Gift Absolute under native law and custom requires presence of witnesses

The Respondent instituted an action for trespass against the Appellants seeking inter alia, a declaration that he is entitled to the customary right of occupancy over the land in dispute.

The Respondent’s claim to the title to the land is that his late father gave it to him as a gift absolute.

The trial court found in favour of the Respondent and granted all the reliefs sought. Dissatisfied with the judgment, the Appellants appealed.

The sole issue determined by the Court of Appeal was:

“Whether the Respondent successfully established that the land in dispute was given to him by his late father as gift absolute.”

The Appellants contended that the Respondent did not establish by pleadings and evidence that the disputed land was a gift absolute made to him by his late father. The Appellants argued that the onus was on the Respondent to prove the existence of the gift absolute which was the very basis of his claim for declaration of title.

It was further argued on behalf of the Appellants that the Respondent did not show whether the alleged gift absolute was made under English law/general law or under native law and custom and this failure was therefore fatal to his case as the learned trial Judge had no power to speculate as to the nature of the alleged gift.

Counsel to the Appellants further contended that the alleged grant of the gift absolute was not done in the presence of witnesses.

Conversely, counsel to the Respondent argued that the identity of the disputed land, the owner of the land, and the circumstances warranting the gifting absolute were all established at the trail court.

It was further submitted that the finding of facts of the trial court was never perverse but in line with the pleadings and evidence given in support of the pleadings.

Unanimously dismissing the appeal, the Court of Appeal held as follows:

“It is an elementary principle of law and has been held in a plethora of authorities that sale, transfer, grant or gift of land under native customary law is constituted by the handing over of the land so transferred in the presence of witnesses. The presence of witnesses is not only merely of evidential value, it is also a necessary part of the transaction. This is so because writing is foreign to native customary law and custom. The presence of witnesses gives the transaction not only solemnity but also validity. See Kamalu v. Ojoh (2000) 11 NWLR (Pt. 679) P. 505 @ 517 Paras D-E, Cole v. Folami (1956) 1. F.S.C 66 @ 68, Ajayi v. Olanrew Aju (1969) 1 All NLR 382 @ 387, Orun-nengimo v. Egebe (2008) 9 S.C.L.R (Pt 7) pg. 82 @ 102.

Furthermore, where a plaintiff in proof of title to land relies on grant or gift, proof of such grant or gift by traditional history only arises where the fact of the grant or gift was so ancient as to be beyond the memory of living witnesses to the event and not the evidence of tradition permitted by Evidence Act. See. Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 863) pg. 87 @ 121 paras A-D, Adisa v. Oyinwola (2000) 10 NWLR (Pt.. 674) pg. 116 @ 178 paras G to H and pg. 184 paras F to G.

…This is no doubt that under native law and custom, an owner of land can validly transfer his absolute interest in the land and grant exclusive possession.

Sometimes, a person may decide to make a gift of his property to another either in consideration of acts performed or in order to perform certain and natural obligations.

It is usually one of the primary responsibilities of parents to take adequate care of their children which include: medical educational and social welfare. This can either be by direct payment of the required expenses or empowerment by gift of property in lieu.

I cannot see anything wrong in that practice. However, it is the duty of the beneficiary of the gift to prove the existence of such a gift, especially where the owner who made such gift is deceased and is survived by heirs who must inherit the property. Proof in those circumstances must be by documentary evidence. It suffices if the person who made the gift is the actual owner, there is a circumstance warranting the giving of gift. Further, there must be witnesses who witnesses the transaction as applicable in gifts on land under customary law.”

Counsel:

Sanmi Owoeye with Egeni Kari Kare for the Appellant.

L. K. Dare for the Respondent.

This summary is fully reported at (2015) 2 CLRN

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