DETERMINATION OF FAMILY PROPERTY
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Partition
3:2 Sale
3:3 Government Acquisition
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
One of the most striking changes that has taken place in the customary tenure system is the prevalence of outright sale of family land by the family. Sale or partition of the family land will no doubt bring an end to the family property and put an end to all incidents of ownership by the family. In the olden days it was impossible to do this but due to economic developments, and other factors, the family land is now sold freely depending on the agreement of the family. In this unit we will examine how the family property may be determined.
OBJECTIVES
The student at the end of this unit will be able to discuss how family property can be determined , Sale ,and Partition.
MAIN CONTENT
SALE
There is no doubt that the family may make an outright sale of the family property. In effecting such sale, the family head and the principal members must agree to sell the property. They must also agree and jointly convey the property to the third party. The effect of an absolute sale or gift of family land is to transfer to the purchaser all the interest of the family in the property, and totally divests the rights of the family in the property land thereby destroying the incidents of family property previously attached to the property.
To achieve this, the family must transfer all their interest in the property, i.e. an absolute sale and not of conditional sale or gift. A conditional sale like, mortgage, lease or a pledge is not absolute, and therefore, cannot determine the rights of the family in the property. The sale must actually determine the interests of the family in the property
The court may also order a sale of family land in appropriate cases. In Lewis v Bankole (supra) the court ordered a sale of family land where it considers that such a sale would be advantageous to the family or the property is in capable of partition.
PARTITION
‘Partition’ has been described as a legal concept whereby joint possession is destroyed so that each former co-tenant becomes a separate owner of a specific portion of land holding a share in severalty as opposed to an undivided share in the whole. See Abraham v Olorunfemi (1991) 1 NWLR (pt. 165) at 75 per Tobi JCA.
The members of the family who are entitled to a share of the family land gets a share of the land, i.e. the family land is divided into equal shares amongst all the members of the family, each member taking absolute interest free from the incidents of customary land tenure. The modalities are that the land is surveyed and shared, and each member takes his own portion. The head of family and principal members of the family must sign the Deed of partition conveying the separate portions to the individual members of the family. See Balogun v Balogun (1943) 9 WACA 78, Alhaji Olowosago v Alhaji Adebanjo (1988) 4NWLR (pt. 88) 275.
The court may also order a partition of the family property. The courts are always very reluctant to order a partition of the family property, as the court is always not willing to interfere in the management of the family property. To involve the jurisdiction of the court therefore, the applicant must satisfy the court that it has become impossible for the institution of family ownership to continue. Where the family has denied any member the right of ingress and egress to the family property, or refuse to allot his portion to him, the court may order a partition of the family property, Lopez v Lopez (1924)5 NLR 47, Thomas v Thomas (1932) 16 NLR 5, Lengbe v Imale(1959) WRNLR 325. The court may also order a partition for the sake of peace and justice, Lopez v Lopez (supra)
GOVERNMENT ACQUISITION
The family property may also be determined by Government acquisition of the family property. The Government will pay compensation for the acquisition, and to this effect, the interests and rights of the family is extinguished and converted into personality. The compensation will be shared or used to purchase another land, such land will become family land. See Nelson v Nelson (supra).
CONCLUSION
Family ownership of land under customary law may be determined and upon its determination the incidents of family ownership of land comes to an end and all rights and interests of the family in the property is extinguished.
SUMMARY
There are three main ways to determine family property, (1) by outright sale, (2) Partition and, (3) Government acquisition of family property with payment of compensation. The effect is to bring to an end the customary land tenure of family ownership.
TUTOR MARKED ASSIGNMENT
Discuss the various mean of determining 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.