30/08/2026
RE: WHETHER A POWER OF ATTORNEY TERMINATES UPON THE DEATH OF THE DONOR AND WHETHER THE POSITION EXTENDS TO AN IRREVOCABLE POWER OF ATTORNEY
The statement that 'a Power of Attorney dies the moment the donor dies' is generally true in Nigerian law, but it is not an absolute rule.
LEGAL OPINION
1. INTRODUCTION
I have considered the proposition that “a Power of Attorney dies the moment the donor dies” and, more particularly, whether that proposition applies with equal force to an instrument expressed to be an Irrevocable Power of Attorney.
In my considered opinion, the proposition is substantially correct as a statement of the general law of agency, but it is too broad if presented as an absolute proposition of Nigerian law.
An ordinary Power of Attorney will ordinarily terminate upon the death of the donor. There are, however, recognised statutory and equitable exceptions, particularly where the power is given for valuable consideration, is coupled with an interest, is granted as security, or is otherwise brought within the statutory regime governing irrevocable powers.
Accordingly, the mere death of the donor does not, in every conceivable case, extinguish every Power of Attorney previously granted by him.
2. NATURE OF A POWER OF ATTORNEY
A Power of Attorney is, in its ordinary legal character, an instrument of delegation.
It authorises the donee or attorney to perform, in the name or on behalf of the donor, acts which the donor himself could lawfully perform.
The locus classicus remains Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638, where the Supreme Court explained that a Power of Attorney ordinarily does not itself confer, transfer, limit, charge or alienate title. Rather, it authorises the donee to perform those acts for and on behalf of the donor.
The consequence is fundamental.
The authority of the donee is ordinarily derivative. The donee acts because the donor possesses the relevant legal capacity and has authorised the donee to exercise it.
Where the donor dies, the ordinary agency relationship comes to an end and responsibility for the deceased's estate passes to his personal representatives in accordance with the applicable law of succession and administration of estates.
Thus, as a general proposition:
THE DEATH OF THE DONOR TERMINATES AN ORDINARY POWER OF ATTORNEY.
3. THE WORD “IRREVOCABLE” IS NOT, BY ITSELF, CONCLUSIVE
A common error is to assume that merely describing an instrument as an “Irrevocable Power of Attorney” places it beyond revocation by death.
That is not the law.
The Court is concerned with the substance, consideration, purpose and legal effect of the transaction, and not merely the nomenclature employed by the draftsman.
An instrument does not acquire immortality merely because the word “irrevocable” appears in its heading or operative clauses.
The relevant questions include:
(a) Was the Power of Attorney given for valuable consideration?
(b) Does the donee possess a proprietary interest in the subject matter of the power?
(c) Was the power granted as security for an obligation owed to the donee?
(d) Is the power expressly stated to be irrevocable?
(e) Was it expressed to be irrevocable for a stipulated statutory period?
(f) What law governs the transaction in the State where the property is situated?
(g) What, precisely, does the instrument authorise the donee to do?
These considerations determine whether the power falls within the ordinary rule or within one of the recognised exceptions.
4. POWER COUPLED WITH AN INTEREST
The principal exception concerns what is commonly described as a “power coupled with an interest”, “proprietary power”, or “power given as security”.
The distinction is between:
(a) a power given to enable the donee to act merely for the benefit of the donor; and
(b) a power given to enable the donee to protect, realise or enforce an independent proprietary or security interest of his own.
The latter is not treated as an ordinary revocable agency.
This distinction was recognised in Chime v. Chime (2001) 3 NWLR (Pt. 701) 527 and has been reiterated in subsequent authorities.
In Osakwe v. Nwokedi & Anor. (2018) LPELR/LCN-11939(CA), the Court of Appeal reaffirmed that where an authority is given for valuable consideration for the purpose of effectuating a security or protecting or securing an interest of the agent, the power is irrevocable during the subsistence of that security or interest.
The interest contemplated by law is not merely an interest in receiving a fee, commission or benefit from acting as attorney.
There must ordinarily be an antecedent or independent proprietary, financial or security interest in the subject matter upon which the power is intended to operate.
5. STATUTORY IRREVOCABILITY
The matter is placed beyond ordinary agency principles in jurisdictions where the relevant provisions of the Property and Conveyancing Law or the received Conveyancing legislation apply.
