MANAGEMENT AND CONTROL OF FAMILY PROPERTY
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Family Head
3:2 Status
3:3 Management and Accountability
3:4 Principal Members
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Ownership of family property is joint and indivisible. The family itself may comprise of large number of children who may be spread all over the country. There is need to determine or appoint someone or some of their members to represent them in negotiations on the family property, to generally administer the properties, to equitably determine how best to share the family property amongst them in order to appropriate the greatest benefit for all the members of the family .
OBJECTIVE
At the end of this unit the student must be able to explain the status, duties, accountability of the family head. The responsibilities of the principal members of the family.
MAIN CONTENT
FAMILY HEAD
The management of the entire family property is vested in the family head. He holds the property as ‘trustee’ on behalf of the family, the use of the word ‘trustee’ is not the same as the trust under English Law. He stands as alter ago, representative of the family in the administration of the family property. The position is a delicate one under customary law. This is because he is not the owner of the family property and he does not have the power to deal with the family property as his own, in fact as regards the family property he does not have a better or greater right than any other member of the family. (See Lewis v Bankole Supra). He cannot alienate any part of the family property without the consent of the family members.
The family head under Native Law and custom is the eldest member of the family. Upon the death of the originator, the eldest male child called Dawodu in Yoruba native law and custom becomes the family head, and upon his death the most senior member will succeed him. However, the family may decide to elect any of their members if they do not want the most senior member to become the head of family. (See Inyang v Ita (1929) 9 W.L.R 84. In Ibo communities, the eldest son becomes the head of family, and on his death his children will assume the headship. (See Ngwo v Onyejena (1964) 1All W.L.R 352.
In some cases, the wish of the originator of the family will be respected if he nominates any other person apart from the eldest member of his family. See Sogbesan v Adebiyi (Supra). There is no formal requirement for appointment of the family head. As soon as the originator of the family dies, the eldest son naturally takes control, sometimes without any formality; he calls meetings of all the children, he chairs the meetings, he represents them and gives reports etc. in other cases, there is a formal presentation of the head by elderly relations to other sons and daughters, and he is thereafter acknowledged as the head of family. Subsequent after the death of the Dawodu, others may be by election or popular acclamation.
STATUS AND ACCOUNTABILITY
The true position appears to be that, as the physical alter ago of his family, the head of family is the proper person to exercise the ownership rights for the family, subject to the individual rights of the members. He represents the family with respect to the exercise of these rights. Once the title of ownership is clearly separated for the exercise of the rights and powers to which it gives rise, the position of the head of family can then be perceived in its true perspective, the former is vested in the family as a quasi-corporation while the later belong to the head of family. Clearly, the powers of the head of family over the family property are held and exercised by him not as the individual or absolute owner, but as a representative or manager for the family. Because he stands in a representative capacity only, he is required to exercise the powers solely for the benefit of the family only. He is not expected to make any profit or special benefit for himself without the consent of the family to the family who is claims to represent. He must therefore be held accountable for all rents, profits and other benefits or money collected on behalf of the family in respect of family property, in the case of Akande v Akanbi reported in (1966) NBJ 86. Somolu J. observed as follows:
“These days, it is my view that it has become an acceptable part of the duties of heads of families, especially where they hold large family properties in trust for the family, with the possibility of them having a large sums as a result of the sales of portions thereof. to keep account of all the transactions in order to let the members see the true position at all times and to justify their confidence. In my view I hold as a matter of law today that it is far better to impose restrictions on the heads of family by making them liable to account, even strict account than to lay them open to temptation by unnecessary laxity in the running of family affairs which inevitably follows non-liability in that respect to hold otherwise will be betrayer to or present sense of justice and will open the flood gate of fraud, prodigality, indifference or negligence in all forms and will cause untold hardships on members of the family especially the younger members”.
Quite clearly, it is the duty in fact responsibility of the family head to represent the family in all transactions on behalf of the family, however, whatever, income is received belongs exclusively to the family, and he is under a fiduciary duty to account for all moneys collected on behalf of the family. The members can sue to ask the head of family to account for whatever he collects on behalf of the family, in the case of Osuro v Anjorin (1946)18 N.L.R 18, a member of the family successfully maintained an action against the family head to account for all rents collected for the family from family property. Similarly in the case of Achibong v Achibong (1947) 18 NLR 157. The learned judge Robinson J observed as follows; “On the powers of the family head and his duty to account,
“He is given considerable latitude, but his actions must be capable of reasonable explanation at any time to the reasonable satisfaction of the members of a sub branch of the House. He cannot treat House money as his own. If it is his own, he can throw it away or misuse it. He cannot do that with House money, if he thinks reasonably it is a good cause and for the good of the House. He should certainly keep accounts and work on some rules, either laid down by himself or preferably after consulting with the heads of the House”.
In the case of Odunsi v Bolaji (unrep. Suit Ik/70/62 High court Ikeja) the court held that a family head who received $100,000.00 compensation money on behalf of the family must be held accountable, he observed that having failed to give the family members their fair share, of the money, having not disclosed the exact amount of the money to the family, he must account for the whole money to the family, the position in Ghana may be contrasted with the above. In Ghana, the principle is that “neither a chief nor the head of family can be held for account either of state funds or family funds; even where he is found to have misappropriated such funds, the appropriate action will be to remove the family head. See Abude v Onome (1946) 12 WACA 102, Fyun v Gardiner (1953) 14 WACA 260. The position in Ghana is however quite objectionable and contrary to natural justice equity and good conscience. See alsoAlienu, customary law in Ghana p 137
PRINCIPAL MEMBERS
The principal members of the family are the respective eldest members of each branch of the family where the family is a polygamous family. In case of monogamous family, then all the children are principal members of the family and upon the death of any child then, has eldest child or anyone nominate by the family succeeds as the principal member representing that branch of the family. They are important in the administration of the family property. They must consent to any decision by the family head in respect of family property. The family head accounts to them and also pass useful information through them to the entire family. In some cases, junior members of the family may be co-opted to join as a principal member, and he will be allowed to sign documents or behalf of the family see Esan v Faro (1947) 12 WACA 135.
CONCLUSION
The family head is a very important person in the family structure, and is the only representative and administrator of the family property. He is the voice, and alter ago of the family. He however, is not the absolute owner of the family property but he is a part owner, and as the manager, whatever proceeds he makes from the family property must be accounted for strictly. He holds his power over the family property for and on behalf of the family.
SUMMARY
The family head is the eldest member of the family recognized or appointed to manage the family property. He is also accountable for any money received on behalf of the family. He carries out the administration of the family property for and on behalf of the family strictly and is not expected to make any secret profit. He does this with the consent and cooperation of principal members of the family.
TUTOR MARKED ASSIGNMENT
Discuss critically the duties of the family head.
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.