THE CONCEPT OF FAMILY PROPERTY UNDER CUSTOMARY LAW IN NIGERIA

EDITED BY: Asy'kobi

Academics and jurists have described customary law in various ways.  Some described customary law of a community as a ‘body of customs and traditions which regulate the various kinds of relationship between members of the community.’  Customary law has also been described by others to be ‘used rather as a blanket description covering very many different systems.’ Obaseki, J.S.C. (as he then was) in the case of Oyewumi v. Ogunsesan defined customary law as follows: The organic or living law of the indigenous people of Nigeria regulating their lives and transactions.  It is organic in that it is not static.  It is regulatory in that it controls the lives and transaction of the community subject to it.  It is said that custom is a mirror of the culture of the people.  I would say that customary law goes further and imports justice to the lives of all those subject to it.

Under customary law, family means the direct offshoot of the founder i.e. the children. Children are generally held to refer to both female and male children although in certain areas such as Igbo societies, female children are not entitled to the property of their late father . Memberships of the family do not take cognizance of the extended family system in the African traditional setting. Thus, brothers, sisters, cousins or uncles of the deceased founder of the family do not qualify as members except whereby his own declaration, the deceased landowner enlarged the family to include relatives . A widow is not a member of the deceased husband’s family . A grandchild is not a member of the family for purposes of succession to the family property until the death of his parent who is a member of the family.

Creation of Family Property

There are four ways by which family property can be created . These are: a. By way of declaration of an intention to create a family property inter vivo: This may arise where land is purchased with money belonging to the family. It may also arise where a landowner while still alive expresses an intention to make the property a family property for the benefit and enjoyment of the members of the family jointly.

a. By way of declaration in a Will: This arises where a deceased landowner before his death declares in his last Will and Testament to make property which hitherto was held personally by him a family property on his death to be held jointly by members of the family .

b. By way of conveyance: Here, the settlor confers property on the family under a valid deed for that purpose and declares that the use and enjoyment of the property shall be for named members of named family .

c. By way of intestacy: If a landowner whose estate is governed by customary law dies intestate such land devolves on his heirs in perpetuity as family property. The conditions mainly are that the landowner must have died intestate, and that the estate during his lifetime must have been governed by customary law.

Once the foregoing conditions are met, the rule simply states that the property automatically devolves on his children as family property. The rule therefore takes no account of the number of neither the children nor indeed, him existence of the children. The criticism against the decision in Abeje v. Ogundairo on the ground that a sole heir could not have constituted the family is unfounded and should be ignored.

MANAGEMENT OF FAMILY PROPERTY

Management takes place within a structured organizational setting with prescribed roles. It is directed towards the achievement of aims and objectives through influencing the efforts of others. Management involves identifying the mission, objectives, procedures, rules and the manipulation of the human capital of an enterprise to contribute to the success of the enterprise.  In this context, the customary land tenure system vests the family head with the power of management, to oversee the family property and other family businesses. The Supreme Court of Nigeria referred to the family head as a ‘Manager’ in Akano v. Ajuwon, (1982) 11 SC 1 at p. 72.  The apex court re-affirmed this description in the case of Solomon & Ors. v. Mogaji. The family head, whether referred to as a ‘‘manager’’, ‘‘director’’, “representative”, “agent”,  “caretaker” or “fiduciary,” he has the power and authority to direct the affairs of family property. In any of these capacities, he bears a fiduciary relationship to family property.

Since family property is vested in the family as a whole and ownership of the land is joint and indivisible so that is impracticable for every member to be part of the controlling nucleus of the family property, the administrative control and management of the family land is vested in the family head in conjunction with the principal members of the family.

FAMILY HEAD

A head of the family is the person who manages family property for and on behalf of other family members.In fact the head of the family represents the family of any gathering or occasion He is the family voice at the village or community meeting. He is the trustee of the family property. See Bassey v. Cobham (1924) 5 NLR 90.

The family head personifies the family. In a loose mode of speech, he is sometimes referred to as the owner but he is to some extent like a trustee in the English sense. Family head wields enormous powers with huge responsibilities attached. The proper person to manage the family land is the oldest male member thereof whether he happens to be the first born, see Lewis v. Bankole (1909) 1  N.L.R 82  or, if the first child be a female, he comes next and so is the oldest male child, see Ricardo v. Abal (1926), 7 N.L.R. 58.

Under most system of customary law, the family head is the eldest surviving male the founder of the family though nowadays, the claims of females has been recognized . On the death of the eldest surviving child, the headship devolves on members in turn according to seniority . However, under the Ibo customary law, the family headship devolves on the eldest son and his male descendants on the principle of primogeniture .

The general rule is that the head of the family once appointed or recognized assumes full control of the family land. But his control over family property is devoid of ownership, what is vested in him is only the day-to-day management of the property . It is the responsibility of the family head to preserve the property and keep it in good state of repairs. He allocates portions of family land to members or others for use and where the property is let out to tenants, it is his duty to collect rent and pay outgoings from the family funds .

CREATION OF FAMILY LAND

Family property can be created either by act of parties or by operation of law. This is stating the law as it is today, because to the earliest natives the idea of making a Will was inconceivable, at least in the pre-colonial and early stage of the colonial era. It was therefore not possible then to create family property among the native as an instrument intervivos. One major factor responsible for that, was that the early natives were predominantly illiterates. However, with the increase in the level of literacy and the impact of colonization, it later became fashionable among the Nigeria natives to make testaments.

