Fides Media Living the Faith
By Amaka Ezeno, MCLArb
A family is generally regarded as the man, his wife or wives and children. Under native law and custom, 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, it shall continue to be held jointly by the entire family as a unit. The ownership of same is vested in the family as a whole, the individual having a right of user only.
As it relates to those who are entitled to inherit the property, a family means the father or founder and all his direct children or offshoot as was held inLewis v Bankole. The membership of the family does not take cognizance of the extended family members.
So, the members of a family that can inherit their father’s property are the collective members of the family who can lay claim to the joint ownership of the family property. However, the ownership of family property as we will soon see may depend on the manner of creation and intention of the originator of the family or the original owner of the family property.
Also, under Customary Law, a wife and grandchild are not part of a man’s family for the purposes of devolution of the property. Therefore, the grandchildren are not entitled to any share until the death of his own parent, and then he can step into their shoes. In the case of Lewis v Bankole, the court held that a grandchild could not demand as of right a portion of family land for building.
Slaves and other domestic servants no matter how long they have stayed in the family are also not part of the family. They are therefore, not entitled to any portion of family property. The Supreme Court in the case of Chairman, L.E.D.B v Fahn (unrep FSC140/62116/3/63)observed that slaves and domestics were their master’s chattels and were themselves the object of inheritance.
One may need to separate domestics from the observation of the Supreme Court. This is because the domestics are mainly working for their master for a fee or reward while the slave is entirely the property of the owner. However, the slave may in fact benefit from the family property of the land owner where the owner includes the slave or domestic in his will or declaration.
Strictly, brothers, sisters,cousins do not form members of the family as membership of the family does not recognize the extended family system. Only the children of the founder constitute the family. In some parts of Igbo land, only sons can inherit the land, daughters are therefore excluded. See Lopez v Lopez (1924) 5NLR 50, though this position has changed(Mojekwu and Ukeje cases).A founder can however, under a will, define the extent of his family as was seen in Sogbesan v Adebiyi (1941) 16 N.L.R 26.
Hence, in cases where the family property was created by Will, the person mentioned in the will, even if they include outsiders, will constitute the family and are entitled to the family property. In cases where specific names of children are mentioned amongst all the children, then only these children mentioned will be entitled to create the family property and their descendants.
The family head is in charge of the management of family property. He collects rents and ensures that family property is in good condition. He allocates farmland to members of the family. He is however, required to consult other members of the family in the general administration of family property, in important disposition and for the protection of same. However, he can commence action in court, even without the authorization of the members of the family, to protect any family property as was held in Brown v Nsirim (1995) 1 NWLR (Pt. 370)189.
In a monogamous family, all the male children constitute the principal members of the family, whilst in a polygamous family, every first male child of each of the branches constitutes a principal member.
Under the Igbo Customary Law, a distinction is made between the succession to a house where the founder lived and died, and the other houses or property owned by him. The founder’s residence is inherited by his eldest son to the exclusion of all other children.
Where a founder of a family dies without a male issue, but leaves behind a female issue, inheritance of the deceased house is not by the deceased’s female children, but by his brothers or paternal next of kin. However, a female child in the above circumstance could avoid such disadvantage by declaring herself an ‘idegbe’, that is, by remaining in her father’s house to bear children in the name and memory of the deceased father.
But this situation can only arise if and only if the deceased had no male issue. However, there has been a change in this repugnant Customary Law by virtue of the Supreme Court’s decision in the case of Mojekwu v Mojekwu. However, it is important to note that unless there are manifest improprieties, the court cannot interfere with the management of family property. This was held in Layinka v Gegele (1993) 3 NWLR (pt. 283) 518.
An individual member’s right in a family property is merely that of a user as was held in Adigun v Fagbola 11 NLR 110. A member cannot, therefore, dispose of his portion of family property since he owns only a usufruct as was held in Ogunmefun v Ogunmefun (1931) 10 NLR 82. Thus, a member seeking to alienate his portion of family property must first seek a partition. Family property remains so even where a member has improved on it fromhis own pocket as was held in Sanusi v Makinde (1994) 5 NWLR (Pt. 343) 214.