For example, section 143 of the Property and Conveyancing Law provides, in substance, that where a Power of Attorney:
(a) is given for valuable consideration; and
(b) is expressed in the instrument creating it to be irrevocable,
the power shall, in favour of a purchaser, not be revoked by anything done by the donor without the concurrence of the donee, nor by the death, disability or bankruptcy of the donor.
Acts subsequently performed pursuant to such a power may therefore remain valid notwithstanding the donor's death.
Comparable protection is found under the applicable provisions of the Conveyancing Act, 1882 in jurisdictions where that legislation remains part of the received law.
The legal consequence is important:
AN IRREVOCABLE POWER OF ATTORNEY GIVEN FOR VALUE MAY, IN THE CIRCUMSTANCES CONTEMPLATED BY THE APPLICABLE STATUTE, CONTINUE TO BE OPERATIVE NOTWITHSTANDING THE SUBSEQUENT DEATH OF THE DONOR.
6. IRREVOCABILITY FOR A FIXED PERIOD
There is a further statutory qualification which is sometimes overlooked.
Under provisions such as section 144 of the Property and Conveyancing Law, a Power of Attorney may be expressed to be irrevocable for a fixed period not exceeding the statutory period prescribed by the law, even where valuable consideration is absent.
During that protected period, the death, disability or bankruptcy of the donor does not necessarily defeat acts performed pursuant to the power in favour of persons protected by the statute.
Thus, it would equally be unsafe to formulate the rule as though valuable consideration represents the only conceivable exception.
The precise applicable property legislation must first be identified.
7. ACTS DONE WITHOUT NOTICE OF THE DONOR'S DEATH
There is yet another distinction between:
(a) whether the Power of Attorney has, strictly speaking, terminated; and
(b) whether an act performed pursuant to it remains legally protected.
Applicable conveyancing legislation may protect an attorney or person who, acting in good faith and without knowledge of the donor's death, makes a payment or performs an act pursuant to the Power of Attorney.
For example, section 142 of the Property and Conveyancing Law protects certain acts done in good faith where the person concerned had no knowledge that the donor had died, become disabled, bankrupt or had revoked the power.
Therefore, even where death has terminated the underlying authority as a matter of agency, it does not necessarily follow that every transaction subsequently undertaken without notice of the death is automatically void.
That question must be determined by reference to the applicable statutory protection and the facts surrounding the transaction.
8. ILLUSTRATION
The distinction may be demonstrated simply.
Suppose A executes a document stating:
“I hereby irrevocably appoint B as my Attorney to manage, lease and sell my property.”
B has paid nothing to A, advanced no money, acquired no interest in the property and possesses no security over it.
A subsequently dies.
The mere use of the word “irrevocably” would not ordinarily entitle B to continue administering A's estate indefinitely. The ordinary agency has terminated and the property falls to be dealt with by A's personal representatives.
Consider, however, a different transaction.
A agrees to sell property to B for ₦100 million. B pays the entire purchase price. Possession is delivered to B. Pending completion, perfection or ex*****on of further instruments, A executes in B's favour an Irrevocable Power of Attorney for valuable consideration authorising B to perfect the transaction, execute necessary instruments and deal with the property in furtherance of the interest already acquired.
A thereafter dies.
That situation is juridically different.
B is no longer merely a gratuitous agent administering property belonging beneficially to A. B possesses an independent interest arising from the underlying transaction which the Power of Attorney was intended to protect or effectuate.
Depending upon the governing legislation, the terms of the transaction and compliance with other applicable land laws, the death of A would not necessarily extinguish B's rights or render the Power of Attorney inoperative.
9. A POWER OF ATTORNEY IS NOT NECESSARILY TITLE
A further distinction is essential.
The question whether a Power of Attorney survives death must not be conflated with the separate question whether the Power of Attorney transferred title to the donee.
The orthodox position stated in Ude v. Nwara is that a Power of Attorney is ordinarily an instrument of delegation rather than an instrument of conveyance.
That position was subsequently reiterated by the Supreme Court in Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132.
There is, however, an important line of authority represented by Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1660) 389, in which considerable emphasis was placed upon the contents and intendment of the particular instrument in determining whether it affected an interest in land.
Accordingly, one should avoid either extreme proposition that:
“a Power of Attorney can never affect an interest in land”;
or that:
“an Irrevocable Power of Attorney automatically transfers title.”