In Olowosago v. Alhaji Adebanjo, [1988] 4 NWLR pt. 88 p. 275 . The court held that: 

(i) Where a land owner whose estate is governed by customary law dies intestate, such land devolves on his heirs in perpetuity as family land; (ii) Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family;

(iii) family land can also be created by the use of the appropriate expression in the Will of the owner of such land; and

(iv) family land ceases to be such land on partition.

Family Head and Accountability

In what appears to be an exception to a general rule of male hegemonic claim to the family headship, it should not be supposed that the most senior male member of the family is invariably and inevitably the family head, because it is possible for the family by a unanimous resolution to decide for good cause who should be the family head.

Since the question of accountability is inextricably interwoven with the status of trusteeship, the controversy attending the position of the Head of the family as a trustee of his powers under customary law is whether he is generally accountable to the family for the rents and profits derived from family property.

Before the Supreme Court decision in Taiwo v. Dosunmu , the idea of non-accountability had always shocked judicial conscience in Nigeria. The earliest reference to the subjects in Nigeria was made in the case of Re Hotonu where Smith C.J held that the head of the family as an administrator was not liable to render a strict account to members but added that:

 “I do not, however, think custom of the country just or equitable and should under no circumstances hesitate to give the direct countenance of this court to reckless waste of the resources of a family, as time advances it is to be hoped that other ideas will prevail more consonant with natural justice”.

In Kosoko v. Kosoko , the plaintiff claimed as against the defendants an order of the court for an account of all rents and menses profits of the family property which the defendants as trustees had managed for about forty years before the action was brought. It was found that the plaintiff who had no support of brothers and sisters in bringing the action had deliberately absented himself from the family meetings for over thirty years since he left Lagos. The court held on those grounds that the plaintiff could not on his return claim an account from the Head of the family.

The Principal Members

The principal members of the family are formed from the branches existing in the family. In polygamous family, the eldest of the children begotten by each wife is a principal member whilst in the case of a monogamous family every child could constitute a principal member.

Rights and duties of Family Members

Rights are obligations owed to another that must be satisfied while duties are claims, power and privileges, immunity secured to a person by law. Where there is a right, there must be a corresponding duty attached. Every family member is entitled to make physical use of the land. Rights of the members could be enforced against a family head and any other member of the family who without just cause deprive him of such rights, which are considered natural and inalienable. See Ajobi v. Oloko (1959) LLR 152.

The Supreme Court in Thomas v. Thomas, (1932) 16 NLR 5  enumerated the rights of individual members as follows:

1. The right of residence

2. Right to have reasonable ingress and egress

3. Right to have a voice in the management of the property

4. Right to have a share in any surplus of income

5. Right to seek for partition or sale of the family property

6. The right to protect the family property

7. The right to possession and physical use of the family land and; 8. Right to devolve interest in family property to offspring.

A member has no general right to occupy or use any portion of the family property except the portion allocated to him for use . But he has exclusive possession of the portion allocated to him and can in appropriate cases maintain an action in trespass against other members of the family for interfering with possession.

ALIENATION OF FAMILY PROPERTY

Alienation’ simply means conveyance or transfer of property to another. Collins English Dictionary defines ‘alienation’ as the transfer of the property, as by conveyance or Will into the ownership of another or the right of an owner to dispose of his property.

The basic principle is that neither the family head alone nor the principal members of the family can validly alienate the family land or give a good title to any person with respect to family land. The customary practice and procedure is that for the title in family property to pass to a third party purchaser, it must have been done with the consent of family head and principal members, representing the rest of the members. This process, nonetheless is technical and complex.

There are diverse views or opinions among legal commentators as well as the courts in respect of the legal validity of alienation of family property under customary law. The issue of who has the power to validly affect the family property is very fundamental, that is, a legally recognized vendor.

Although family property may be allotted to members of the family, allotters cannot alienate or part with possession of family property without the consent of the family. As Craig JSC pointed out in Alao v. Ajani . “a member of a family is not permitted to introduce a stranger into the family by the back door, nor is he permitted to fetter the reversionary interest due to family by a complex commercialization of the simple possession granted to him” .

Alienation of family property without the consent of the family head is void abinito . Where the family head alienates family land without the concurrence of the principal members, the sale is void able .

The rule that disposition by the family head without the consent of the principal members is voidable is subject to three important qualifications :

i. The rule applies only where the family head has acted as such so that where he alienated the land as his own e.g. where he described himself in the conveyance as a ‘beneficial owner’ of the land, the sale will be void.

ii. Where the family head made a gift of such land without the requisite consent, the gift is void and it makes no difference that the gift was made to a member of the family. The family head cannot unilaterally order the partition of family property without the consent of all the principal members of the family. Such partition if made is ineffectual to determine the family ownership of the property.

DETERMINATION OF FAMILY PROPERTY

Family property may be determined in any of the following ways:

(i.) Absolute Conveyance of the family land Where the totality of the interest of the family is conveyed by way of sale or gift of family property is determined. Usually in modern times, the English method of transfer is adopted but such transfer is not valid unless the deed of transfer is executed by the family head and the principal members of the family .

The Land Use Act has however converted all unlimited interest to Rights of Occupancy which is the only interest that may be retained or transferred so that today, a family retains a Right of Occupancy on family property which may be assigned with the consent of the family and the Governor .

(ii.) Partition Partition as a legal concept is a method whereby joint possession is disunited so that each former co-tenant becomes a separate owner of a specific portion of land holding a share in severalty as opposed to an undivided share in the whole. Partition may be voluntary resulting from mutual agreement of members and effected by a deed of partition executed by the joint tenants (i.e. by the principal members of the family and the family head).