CREATION OF FAMILY PROPERTY

CONTENTS

1:0         Introduction

2:0         Objectives

3:0         Main Content

3:1     Definition of Family

3:2     Creation of Family Property

3:3     (i) Position of Grandchildren,

          (ii) Slaves and Domestics

4:0         Conclusion

5:0         Summary

6:0         Tutor Marked Assignment

7:0        Reference/Further Reading

INTRODUCTION

This module will focus on all aspects of family property under customary law. This unit will focus on the creation of family property. The family is a very important unit in customary law, and land is rarely held individually but collectively. As the communal land holding is diminishing in importance, the family land holding is becoming more important  and  relevant in Nigeria today. The communal lands as we have noted above are normally allotted to the members of the community, and such members have the right to occupy and use exclusively for their use and benefit. Upon the death of the original allottee the land is normally inherited by the children and a family property is created. There  are five main  ways by which family property may be created. We shall examine this and also the legal position of grand children, slaves and domestics.

OBJECTIVES

At the end of this unit the student must be able to explain, Creation of family property

Definition of family

Position of grand children and slaves, domestics.

MAIN CONTENT

DEFINITION OF FAMILY

A family is generally regarded as the man, his wife or wives and children. Dr. Elias described the family as the smallest social unit in the body polity; (Elias op. cit) children are both male and female children. However, in terms of family property under native law and custom, the family property is that property belonging to the family as a unit, it is in its real form undivided interest in land; and until it is determined continue to be held jointly by the entire family as a  unit.  The membership of the family does not take cognizance of  the  extended  family  members. So that all members of a family that  can inherit  their  fathers  farms  are the collective members of the family who can lay claim to the joint ownership of the family property. However, the ownership of family property  as  we will  soon  see may depend on the manner of creation and intention of the originator  of  the family  or the original owner of the family property. Strictly,  brothers,  sisters,  cousins  do not form members of the family. (see Suberu v Sunmonu (1957) 2 FSC 33. A widow cannot inherit the husband property and therefore do not form part of the members of the deceased husband family. See Nzeiraya v Okagbue (1963) 1 All N.L.R 352. Only the children of the founder constitute the family. In some parts of Ibo land, only sons can inherit the land, daughters are therefore excluded. See Lopez v Lopez (1924) 5  NLR 50.

In cases where the family property was created by will, the persons mentioned in the will even if they include outsiders, will constitute the family and are entitled to the family property. In Sogbesan v Adebiyi (1941) 16 N.L.R 26, where a testator devised his property to be held as family property and appointed his brother as the head of  the family,  the court held that the family included his brothers and sisters and their descendants. The judge explained that “it would be contrary to the conception of native law and custom as well as good sense to appoint a person who himself is given no interest in the property to act as  head of the family”. In cases where specific names of children  are mentioned  amongst  all  the children, then these children mentioned will only be entitled to create the family property and their descendents.

CREATION OF FAMILY PROPERTY

There are seven ways a family property may be created; (1) Intestacy, (2) will (3) Conveyance, (4) Purchase of Land, (5) Declaration, (6) Conquest, (7) Settlement.

1. INTESTACY: Where a land owner dies intestate, the land is naturally inherited by his children under native law and custom, and thereby becomes family property, . See Lewis v Bankole (1908) 1N.L.R 89, Ogunefun v Ogunmefun (1931) 10N.L.R 82, Miller B.O. v Ayeni (1924)5 N.L.R 42. It is immaterial whether the land owner dies leaving only one issue, the land will still be constituted as family property. This was the decision in Abeje v Ogundairo (1967) LLR 9. Olawoye (op cit p.26) have criticized this decision on the basis that a family property connotes joint ownership, and therefore cannot arise where there is a sole heir, Smith (op cit p.35) supports the decision and even argued that the position taken by Olawoye is  unfounded  and  should  be ignored. This is because, a family property is not founded  on the existence  of one  sole heir, many or no child at all. The conditions for creation of family property by intestacy are, (1) that the land owner died intestate and (2) that his estate is  governed by native law and custom, once those conditions are met the property devolves on his children as family property. The position taken by Smith is to be preferred; this is because under native law and custom, land is regarded  as inheritable property not only belonging for the use of the current generation,  but  also for generations’ unborn belonging to the family. The current generation of children is therefore holding land in trust and as a sacred object for their  own use  and generations after then. See Olowosaga v Alhaji Adebajo & others (1988) 4N.W.L.R (pt. 88) 275.
2. WILL: A testator may create family property by specifically stating in his will that he wishes to create a family property, this is by declaring  in  his will that  his property be held on his death jointly by his children jointly as family property. In the case of Frank Coker v George Coker & ors (1938) 14 N.L.R 83, one Edward Foster in his will made the following bequest of his dwelling house which was situated in Lagos – “I leave and bequeath my present dwelling house to the whole of my family or blood relation and their children’s children throughout and cannot be sold for any debt or debts that may be contracted by any of them, but at present the house should be occupied by my grandson Nath and my son Edward subject to the approval of my executors or otherwise……”The house was sold by order of court and the suit was to determine who is entitled to share in the proceeds of the sale. The  court held  that  the intention of the testator was to make his dwelling house a  family  house,  following the Yoruba custom and so that consequently those entitled to share in the proceeds of its sale were those of his descendants entitled under the custom  to  reside in the premises at the time of sale.

