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THE CONCEPT OF FAMILY LAND; CREATION OF FAMILY PROPERTY

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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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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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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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MANAGEMENT BY THE WHITE CAP CHIEF

If the appellant is entitled to exercise the usual powers of the Chief or family head in the management of the family property, he is also entitled to the relief he asks for, since it is not pretended that the settlement enables the respondents, or the family council less the Chief, to dispose of the family property without the consent of the Chief. If, on the other hand, the appellant is not entitled to exercise any powers of management over the family property then he cannot obtain any relief, whatever the effect of the settlement may be. If this view is correct, the only question which the Court has to decide is whether the appellant has the usual powers of the Chief or family head.

– Brett F.J. Ajibola v. Ojora (1961)

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HOW FAMILY LAND CAN BE CREATED

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 (1908) 1 N.L.R. 89; 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 N.L.R. 248. Family land can be created by the use of the appropriate expression in the will of the owner of such land. – See Re Edward Forster (1938) N.LR. 83 George v. Fajore (1939) 15 N.L.R. 1 Shaw v. Kehinde (1947) 18 N.LR. 129. For the lain in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.

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

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MEMBER OF FAMILY CAN BRING ACTION TO PROTECT FAMILY PROPERTY

It is no doubt correct to say that a member of the family is competent to bring action to protect the interest of the family in respect of family property; even if he has no authority of the family to bring the action, – See Sogunle and Ors. v. Akerele and Ors. (1967) NMLR 58, at p. 60. This principle however applies to family land. Since the land in dispute in this case is not family property, the principle laid down in Sogunle and Ors. v. Akerele and Ors. is not applicable.

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

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ONLY SONS INHERITING PROPERTY IS REPUGNANT

Appellants had relied on their customs, to say that only biological sons of a family can inherit their fathers landed property. Of course, such old and oppressive laws in Igbo land have since been reviewed by case law, pursuant to Section 42 of the 1999 Constitution, as amended.

– Mbaba JCA. Aduba v. Aduba (2018)

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