face of such Document. For example if he sues on behalf of the Donor the party section of the court process will have the name of the Donor and underneath it or in front of the Donor’s name comes words like

“suing through his lawful Attorney Mr….”.

 Also in dealing with other legal transactions, such legal document prepared for the purpose of such transaction will bear the Donor’s name and usually in brackets

“Acting through his lawful Attorney Mr…..through a power of attorney donated on …. Of ….201….”

Never shall any document in respect of any transaction involving an agent of a Donor be given legal backing without following this provision. Also never should an agent with or without the document reflecting his capacity represent himself in words or conduct as the Donor to the third party. He shall be personally liable to such third party. 

5.      CONCLUSION

In this piece, readers were availed of reading and analyzing the factors considered before a donor can resort to donation of power of attorney, before a donee can successfully have a power of attorney donated to him, before both the donor and the donee can be said to have a legal relationship and the benefits and liabilities accruable to both the donor and the donee as individuals to one another, separately and jointly to a third party. While I promise to extend the discussion to the rights of the donor and the donee separately and jointly against a third party acting on a power of attorney, identification of the various power of attorney: specific, general, revocable and irrevocable power of attorney, principles that must be considered in donation of the power in another piece on this webpage.

TRESPASS TO PROPERTY-WHO CAN SUE

By 

Adebayo Adekola.

LL.B, BL, ASM, ACIS.

It is settled law that trespass is actionable at the instance of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain an action for trespass if the Defendant cannot show a better title. AMAKOR V. OBIEFUNA (1974) 3SC. 67;  ADESHOYE V. SHIWONIKU 14 WACA 86.

In ALHAJI FASASI ADESHOYE V. J.O SHIWONIKU supra the following statement of law appeared

“The appellant sought to defeat the respondent claims by setting up the conveyance dated 14^th January , 1950 under which he claimed to be the owner on the fee simple of the land in dispute. The validity of that conveyance was put in issue by the respondent, and in my opinion, the learned trial judge was bound to determine the issue so raised. Once it becomes clear that the grantors have purported as they did to convey a title which they did not possess, the respondent being in possession of the land could successfully maintain an action for trespass against the appellant”.

   

Any form of possession is sufficient to maintain an action for trespass against a wrong doer so long as it is clear and exclusive. It is not necessary, in order to maintain trespass, that the plaintiff’s possession should be lawful and actual possession is good against all except those who can show a better right to possession in themselves. And long and adverse possession of land cannot found a claim in the title against the true owner. ADU V. KUMA 3 WACA 240: DA COSTA V. IKOMI SC RR736/66 of 20/1268

In ATUNRASE V. SUNMOLA (1985) 1 NWLR 105 SC, KAWU JSC after considering the evidence available before the court held

“In this case the evidence shows that the respondent had been in prior possession of the land in dispute before the appellants got there, and that the appellants could not show a better title. In these circumstances, I am of the view that both the trial court and the court of appeal were right in their conclusion that the respondents could successfully maintain an action for trespass against the appellant”.

The learned Justice continued

“In this case it is common ground that the Oyero family are the true owners of the land in dispute, and that the appellants, who are trespassers are still in possession because the respondents cannot show  a better title. The question is can the appellants be declared owners of the land simply because they have been in continuous and undisturbed possession of it for some considerable length of time? In my judgment, the answer to this question must be in the negative”.

 In R. O. AYODELE V. DR O. OLUWOLE (1969) 1 ALL N.L.R 233 AT P. 240. Fatai Williams Ag J.S.C (as he then was) delivering the judgment of the court, said;-

“There is one other point, learned counsel for the respondent argued before us very strongly that because the respondent and his predecessors in title had been in continue possession of the disputed land, the respondent , if only for that reasons, should have been declared the owner. On this point, we would do no more than to refer counsel to the following observation of this court in DA COSTA V. IKOMI SC 736/1966 delivered on 20^th December, 1966. It is as follows

“Not withstanding this counsel submitted that it was sufficient for the  plaintiff to establish her claim if she showed long and undisturbed possession acquiesced in by the Oloto family, but to our mind, this submission quite overlooks that here the plaintiff was not seeking to rely on undisturbed possession to resist a claim by the Oloto family but it was in counsel’s submission , relying on long possession and acquiescence really a weapon more of defence than of offence, but it must also be specifically pleaded and this was  not done here. In our view the plaintiff’s claim stood or fell on establishing a good title derived from the Oloto family and this she failed to prove while contrary the defendant had established that he had a good title from the Oloto family. The Plaintiff’s long possession was, therefore only that of a trespasser or a squatter and would not enable her to succeed against the true owner who was in fact proved to be the Defendant”.

 

Also in OLAYIOYE V. OLADEIDE O. OSO (1969) 1 ALL NLR 281 AT P.285, the Supreme Court said;-

“The learned trial Judge dealt at length in his judgment with the issue of the long possession of the plaintiffs but, with respect to him, he was in error in employing the plea of long possession as sword instead of shield. A party in long possession is entitled to resist the claims of a rightful owner by pleading his long possession but understandably he cannot make that a basis of a claim in an action instituted at his own instance for declaration of title as against the true owner”.

In AGBOOLA V. ABIMBOLA (1969) 1 ALL NLR 287, the respondent, who had been in adverse possession, applied to the Registrar of Titles for registration under the Registration of Title Act, the appellant who claimed a direct grant from original owners of land, lodged objection against the respondent’s application. He (the applicant) subsequently also applied to be registered and the respondent lodged an objection against the application. The appellant’s objection and application were dismissed by the Registrar. The appellant appealed to the High Court but his appeal was dismissed. On further appeal to the supreme Court, the court said that, by applying for registration of her title the respondent was using long possession as a basis for title rather than as a defence. The court said;-

“The registrar then held that on the principles of law expressed in cases like AKPAN AWO V. COOKEY-GAM 2 NLR 100 AND SAIDI AKINWUNMI , 1FSC 107, equity would refuse to assist a real owner of land who had failed to assert his rights timeously. The principles enshrined in this case cited, together with a long list of others, exemplify some of the most sacrosanct of legal principles and they are well known and universally accepted, we too are in agreement with the principles and don’t propose to shift one inch away from the authority. But none of these cases has ever been applied in favour of a plaintiff claiming title thereby as opposed to being applied in favour of a defendant resisting the claims of the proper owner”.

As the above decision clearly show, long and adverse possession of land cannot found claim in title against the true owner.