ALIENATION OF FAMILY PROPERTY

CONTENTS

1:0         Introduction

2:0         Objectives

3:0         Main Content

3:1     Alienation of Family Property

3:2  Head of Family

3:3     Member of Family

4:0         Conclusion

5:0         Summary

6:0         Tutor Marked Assignment

7:0         Reference/Further Reading

INTRODUCTION

It has never been the practice in the olden days to alienate land under customary law. Land  is seen as inalienable, and the present owners holds it in trust for future generations. Non members of the family are not allowed any access to family property. However, in some cases, there may be gift of family land to close relatives or allowing  customary  tenants where the land is so vast and the family believes such will be in the interest of the family. However as time goes on, the practice has developed that the family may alienate family  land, and transfer all their interest to third parties. Mnaefo F.J in the case of Oloto v Dawodu (1904) 1 NLR 58, observed,

“If the family is absolute owner of land there is nothing to stop the family if the head and all the members agree, from transferring the totality of their interest in it. It is a question of the nature of the grant as to whether they meant to transfer their entire interest in the piece of land or only a part of such interest”.

In effect, where the family has agreed and consented to the sale or alienation of  their  interest in family land, then nothing sops them from being able to do so and machinery for passing a valid title by the family of family property.

OBJECTIVES

At the end of this unit the student will be able to explain the mode and machinery for the alienation of the family property, the role of the head of family, and other members.

MAIN CONTENT

 ALIENATION OF FAMILY PROPERTY

As we have discussed above, the family property is exclusively and absolutely that of the family and only the family can sell or otherwise alienate the family property to third parties. See Alao v Ajani (1989)  4NWLR  (pt. 113)  1. The concerns  of the law is to ascertain when, how, and modalities for transfer of valid title by the family to 3rd parties, or how can the 3rd party acquire a valid title from a family, and where there are competing interests what rules of priority will be applied to the transaction. The family being a single entity, it can only act through  its  accredited  representatives and agents. The proper person therefore to transfer validly any interest in the family property is the head of family and the principal members of the family.

1. The head of family must join in the conveyance of family property with the consent of the principal members of the family. Agbloe v suppor  (supra)  where the head of family and the principal members of the family do not consent to a purported sale or transfer of family land, the sale is void ab initio. The position of the law has been established beyond doubt in the case of Ekependu  v  Erika  (1959) 4FSC 79. See also, Lukman v Ogunsusu (1972) 1 All NLR (pt. 41), Mogaji v Nuga (1960) 5 FSC
2. Where the principal members of the family alienates the family property without the consent of the family head, the sale is void. The principal members of the family are on their own incapable of passing any valid title in the family property without the concurrence of the family head where this is done the sale  is void, and of no effect whatsoever, no title is passed and no interest is transferred. See Ekependu v Erika (supra).
3. In cases where the head of family alienates the family property without the concurrence of the principal members the sale is voidable. It is voidable at the option of any member of the family. In the case of Essan v Faro (1947)12 WACA 135, the court held where the principal members of  the family  oppossed  a sale  by the head of family and majority of the members of the family,  that  the sale  was invalid. The court observed, nowhere can we find a ruling to the effect that  the acquiescence of the majority of the family renders a sale valid”.

The rule that sale by the head of family without  the concurrence  of the principal  members of the family is voidable is subject to three important qualifications:

1. The rule will not apply where the head of family had sold the family land as his own personal property, the sale is void and not voidable. See Solomon v Mogaji (1982)11 SC 1., Adejumo v Ayantegbe (1989) 3 NWLR (pt.110) 174. The intention of the head of family is important. He may actually be conveying as the representative  of  the  family,  while the conveyance  is expressed as  if he is selling as the beneficial owner thereof. In which case, the transaction will be voidable and not void. See Akano v Anjuwon (1967) NMLR
2. The family head cannot make a gift of family property without the consent of the members of the family, where this is done the gift is void as initio.  See  Oshodi  v Aremu (1952) 14 WACA 83. The family made a gift of the family land to a member of the family without the consent of the members of the family. The member later sold the land to a purchaser  who sold of to the defendant,  the court held the gift to be   null and
3. The family head cannot unilaterally order the partition of family property. The rationale for this rule is that partition has the effect of alienating  the  family  property, even if it is to members of the family, the partition will be held to be void and of no effect. Onasanya v Siwoniliu (1960) W.N.L.R

DISTINCTION BETWEEN VOID AND VOIDABLE DISPOSITION The distinction between void and voidable transaction is very important. The success of an action to in validate an unlawful disposition will depend on the relief claimed in the court.

