By Bamidele Kolawole
A gift is something voluntarily transferred from the true possessor to another person with the 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The question of whether a gift can be revoked, rescinded, or retrieved depends on the circumstances surrounding the gift.
The first point of call in this discussion should be the question: ‘what is a gift in the eye of law’?
The seemingly most acceptable definition of a gift is the one enacted in section 122 of the English Transfer of Property Act, 1882, which defines a gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.”
A gift, according to encyclopedia Britannica,
is a present or thing bestowed gratuitously’, either inter vivos (among the living) of real or personal property?
To constitute a valid gift, there must be:
(1) a competent donor; (2) an eligible donee;
(3) an existing identifiable thing or interest;
(4) an intention to donate;
(5) delivery; i.e., a transfer of possession to or for the donee and relinquishment by the donor of ownership, control, and power to revoke (except in gifts Mortis causa; i.e., those that are made by someone believing himself to be near death and that become final only if the giver dies); and, in some limited jurisdiction,
(6) Acceptance by the donee.
A gift, depending on how, why and the reason for its giving, may be revocable or retrievable.
This international law principle was applied in the case of Balai Chandra Parui v/s Smt. Durga Bala Dasi & Ors., AIR 2004 Cal 276 wherein it held that in the normal course when a gift deed has been executed by the donor, accepted by the donee, and registered by the registering authority, there is no scope left for revocation of the same. However, if the parties decide on a condition for revocability or if the deed is executed under coercion, undue influence, fraud, or misrepresentation, revocation is possible.
The revocation of a gift is a question of law. For instance, if the donor and donee agree that on the happening of a specified event that does not depend on the donor’s will, the gift shall be revoked. In that case, the gift might be rescinded in the appropriate situation, i.e, at the happening of a pre-decided event agreed upon by the parties impliedly or otherwise.
The Act states that the donor and donee must agree while making the gift that on the happening of a specified event, the gift shall stand revoked.
Again, a gift may be rescinded if recission is specifically provided for or implied in the contract. If the gift were a contract that can be rescinded except for the failure of or lack of consideration, the gift shall be revoked.
It is not only law, it is a moral dictate that a gift invoked by coercion, undue influence, fraud, or misrepresentation, is ordinarily revocable.
Under Muslim Law, the revocability of a gift is determined by the stage and state of transfer of the gift. A gift whose transferring process is not complete can be revoked.
A gift under Islamic law is not complete until the property being gifted is delivered by the donor to the donee.
Thus, obviously, before the delivery of the property being gifted, the gift can be revoked as the gift is not yet complete.
On the other hand, if the property being gifted has been delivered, it cannot be revoked without the consent of the donee.
Even if it can be revoked, it can be done only by the decree of a court.
However, the general principle of law is that a gift voluntarily given with valid consent is irrevocable subject to numerous exceptions and legal qualifications.
There is a need for an understanding of what constitutes a gift in Law. In legal parlance, a gift is regarded generally as the transfer of ownership or right in a property where the sender willingly brings into effect such transfer without any compensation or consideration in monetary value.
The transfer of gifts comes in between two persons, the donor and the donee. Gifts can come in the form of moveable or immovable property. Such transfer must also be made voluntarily and without consideration.
The two major types of gifts are gift inter vivos which means gift between the living or from one living person to another. This is perfected and takes effect during the lifetime of the donor and donee, as well as gift causa Mortis which is a type of gift that is made in anticipation of imminent death. The gift takes effect upon the death of the donor. Similarly, a gift can be conditional or unconditional.
On the question of revocation, rescinding, or retrieval of a gift, the law is clear as established in the case of Anyaegbunam vs. Osaka (2000)5 NWLR (Pt 657) where the Court 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.
As a general rule, the law is that the donor of a gift cannot revoke the gift after it has been accepted by the donee. However, where the donor can show cause that the gift was subject to a condition that has been broken, such a completed gift can be revoked.
This is settled in the case of Ekpa vs. Utong (1991) 6 NWLR (Pt. 197) 258. It thus follows that a conditional gift becomes irrevocable only upon fulfillment of the condition upon which it was given. Similarly, in the same vein, a gift under a promise of marriage can be revoked where the donee refuses to marry the donor.
