PROOF OF GIFT AND PROVING A GIFT: WHAT BENEFICIARIES MUST DO!* Daily Law Tips (Tip 572) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

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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)

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