A void transaction is one that is simply treated as if it was never made.  A transaction  that has no legal effect whatsoever, that has not transferred  any right or  interest to anybody,  it  is actually not necessary to ask for declaration to void it, because it is void ab initio, so that  all the transactions or dealings based on it cannot stand, as you cannot place something on nothing. See Thomas v Nabham (1947)12 WACA 229.

A voidable transaction is one that is considered valid when made but is tainted with irregularity which may, make it liable to be voided by those having power to do so. It can only be a voided by action in court at the instance of the person aggrieved or entitled to do so. The court can set aside a transaction that is voidable, while the court needs only to declare a void transaction void and there is nothing to be done to it further. The effect of setting aside a voidable transaction is that it relates to the inception of the transaction, and just like a void transaction it is rendered void ab initio.

EFFECT OF VOIDABLE TRANSACTION

The court will set aside a voidable transaction at the instance of the aggrieved  member  of the family. What the member needs to show is that he is a principal member of the family  and his consent was not obtained. However, in order to set aside the voidable  transaction  the member must act timeously and must not be guilty of delay. In  the  case  of Mogaji  v Nuga (supra) the plaintiff purchased family land from the head of family with consent  of  only two branches of the family. Ten years after the sale  the  principal  members  who oppose the sale went to court to challenge the sale, the court held that though the sale was voidable, they know about the sale and did not take any action for ten years,  it was too late  to have the sale set aside.

Time does not begin to run until the aggrieved member has actual knowledge of  the  voidable transaction. Knowledge of the transaction can be imputed to the member if the member ought to have known, e.g. where the purchaser had taken over the land and has started building on the land, there is a presumption that the member knew  or  ought  to  have known about the transaction. Unwarranted delay  will  therefore  block  any action to set aside the sale. In cases, where the transaction is voidable, the purchaser gets a voidable title, but if he goes ahead to build or erect a structure on the land, and the aggrieved  members did not take action to set it aside, the law is that they are stepped from setting it aside later; because restitio in integrum is no longer possible. In other words, what the purchaser should do is to take steps to ensure  that he erects a structure  on the land or sell  to a third party and claim that restitution in integrim is no longer possible.

We must understand that the rule was made to protect the family property and not third parties. Third parties are therefore expected to make diligent search to ensure that they are not entering into a voidable or void transaction. The rule therefore  ought  to allow these  who after due diligence still went ahead to enter into a voidable title, and have also taken steps to build their property on the land, to the knowledge of the members of  the family  then such sale can no longer be set aside. Another issue that needs be examined, is the fact that if the aggrieved member can no longer set aside the sale, and he was not given his legitimate share of the proceeds of sale, what should be the appropriate course of action?

See Mogaji v Nuga supra. Since time has operated against his relief, I submit that his proper course of action should be to ask for account, and claim his right as a member of the family.

EFFECT OF VOID TRANSACTION

A void transaction is void as initio in effect no matter the length of the time, the transaction rewars void and ineffectual. Where the person who acquires a void title transfers some to a third party,  he also takes a void title and may be guilty of trespass  if he takes possession.  See Elependu v Erika supra.

CONCLUSION

The alienation of family property is a very important aspect  of management  role  of the  head of family. He must ensure that he sell family property as family property and not his own property, if he does, he transfers only voidable title. For a proper and valid title, the family head must sell with the concurrence of the principal members of the family. Where  the principal members or members sell without the consent of the family head the sale is  void ab initio.

SUMMARY

The family head must concur in all transactions involving the family property, if his concurrence is not obtained, the transaction is void. If however, he disposes the family property without the consent of all members of the family, the sale is voidable;  the  aggrieved member who wants to set aside the sale must act timeously and not delay in  which case the sale will not be set aside.

TUTOR MARKED ASSIGNMENT

Distinguish between void and voidable disposition of 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.