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IN YORUBA CUSTOM WHERE NO HEAD OF FAMILY HAS BEEN NOMINATED

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The problem raised by the peculiar fact of this case is, however, this: what is the position where no family head existed at the time. It is true that under English Law, equity does not lack a trustee: where there is none equity will constitute one. As the head of the family under Nigerian law is a trustee of a type will equity allow a vacancy in his position in such away as to defeat the right of a third party? I think not. For to do so could have disastrous consequences both to family interest and those of third parties. Now traditionally, under Yoruba customary law where no head of the family was nominated by a deceased father of the family (see Sogbesan v. Adebiyi 16 N.L.R. 26) or appointed by the members of the family, the eldest surviving male (Dawodu) is the head of the family: see Lewis v. Bankole (1908) 1 N.L.R. 82, although it was recognised that a woman could also be the head of the family (Taiwo v. Sarumi (1913) 2 N.L.R.106).

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

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BEFORE FAMILY/COMMUNITY HEAD MAKES A GRANT TO A STRANGER

Amodu Tijani v. Secretary Southern Nigeria (1921) A.C.399 as regards the character of the tenure of the land among the native communities in West Africa as follows at page 404:- “The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger.”

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WHERE NO HEAD OF FAMILY, PRINCIPAL MEMBERS SALE OF FAMILY LAND IS VALID

But even if I agree with the courts below that there was no head of the family at all times material to the agreement, l would still have held that they were wrong to have held that the transaction was void on the principle in Ekpendu v. Erika (supra). It is noteworthy that in that case, the head of family was in fact Erika. Not only was he known and very much alive, but also it was he who challenged the transaction. Indeed, one common feature in all the cases cited in the judgment or relied upon in arguments is that in each case the head of the family was alive and known but the transaction nonetheless went ahead without his consent. In the instant case, if there was no head of the family, there was nobody whose consent could have been obtained and so no ground for declaring the transaction void. I therefore agree with Chief Ajayi that were as found by the learned trial Judge in this case, there was no head of the family, a sale of the family land by the principal members of the family acting for themselves and on behalf of the other members of the family is valid – at least until it is set aside.

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

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SALE BY MEMBER WITHOUT CONSENT OF FAMILY HEAD OR PRINCIPAL MEMBERS IS VOID AB INITIO

The law as rightly argued by the Respondents is that consent of principal members of the family is required before the Sale or transfer of title of family land can be valid. Where consent is not obtained, any sale of family land is void-ab-initio. This position was reiterated by this Court in the case of Fayehun v. Fadoju (2000) 6 NWLR (Pt. 661) P. 390 at 404 where Karibi-White, JSC (of blessed memory) held as follows: “A sale of Family land by a member of the family without the consent of the Chief or Head of the family and principal members of the family is void ab initio. See Ekpendu v. Erika (1954) 4 FSC 79 (1959) SCNLR 186. It is essential to the validity of sale of family land, that the Chief or Head of family must join in the conveyance and the principal members of the family must consent to the transaction … Such a combination of parties to the conveyance of family land by the Chief or Head of the family and the principal members of the family is in my opinion unimpeachable.”

— J.I. Okoro, JSC. Onyekwuluje v Animashaun (2019) – SC.72/2006

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WAYS A PERSON MAY BE A FAMILY HEAD UNDER YORUBA CUSTOM

It is indeed a wise and well established principle, that there are three ways by which a person can be validly recognized as a head of a family under Yoruba customary law. (i) by operation of law; (ii) by election by members of the family concerned; and (iii) by direct appointment by the founder of the family. Invariably, the most senior member of a family is the head of each branch of the family thereof. In most cases, he is the eldest child of each wife.

– I.M.M. Saulawa JCA. Agara v. Agunbiade (2012) – CA/L/304/2009

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WHERE FAMILY HEAD MISAPPROPRIATES PROPERTY, ONLY REMEDY IS TO REMOVE HIM

There’s no doubt, that the principle has been settled, to the effect that where the family finds the head thereof misappropriating the family possession or property and squandering them, the only remedy is to remove him and appoint another fit and trust worthy person acceptable to the family’. see NELSON VS. NELSON (supra) at 216 per Mitchelin J. See also AKANDE VS. AKANDE (1967) 1 ALL NLR 102; EYNN VS. GARDNER (1953) 14 WACA 260.

– I.M.M. Saulawa JCA. Agara v. Agunbiade (2012) – CA/L/304/2009