Family and Communal Land Holding: Rights and Principles Governing in Law

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By H. O. Eze, Esq.

Family land is land, which vests in a group of persons closely related by blood or person’s consisting of parents and their children. It could also refer to land which had vested upon individuals who have descendants of common ancestry or pedigree including strangers incorporated into the family by the founder.

Family land according to Justice Umezulike of blessed memory belongs to a vast family of which many are dead, few are living and countless numbers are still unborn.

Communal land on the other hand which belongs to a community is usually acquired by conquest, settlement, purchase or gift as the case may be.
In communal land the head of the community holds the land in trust for the benefit of the entire community.

ADMINISTRATION OF FAMILY LAND.

The management and administration of family property rests with the family head.

Under the Ibo customary law, the head of the family is the eldest male of the founder or father who obviously is occupying a leading position by virtue of his age and experience. He is required to consult other members of the family in the general administration of family property; in important disposition and, or protection of Same.

The head of the family like community head in communal land is seen as a trustee of the family property and he is liable to account for it.

Generally, the courts would not likely interfere with the management of family property by the head unless there are apparent or proven improprieties in the management. See LAYINKA V. GEGELE (1993) 3 NWLR PT. 283.

Where the family head conveys land without the consent of the principal members of the family, such transaction is voidable and can be avoided by an action Instituted by any member of the family. See EKPENDU V. ERIKA (1959) SCNLR 189. This underscores the fact that even though the general administration of family property rests with the family head, he is duty bound on all male adults of the family to ensure there is probity in the administration of the property.

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In a monogamous family all the male children therein constitutes the principal members of the family.

A sale of family land by principal members of the family without the consent of the family head is void completely.

Worthy of note is that contrary to the general notion that only head of the family and principal members can validly alienate family property, any member of the family, male or female can validly alienate family property if and only if a Power of attorney is executed in his or her favour by the entire members of the family.

RIGHTS OF MEMBERS.

Every member of a family has an interest or right in family property. And this includes the female members of the family who are still unmarried. See LAYINKA V. GEGELE.

A member has the right to live in the family land and also reserves the right to go to court to urge it’s partition. See MBAMALU V. MOZIE (2002) 2NWLR PT. 751.

Typically, members of family occupy portions of family property or land allocated to them which in the absence of contrary evidence, their occupation makes them an agent through whom the family is in effective legal possession thereof.

Under family land holding, every member of the family is under a duty to protect such property. Hence every member of a family has a right or enjoys a Locus standi to institute an action in respect of any wrong or illegal dealing with the property. And most importantly the right of action awaits the individual members even if he has not the authority of the family to bring the action. Therefore the law empowers any member of family no matter how insignificant he may be considered to bring an action in court to protect family land. See SOLOMON V. MAGAJI (1982) 11. S. C.1

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To note also, is that a family member whose interest is threatened by wrongful alienation can sue to protect his interest whether or not with the consent of other members of the family. If he does not act, he may be held to have acquised to the wrongful act. See ODUNEYE V. EFUNUGA (1991) 7NWLR PT. 164.

Family members has user rights only on family land and therefore cannot dispose of portions of family property since he enjoys only a life interest. It follows that family land cannot be attached for payment of an individual members debt, nor is his interest disposable by will.

Under customary law applicable in most parts of Southern Nigeria, long possession of family land or property by a family head or member of the family cannot confer ownership on him, because he enjoys only user for life.

A family member seeking to alienate family property must first of all seek partition because once partitioned, it ceases to be family property. See SANUSI V. MAKINDE (1994) 5NWLR (PT. 343) P. 24.

CONCLUSION.

The major difficulty which conveyancers face relative to family property is how to ascertain who the head of the family is and who the principal members of the family are including those born out of wedlock and living outside the family household. This is necessary because any conveyance of family property made without these members living outside the household is obviously defeasible.

In Nigeria, a man’s son is entitled to share in his father’s property even when he is born outside wedlock and lives outside his father’s household.

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The fact that a member of family can at anytime with or without the authority of the family sue to protect his interest in family land makes the sale of such property obviously precarious because such a member can pop up even 15 years after the sale to challenge same.

The sale of family land is not a game of number or an exercise in which majority carries the day. The involvement of the family head as the representative of the dead, living and yet unborn is not just indispensable but absolutely imperative.

Finally any person desiring to purchase family land should approach it with an eye of a detective by carrying out the necessary due diligence preferably through a Legal practitioner. This is because disgruntled members can emerge anytime or many years after sale to raised sundry objections.
It is on this background that we advise that a purchaser of family land must as a matter of necessity conduct excellent search, because upon failure to do so he may not know how many years he will enjoy the land before counting his blessings.

Though, some writers has posited that family land holding has been entirely abolished by the Land Use Act 1978, such is a mere opinion without the imprimatur of the Apex court.

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