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FAMILY LAND CEASES WHERE THERE IS A PARTITION

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In the first place family land ceases to be such land on partition, – See Balogun v. Balogun (1943) 9 WACA 78. Thus if the Aige family, as in the instant case partitioned its land and granted any portion to any branch of the family, the grant so made ceases to be Aige family land, but is now the land of the person or persons to whom the grant has been granted.

— A.G. Karibi-Whyte, JSC. Olowosago V. Adebanjo (SC.134/86, 29 Sep 1988)

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THE CONCEPT OF FAMILY LAND; CREATION OF FAMILY PROPERTY

The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the corner stone of our Indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. See Lewis v. Bankole 1 NLR 81. Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family – See Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR 83, George v. Fajore (1939) 15 NLR 1, Shaw v. Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.

— A.G. Karibi-Whyte, JSC. Olowosago V. Adebanjo (SC.134/86, 29 Sep 1988)

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PROPER SALE OF FAMILY LAND

The law is that family land can only be sold by the family head or Mogaji with the concurrence of principal members of the family.

– Ogunwumiju JCA. Awure v. Iledu (2007)

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FAMILY HEAD & PRINCIPAL MEMBERS MUST CONCUR FOR SALE OF FAMILY LAND

The law is also that where there is alienation of family land by sale as in this case the family head and principal members must concur therein. The transaction is void where these persons are not involved. These persons must act in a representative rather than personal capacity. Let us assume that the 3rd plaintiff and some family members concurred in the original sale to the respondent while expressing themselves to be acting on behalf of the family, the sale is valid but voidable at the instance of members of the family whose consent was necessary but not obtained.

– Ogunwumiju JCA. Awure v. Iledu (2007)

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HEAVY BURDEN IS ON HE WHO ASSERTS AGAINST FAMILY LAND

Having found that the plaintiffs failed to prove either ownership or exclusive possession which they pleaded the court below ought to have held that they d id not prove their case and should have dismissed it. The onus of proof was on the plaintiffs. Moreover, it must be borne in mind that it has been established by a long line of decided cases that one of the incidents of our traditional communal ownership of land is that once it is admitted that a particular piece of land belongs to a family, the law places a rather heavy burden of proof on any person or group which asserts exclusivity of ownership or possession against the family or any person claiming through them. Mere evidence of occupation and user by a member of the family is not conclusive as against the family or a person who claims through the family.

— Nnaemeka-Agu, JSC. Adesanya v Otuewu (1993) – SC.217/1989

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FAMILY LAND CEASES TO BE FAMILY LAND ON PARTITION

In the first place family land ceases to be such land on partition, – See Balogun v. Balogun. (1943) 9 W.A.C.A. 78. Thus the Aige family, as in the instant case partitioned its land and granted any portion to any branch of the family, the grant so made ceases to be Aige family land, but is now the land of the person or persons to whom the grant has been made.

— Karibe-Whyte, JSC. Adebanjo v Olowosoga (1988) – SC 134/1986

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UNPARTITIONED FAMILY LAND

It is trite that an unpartitoned family land is prima facie family land. And a holder of such unpartitioned family land cannot devise same to his children; See OKE v. OKE (1974) ALL N.L.R.401.

– Denton West JCA. Salaja v. Salaja (2013)

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