See also Jacobs v Oladunni Bros. (1935)12 N.L.R 1, George v Fajore (1939) 15 NLR1. Slaw v Kehinde (1947) 18N.L.R.129.

3. CONVEYANCE: Where the land owner, confers title to his property on named members of his family by Deed with a declaration of his intention to create a family property in the named members, a family property is thereby created. In the case of Olowosago v Alhaji Adebanjo & others (1988)4 N.W.L.R (pt 88) 275. Where the family conveyed by Deed of grant parcel of land to eight people who were children and grand children of the land owner, the land was subsequently sold to the plaintiff, the respondents relied on the Deed of grant; it was held that the Deed created family property. The court also explained that to qualify as family land, it will be necessary  to identify not only the origin of the land by also its status.
4. PURCHASE OF LAND WITH FAMILY FUNDS: Family property may be created by conveyance Inter vivus. Where land is purchased with money belonging to  the  family, a family property is thereby In the case of Nelson v Nelson (1913) 13

N.L.R 248. The family decided to use money  paid by government  as  compensation  for acquisition of family property to another parcel of land. The  conveyance  was done in favour of the family head in English form. The family  head  thereafter  sold the land to a third party,  in an action to set aside the sale,  the court  held that the  land is a family property notwithstanding the form in which it was  conveyed.  See  also Dosumu v Adodo (1961) LLR 149.

5. DECLARATION: Where the land owner during his lifetime decides to designate his land as family property for the benefit and enjoyment of members of his family only; family property is thereby created. See Nelson v Nelson (1951) 13 WACA 243.
6. CONQUEST: Family property may also be created by conquest. Where there is only one particular progenitor, mainly hunters and warriors, in time  past,  who  had fought and conquered the original settlers and chased them from the land, upon his death, his children will inherit under native law and custom, and thereby a family property is created. See more others v Nwalusi & others labadi (1933) 1 W.A.C.A 278, Kuma v Kuma (1934) 2 W.A.C.A
7. SETTLEMENT: Family property is also created by first   Where  the original land owner was the first settler on land, upon his death the property will devolve upon his children under native law and custom. The property therefore becomes family property. In the case of Idundun v Okumagba (1976) 10 SC 227 the Supreme Court accepted the finding of the lower court  that the family  that was able to prove that their ancestor first settled on land created family property and the family are the owners thereof.

(i) POSITION OF GRAND CHILDREN

As we have discussed above, the family includes only the man, his wife or wives and children. Family property therefore belongs only to the family or those who can inherit the property of the deceased under native law and custom, or otherwise as discussed above. Therefore the grandchildren are not entitled to any share until the death of his own parent, and then he can step into their shoes. In the case of Lewis v bankole (op cit) the court had that a grandchild could not demand as of right a portion of family land for building. See also Balogun v Balogun (1943) 9 W.A.C.A 78.

(ii) SLAVES AND DOMESTICS

Slaves and other domestic servants no matter how long they have stayed in the family  are not part of the family. They are therefore not entitled to any portion of family property. The Supreme Court in the case ofCchairman, L.E.D.B v Fahn  (unrep  FSC 140/621 16/3/63) observed that slaves and domestics were their masters chattels and were themselves the object of inheritance. One may need to separate  domestics  from  the observation of the Supreme Court. This is because the  domestics  are  mainly  working for their master for a fee or reward. While the slave is entirely the property of the owner. The slave may in fact benefit from the family property of the land owner where the owner includes the slave or domestic in his will or declaration. See Dabiri v Gbajumo (1961) 1 All W.L.R. 225.

CONCLUSION

The form in which a family property is created will determine the status of the parties and the property. The family property is owned by the family as a unit and does  not belong to  the individual members. To prevent this, the party must be able to prove when and how the property was converted from individual ownership of the land holder to that of his family.

SUMMARY

There are seven different ways by which a family property may be created.  And  anyone  who desires to prove that he holds land by virtue  of  family holding must be able to prove  the manner of creation to the originator of the family. Outsiders cannot  claim any right in  the family property, grandchildren and extended family members are also excluded unless they are mentioned by the originator of the family by will or declaration.

TUTOR MARKED ASSIGNMENT

Abass desires that all his property be converted to family property after his death  so that  all members of his family may have equal access and benefit to his properties. Advise him.

REFERENCES/FURTHER READING

B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu

 Coker, Family Property among the Yorubas,(2nd ed)

Lloyd, (1962) Yoruba Land Law

Lloyd, 1965, Yoruba Inheritance andSuccession  in Derret,ed.  Studies in Law of Succession in Nigeria

Elias, British Colonial Law

Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law

Pollock, 1961, Jurisprudence and Legal Essays, London.

Omotola, 1984, Essays on the Land Use Act , Lagos University Press

Olawoye ,1970, Meaning of family property,NJCL vol 2 p300

Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,

Obi, 1963, The Ibo Law of Property.