GIFT OF LAND UNDER CUSTOMARY LAW

By Amaka Ezeno, MCLArb

The idea is a gift of land, developed from early times either as a reward for important contributions to the wellbeing and social stability of traditional societies, or in recognition of military prowess. The Black’s Law Dictionary defines a gift  as the voluntary transfer of property or a thing to another without compensation.

In Oguejiofor v Osaka, gift was defined  as an act whereby something is voluntarily transferred from the true possessor with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. The essential thing to consider is that the gift is complete when the donee has accepted it. If the condition is satisfied, the donor has no right to revoke the gift.

PARTIES TO A GIFT OF LAND

DONOR

He is the entity that is obliged, without remuneration, free of charge, to transfer ownership of anything of his/her own, or any property right, to the other party called the Donee. He may also be called the grantor. In the case of a Will, he is the testator.

DONEE

He is the gift recipient and is the entity that takes free ownership of the designated property right, from the donor. He may also be called grantee and in the case of a Will be referred to as the beneficiary.

TYPES OF GIFT OF LAND

Gifts of land may be categorized based on nature, circumstance and purpose or intent for which it is made. For the purpose of this study, we shall be considering only three types;

GIFT INTER VIVOS

This refers to gift between two living persons. It takes effect while the donor is still alive. Once made and accepted by the donee, the subject matter of the gift ceases to belong to the donor. The donor also cannot revoke such gift.

TESTAMENTARY GIFT (DONATIO MORTIS CAUSA)

This is a gift made in contemplation of death. Under Customary, it is usually in the form of a nuncupative will and is called death-bed declaration. It takes effect when the donor dies

CLASS GIFT

In the case of Dashe & ors v Jatau & ors, a class gift was defined as a gift to a group of persons, uncertain in number at the time of the gift but to be ascertained in the future time, who is to take a definite proportion, the share of each being dependent on the ultimate number in the group.

WHETHER  A DOCUMENTARY EVIDENCE IN CUSTOMARY TRANSACTION IS A SINE QUA NON OF NATIVE  LAW.

A gift of land under customary law requires no form. The elementary principle of law is that it is not a requirement under native law and custom, to be issued with a document or grant or presentation of a gift of land. In Kwari v Rago, it was held per Salami JCA thatthe customary gift of land is an incidence of native law and custom to which writing was strange. Thus a documentary evidence in customary transaction though desirable is not a sine qua non of a native law and custom. However, it is important that there is sufficient evidence to prove the gift, thus it is required that in lieu of writing that there is actual handing over of the land in the presence of witnesses.

ELEMENTS OF A VALID GIFT OF LAND UNDER CUSTOMARY LAW.

1. A GIFT MUST BE ABSOLUTE AND UNCONDITIONAL

A gift must be absolute in the sense that the grantor must have been divested of the tittle in favour of the grantee. It was held in Aghenghen & ors v Waghoregor & ors,per Elias CJN that where a grant is conditional in the sense that it is revocable upon certain conditions, such as forfeiture, it is not a gift but tenancy.

2. A GIFT MUST BE GIVEN VOLUNTARILY BY THE DONOR.

The essential quality of gift is that it lacks the element of bargain. It therefore must proceed from the exercise of free will by the donor and must not have been done under undue influence, duress or misrepresentation.

3. THERE MUST BE AN INTENTION TO DONATE THE GIFT

The recipient must clarify whether the item or property given is really a gift. The donor also must at all times clearly express the purpose or the condition under which a gift is made. It must be understood that long possession of land without more is no evidence of an absolute gift.

4. THERE MUST BE IN EXISTENCE, AN IDENTIFIABLE AND UNENCUMBERED INTEREST, WHICH IS THE GIFT ITSELF.

For a gift of land to be effective, the land must have been identified. Thus, in Akerele v Liye-Labelu, it was held that a deed purporting to make a grant of land to be ascertained by the election of the grantee at some future time does not pass anything until the election is actually made, and such election must be made while the donor is still alive, otherwise the gift becomes void. Also, where it is found that the donor has a defective tittle or that there is any form of encumbrances in favour of a third party on the land, the gift becomes void.

5. CONCURRENCE OF THE RELEVANT PARTIES IS NECESSARY FOR A GIFT TO BE VALID

To be valid, a gift of land must be with the concurrence of the family head and the principal members. Where the family head gifts land without the consent of the principal members, it is void.. it also follows that where the principal members gift the family land without the consent of the family head, such gift is also void. It is immaterial that the gift was made to a member of the family.

6. THE DELIVERY OF THE GIFT IN THE PRESENCE OF A WITNESS.

Writing is foreign to customary law, thus the elementary principle of law is that gift of land transaction under native law and custom need not be in writing but must be made by the handing over of the land so transferred in the presence of witnesses. If the gift is granted secretly by the donor, such gift is void. The presence of a witness is not only of evidential value, but a necessary condition, which gives solemnity and validity to the transaction.

It is therefore on this ground that gift of land under customary is usually publicized. The publicity takes the form of ritual ceremony (called igbu Ewu Ani in Igbo custom) in the presence of witnesses on the occasion of the transfer to the donee. The essence is to provide suffient evidence to prove the gift and this practice was judicially noticed in the case of Alake v Awawu.

7. There must be an acceptance of the gift by the donee for the gift to be valid.
8. Finally, there must be no consideration for the gift from the donee.

In conclusion, gift, once given, is irrevocable, unless fraud or mistake can be established.