By Amaka Ezeno, MCLArb
Family property has often been a cause of disunity among family members. In many situations, the head would want to do with the property the way he pleases to the detriment of others especially in a polygamous family. In other instances, the wealthy would want to amass an unreasonable share to himself. This is contrary to the provisions of the law. Each member of the family has rights over the family property.
THE RIGHT TO AN ALLOTMENT FROM FAMILY LAND
A member of the family is entitled to be allotted a portion of the family property for his exclusive use and enjoyment. He may build his house on the land or farm on it. Once the land is allotted to him, he holds the land to the exclusion of any other member of the family.
His status is not however that of ownership rights, but he stands in the position of a tenant on the land, the only difference is that he does not pay rent and his tenure is not determinable, and his children will inherit the land after his death. The family may, if it is not convenient to them, re-allocate another portion to the children, but his right to live, farm and enjoy the allocated land cannot be disturbed even by the family.
The member may therefore go to court to compel the head of family to allocate family land to him. In the case of Ajobi v Oloko (1959) LLR 152, the court ordered a partition where it was discovered that the family head had refused to allocate land to some family members. The member cannot sell or dispose of the land allocated to him from the family property as he has only the right of use.
He cannot also use the property as collateral for his personal debt. See Jacobs v. Oladuni Brothers (1935) 12 NLR 1. In the same vein, the member cannot in his Will pass the family property to persons who are not his heirs directly. In Ogunmefun v Ogunmefun (1931)10 NLR 82, a testate devised her share in her family property to certain relations. The court held that the disposition was void.
THE RIGHT TO PARTICIPATE IN THE MANAGEMENT OF THE FAMILY LAND
The family head is not expected to administer the family property solely on his own, or treat the family property as his personal property, he must consent with the principal members of the family who must give their consent to important decisions like alienation of family property or sharing of income accruing from family property.
The principal members also are required to inform all the members of their own branch of the family about important decisions for their input too. Where the family head refuses to obtain the consent of the principal members of the family, such decision or transaction may be held void or voidable at the instance of the members of the family. See Adedibu v Makanjuola (1944) 1All NLR 39.
THE RIGHT TO SHARE IN INCOME ACCRUING FROM FAMILY PROPERTY
The income and profit including rents, proceeds of sale of family property, compensation for compulsory acquisition of family property from government and all other income derived from family property belong exclusively to the family and is not the personal property of the family head. Therefore, such income must be shared among all members of the family.
Though the family head is allowed to deduct all his expenses from the income before sharing and in some instances, he is allowed the biggest share, but the member is entitled to his share of the income. The family head is the right person to receive the income on behalf of his family or anyone delegated by him, afterwards he must account for the money, as he stands in a fiduciary position to the family. He cannot appropriate the funds for his own personal use.
THE RIGHT TO ACT WHERE THE FAMILY HEAD REFUSE TO ACT
If the family head refuses or neglects to act especially in cases where he ought to file action in court to defend family property, the member of the family may act on its behalf. This position has received several judicial blessings. See Bassey v Cobham (1924) 5 NLR 92.