A GIFT IS RECOGNISED IN LAW AS A COMPLETE VOLUNTARY TRANSFER OF INTEREST IN A PROPERTY OR THING AND CAN NOT BE RESCINDED, REVOKED OR RETRIEVED By Pelumi Olajengbesi Esq.

The concept of gifts seldom generates disputes especially when a benefactor changes his mind towards the beneficiary and attempts to retrieve a gift already given. Generally, gifts given out cannot be retrieved under the law except if the gifts is conditional or does not meet up with the requisite conditions that satisty an act as a gift.

The Black’s Law Dictionary, Ninth Edition, defines a gift as the voluntary transfer of property or a thing to another without compensation. In simple parlance, a gift is the transfer of something of value to another without necessarily receiving anything in return. The gift giver is called the Donor while the recipient is called the Donee. 

  

A gift is a legally enforceable transfer of interest in a thing provided same is done in accordance with the legal prerequisites which includes: 

 

The donor’s voluntariness, 

The intention to donate the gift, 

The existence of an identifiable and unencumbered thing or interest which is the gift itself, 

The delivery of the gift, 

The acceptance of the gift by the donee, 

And finally the absence of consideration. 

 

The Supreme Court in Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) defined inter vivos gift as an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. 

  

It should be noted that the general principle of contract law relating to capacity also apply in gifts in determining the competence of the donor vis a vis the nature and circumstance of the gift. People of unsound mind, minor, may not be competent to donate a gift.

Gifts may be categorized differently based on nature, circumstance and purpose or intent. 

A gift may be gift inter vivos, gift causa mortis or testamentary gift. Gift inter vivos refers to gift between two living persons while gift causa mortis is a gift in contemplation of death. An inter vivos gift takes effect while the donor is living as contrasted with a testamentary gift which is to take effect on the death of the donor (testator); and once it is made, the subject of the gift ceases to belong to the donor. A gift inter vivos must possess three elements: the present donative intent of the donor (that he intends to make the gift ‘now’ and not a promise in the future. 

Therefore, a promise to give someone your car by the end of the month is not a gift, but a promise even though enforceable, only becomes a gift upon the delivery and acceptance by the donee. Once the gift is in the possession and control of the donee, it is a complete gift. On the other hand, a gift causa mortis must possess the elements aforementioned, plus the donor’s anticipation of death. The donor in this scenario might be sick, injured, or believes that s/he’s approaching death. In the event that the donor does not die, the gift is automatically revoked; and if such donor intends for the gift to still pass to such donee, s/he has to re-gift it or include it in a will as a testamentary gift. 

With regards to the nature of gifts, a gift may be real or manual. Real gifts refer to gifts of immovable property such as land and houses or anything affixed on the land. Manual gifts are gifts of personal, tangible, movable property, otherwise called chattels or chose transitory. A gift may also be a chose in action, which refers to transferrable interests in property which can only be enforced by taking action, not by physical possession; such as shares. Manual gifts require no formality to be enforced as far as there is donative intent, delivery and acceptance by the donee; however, real gifts need to be reduced into writing to be validly transferred. Section 4 of the Statute of Frauds Act prescribes all transactions, transfers pertaining to land, including gifting, to be executed in writing, describing the property and signed by the donor. The purpose of this formalism is to promote the common good by protecting social interest in the security of transactions and of acquisitions against fraud and deception. Although Customary Law requires no writing for the transfer of land 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. See the case of Madam Alice Orido v. Theophilus Akinlolu (2012) LCN/5271 (CA). 

As free as gifts are said to be, a gift may either be conditional or unconditional. Generally, it is trite in law that a donor of absolute gift cannot revoke the gift after it has been accepted by the donee. However, where a donor can show that the gift was subject to a condition which has been broken, such a completed gift can be revoked. See the case of Ekpa v. Utong (1991) 6 NWLR (pt.197) 258 at 284. A conditional gift becomes irrevocable only upon fulfilment of the condition upon which it was given. For instance, a gift of land to a religious leader for the purpose of building a place of worship in ‘your’ village can be revoked where such religious leader builds a family house instead. In Odede & Anor v. Jonah & Anoh (2019) LPELR-49040 (CA), the Court rejected the Appellant’s argument of an outright gift when a family land was given to the appellant’s family to build a church pending when the land would be partitioned. The Appellant was supposed to build temporary structures but he started changing the walls and was stopped by the Respondents. The Court held that if it was an outright gift he wouldn’t be stopped by anyone, much less the people who gifted him; that what the Appellant called an outright gift is in fact nothing more than a conditional license to occupy the land with the understanding that structures built should be temporary. 

