Discuss of the assertion that “there are many cases in support of the view that the chief or family head owes a duty to account just as there are authorities to the contrary” with decided cases.

Discuss of the assertion that “there are many cases in support of the view that the chief or family head owes a duty to account just as there are authorities to the contrary” with decided cases.

The question of accountability of the family head is inextricably interwoven with the status of trusteeship. The family head has been liken to a trustee under English law, and like a trustee, the family head is confronted with an obligation to render account of his management of the family property to the family. The question therefore is whether the family head is generally accountable to the family for the rents and profits derived from family property.

The position of the law is that in early times, the applicable principle of law had been the non-liability of the family head to account to other members of the family. Many Ghanaian authorities support this position. For instance, in Abude v. Onano (1946) WACA 102, it was seen as an accepted principle of native customary law that neither a chief nor a head of the family can be sued for an account rendering of the state of family funds. Again, according to Fynn v. Gardner (1943) 14 WACA 260, “it is a well settled principle of native law and custom that junior members of a family cannot call upon the head of the family for an account.”

The foregoing principles clearly deviate from the application of the trusteeship concept even in its limited form under customary law and different reasons have been adduced for this rather strange concept. First, to permit members of the family to sue for an account would expose the head of the family to vexatious litigation at the instance of every member of the family who considered himself aggrieved and this would be intolerable.

Secondly, since no individual member of the family can sue to recover family property the protection of which is the responsibility of the head, then no individual may sue the head. Finally, factors such as the traditional respect and feeling of deep affection for elders as well as absence of liquid assets in the early times for which account had to be made; go to the rationale behind non-accountability.

The foregoing apart, although that initially the Nigerian courts showed a tendency to adopt and follow the Ghanaian attitude on the issue, it was soon established that the principle that the family head is under no duty to account to the family does not represent the law in Nigeria. In fact, the idea of non-accountability has always shocked judicial conscience in Nigeria.

Thus, although in Re Hotonu (a case decided as far back as 1889), it was held, per Smith CJ., that the family head as an administrator was not liable to render strict account to members; the learned trial judge did express the opinion that the notion of non-accountability of family head is not equitable and felt that as time advances, it is hoped that other ideas more consonant with natural justice will prevail.

Thus, in Osuro v. Anjorin (1946) 18 NLR 45, an action for account by a member of the family on behalf of other family members against the head of the family succeeded; and the family head was ordered to account for all the rents and profits collected by him from family land since 1923.

Again, in the latter case of Archibong v Archibong (1947) 18 NLR 117, the plaintiffs who were the respective heads of two of the four sub-branches of the Archibong II family sued the first defendant, the head of the Archibong House of Duke Town Calabar, inter alia, for an account in respect of certain compensation money paid by the government for land acquired for public purposes in Duke Town, Calabar. It was held that the first defendant was liable to render an account and to pay over whatever might be found due thereon.

Accordingly, it is settled law that in Nigeria, the family head is under an obligation to account to the family. Care must however; be taken in the appreciation and application of the above principles on the accountability of the family head. It must be borne in mind always that the obligation of the family head to account to account is founded on principles of customary law which are not uniform. It is thus, possible that variations of the above principles and pronouncements may be found depending on the character of the particular customary system.

Again, the issue of accountability of family head depends on the circumstances of every case. For example, in Kosoko v. Kosoko (1937) 13 NLR 131, the plaintiff claimed as against the defendants an order of court fro an account of all rents and mesne profits of the family property which the defendants as trustees had managed for about forty years. It was found that the plaintiff who had no support of his brothers and sisters in bringing the action had deliberately absented himself from family meetings for over thirty years since he left Lagos. The court held on those grounds that the plaintiff could not on his return claim an account from the head of the family.

The Supreme Court in reviewing the two cases of Archibong v. Archibong and Kosoko v. Kosoko appeared to have approved that the factors such as the act of delinquency or otherwise of the family head, the question whether the action was brought by a minority or majority of the family coupled with the timing of the action are all relevant to the question of accountability.

All in all, action for account are normally allowed to succeed where the family head has been shown to be reckless in his expenditure of family funds and where it has been shown that the family head is an avaricious man seeking always to take more than his fair share of the family property or proceeds. Moreover, for an action for account against the family head to succeed, it must be shown that there has been a demand on him to account which he refused.