Discuss exhaustively on the nature of a
members inherent right or interest in family land
The members of the family, just like
the family head have certain rights over family land. To a large extent, these
rights or interest are provisions of customary law with the effect that the
nature and extent of these rights differ from one locality to the other. In Thomas
v Thomas, BUTLER LLOYD J. attempted to frame these rights which are
recognizable in the customary law systems in Nigeria. According to him, “so far
as I can gather from the existing decisions, the rights of members of the
family with regard of family house are:
i.
To
reside in it;
ii.
To
have a reasonable ingress and egress;
iii.
To
have a voice in its management;
iv.
To
share in any surplus income derived from it after necessary outgoing had been
made and if these rights have been infringed, they come to the court which will
enforce them by partition and (or) sale as necessary”.
A summation of the above
rights will reveal that the rights of family members which are easily discernible
in all customary law systems are:
a. The right to use family property;
b. The right to participate in the
management and control of family land;
c. The right to share in the profit or
surplus income; and
d. The right to act in place of the
family head.
These rights will now be discussed
one after the other.
1.
The Right to Use Family Property
By virtue of his
membership of the family, a member of the family has a right to use family
property. If it is a family house, he is entitled, as BUTLER LLOYD stated in Thomas v Thomas, to live in the house.
With regard to agricultural land, a member of the family is entitled to allotment
of a portion for his use.
The right of a member to
use family property is not dependent on the pleasure of the family head. It is
a right which is inherent in every member by virtue of his membership; a right
which may be enforced by the family member against the family head or other
members. Thus, a member who is being deprived of the right to use family
property may go to court to seek redress. The court among other reliefs, may
order a partition of the family property where appropriate, or a sale of the
property. In Ajobi v Oloko, it was
proved that certain members of the family were deprived deliberately of the use
of family property. The court ordered that the property be partitioned among
the members.
Again, individual’s right
to demand partition is usually sequel to disputes as to their occupational
rights or as to the sharing of net rents from leasing of family property. In Mosanya v The Public Trustee,
SAVAGE J. held that any member of the family has the unrestricted right to
apply to the court for a partition or sale of family property, if there is a
dispute in the family which renders the maintenance of family ownership unwise.
However, the court will
order a partition only if it will be possible to share the property amongst the
family members or amongst the branches of the family in an acceptable
proportion. Where this is not possible, the court may order a sale of the
property. As BUTLER LLOYD J. said in Bajulaiye
v Akapo, a family house is meant to be used by all the members of the
family. So if all the members cannot use it, a partition may be appropriate to
avoid a situation where some only of the members are in occupation.
Additionally, a member of
the family has no general right to use any portion of family land. The member
is only entitled to occupy the portion allotted to him by the family head. In Lewis v Bankole, it was held, inter alia, that a member of a family has
no right to enter any portion of family property as he pleases.
By the same token, a
member who has been allotted a portion of family land has exclusive possession
over the land. He is entitled to use it as he pleases. But an allottee does not
by reason of the allotment acquire the legal estate in the portion of land. The
legal estate remains vested in the family as a whole: Adesanya v Otuewu. Also,
a member allocated family property for use is only entitled to use the said
property during his life time though the right of the user may sometimes be
transmissible depending on the circumstances.
The position that an
allottee of family property does not acquire the legal estate in the property
carried with it the implication that such a member has no right to alienate
family property allotted to him. Such alienation will be void and will, under
the principle of Nemo Dat Quod Non Habet,
confer no title on the purchaser since the allottee has none: Ojoh v Kamaru. As a matter of
law, in Ekpendu v Erika, the Federal
Supreme Court, held inter alia that a
sale of family land by principal members of the family without the consent of
the family head is void ab initio.
In Akeju v Suenu, a member of the family was allotted a portion of
family land for his use. Subsequently, a son of the allottee, without the
consent of the family, purported to convey the land to a stranger. It was held
that the conveyance was void. Similarly, in Jacobs v Oladunni Brothers, it was held that the portion of land
allotted to a member of the family cannot be attached in satisfaction of the
private debts of such a member as the allottee has no legal estate or interest
beyond the right of user.
2.
Right to Participate in the
Management of Family Land
The family head, in the
exercise of his management functions over family property is expected to act in
consultation with the members of the family. Thus, a member of the family is
entitled to a say in the management of family property where the circumstances
warrant. Also, where the member of the family is a principal member, his consent
is required for an alienation of family property to be effective. A member who
has not been consulted before the alienation may obtain an injunction
restraining the family head from dealing with the land without the necessary
consent and consultations.
3.
Right to Share in Surplus Income or
Profit
This right is ancillary
to a member’s right to use of family property. A member is entitled to a share
of the income from family property whenever such money is available for distribution.
It is this right to a share of the income that entitles the members to demand
for an account of proceeds from the family head. Where the family head refuses
to make the surplus funds available for distribution among members, or claim that
no such surplus funds had accrued, a family member may bring an action in court
against the family head seeking for an account: Archibong v Archibong and
Osuro v Anjorin in instructive.
4.
Right to Act in Place of The Family
Head
This right arises in circumstances
where the family head fails, refuses or neglects to act. In Ugwu v Agbo; OBAJEKI JSC opined that
the law is now well established that any member of the family can, if the head
of the family fails in his duty to protect family land, institute an action on
behalf of the family to protect family interest in the land.
Also, in Bassey v Cobham, an action was brought
by the plaintiff, who was neither the family head, nor acting on the authority
of other family members, to recover family land from certain strangers. It was
held that the court cannot deprive a beneficiary of claiming his right in
family land if the senior members neglect or refuse to assert them. Nevertheless,
the above right does not diminish the right of the family head to protect the
family property; rather it strengthens it.