Neither formulation satisfactorily reflects the authorities.
The instrument, underlying transaction and applicable law must be examined.
10. EFFECT OF THE LAND USE ACT
Where the Power of Attorney relates to land held under a statutory or customary right of occupancy, the provisions of the Land Use Act must also be borne in mind.
An Irrevocable Power of Attorney cannot be employed as a device for avoiding statutory requirements applicable to an alienation of an interest in land.
Questions of Governor's Consent, registration, stamping and other perfection requirements remain distinct from the question whether the agency itself is revocable.
Thus, the survival of a power does not necessarily mean that every transaction purportedly undertaken under it is valid or perfected.
11. THE CORRECT LEGAL PROPOSITION
In my view, the proposition may safely be stated as follows:
“A Power of Attorney, being ordinarily an instrument of agency and delegation, generally terminates upon the death of the donor. The rule is, however, subject to recognised statutory and equitable exceptions. In particular, a Power of Attorney given for valuable consideration, expressed to be irrevocable and granted to protect or secure a proprietary interest or obligation may, depending upon the applicable law and the terms of the instrument, remain operative notwithstanding the donor's death. Statutory protection may also extend to certain fixed-period irrevocable powers and to acts undertaken in good faith without notice of the donor's death.”
12. CONCLUSION
I therefore answer the questions posed as follows:
FIRST:
Is it correct to say that “a Power of Attorney dies the moment the donor dies”?
YES, AS A GENERAL RULE.
An ordinary Power of Attorney is ordinarily terminated by the donor's death.
SECOND:
Does that rule apply automatically to every document described as an “Irrevocable Power of Attorney”?
NO.
The word “irrevocable”, standing alone, is insufficient. The nature of the transaction, consideration, proprietary or security interest of the donee, terms of the instrument and applicable statutory regime must be examined.
THIRD:
Can an Irrevocable Power of Attorney survive the death of its donor?
YES, IN APPROPRIATE CIRCUMSTANCES.
Where it constitutes a genuine power coupled with an interest, is given for valuable consideration and expressed to be irrevocable, or otherwise falls within the protection of the applicable conveyancing legislation, the donor's subsequent death does not necessarily revoke or destroy the power.
FOURTH:
Does such survival automatically confer ownership of the property upon the donee?
NO.
Irrevocability, survival of authority and transfer of title are three legally distinct questions.
Ultimately, therefore, the statement that “every Power of Attorney dies with the donor, including an Irrevocable Power of Attorney” is, with respect, an overstatement of Nigerian law.
The legally defensible position is that death ordinarily terminates agency, but not necessarily a proprietary or security power which the law has made irrevocable notwithstanding death.
AUTHORITIES
1. Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638.
2. Chime v. Chime (2001) 3 NWLR (Pt. 701) 527.
3. Abubakar v. Waziri (2008) 14 NWLR (Pt. 1108) 507.
4. Osakwe v. Nwokedi & Anor. (2018) LCN/11939 (CA).
5. Nicholas Okere v. Theresa Akaluka (2014) LPELR-24287(CA).
6. Onyeani & Anor. v. Avaja (2011) LPELR-3835(CA).
7. Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1660) 389.
8. Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132.
9. UBA Ltd. v. Registrar of Titles (1973) 3 CCHCJ 52.
10. Lababedi v. Odulana & Ors. (1973) CCHCJ 98.
11. Sections 142, 143 and 144 of the applicable Property and Conveyancing Law.
12. Sections 8 and 9 of the Conveyancing Act, 1882, where applicable.
13. Sections 21, 22 and 26 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria 2004.The statutory distinction is particularly strong: section 143 expressly contemplates that death does not revoke an irrevocable power given for valuable consideration in the circumstances protected by the section, while sections 142 and 144 create additional protections that make the blanket “death kills every POA” proposition untenable. The Court of Appeal has likewise stressed that true irrevocability turns on valuable consideration/security or a proprietary interest, rather than the mere label attached to the document.
NB: One point worth retaining if the matter is going to be contentious is the distinction between survival of the power and ownership of the property. The Supreme Court authorities on whether a particular irrevocable POA itself passes an interest are not entirely linear. Ibrahim v. Obaje took a content-and-intendment approach, while Malami v. Ohikhuare subsequently restated the orthodox Ude v. Nwara position.
Signed.
