Daily Law Tips (Tip 572) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)
PROOF OF GIFT AND PROVING A GIFT: WHAT BENEFICIARIES
MUST DO!
It is the duty of a Recipient/Receiver (Donee) of a gift and his
beneficiaries (dependants) to have proof of their gift and also to
prove their gift. A gift may be a source of dispute/litigation,
when the Giver (Donor) dies, becomes insane or when a Donor and his
beneficiaries suddenly regret their kind gestures. Whatever be the
case, there are ways to establish and prove that a person received
a gift. It may be through written documents (especially for lands
in cities or under statutory ownership) or through eye witnesses
that were present when a person received a gift (especially for
lands in rural areas or under customary ownership).
Below are the words of Justices of appellate courts, on this
issue;
1. “The law is settled that a gift of interest on land must be
backed with written document or evidence of witnesses in cases of
customary law gift else, the gift when seriously challenged as its
validity devolves to the estate of the giver. It is duty of a
beneficiary of the gift to prove the existence of such gift
especially where the owner, who made such gift is dead and he is
survived by heirs who must inherit the property. Alienation or
transfer of interest absolute over a family land where the founder
is deceased cannot be valid unless done by the head of the family
with the consent of principal members of the family. See AGU V
ODOFIN (1992) 3SCNJ 161; AJIBADE V PEDRO (1992) 5 NWLR (PT. 241);
AMAKOR V OBIEFUNA (1997) ALL NLR 119.” Quotation is from the case
of CHIBUZOR & ANOR v. CHIBUZOR (2018) LPELR-46305(CA);
2. In recent judgement delivered in 2020, the Supreme Court of
Nigeria held that; “The simple truth is that it was the said
appellants who affirmed, positively, that there was such a gift.
They, thus, had the burden, both on the pleadings and on the
evidence, to prove their assertion…The consequence is that, that
claim of gift failed in the absence of any credible evidence to
sustain it…” Per CHIMA CENTUS NWEZE ,J.S.CÂ ( Pp. 61-63, paras. E-B
) Quotation from the case of EKWEOZOR & ORS v. REG. TRUSTEES OF THE
SAVIOUR’S APOSTOLIC CHURCH OF NIG (2020) LPELR-49568(SC)
3. “A gift inter vivos must be made openly. There must be
evidence of actual handing over of the land and acceptance thereof
in the presence of witnesses under native law and custom. In Madam
Alice Orido v. Theophilus Akinlolu, CA/B/253/2004 delivered on 29th
March, 2012, Iyizoba JCA held as follows: “Customary law requires
no writing for the transfer of land whether upon sale or by way of
gift. In lieu of writing however, there must be actual handing over
of the land to the donee in the presence of witnesses and the
acceptance by him of the gift. Acceptance is as much as customary
law as the delivery of possession in the presence of witnesses;
without it the gift is invalid, such acceptance must be made with
as much publicity as possible….. Actual delivery is not mere
evidence of the gift but is part of the gift itself.” Quotation if
from the case of ENADEGHE v. EWEKA (2014) LPELR-24479(CA)
4. “Now, for the Respondent who relied on gift from his father
of the land in dispute, he carried the burden of proving by
credible evidence the following two essential facts, namely:(a) The
fact of the gift inter vivos to him by his father. (b) The title of
his father to the land in dispute which he transferred to him by
gift inter vivos.” Per BIOBELE ABRAHAM GEORGEWILL ,J.C.AÂ ( P. 50,
paras. B-C ). Quotation is from the case of GABDO v. USMAN (2015)
LPELR-25678(CA)
5. “…In other words, where a Plaintiff had relied, as in the
instant case gift of the land inter vivos by his father, he must
first prove this fact of gift and the most crucial fact of title in
his father before he can rely on acts of ownership and possession.
