UNIT 3

CREATION OF FAMILY PROPERTY

Family property is a concept deeply rooted in customary law, particularly in Nigeria. Family property is created through inheritance, where land or property is passed down from one generation to another, often from the paternal side. The intention behind creating family property is to preserve and manage the assets for the benefit of all family members, both current and future generations. See the case of Arase v Arase (1981) 5 SC 33 which highlights the customary practice of inheritance within the Benin ethnic group. Key aspects in the creation of family property includes the following:

1. Inheritance: this is where family property is often created when an individual passes away, leaving their property to their descendants collectively rather than to a single heir.
2. Wills and intestacy: If there is no will, this is where customary law typically governs the distribution of the deceased's property, often resulting in the creation of family property.
3. Customary law: Each ethnic group in Nigeria has specific customs governing inheritance and the creation of family property. For example, the Yoruba, Igbo, and Benin customs each have unique practices.

MANAGEMENT AND CONTROL OF FAMILY PROPERTY

Management and control of family property are typically vested in the family head or eldest male member. However, all principal members of the family have a say in the administration of the property. See the case of Ekpendu v Erika (1959) SCNLR 186 which outlines the duties of the family head in managing family property. This includes the following:

1. Family head: The family head acts as a trustee and is responsible for the day-to-day management of the property, ensuring its use benefits all members.
2. Principal members: The principal members assist the family head in decision-making, especially in significant matters such as leasing or selling parts of the property.
3. Meetings and consensus: this is where regular family meetings are held to discuss the property’s management, and decisions are often made by consensus.

NATURE OF MEMBERS' RIGHTS IN FAMILY PROPERTY

The rights of family members in family property are typically usufructuary, meaning they have the right to use and enjoy the property but do not have outright ownership. See the case of Lewis v Bankole (1908) 1 NLR 81 which clarifies the nature of rights family members have in family property. The members rights Include:

1. Right of residence: this is where family members can live on the property.
2. Right to use: this is where members can farm, build, or otherwise utilize the property.
3. Right to income: this is where profits derived from the property, such as rent or produce, are shared among family members.

However, there are limitations which are;

1. No absolute ownership: this is where members do not have the right to sell or alienate the property without the consent of the family.
2. Collective interest: this is where the property must be used in a manner that benefits all members.

ALIENATION OF FAMILY PROPERTY

Alienation refers to the transfer or sale of family property. Under customary law, alienation of family property requires the consent of all principal family members. See the case of Ekpendu v Erika (1959) SCNLR 186 which reinforces the need for family consent in the alienation of family property. The key points in alienation of family property includes:

1. Consent: this is where all adult members must consent to the sale or lease of the property.
2. Formalities: this is where proper procedures must be followed, including family meetings and documentation.
3. Court approval: In some cases, the approval of the court may be necessary to ensure the sale is in the family's best interest.

DETERMINATION OF FAMILY PROPERTY

Family property can cease to exist through various means, including partition, sale, or conversion to individual property. See the case of Suberu v Gaji (2002) 7 NWLR (Pt 765) 422 which discusses the partition of family property. The key methods in determination includes:

1. Partition: this is where the property is divided among family members, converting their collective interest into individual ownership.
2. Sale: this is where the property is sold, and the proceeds are distributed among family members.
3. Conversion: this is where the property can be converted into individual ownership if all members agree.

IMPACT OF LAND USE ACT 1978 ON COMMUNITY LAND HOLDING

The Land Use Act of 1978 significantly impacted community land holding in Nigeria by vesting all land in each state in the governor. The Act aimed to standardize land tenure and curb land speculation. See section 1 which vests all land in the state governor, section 5 which grants the governor the power to grant statutory rights of occupancy and section 21 which requires governor's consent for land transactions. See also the case of Abioye v Yakubu (1991) 5 NWLR (Pt 190) 130 which examines the impact of the Land Use Act on customary land holdings. The key provisions of these impact includes the following:

1. Governor’s consent: this is where any transfer of land requires the consent of the governor.
2. Certificate of occupancy: this is where landholders must obtain a Certificate of Occupancy to validate their rights.
3. Impact on customary land: this is where the Act affects customary land tenure systems, as traditional authorities must comply with the new regulations.

CONCLUSION

Understanding the creation, management, and control of family property, along with the rights of family members, is crucial for maintaining harmony and ensuring the fair use of shared assets. The Land Use Act of 1978 has introduced significant changes to community land holding, emphasizing the need for compliance with statutory regulations while respecting customary practices.