  

A gift under a promise of marriage, whether real or manual can be revoked where the donee refuses to marry the donor; that is to say where a contract to marry exists between the donor and donee, a claim for revocation of gifts given under that promise or contract to marry can be entertained under general law. 

However, such contract must be with respect to statutory marriage under the Marriage Act, not customary law marriage; and such contract to marry will only be valid between persons of single status. It is therefore necessary for a donor of such gift to protect the transaction by expressing the conditions of the gift, in writing or advisably in the presence of witnesses. The idea of a prenuptial agreement is usually faulted as being morally incompatible, yet the law is not sentimental or moral; if prospective spouses fail to protect their interests, they should not expect remedy under law. Postnuptial agreements are also encouraged to cover instances where spouses divorce or a spouse dies intestate or leaves behind property which would otherwise be counted as residuary gifts. 

  

Gifts given or favours and services rendered in expressed anticipation of something in return can be withdrawn, or recovered. Where a gift cannot be recovered, the donor can sue for damages in lieu. Where a person makes a donation inter vivos or testamentary to a non-profit organization or a religious organization for purposes of advancement beneficial to the community, such gift is regarded as charitable or pious and cannot be revoked except clear conditions are found to be broken, or under legally recognized grounds; so it behoves on the donor to express intent in writing to be accepted by the donee. Furthermore, a gift can be revoked where the donor can establish fraud, mistake, misrepresentation or perhaps failure of the object of the gift. See the case of Imah & Anor v. Chief A Okogbe & ors (1993) 12 SCNJ 57; (1993) 9 NWLR (Pt. 316) 159. 

  

It goes without saying that a recipient needs to clarify whether the item or property given is really a gift, and a donor should clearly express the purpose or condition of a gift, if any. People who are always in place to receive gifts or enjoy free services should learn to inquire into the purpose, conditionality and masked consideration or reciprocal obligations behind such gifts, to avoid matters that may arise in future. 

Pelumi Olajengbesi Esq. is a Legal Practitioner and the Managing Partner at Law Corridor, Abuja.

pelumi@lawcorridor.com

Nigerians May Use Togo, Ghana Airports For International Travels As More Airlines Will Suspend Services To Nigeria – Foreign Airlines Association

The President of the Association of Foreign Airlines and Representatives in Nigeria, Kingsley Nwokeoma, has said the Emirates Airlines’ suspension of its flights to Nigeria over trapped forex is just the beginning as more international carriers would join soon if nothing was done to address their concerns.

Nwokeoma said this while reacting to the trapped forex of international airlines in Nigeria, which is the major reason Emirates Airlines suspended its flights.

The International Air Transport Association (IATA) had expressed concerns over the decision by the Nigerian government to block foreign airlines from repatriating ticket sales revenue amounting to $450 million (N188.6bn) into their respective countries.

Emirates Airlines, while announcing the suspension of its flights to Nigeria on 

Thursday stated that it “has tried every avenue to address our ongoing challenges in repatriating funds from Nigeria, and we have made considerable efforts to initiate dialogue with the relevant authorities for their urgent intervention to help find a viable solution.”

In his reaction, the President of the Association of Foreign Airlines and Representatives in Nigeria noted that if other countries were like Nigeria, the industry would not have existed as there would be no money for maintenance.

The Punch quoted Nwokeoma as saying, “This is just the beginning. It is over $1 billion dollars that is being held and they (foreign airlines) cannot repatriate it. If other countries are like Nigeria, there will not be any industry because this money is used for maintenance. Even the money used to pay their staff in Nigeria is coming from other climes.

“Aviation industry is all about 100 per cent safety. If there is no money, safety will not be 100 per cent guaranteed. So, it is going to continue. Emirates has kick-started it and I’m sure that you are aware that British Airways has cut flights into Nigeria and that is how it is going to start.

“Just like Emirates did, they will first of all cut their flight into Nigeria and they will look at it holistically again and if it is not working out, then it’s not working out. This did not start today. It started over the years and the government is not doing anything.”

Speaking further, he said, “Look at it this way, when things were not this bad, what commitment did the government make? Is it now that things are gloomy? So, we hope that we don’t have to go to Benin Republic, Togo or Ghana before we can fly out or do our international travels.”

He observed that most passengers from Nigeria travelled to Dubai and the Middle East using Emirates Airlines.

“So if they are not coming into Nigeria, it means there is going to be a big vacuum which nobody can fill. It will continue because the airlines will start reducing frequencies,” he said.