In the event of failure to prove the root of title pleaded, the
Respondent cannot turn round to rely merely on acts of ownership
and possession, no matter how long…” Per BIOBELE ABRAHAM GEORGEWILL
,J.C.A ( Pp. 54-56, para. A). Quotation is from the case of GABDO
v. USMAN (2015) LPELR-25678(CA)
6. “None of the Plaintiff’s Witnesses witnessed the gift from
Chief Agunbiade to the Appellant’s father. There was no member of
both the Appellant’s family and the family of Chief Agunbiade who
witnessed this gift. It is true that a gift inter vivos like the
Appellant claimed is valid in all cases. However, the burden of
proving by credible evidence is on the Appellant who relies on the
gift. In GABO V USMAN (2015) LPELR 25678, the Court held that the
person who relies on such gift has to prove two (2) essential
facts, namely, the fact of the gift inter vivos to his father. (2)
the title of the donor to the land in dispute. See also ENADEGHE V
EWEKA (2014) LPELR 24479 where the Court held that: ‘A gift inter
vivos must be made openly. There must be evidence of actual handing
over of the land and acceptance thereof in the presence of
witnesses under native law and custom’.” Per UZO IFEYINWA
NDUKWE-ANYANWU ,J.C.A ( Pp. 22-24, para. C ). Quotation from the
case of OLAJIDE v. AKINBOBOYE (2018) LPELR-46166(CA)
7. “The issue was dealt with by Professor Nwabueze in his book
“Nigerian Land Law” (1992) Nwamife Publishers Ltd, Enugu PP 367-369
referred to by learned counsel for the appellant at page 13 of his
brief of argument. The learned author observed:- “Customary law
requires no writing for the transfer of land whether upon sale or
by way of gift. In lieu of writing, however there must be actual
handing over of the land to the donee in the presence of witnesses
and an acceptance by him of the gift.” Per CHINWE EUGENIA IYIZOBA
,J.C.AÂ ( Pp. 16-18, paras. A-C ). Quotation from ORIDO v. AKINLOLU
(2012) LPELR-7887(CA)
8. “It is clear therefore that to prove gift of land inter
vivos, there must be evidence of actual handing over of the land
and acceptance thereof in the presence of witnesses. See also
Ayinke v. Ibidunni (1959) 4 FSC 280 @ 282 where Ademola CJF
observed:- “I also find myself in agreement with the learned trial
judge that there are means whereby a man may dispose of certain
properties before his death in accordance with native law and
custom. It is my view that disposition of properties could be made
under native law and custom by a gift followed by a transfer of the
property, or a declaration by a man on his death bed in the
presence of witnesses.” (Underlining mine). The absence of writing
in these transactions under native law and custom make the presence
of witnesses to the transactions a necessity.” Per CHINWE EUGENIA
IYIZOBA ,J.C.AÂ ( Pp. 16-18, paras. A-C ). Quotation from ORIDO v.
AKINLOLU (2012) LPELR-7887(CA)
9. “In the case of FOLARIN vs. DUROJAIYE (1988) NSCC 255 AT 265,
the Supreme Court, per OPUTA, JSC while, making as reference to
customary transfer, the sage said: “To transfer an absolute title
under customary law, it ought to be pleaded and proved that the
gift was made in the presence of witnesses. To that effect, names
of those witnesses should also be pleaded as well as the fact that
they witnessed the actual delivery or handing over of the land to
the purchaser or donee.” Per FREDERICK OZIAKPONO OHO ,J.C.AÂ ( Pp.
26-27, para. A ). Quotation from the case of EZENWORA & ORS v.
EZENWORA (2018) LPELR-43944(CA)
10. “…there was no clear-cut evidence that the alleged gift of
the property was made in the presence of witnesses to make it a
good/perfect and valid gift vide the cases of Ayinke v. Ibidunni
(1959) SCNLR 666 at 669, Orido v. Akinlolu (2012) 9 NWLR (pt. 1305)
370 at 387 to the effect that to prove a gift of property
inter-vivos there must be evidence of actual handing over of the
land or property or declaration of the gift by the owner of the
property and its acceptance thereof in the presence of witnesses.”
