CAN CHILDREN RECOVER LAND THEIR FATHER GAVE OUT AS A GIFT WITHOUT A DEED OF GIFT?
Let’s look at this scenario:
Malam Awwal verbally gave a portion of his land to his close friend Malam Sani, many years ago out of friendship and goodwill. No Deed of Gift was signed, no written agreement existed, and both Malam Awwal and Malam Sani are now late.
However, before Malam Awwal died, Malam Sani entered the land openly, built a house on it, and lived there peacefully for many years without any challenge from Malam Awwal.
Now, the children of Malam Awwal want to recover the land, arguing that there was no registered Deed of Gift, so the land still belongs to our late father’s estate.”
Now the legal question is that can the children of Malam Awwal successfully recover the land?
Under Nigerian law, transfer of interest in land is generally expected to be in writing, especially under the Statute of Frauds and various Land Instruments Registration Laws.
However, the courts also recognize situations where equity steps in to prevent injustice.
Where a landowner voluntarily puts another person in possession of land, the recipient acts on that gift, builds on the land or spends substantial money on it, and the actual owner stood by without any objection.
The Doctrine of EQUITABLE INTEREST and PROPRIETARY ESTOPPEL may arise.
In such cases, the donor or his successors may be prevented from denying the gift.
LEGAL AUTHORITIES: In Ogunbambi v. Abowaba (1951) 13 WACA 222, the court held that where a person is allowed to enter land and spend money on it believing he has ownership, equity may protect that possession.
Also, in Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554, the court recognized that long possession and acts of ownership can create enforceable equitable rights even where legal formalities were incomplete.
The children of Malam Awwal cannot simply rely on the absence of a Deed of Gift alone if Malam Sani took possession openly, built on the land,
exercised ownership for many years, and their father never challenged him while alive.
Remedies available to Mallam Awwal’s children:
The children of Malam Awwal may still approach the court if they can prove:
-The alleged gift was merely temporary permission not absolute.
-The land was family land requiring consent from the family head and other principal members of the family.
-Malam Sani exceeded the land given to him.
-The occupation was challenged during late Malam Awwal’s lifetime.
They may file the followings:
– Action for Declaration of Title,
– Recovery of Possession,
– Perpetual Injunction.
-Trespass to land
Remedies available to Malam Sani’s children:
The family of Malam Sani also has strong equitable remedies if they can prove the gift and long possession.
They may file the followings:
-Action for Declaration of Equitable Interest.
-Injunction restraining interference with the property.
-Defence of Proprietary Estoppel.
– Defence based on Long Possession and Acts of Ownership.
They can also rely on:
– Long period of time of uninterrupted possession.
– Development of the land.
– Buildings erected on the property.
– Payment of rates or taxes if any.
-Witnesses who knew about the gift.
In some instances, the court may hold that it would be inequitable and unjust to allow Malam Awwal’s children recover the land after Malam Sani had already altered his position by building on it.
In conclusion Landed property transactions should never be left to verbal understanding alone even between family members, siblings, or friends. Everything has to be in a written format between the two parties involved.
Stay legally enlightened!
Barr Aminu Imam Salihu
Legal practitioner, human rights activist, and advocate for peace and justice.
