CAN A POWER OF ATTORNEY TRANSFER OWNERSHIP OF LAND IN NIGERIA?
The transfer of an interest in land is one of the more complex areas of Nigerian property law. This is partly because, in addition to the Land Use Act 1978, various States have enacted laws regulating the registration of land instruments and transactions within their respective jurisdictions.
The Land Use Act remains the principal legislation governing landholding and dealings in land in Nigeria. However, State land registration laws also play an important role in determining how transactions involving land are documented and registered.
One question that frequently arises in land transactions is:
Can a Power of Attorney transfer ownership of land?
The short answer is no, not by itself.
Governor's Consent and Transfer of Interest in Land
Under the Land Use Act, the transfer of a statutory right of occupancy requires the consent of the Governor.
Sections 21 and 22 of the Land Use Act regulate dealings with rights of occupancy and require the Governor's consent in circumstances involving the transfer or alienation of such interests.
In practice, a transfer of an interest in land is ordinarily documented by a Deed of Assignment. The Deed of Assignment records the agreement between the seller (assignor) and purchaser (assignee) and evidences the transfer of the interest in the property.
Depending on the applicable State law and the nature of the title, the transaction will also be subject to the relevant consent and registration requirements.
The courts have repeatedly considered the effect of these requirements, including in cases such as Mbanefo v. Agbu (2014) LPELR-22147(SC) and Agwuncha v. Beluchukwu (2017) LPELR-42791(CA).
What Does a Power of Attorney Do?
A Power of Attorney is fundamentally different from a Deed of Assignment.
A Power of Attorney is an instrument by which one person (the donor) authorises another person (the donee or attorney) to act on the donor's behalf and exercise specified powers.
For example, a landowner may grant a Power of Attorney authorising another person to:
- negotiate the sale of a property;
- execute documents on the owner's behalf;
- apply for the relevant consent;
- submit documents to the relevant land registry; or
- manage or otherwise deal with the property in accordance with the authority granted.
However, granting these powers does not, by itself, transfer the donor's ownership or interest in the land to the attorney.
What About an Irrevocable Power of Attorney?
This is where some confusion often arises.
An irrevocable Power of Attorney, particularly one granted for valuable consideration, may confer substantial powers on the donee. In some States, legislation may also permit certain Powers of Attorney relating to land to be registered. However, registration does not necessarily transform the Power of Attorney into an instrument of transfer.
In Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132, the Supreme Court made it clear that a Power of Attorney, even where described as irrevocable, essentially authorises the donee to perform specified acts on behalf of the donor. It does not, without more, transfer ownership or an interest in land to the donee.
Thus, the important distinction is that a Power of Attorney gives authority to act whilst a Deed of Assignment transfers the interest in the land.
What Documents Should a Purchaser Look Out For?
A purchaser should not assume that every document relating to a property constitutes evidence of ownership or transfer.
Depending on the circumstances, documents such as the following may be relevant to a land transaction:
- Certificate of Occupancy;
- Deed of Assignment;
- Deed of Sublease;
- Survey Plan;
- Allocation Letter; and
- relevant approvals, consents and registration documents.
However, these documents do not all perform the same legal function.
For example, a Survey Plan identifies the location and boundaries of land; it does not, by itself, transfer ownership.
Similarly, a Contract of Sale may evidence an agreement to sell and purchase property, but it should not automatically be treated as the instrument by which legal title or an interest in land is transferred.
The nature and legal effect of any document will ultimately depend on the circumstances of the transaction, the interest being transferred and the applicable law.
Conclusion
When purchasing land, it is important to understand the difference between a document that authorises a person to act and one that transfers an interest in land.
A Power of Attorney may be an important part of a land transaction, but it should not, without more, be treated as evidence that ownership of the property has been transferred.
This article is provided for general information and educational purposes only and does not constitute legal advice. The applicable requirements may vary depending on the State, the nature of the property and the particular circumstances of the transaction.