Per JOSEPH SHAGBAOR IKYEGH ,J.C.AÂ ( P. 13, paras. D-F ). Quotation
from the case of DAVIES v. RAHMAN-DAVIES & ANOR (2018)
LPELR-46557(CA)
My authorities are:
1. The Supreme Court’s judgment in the case of EKWEOZOR & ORS v.
REG. TRUSTEES OF THE SAVIOUR’S APOSTOLIC CHURCH OF NIG (2020)
LPELR-49568(SC)
2. The Court of Appeal’s judgement in the case of ENADEGHE v. EWEKA
(2014) LPELR-24479(CA)
3. The Court of Appeal’s judgement in the case of CHIBUZOR & ANOR
v. CHIBUZOR (2018) LPELR-46305(CA)
4. The Court of Appeal’s judgement in the case of GABDO v. USMAN
(2015) LPELR-25678(CA)
5. The Court of Appeal’s judgement in the case of OLAJIDE v.
AKINBOBOYE (2018) LPELR-46166(CA)
6. The Court of Appeal’s judgement in the case of ORIDO v. AKINLOLU
(2012) LPELR-7887(CA)
7. The Court of Appeal’s judgement in the case of EZENWORA & ORS v.
EZENWORA (2018) LPELR-43944(CA)
8. The Court of Appeal’s judgement in the case of DAVIES v.
RAHMAN-DAVIES & ANOR (2018) LPELR-46557(CA)
#SabiLaw
#DailyLawTips
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#SabiLawOnBeatFm
#SabiLawLectureSeries
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#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via info@LearnNigerianLaws.com or
onyekachi.umah@gmail.com or +2348037665878. To receive our free
Daily Law Tips, follow our Facebook Page:@LearnNigerianLaws,
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@LearnNigeriaLaw
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to Onyekachi
Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of
copyright and will be prosecuted.
This publication is the writer’s view not a legal advice and
does not create any form of relationship. You may reach the writer
for more information.
Powered by www.LearnNigerianLaws.com {A Free Law Awareness
Program of Sabi Law Foundation, supported by the law firm of
Bezaleel Chambers International (BCI).}
Daily Law Tips (Tip 572) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)
PROOF OF GIFT AND PROVING A GIFT: WHAT BENEFICIARIES
MUST DO!
It is the duty of a Recipient/Receiver (Donee) of a gift and his
beneficiaries (dependants) to have proof of their gift and also to
prove their gift. A gift may be a source of dispute/litigation,
when the Giver (Donor) dies, becomes insane or when a Donor and his
beneficiaries suddenly regret their kind gestures. Whatever be the
case, there are ways to establish and prove that a person received
a gift. It may be through written documents (especially for lands
in cities or under statutory ownership) or through eye witnesses
that were present when a person received a gift (especially for
lands in rural areas or under customary ownership).
Below are the words of Justices of appellate courts, on this
issue;
1. “The law is settled that a gift of interest on land must be
backed with written document or evidence of witnesses in cases of
customary law gift else, the gift when seriously challenged as its
validity devolves to the estate of the giver. It is duty of a
beneficiary of the gift to prove the existence of such gift
especially where the owner, who made such gift is dead and he is
survived by heirs who must inherit the property. Alienation or
transfer of interest absolute over a family land where the founder
is deceased cannot be valid unless done by the head of the family
with the consent of principal members of the family. See AGU V
ODOFIN (1992) 3SCNJ 161; AJIBADE V PEDRO (1992) 5 NWLR (PT. 241);
AMAKOR V OBIEFUNA (1997) ALL NLR 119.” Quotation is from the case
of CHIBUZOR & ANOR v. CHIBUZOR (2018) LPELR-46305(CA);
2. In recent judgement delivered in 2020, the Supreme Court of
Nigeria held that; “The simple truth is that it was the said
appellants who affirmed, positively, that there was such a gift.
