THE SALE OF FAMILY PROPERTY

By Amaka Ezeno, MCLArb,

Family property is a property jointly owned by the members of the family. In this regard, family refers to the originator or father, his wife or wives and children. Extended family members do not have a hand in family property. However, the originator can introduce strangers in the ownership of family property by naming them in his will.

Family property can be acquired by intestate succession, testamentary declaration, purchasing a property with family fund, redemption of pledged family property, among others. It must be noted that the management of family property is vested in the head of the family. In Akano v Ajuwon, the court referred to the head of family as a manager. Usually, the head of family is the oldest male child of the originator.

He manages the property together with other principal members of the family. The principal members can decide to elect another member to manage the property instead of the head. The head of the family does not have any superior right over the property than his co-owners.  What each of them has is right of physical use, right to any income from the sale of the property, to seek for partition, and to protect the property from unlawful alienation.

ELEMENTS OF A VALID SALE OF LAND UNDER CUSTOMARY LAW

1. Payment of the purchase price. The purchase price is the monetary value flowing from the purchaser to the vendor as consideration for the latter’s parting with his interest in the sale. It bears mentioning that until the full balance is paid, a sale of land is not complete. The evidence of payment can be oral or by the production of receipt of payment.
2. Actual delivery of property. It is not enough to pay the full purchase price, there must be physical delivery and possession of the land.
3. The property must be handed over in the presence of witness. In addition to the presence of witness(es), there must be customary seal of the sale. This is called Igbu ewu ani in Igbo land. It is the libation poured on the land to solicit the support and blessings of the gods for the agreement.
4. Concurrence of vendors. Family property can be a fruitful source of provocation and quarrel among family members. One of the major issues encountered is lack of consent to sell. Under the Nigerian Customary Law, the law is that the transfer of title in family property can only be carried out by the family head with the consent of principal members of the family. In Ekpendu v. Erika, the court laid down the following rules:
5. Alienation of family property without the consent of family head is void from the very beginning. Such sale is incurably bad.
6. Alienation by family head without the consent of the principal members is voidable. This means that the sale is good unless challenged in court by the non-consenting members of the family.

However, there are circumstances where the sale by family head can be totally void. They include:

1. Where the family head alienates the property as his own. In the conveyance, he describes himself as the beneficial owner of the land, the sale is void and cannot stand. The court has however held that where there is no intention to defraud, the sale may not be voided.
2. Where the family head makes a gift of family property without the requisite consent, the gift is void and it is immaterial that the gift was made to a family member.
3. Where the family head unilaterally orders the partition of the family property, such partition if made is ineffectual to determine the family ownership of the property.

RESCINDING A VALID SALE OF LAND

A valid contract of sale cannot be rescinded unless there is fraud, undue influence and/or mistake. However, to set aside a voidable transaction, the following conditions must be met:

1. The plaintiff must have acted timeously, otherwise such delay would amount to laches and acquiescence, and defeat his claim.
2. There must have been no intervention of bona fide third-party interest resulting from the plaintiff’s delay and inaction. If as a result of the delay, a third-party purchaser for value without notice that the transaction was voidable has acquired interest, then the transaction will not be set aside. However, a third-party seeking to protect his interest in it must seek to be joined as a party to the suit to enable the court to determine whether he is a bona fide third-party purchaser.
3. There must have been no proven fact on the part of the plaintiff which can show that he has acquiesced to the sale.