Hallos! Remember I talked about the creation of family land under the customary law system here https://oluwapelumimojolaoluwalivingstone.wordpress.com/2017/02/20/legal-creation-of-family-land-under-customary-land-tenure-system/, well let’s talk about the determination of same under the customary land tenure system today. To cut to the chase, the occurrence of any of the following events determines family property.
Absolute transfer of family property occurs where the family transfers the totality of its interests in the family land to another person. This may be by way of sale or gift. When this happens, the transferee becomes the absolute owner.
In Aganran v Olushi, the court held that the sale of family property by the head of the family without the consent of some important members of the family was voidable and not void.
“But if a family member purports to alienate any portion of the family land without the consent or approval of others, the purported alienation is a nullity and the purchaser from him has a void and not a merely voidable title.” It is on this principle that all the cases of attempted sale or mortgage of portions of family land by an unauthorized member thereof have been held to be void transactions.
Further, by the principle of nemo dat quod non habet, a man cannot give what he does not have or possess. Therefore, since neither of the family members or the family head own the family land one independent of the other; they both have to be in agreement before a successful sale is carried out.
A transfer of family property is proper and valid where the transfer is sanctioned by the head and principal members of the family, a conveyance purporting to transfer family property without the principal members’ consent is voidable at the instance of the non consenting family member.
In Solomon v Mogaji, a family head sold family land as his own. On appeal, the Supreme Court held that the purported sale was void ab initio because he had no separate or individual interest in the land.
A voidable title is ratifiable while a void title is not. In Lewis v Bankole (1908) 1 NLR 81, the court ordered the sale of family land where it considers such sale advantageous to the family or the property incapable of partition. This leads me to the next means of determining family land.
Partition is a recognized form of determining family property. The family property is divided amongst individual members. Each individual has absolute ownership over his portion. It was held in Balogun v Balogun(1943) 9 WACA. 78 that there can be such absolute alienation of family property by general consent, which effectually rested in each of the parties an absolute title.
Partition may also be by an order of the court. This, the court is always very reluctant to do as the court is always not willing to interfere in the management of the family property. However, where the applicant can convince the court of the impossibility of the continuance of family ownership, where he has been refused rightful allotment; or refused ingress to the family property, the court will grant this order.
The head of the family and principal members must sign a deed of partitioning conveying the separate portions to the individual members of the family.
Note that partitioning is to be distinguished from allotment. In Ojo v Akinsanoye(2014) All FWLR. (Pt 754)18 at 34-40, it was held that allotment does not determine the family ownership of the land so as to make the allotee an absolute owner. It can be affected by the head of family alone. Partition which does not make provision for all as the constituent branches of the family is void.
So, want to determine your family land, way to go, as above!