They, thus, had the burden, both on the pleadings and on the
evidence, to prove their assertion…The consequence is that, that
claim of gift failed in the absence of any credible evidence to
sustain it…” Per CHIMA CENTUS NWEZE ,J.S.CÂ ( Pp. 61-63, paras. E-B
) Quotation from the case of EKWEOZOR & ORS v. REG. TRUSTEES OF THE
SAVIOUR’S APOSTOLIC CHURCH OF NIG (2020) LPELR-49568(SC)
3. “A gift inter vivos must be made openly. There must be
evidence of actual handing over of the land and acceptance thereof
in the presence of witnesses under native law and custom. In Madam
Alice Orido v. Theophilus Akinlolu, CA/B/253/2004 delivered on 29th
March, 2012, Iyizoba JCA held as follows: “Customary law requires
no writing for the transfer of land whether upon sale or by way of
gift. In lieu of writing however, there must be actual handing over
of the land to the donee in the presence of witnesses and the
acceptance by him of the gift. Acceptance is as much as customary
law as the delivery of possession in the presence of witnesses;
without it the gift is invalid, such acceptance must be made with
as much publicity as possible….. Actual delivery is not mere
evidence of the gift but is part of the gift itself.” Quotation if
from the case of ENADEGHE v. EWEKA (2014) LPELR-24479(CA)
4. “Now, for the Respondent who relied on gift from his father
of the land in dispute, he carried the burden of proving by
credible evidence the following two essential facts, namely:(a) The
fact of the gift inter vivos to him by his father. (b) The title of
his father to the land in dispute which he transferred to him by
gift inter vivos.” Per BIOBELE ABRAHAM GEORGEWILL ,J.C.AÂ ( P. 50,
paras. B-C ). Quotation is from the case of GABDO v. USMAN (2015)
LPELR-25678(CA)
5. “…In other words, where a Plaintiff had relied, as in the
instant case gift of the land inter vivos by his father, he must
first prove this fact of gift and the most crucial fact of title in
his father before he can rely on acts of ownership and possession.
In the event of failure to prove the root of title pleaded, the
Respondent cannot turn round to rely merely on acts of ownership
and possession, no matter how long…” Per BIOBELE ABRAHAM GEORGEWILL
,J.C.A ( Pp. 54-56, para. A). Quotation is from the case of GABDO
v. USMAN (2015) LPELR-25678(CA)
6. “None of the Plaintiff’s Witnesses witnessed the gift from
Chief Agunbiade to the Appellant’s father. There was no member of
both the Appellant’s family and the family of Chief Agunbiade who
witnessed this gift. It is true that a gift inter vivos like the
Appellant claimed is valid in all cases. However, the burden of
proving by credible evidence is on the Appellant who relies on the
gift. In GABO V USMAN (2015) LPELR 25678, the Court held that the
person who relies on such gift has to prove two (2) essential
facts, namely, the fact of the gift inter vivos to his father. (2)
the title of the donor to the land in dispute. See also ENADEGHE V
EWEKA (2014) LPELR 24479 where the Court held that: ‘A gift inter
vivos must be made openly. There must be evidence of actual handing
over of the land and acceptance thereof in the presence of
witnesses under native law and custom’.” Per UZO IFEYINWA
NDUKWE-ANYANWU ,J.C.A ( Pp. 22-24, para. C ). Quotation from the
case of OLAJIDE v. AKINBOBOYE (2018) LPELR-46166(CA)
7. “The issue was dealt with by Professor Nwabueze in his book
“Nigerian Land Law” (1992) Nwamife Publishers Ltd, Enugu PP 367-369
referred to by learned counsel for the appellant at page 13 of his
brief of argument. The learned author observed:- “Customary law
requires no writing for the transfer of land whether upon sale or
by way of gift. In lieu of writing, however there must be actual
handing over of the land to the donee in the presence of witnesses
and an acceptance by him of the gift.” Per CHINWE EUGENIA IYIZOBA
,J.C.AÂ ( Pp. 16-18, paras. A-C ). Quotation from ORIDO v. AKINLOLU
(2012) LPELR-7887(CA)
8. “It is clear therefore that to prove gift of land inter
vivos, there must be evidence of actual handing over of the land
and acceptance thereof in the presence of witnesses. See also
Ayinke v. Ibidunni (1959) 4 FSC 280 @ 282 where Ademola CJF
observed:- “I also find myself in agreement with the learned trial
judge that there are means whereby a man may dispose of certain
properties before his death in accordance with native law and
custom. It is my view that disposition of properties could be made
under native law and custom by a gift followed by a transfer of the
property, or a declaration by a man on his death bed in the
presence of witnesses.” (Underlining mine). The absence of writing
in these transactions under native law and custom make the presence
of witnesses to the transactions a necessity.” Per CHINWE EUGENIA
IYIZOBA ,J.C.AÂ ( Pp. 16-18, paras. A-C ). Quotation from ORIDO v.
