NATURE OF MEMBERS RIGHTS IN FAMILY PROPERTY
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Nature of Members Rights in Family Property
3:2 Improvements on Family Land
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
The members of the family are not without rights in the family property, though all powers of management and control resides in the head of family, they are expected to be exercised for the benefits of the members of the family. The benefits accruing from the proper management of the family property are true rights of the members. The family members therefore could enforce these basic rights in court of law as enforceable rights under customary law.
OBJECTIVES
At the end of this unit the student is expected to understand the rights of the members of the family in family property and how law treats improvements made by the member to family property.
MAIN CONTENT
NATURE OF MEMBER’S RIGHT IN FAMILY PROPERTY
- Right to an allotment from family land: A member of the family is entitled to be allotted a portion of the family property for his exclusive use and enjoyment. He may build his house on the land as well as farm on it. Once the land is allotted to him he holds the land to the exclusion of any other member of the family. His status is not however that of ownership rights, but in actual fact he stands in the position of a tenant on the land, the only difference is that he does not pay rent and his tenure is not determinable, his children will inherit the land after his death. The family may if it is not convenient to them re-allocate another portion to the children, but it is clear that his right to live, farm and enjoy the allocated land cannot be disturbed even by the The member may therefore go to court to compel the head of family to allocate family land to him. See Amodu Tijani v Secretary Southern Nigeria (1924) 4NLR 18. In some cases, like the case of Ajobi v Oloko (1959) LLR 152, the court ordered a partition where it was discovered that the family head had refused to allocate land to some family members. The member’s right is only limited to land allocated to him and is not expected to enter into or take over land that has not been allocated to him. See Lewis v Bankole (1908) 1NLR 81.
The member cannot sell or dispose of the land allocated to him from the family property as he has only the right of use. He cannot also use the property as collateral for his personal debt. See Jacobs v Oladuni Brothers (1935) 12 NLR 1.
Furthermore, the member cannot in his Will pass the family property to persons who are not his heirs directly, in the case of Ogunmefun v Ogunmefun (1931)10 NLR 82 where a testate devised her share in her family property to certain relations. It was held that the disposition was void.
A member is entitled to exclusive enjoyment of his allotment for the purpose for which it was granted, and any attempt by the head of family to disturb his quiet enjoyment may be actionable in trespass. See Agbhoe v Sappor supra.
RIGHT TO SHARE IN INCOME ACCRUING FROM FAMILY PROPERTY.
The income and profit including rents, proceeds of sale of family property, compensation for compulsory acquisition of family property from government and all other income derived from family property belong exclusively to the family and is not the personal property of the family head. Therefore, such income must be shared amongst all members of the family. Though the family head is allowed to deduct all his expenses from the income before sharing and in some cases he is allowed the biggest share, but the member is entitled to his share of the income. See Apoeso v Awodiya (1964) NMLR 8. The family head is the right person to receive the income on behalf of his family or anyone delegated by him, afterwards he must account for the money, as he stands in a fiduciary position to the family, he cannot appropriate the funds for his oven personal use, if he does not then the family is entitled to demand for an account. See Osuro v Anjorin (1964)18 NLR 45.
RIGHT TO PARTICIPATE IN THE MANAGEMENT OF THE FAMILY LAND
This is similar to the right of the member of the community in the communal property. In the case of the family, the family head is not expected to administer the family property solely on his own, or treat the family property as his personal property, he must consent with the principal members of the family who must give their consent to important decisions like alienation of family property or sharing of income accruing from family property. The principal members also are required to inform all the members of their own branch of the family about important decisions for their input too, where the family head refuse to obtain the consent of the principal members of the family such decision or transaction may be held void or voidable at the instance of the members of the family. See Adedibu v Makanjuola (1944) 1All NLR 39, Aderawo Timber Company v Adedire (1963) 1 All NLR 429.
RIGHT TO ACT WHERE THE FAMILY HEAD REFUSE TO ACT: The court has held in serves of cases that where the family head refuse or neglect to act especially in cases where he ought to file action in court to defend family property, the member of the family way act on its behalf. See Bassey v Cobham (1924) 5 NLR 92.
IMPROVEMENT ON FAMILY LAND
A family property will not cease to be so merely because the member has caused improvements to be made thereon with his own resources. The family property is allotted to individual members of the family for the purpose of building and farming and the title to the land does not thereby pass to the member. He owns all the improvements made with his resources but the title remains that of the family. He may in fact alienate the improvement and the buyer will be expected to remove the improvement from the family land. In the case of Bassey v Cobham (supra) the court held where a member of the family had used his own money to reclaim marshy family land, that the land still remains that of the family. Similarly in the case of Shelle v Asajon (1957) 2 FSC 65, the member of the family replaced the old thatch roof of the family house which she occupied with corrugated iron sheeting, it was held that she did not thereby become owner of the house. Jibowu Ag. C.F. explained the position of the law, “The person who lives in a family house is expected to keep the place in good state of repair in order to make the house habitable or more comfortable for him, the occupier”. It is clear therefore that spending extra resources on family property does not confer special privilege or right on the member beyond the right of the family; as the family remains the allodial owner thereof.
Consequently, the family is entitled to recover possession of the family land allocated to a member who mortgage same and is to be sold by court order in execution of a judgment debt. See Omolodun & other v Olokude (1958) WNLR 130, See also Salako v Oshunlami (1961) WNLR 189, Santeng v Derlewa (1940) 6 WACA 52 (this was a decision on customary law of Ghana where the court held based strictly on justice of the case that any member who built on family land becomes the owner of the land and can pass the title in his will). In summary; the ownership of family land will remain that of the family in spite of improvements made thereon by the allottee.
CONCLUSION
The rights of members of the family in respect of family property is safeguarded and perfected under customary law. They have the right to be allocated family land, share in the income from family property, be part of the management of the family property and also intervene in the management in cases where the family property is at risk and the family head has refused to take action. The member may improve the family property allocated to him but that does not translate to ownership if he continues to reside in the family property.
SUMMARY
The family is the absolute owner of the family property allotted to the members though , represented by the head of family has legally protected rights in the family property.
TUTOR MARKED ASSIGNMENT
Discuss with the aid of relevant authorities the rights of members of family in family property.
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.