In the same vein, Gifts given or favors 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 donates 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 behooves 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 the failure of the object of the gift. See the case of Imah & Anor v. Chief A Okogbe & Ors (1993) 9 NWLR (Pt. 316) 159.
A gift cannot be revoked except if the gift is subject to a condition and if the receiver of the gift failed to meet up or fulfilled the precondition.
A gift inter vivos is succinctly defined in the case of OSAGIE & ANOR V OSAGIE (2021) LPELR-54593 (CA) 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 the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver.”
Also in the case of JOVINCO NIGERIA LTD & ANOR v. IBEOZIMAKO (2014) LPELR-23599(CA), a gift inter vivos and a testamentary gift (will) were distinguished as follows: “An inter vivos gift is a gift made when the donor is living and provides that the gift takes effect while the donor is living as contrasted with testamentary gift which is to take effect on the death of the donor (testator). See the Black Law Dictionary 6th edition page 821.
In addition, A gift inter vivos was defined by the Supreme Court in Anyaegbunam vs. Osaka (2000) 5 NWLR (Pt. 657) 386 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 the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver.
Conclusively, an inter Vivos gift by its very nature is made by a living person to another and takes effect immediately after it is made and once it is made by the donor the subject of the gift ceases to belong to the donor. It CAN NOT be revoked, rescinded, or retrieved nor can it form part of the estate of the donor when the donor dies.
Yes, it depends on the type of gift, a gift of property e.g land can be retrieved if the owner intended to retrieve it. Supreme court said, that any landed property must be by deed, not gift. A property that is not properly documented can still be retrieved. But this does not apply to perishable items.
The truth of the matter is that in law, we execute a deed of gift whatever a party wants to give another party something.
In this sense, the ownership of the gift item transfers from the giver (Donor) to the receiver (Donee). Therefore, it can not be revoked, resigned, or retrieved.
The general rule is that once a gift has been validly executed it cannot be revoked, rescinded, or retrieved by the donor from the donee. But there are exceptions to this general rule. That is to say, there are instances where the donor can revoke, rescind or retrieve a gift already executed from a donee. Such instances are: When there is a clause giving the donor the right to revoke the gift and when there are vitiating elements in the process of executing the gift. Such vitiating elements are fraud, misrepresentation, mistake, etc.
These vitiating elements may give rise to the revocation, rescission, and retrieval of the gift by the donor from the donee. In the case of IMAH & ANOR v. OKOGBE & ANOR (1993) LPELR-1497(SC), the Supreme Court while pronouncing on “…what instance will a gift be revoked” held that: “Unless a donor reserves the right to revoke, once a gift has been validly executed it cannot be revoked in the absence of fraud, mistake, misrepresentation or other invalidating cause. See Ogilvie v. Allen (1899) 15 T.L.R. 294.”
Also in the case of YESUFU & ORS v. OKE BAALE (OSOGBO) NUT CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LTD & ANOR (2014) LPELR-22102(CA), the Court of Appeal while determining the question “Whether a validly executed gift can be revoked” held that: “It is trite in law that a donor of absolute gift cannot revoke the gift after it has been accepted by the donee. In Anyaegbunam v. Osaka (2000) 10, WRN 109 @ 125, the Supreme Court, per Muhammed, JSC held thus: ‘
The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift.’ However, the only exception to this general principle of law is where the gift was obtained by fraud, mistake, misrepresentation or there is a total failure of the object of the gift. See Imah v. Okogbe (1993) 9 NWLR (pt. 316) 159 @ 173: Ogilvie v. Allen (1899) 15 T.C.R. 294.”So given the legal ratio of the above-cited judicial authorities, it suffices to state that the general rule is that the donor of an absolute gift cannot revoke, rescind or retrieve the same unless there are vitiating elements such as fraud, misrepresentation, mistake, and the failure of the gift.
A gift can be retrieved based on three reasons, a child cannot give a gift, and because he is a child who does not have the power to give what he does not have.
A mentally disabled cannot give a gift, if a mentally derailed gives a gift, when he comes back he has the right to retrieve it.
A drunkard also cannot give a gift, he can claim his property back when he comes back to his normal senses.
These are the levels and the circumstances that surrounded the issue of gifts. You cannot give what you don’t have. But depending on the gift, the person that gives the gift has the power to retrieve it.