Discuss the position of the head of
the family as the trustee in the management of family land:
Family land is land vested in the
family as a corporate entity. A very fundamental feature of family land holding
is that title to family land is not vested in any particular person or member of
the family. Rather title is vested in the family as a corporate unit.
Family land, like land owned by the
village or community is under the control and management of the family head.
The family head personifies the family as the powers and rights of ownership of
family land are vested in and exercisable by him on behalf of the family.
This position is consistent with the
opinion of the Privy Council per Viscount Haldane, in relation to customary
land law, in the case of Amodu Tijani
v Secretary Southern Nigeria. There the court opined that:
In every case, the Chief or Headman of the village or
community, or head of the family, has charge of the land, and in a loose mode
of speech is sometimes called the owner. He is to some extent in the position
of a trustee, and as such holds the land for the use of the community or
family. He has control of it and any member who wants a piece to cultivate or
build upon goes to him for it.
Thus,
as a trustee of family land, the head of the family (like a Chief of a
community) has control of family land and administers it for the mutual benefit
of all members of the family. He allocates portions of family land to the
members of the family for their use and occupation. He may lease out such parts
of the family property as he may deem fit and collects rents which is shared or
applied for the mutual benefit of all the members.
The position of the head of the
family as a trustee was highlighted by the Supreme Court in Ebosie v Phil-Ebosie, where
OBASEKI JSC, referred with approval, the case of Balogun v Balogun and observed as follows:
The head of the family is in charge and control of the
family property. He collects the revenue of family property and he has to make
certain disbursements out of family revenue for family purposes; for the upkeep
of the family property, funeral, marriage and ceremonial expenses of the
members of the family, education of the children, etc. The head of the family
has very considerable and numerous duties to perform varying in degree; of
course, depending on the wealth of the family.
The
above list of duties is not exhaustive. The cardinal point to note is that the
duties of the family head as a trustee of family land are incidental to his
status as head of the family and whether a particular duty is so incidental
will depend on the nature and importance of the duty; its expediency; and the
circumstances of each case. One of such duty is that of the protection of the
family property by instituting actions for and on behalf of the family.
Thus,
it is the responsibility of the family head to preserve family property from
unlawful (or) illegal interferences and to keep it in good state of repairs. In
Amnimashawun v Osuma, it was held that the head of the family can and indeed
ought to bring an action for the protection of the family property with or without
the prior authority of the other members of the family.
Again,
the family head must take part in the transfer or alienation of family property
in order to give a valid title to the transferee. In Agbole v Sappor, the
court made it crystal clear that the principal members of the family cannot
give any title in the conveyance of the family land without the head of the
family joining in the conveyance, even though he may be in agreement.
Therefore,
the family head as trustee of family land signifies that he is expected to
exercise his powers not for his own private advantage; but for the benefit of
the family. Accordingly, the court will not hesitate to interfere, at the
instance of any dissatisfied member of the family, with a family head that in
the exercise of his discretionary powers treats family property as his personal
property. In such a case, the family head would be taken to have abused his
powers.
In
Lopez v Lopez, it was held that in such cases courts have powers to make
orders to ensure that the members of the family will be able to enjoy their
rights. The order may be for partition or sale of the property, especially if
it is shown that the head of the family has been squandering the property.
However, a member seeking such an order must given good reasons why the court
must make such an order in his favour. Thus, in Otele v Otele, the order sought was declined by
the court because no good reason was shown to warrant such an order.