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LETTER OF INSTRUCTION TO SOLICITOR GIVES HIM POWER

Dictum

The law is that any such letter of instruction to the solicitor must be issued before the Notice to Quit is issued by the Solicitor otherwise the solicitor has no authority to act. Any notice to quit or notice of intention to apply to recover possession issued by any such solicitor before the letter of instruction is null and void and of no effect. – Ubaezonu JCA. Coker v. Adetayo (1992)

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BECAUSE A POWER OF ATTORNEY WAS GIVEN DOES NOT DIVEST THE DONOR OF POWER

The fact that a Power of Attorney was given by the fourth respondent (who is the donor) of his power to alienate the property does not divest the donor of power to deal with the property so long as the first respondent (the donee) had not exercised such power. (See Gregory & Biude v (1) Clement Nwara (2) AC Rivers State (1993) 2 NWLR (Part 278) 638 at 664 and 665; Ajowon v Adeoti (1990) 2 NWLR (Part 132) 271 at 222 and 294, and Oshola v Finnih (1991) 3 NWLR (Part 178) 192 at 197).

— Wali JSC. Chime v Chime (2001) – SC 179/1991

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DONEE OF POWER OF ATTORNEY MUST SUE IN HIS PRINCIPAL NAME

This is because, the donee of a Power of Attorney or an agent in the presentation of a court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise. See Timothy Ofodum v. Onyeacho 1966/67 10 E.N.L.R. 132; Jones v. Gurney (1913) WN 72; John Agbim v. Mallam Gamba Jemeyita (1972) 2 ECSLR 365.

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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WHAT IS A POWER OF ATTORNEY?

A power of attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to, third parties. It may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period. A power of attorney 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 it 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: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation.

– Nnaemeka-agu, JSC. Ude v. Nwara (1993)

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RENT CAN BE COLLECTED DESPITE SERVICE OF NOTICE TO QUIT

The fact that a landlord collected rent on a property still in occupation or possession of the tenant after notice to quit cannot by any stretch of the law, equity or imagination amount to a waiver of the notice to quit even where the notice had expired and the tenant refused to yield possession in time. The notice to quit would subsist until it is formally rescinded by the landlord and or when a fresh tenancy agreement is entered into.

– Ogunwumiju JSC. Pillars v. William (2021)

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WRIT OF SUMMONS REGULARISES DEFECTIVE NOTICE TO QUIT

The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the land lord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to of the property has to be sufficient notice on the tenant that he is required to yield up possession. I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, their regularity of the notice if any is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends.

– Ogunwumiju JSC. Pillars v. William (2021)

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FILIAL CONSIDERATION CANNOT DONATE AN IRREVOCABLE POWER OF ATTORNEY

The other point is that before a Power of Attorney can be irrevocable it must be given in financial and NOT filial consideration as was done in this case as the Appellant did not pay any money to the Donor-her father. The definition of good consideration in Blacks law Dictionary 7th Edition indicates that it must be valuable consideration. It is clear that mere filial or moral obligation to donate an Irrevocable Power of Attorney cannot amount to valuable consideration.

— H.M. Ogunwumiju JCA. Osakwe V. Nwokedi & Anor. (CA/E/168/2014, 13 July 2018)

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