Fides Media Living the Faith
By Amaka Ezeno, MCLArb
The commonest cause of disputes in the family is the struggle over property left by the originator. In law, the ownership of family property is joint and indivisible. Where the family comprise of large number of children, there is need to determine or appoint someone or some of their members to represent them in negotiations on the family property, to generally administer the properties, to determine how to share the family property among them in order to appropriate the greatest benefit for all the members of the family.
The management of family property is vested in the family head. He holds the property as ‘trustee on behalf of the family. He stands as the representative of the family in the administration of the family property. He is not the owner of the family property and he does not have the power to deal with the family property as his own, in fact he does not have a better or greater right than any other member of the family.
See the case of Lewis v Bankole. He cannot alienate any part of the family property without the consent of the other family members. The family head under Native Law and Custom is the eldest member of the family. Upon the death of the originator, the eldest male child becomes the family head, and upon his death 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 family. This position has received judicial bleeding in the case of Inyang v Ita (1929) 9 W.LR 84.
In some cases, the wish of the originator of the family will be respected if he nominates any other person apart from the eldest member of his family. See Sogbesan v Adebiyi. There is no formal requirement for appointment of the family head. As soon as the originator of the family dies, the eldest son naturally takes control, sometimes without any formality.
He calls meetings of all the children, chairs the meetings, he represents them and gives reports, etc. In other cases, there is a formal presentation of the head by elderly relations to other sons and daughters, and he is thereafter acknowledged as the head of family.
Rightly, the head of family is the proper person to exercise the ownership rights for the family, subject to the individual rights of the members. He represents the family with respect to the exercise of these rights and is required to exercise the powers solely for the benefit of the family.
He is not expected to make any profit or special benefit for himself without the consent of the family. He must therefore be held accountable for all rents, profits and other benefits or money collected on behalf of the family in respect of family property. In the case of Akande v Akanbi, Somolu J. observed as follows:
These days, it is my view that it has become an acceptable part of the duties of heads of families, especially where they hold large family properties in trust for the family, with the possibility of them having a large sums 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 flood gate of fraud, prodigality, indifference or negligence in all forms and will cause untold hardships on members of the family especially the younger members
It is the responsibility of the family head to represent the family in all transactions on behalf of the family However, whatever, income is received belongs exclusively to the family, and he is under a fiduciary duty to account for all moneys collected on behalf of the family.
The members can sue to ask the head of family to account for whatever he collects on behalf of the family. In the case of Osuro v Anjorin (1946)18 N.LR 18, a member of the family successfully maintained an action against the family head to account for all rents collected for the family from family property. Similarly in the case of Achibong v Achibong (1947) 18 NLR 157. The learned judge Robinson J observed as follows,
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.