UNIT 4 - FAMILY PROPERTY AND SOURCES OF FAMILY LAW

TOPIC OF THE DAY

- FAMILY PROPERTY IIN NIGERIA

- SOURCES OF FAMILY PROPERTY

- KEY PRINCIPLES GOVERNING FAMILY PROPERTY

- SOURCE OF FAMILY LAW IN NIGERIA

Family Property in Nigeria

Family property in Nigeria refers to assets owned collectively by members of a family, usually inherited from ancestors and intended for use by current and future generations. The concept of family property is deeply rooted in Nigerian customary law, but it also intersects with statutory law. See the Land Use Act (1978) which vests all land in a state in the governor, who holds it in trust for the people. It provides for the issuance of a Certificate of Occupancy, which may impact family property and the Wills Act (1837) and Wills Law of various states which govern the testamentary disposition of property. Under these laws, family property can be included in a will, but the specific customary laws of the ethnic group will still influence the distribution. See the case of Lewis v. Bankole (1908) 1 NLR 81 which established principles of customary law regarding family property.

Sources of Family Property

1.Inheritance: this is where most family properties are inherited. Upon the death of a family head, properties are passed down to the next generation according to customary laws of the specific ethnic group.

2.Gifts: this is where properties can also be added to the family estate through gifts. For instance, a family member might donate land or other assets to the family.

3.Purchases: this is where family members might purchase properties in the name of the family, adding to the collective assets.

4.Compensation: this is where properties can also be acquired through compensation for land acquired by the government for public use.

Key Principles Governing Family Property

1.Inalienability: this is where the family property generally cannot be sold or otherwise alienated without the consent of the family members. This principle ensures that the property remains within the family. See the case of Doherty v. Doherty (1968) NMLR 241 where the court established that family property cannot be sold or mortgaged without the consent of all family members and the case of Lewis v. Bankole (1908) 1 NLR 81 where the court also highlighted the principle that family property is inalienable without the consent of the family members.

2.Collective Ownership: this is where the family property is owned collectively, with all members having a stake. Decisions regarding the property typically require consensus.

3.Management: this is where a family head or trustee is often responsible for managing the family property on behalf of all members. See the case of Alake v. Pratt (1955) 15 WACA 20 where the court held that the family head holds the property in trust for the family and cannot unilaterally dispose of it and the case of Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372 where the court also reinforced the principle that family property is managed by the family head or trustee, who must act in the interest of all family members.

Sources of Family Law in Nigeria

Family law in Nigeria derives from multiple sources, reflecting the country's diverse legal heritage and the complexity of its social fabric. The primary sources of family law in Nigeria include:

1.Customary Law: Customary law varies among Nigeria's numerous ethnic groups and it governs aspects like marriage, divorce, child custody, and inheritance. Examples include the Yoruba, Igbo, and Hausa customary laws. See the case of Aoko v. Fagbemi (1961) 1 All NLR 400 which addressed the validity of customary law marriages and the case of Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445 where the court dealt with the application of customary law in inheritance matters.

2.Statutory Law: Under the statutory law, we can see the Marriage Act (1914) which governs statutory marriages, requiring formal registration, the Matrimonial Causes Act (1970) which governs divorce and related issues such as child custody and maintenance, the Child Rights Act (2003) which protects the rights of children, including issues of custody and welfare and the Wills Act (1837) and Wills Law of various states which regulate the making and enforcement of wills. See the case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 which clarified issues relating to statutory marriage and divorce under the Marriage Act and Matrimonial Causes Act.

3.Case Law: this is where judicial decisions interpret and apply customary and statutory laws. Precedents from higher courts are binding on lower courts.

4.Islamic Law: this are applicable in the northern states with significant Muslim populations and it helps to govern marriage, divorce, inheritance, and custody for Muslims. Sharia Courts have jurisdiction over family law matters for Muslims. See the case of Adesubokan v. Yinusa (1971) 1 All NLR 225 which focused on the application of Islamic law in divorce and maintenance cases.