THE DUTY OF THE FAMILY HEAD TO ACCOUNT

By Amaka Ezeno, MCLArb

The family property is that property which belongs to the family as a unit. It is held jointly by the family members until determined. Section 4 of the Ghanian Head of Family (Accountability) Act defines family property to include any property, whether movable or immovable, which belongs to the members collectively of a particular family or is held for the benefit of such members and any receipts or proceeds from such property.

The ownership is vested in the family as a single whole, and the individuals are only entitled to right of use. Family property can be created by purchase with family fund, testamentary declaration, by conveyance, by way of intestacy, among others.

The management of family property is vested on the family head. In Akano v. Ajuwon , the Supreme Court referred to the family head as a ‘Manager’. He has the power and authority to direct the affairs of family property. However, he carries out these duties in a fiduciary relationship.

The vesting of management on the family head is due to the fact that it is impracticable for every member to be part of the controlling nucleus of the family property. As the representative of the family, he holds the property as a trustee on behalf of the family. He cannot deal with the property however he pleases. In fact, he does not have a better title to the property than the other members.

Usually, the eldest member of the family is the family head. When the originator dies, the eldest male child becomes the head, and upon his death also, the most senior member will succeed him. However, the family may decide to elect any of their members if they do not want the most senior member to become the head of the family. This position has received judicial blessing in Inyang v. Ita .

In some cases, the originator before his demise may appoint anyone of his heirs to be the head and manage the property. The family head calls for meeting of all the children, and chairs same. He represents them and reports to them.

As the representative (voice) of the family, the family head is not expected to make any profit or any special benefit for himself without the consent of the family. As such, he is accountable to the family for all rents, profit, or benefit collected on behalf of the family. In Akande v. Akanbi, the court, per Somolu J., stated thus:

These days, it is my view that it has become an acceptable part of the duties of heads of family, especially where they hold large family properties in trust for the family, with the possibility of them having a large sum as a result of the sales of portions thereof, to keep account of all the transactions in order to let the members see the true position at all times and to justify their confidence.

In my view, I hold as a matter of law today, that it is far better to impose restrictions on the heads of family by making them liable to account, even strict account than to lay them open to temptation by unnecessary laxity in the running of family affairs… to hold otherwise will open the floodgate of fraud, prodigality, indifference or negligence in all forms and will cause untold hardships on members of the family especially the young members.

The family head has the duty to represent the family in all transactions relating to family property, therefore, whatever proceed or income he receives belongs entirely/exclusively to the family, and he is under a fiduciary duty to account for all monies collected on behalf of the family. Consequently, the members of the family can sue the family head to account for whatever he collects on behalf of the family.

In Osuro v. Ajorin , a member of the family successfully maintained an action against the family head to account for all rents collected for the family from the family property.

It suffices to conclude with the words of Robinson J., who observed in Achibong v. Achibong that,

On the powers of the family head and his duty to account, he is given considerable latitude, but his actions must be capable of reasonable explanation at any time to the reasonable satisfaction of the members of a sub-branch of the house. He cannot treat house money as his own.

If it is his own, he can throw it away or misuse it. He cannot do that with house money. If he thinks reasonably, it is a good cause and for the good of the house. He should certainly keep accounts and work on some rules, either laid down by himself or preferably after consulting with the heads of the house.