AKINLOLU (2012) LPELR-7887(CA)
9. “In the case of FOLARIN vs. DUROJAIYE (1988) NSCC 255 AT 265,
the Supreme Court, per OPUTA, JSC while, making as reference to
customary transfer, the sage said: “To transfer an absolute title
under customary law, it ought to be pleaded and proved that the
gift was made in the presence of witnesses. To that effect, names
of those witnesses should also be pleaded as well as the fact that
they witnessed the actual delivery or handing over of the land to
the purchaser or donee.” Per FREDERICK OZIAKPONO OHO ,J.C.AÂ ( Pp.
26-27, para. A ). Quotation from the case of EZENWORA & ORS v.
EZENWORA (2018) LPELR-43944(CA)
10. “…there was no clear-cut evidence that the alleged gift of
the property was made in the presence of witnesses to make it a
good/perfect and valid gift vide the cases of Ayinke v. Ibidunni
(1959) SCNLR 666 at 669, Orido v. Akinlolu (2012) 9 NWLR (pt. 1305)
370 at 387 to the effect that to prove a gift of property
inter-vivos there must be evidence of actual handing over of the
land or property or declaration of the gift by the owner of the
property and its acceptance thereof in the presence of witnesses.”
Per JOSEPH SHAGBAOR IKYEGH ,J.C.AÂ ( P. 13, paras. D-F ). Quotation
from the case of DAVIES v. RAHMAN-DAVIES & ANOR (2018)
LPELR-46557(CA)
My authorities are:
1. The Supreme Court’s judgment in the case of EKWEOZOR & ORS v.
REG. TRUSTEES OF THE SAVIOUR’S APOSTOLIC CHURCH OF NIG (2020)
LPELR-49568(SC)
2. The Court of Appeal’s judgement in the case of ENADEGHE v. EWEKA
(2014) LPELR-24479(CA)
3. The Court of Appeal’s judgement in the case of CHIBUZOR & ANOR
v. CHIBUZOR (2018) LPELR-46305(CA)
4. The Court of Appeal’s judgement in the case of GABDO v. USMAN
(2015) LPELR-25678(CA)
5. The Court of Appeal’s judgement in the case of OLAJIDE v.
AKINBOBOYE (2018) LPELR-46166(CA)
6. The Court of Appeal’s judgement in the case of ORIDO v. AKINLOLU
(2012) LPELR-7887(CA)
7. The Court of Appeal’s judgement in the case of EZENWORA & ORS v.
EZENWORA (2018) LPELR-43944(CA)
8. The Court of Appeal’s judgement in the case of DAVIES v.
RAHMAN-DAVIES & ANOR (2018) LPELR-46557(CA)
#SabiLaw
#DailyLawTips
#SabiBusinessLaw
#SabiElectionLaws
#SabiHumanRights
#SabiLawOnBeatFm
#SabiLawLectureSeries
#CriminalJusticeMonday
#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via info@LearnNigerianLaws.com or
onyekachi.umah@gmail.com or +2348037665878. To receive our free
Daily Law Tips, follow our Facebook Page:@LearnNigerianLaws,
Instagram: @LearnNigerianLaws and Twitter:
@LearnNigeriaLaw
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to Onyekachi
Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of
copyright and will be prosecuted.
This publication is the writer’s view not a legal advice and
does not create any form of relationship. You may reach the writer
for more information.
Powered by www.LearnNigerianLaws.com {A Free Law Awareness
Program of Sabi Law Foundation, supported by the law firm of
Bezaleel Chambers International (BCI).}