What gift means
A gift is a voluntary transfer of property for nothing in return.
The absence of consideration is what defines it and what creates the formality requirement. An ordinary contract binds because each side gives something. A gift has nothing on one side, so the law looks instead at the form in which it was made.
For land, that means a deed. A deed of gift, executed with the formality a deed requires, is how an interest in land is given away.
For moveable property, delivery is usually what completes the gift. Handing over the item, with the intention of giving it, transfers it.
Three elements are generally required whatever the property. An intention to give. Some act completing the transfer, whether execution of a deed or delivery. And acceptance by the recipient.
An intention to give at some future point, unaccompanied by any of that, is a promise rather than a gift, and a gratuitous promise is not enforceable.
How it is used
Gifts of land in Nigeria are common within families: a parent transferring a plot to a child, a person providing for a relative during their lifetime rather than by will.
The practical steps mirror a sale.
A deed of gift is prepared and executed, with witnesses.
Stamp duty is assessed and the deed stamped.
The Governor's consent is obtained, because a gift of a right of occupancy is an alienation and consent is required for it in the same way as for a sale.
And the deed is registered at the lands registry.
The consent point is the one families most often miss. A deed of gift signed between father and son, never taken for consent and never registered, leaves the recipient in the same incomplete position as a purchaser who stopped at the signed deed.
For family land, the additional question is authority. Family land belongs to the family, not to the individual member occupying it, so a gift by one member without the family head and principal members is subject to the same rules that govern a sale.
Key features
- A transfer with no consideration given in return
- Requires intention, an act completing the transfer, and acceptance
- Land gifts must be made by deed
- Governor's consent, stamping and registration apply as on a sale
- Delivery generally completes a gift of moveable property
- A gratuitous promise to give in future is not enforceable
How this works in Nigeria
Three Nigerian issues arise repeatedly.
The first is perfection. A deed of gift that was never taken for consent and never registered leaves the recipient holding a document rather than a completed title. Where the donor later dies, the property forms part of their estate on the face of the record, and the recipient is proving a gift to executors and possibly to other beneficiaries. Perfect the gift at the time.
The second is family land. Where the property is family land, the individual purporting to give it may have no authority to do so, and the rules on family head and principal members apply. A gift of family land by one member alone passes nothing, in the same way a sale would not.
The third is creditors and inheritance. A gift made to put property beyond the reach of creditors can be challenged, and a gift made shortly before death, or in circumstances suggesting the donor was influenced, can be attacked on grounds including undue influence and lack of capacity. Where a person is giving away significant property, contemporaneous evidence of capacity and of the absence of pressure is worth creating at the time.
A gift is also a disposal for capital gains purposes even though no money changed hands, so the tax treatment should be checked rather than assumed to be nil.
For most families, a will dealing with the property is simpler than a lifetime gift that is never perfected.
Gift vs sale vs bequest in a will
Three ways property moves to somebody else, at different times and with different consequences.
A sale transfers for consideration. The buyer pays, the deed is executed, and the ordinary consent, stamping and registration steps follow.
A gift transfers for nothing. It takes effect during the donor's lifetime, requires a deed for land, and needs the same consent and registration steps. Once complete, the property has left the donor entirely.
A bequest in a will takes effect on death. Nothing moves during the donor's lifetime, the will can be changed at any time, and the property forms part of the estate, passing through probate with the delay and fees that involves.
A parent wanting to provide for a child chooses between the second and third. A gift is immediate and irreversible; a bequest is flexible and slower. Doing neither, and relying on an understanding within the family, is the option that produces litigation.
Limits and risks
A completed gift is generally irrevocable. A donor who transfers property and later falls out with the recipient, or needs the property back, has no right to recover it.
Gifts can also be set aside where they were procured by undue influence, where the donor lacked capacity, or where they were made to defeat creditors.
Unperfected gifts of land are weak, and the weakness surfaces on the donor's death.
And the tax position is not neutral. A gift is a disposal, and the capital gains treatment should be checked rather than assumed.
Worth knowing
Perfect a gift of land at the time: stamp the deed, obtain the Governor's consent and register it. A Nigerian deed of gift left in a drawer means the property is still in the donor's name on every official record, and on their death the recipient is arguing with executors.
Questions people ask
How do I gift land in Nigeria?
By a deed of gift, executed with witnesses, then stamped, taken for the Governor's consent and registered at the lands registry. The steps mirror a sale because a gift is an alienation of the right of occupancy.
Do I need Governor's consent for a gift?
Yes. A gift of a right of occupancy is an alienation and consent is required in the same way as for a sale. Families frequently execute a deed of gift and stop there.
Can I gift family land to my child?
Only with the authority the customary rules require. Family land belongs to the family rather than to the member occupying it, and a gift by one member alone passes nothing.
Can a gift be reversed?
A completed gift is generally irrevocable. It can be set aside where it was procured by undue influence, where the donor lacked capacity, or where it was made to defeat creditors.
Is a promise to give a gift enforceable?
No. A gratuitous promise is not enforceable. A gift requires intention, an act completing the transfer such as execution of a deed or delivery, and acceptance.
Is a gift taxed?
A gift is a disposal for capital gains purposes even though no money changed hands, so the treatment should be checked rather than assumed to be nil.