“I keep asking this question that if other climes are behaving like Nigeria, will there be an aviation sector? The airplanes that come in are not our freight. They have to pay Boeing, they pay AirBus, they pay all these people, they have a payment scheme and where is the money coming from? So, it is an issue.”

A few hours after the report of Emirates Airline's suspension of its airlines to Nigeria filtered the air on Thursday, British Airways informed its passengers that it was changing to full fares at any moment.

A notice by the airways quoted by The Punch read, “Good afternoon. Please be informed that information reaching us from BA indicates that the airline is changing to full fares F, J, W and Y any moment from now. Kindly let (us) issue any pending tickets to avoid fare increase.”

Explaining the meaning of the notice, Nwokeoma said “It is basically to cover for the dollar loss, but some airlines are doing it already. So, that means air tickets will be more expensive.

“It will be more expensive because it will now be in relationship with the black market rate. So, the F, J, W, Y middle seats will be more expensive.”

SaharaReporters earlier reported that IATA described the blockage of $464 million in repatriation money for basically foreign airline companies in July by the Nigerian Government as disappointing.

The group warned that if the money is not repatriated to the companies concerned, the Nigerian economy will suffer.

About two weeks ago, Emirates said that out of these funds, it had about $85 million in Nigeria.

On Monday, the airline cut its 11 weekly frequencies into Murtala Muhammed International Airport, Lagos to seven.

In a statement by its media consultant in Nigeria, the airline alleged that all efforts to repatriate the funds had been futile. It said it was compelled to suspend all flights into the country.

IATA, in a tweet on Thursday, said it is “disappointed that the amount of airline money blocked from repatriation by the #The Nigerian government grew to $464 million in July. #blockedfunds.”

"IATA’s many warnings that failure to restore timely repatriation will hurt Nigeria with reduced air connectivity are proving true with the withdrawal of @emirates from the market.

"Airlines can’t be expected to fly if they can’t realize revenue from ticket sales. Loss of connectivity harms the economy, hurts investor confidence, impacts jobs and people’s lives,” it added.

"The Government of Nigeria needs to prioritize the release funds before more damage is done," IATA said.

— Sahara Reporters

FCCPC to restrain loan sharks service providers

The Federal Competition and Consumer Protection Commission (FCCPC) says it has ordered all financial technology companies (FinTechs) to stop providing payment or transaction services to digital money lenders under its investigation.

Mr Babatunde Irukera, Executive Vice Chairman of the commission, disclosed this to newsmen on Thursday during an enforcement action on some of the digital money lenders in Lagos.

He identified such FinTechs to include Flutterwave, Opay, Paystack and Monify which are operating payment systems and providing services to such digital lenders under its investigation or not operating with applicable regulatory approvals.

Irukera said the commission also ordered telecommunication and technology companies which include Mobile Network Operators (MNOs) to stop providing server, hosting or other key services such as connectivity to such disclosed or known lenders.

According to him, the Federal High Court empowers the commission to search and seize properties from premises of targets and subjects of investigation.

This, he said made the commission to  enforce the law against a company, widely known as Soko Lending Ltd.

“The information available to the commission demonstrates that Soko Lending appears to be the most consequential digital money lender with multiple apps and brand names.

“It is covering a significant share of the digital or online lending market, and one of the most prolific actors in violating consumer privacy, fair lending terms and ethical loan practices.

“Prior to this operation, the commission had previously, on March 11, 2022 carried out a similar enforcement action with respect to multiple lenders; which action and continuing investigation has reduced previously high and escalating unethical, obnoxious and unscrupulously exploitative practices in the industry,” he said.

He, however, said some of the lenders who had been subject of investigation had devised methods to leverage on technology and other financial services alternatives to circumvent account freezing and app suspension Orders.

“With the operations today, the commission expects appreciable additional reduction in these unacceptable practices.

“The commission has also today entered further Orders that will disable or diminish violators’ ability to devise circumvention efforts or alternative mechanisms to circumvent the objective of the investigation and protection of citizens,” Irukera added.

According to him, the Order requires permission to proceed in digital lending; it provides a limited moratorium period for existing businesses to comply in order to continue in digital lending.

“The guidelines also mandate different service providers in the relevant ecosystem such as banks, platforms or stores, technology providers and payment systems to require regulatory approval before providing services.

“The commission expresses its gratitude to victims and citizens who have provided information or contributed to the investigation; and welcomes the continuing engagement that provides the relevant information or intelligence through the already established and publicised channels,” the FCCPC boss said.

(www.nannews.ng)

NewsSourceCredit: NAN

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