Hallos, ever wondered how family property is created under the customary land tenure system? Let’s talk about that today. To start with, the family is a very important unit in customary law, under this system, land is rarely held individually but collectively. A family is generally regarded as the man, his wife or wives and children. Dr. T. O Elias described the family as the smallest social unit in the body polity; children are both male and female children. However, in terms of family property under native law and custom, the family property is that property belonging to the family as a unit, it is in its real form undivided interest in land; and until it is determined continues to be held jointly by the entire family as a unit. Family land can be created by operation of the law or by acts of the parties.
Creation By Operation Of The Law
Family land can be created by operation of the law via:
If a landowner who is subject to customary law dies without a Will, his acquired property devolves on his children as family property in accordance with the applicable customary law rules. This is the way family property is commonly created. Better put, where a land owner dies intestate, the land is naturally inherited by his children under native law and custom, and thereby becomes family property. See Lewis v Bankole (1908) 1 N.L.R 89, Ogunefun v Ogunmefun (1931) 10 N.L.R 82, Miller B.O. v Ayeni (1924)5 N.L.R 42. It is immaterial whether the land owner dies leaving only one issue, the land will still be constituted as family property. This was the decision in Abeje v Ogundairo (1967) LLR 9. The conditions for creation of family property by intestacy are
(1) that the land owner died intestate and
(2) that his estate is governed by native law and custom. Once those conditions are met, the property devolves on his children as family property.
Family property may also arise from a declaration under a will as where a testator devised a property to his heirs jointly to hold as family property. Sogbesan v Adebiyi. A testator may create family property by specifically stating in his will that he wishes to create a family property, this is by declaring in his will that his property be held on his death jointly by his children jointly as family property. In the case of Frank Coker v George Coker & ors (1938) 14 N.L.R 83, one Edward Foster in his will made the following bequest of his dwelling house which was situated in Lagos – “I leave and bequeath my present dwelling house to the whole of my family or blood relation and their children’s children throughout and cannot be sold for any debt or debts that may be contracted by any of them, but at present the house should be occupied by my grandson Nath and my son Edward subject to the approval of my executors or otherwise……”The house was sold by order of court and the suit was to determine who is entitled to share in the proceeds of the sale. The court held that the intention of the testator was to make his dwelling house a family house, following the Yoruba custom and so that consequently those entitled to share in the proceeds of its sale were those of his descendants entitled under the custom to reside in the premises at the time of sale.
CREATION BY ACTS OF THE PARTIES
Parties may by their own acts also, create family property, by any of the following ways:
Family property may arise where a family, through their own ancestors were the first to settle on a virgin land and exercised acts of ownership over sufficient length of time, numerous and positive enough to warrant inference of exclusive ownership. In Ajala v Awodele & Ors, the supreme court held that settlement is one of the traditional modes of acquisition and that where the plaintiff’s case is that the land was acquired by settlement, it should not be open to question as to who made the grant. In the case of Idundun v Okumagba (1976) 10 SC 227 the Supreme Court accepted the finding of the lower court that the family that was able to prove that their ancestor first settled on land created family property and the family are the owners thereof.
Where a family conquers a people, it may appropriate the land of the conquered. It was legitimate for a family to base its ownership of land to an act of conquest in the distant past. Where there is only one particular progenitor, mainly hunters and warriors, in time past, who had fought and conquered the original settlers and chased them from the land, upon his death, his children will inherit under native law and custom, and thereby a family property is created. See Kuma v Kuma (1934) 2 W.A.C.A 178. However, conquest can no longer be a mode of acquiring land in this modern time.
Where family money is used to purchase land, family property is created. Family property may be created by conveyance inter vivus. Where land is purchased with money belonging to the family, a family property is thereby created. In the case of Nelson v Nelson (1913) 13
N.L.R 248. The family decided to use money paid by government as compensation for acquisition of family property to another parcel of land. The conveyance was done in favour of the family head in English form. The family head thereafter sold the land to a third party, in an action to set aside the sale, the court held that the land is a family property notwithstanding the form in which it was conveyed. See also Dosumu v Adodo (1961) LLR 149.
Where a family is a donee of an unconditional gift of land, family property is created. See Ashafa v Awawu.
Where the land owner during his lifetime decides to designate his land as family property for the benefit and enjoyment of members of his family only; family property is thereby created. See Nelson v Nelson (1951) 13 WACA 243.
Where the land owner, confers title to his property on named members of his family by deed with a declaration of his intention to create a family property in the named members, a family property is thereby created. In the case of Olowosago v Alhaji Adebanjo & others (1988)4 N.W.L.R (pt 88) 275, the family conveyed by deed of grant,a parcel of land to eight people who were children and grand children of the land owner, the land was subsequently sold to the plaintiff, the respondents relied on the deed of grant; it was held that the deed created family property. The court also explained that to qualify as family land, it will be necessary to identify not only the origin of the land but also its status.
Thus, family property could be successfully and legally created either by an operation of the law or by the acts of the parties involved, i.e. the family members. Gorrit?