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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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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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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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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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WHERE OTHER FAMILY MEMBERS CONTRIBUTE TO BUILDING A PARTICULAR INDIVIDUAL LAND

In Ollennu, J. in Boafo v. Staudt (1958) “By native custom, where one member of the family acquires land for himself with his own money as his individual property and other members of the family develop that land with their own money or labour by building on it or farming it, the property immediately acquires the character of family property and ceases to be the individual or exclusive property of the member who purchased the land with his own money. Because the land in its developed state is the result of the combined contribution of members of the family it cannot in its entirety be the product or achievement of any single one of the members of the family who contributed to make it what it is. The purchaser and each of those who developed it have life interests in it. The purchaser of the land can together with all who developed it dispose of the whole estate in it without reference to the head and other members of the family. But upon the death of the member who bought the land or upon the death of any one of the members who developed it, the property becomes full family property with all the incidents of family property.”

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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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