29/08/2024
ALIENATION /SALE OF FAMILY PROPERTY IN NIGERIA
The Supreme Court in Olodo v Josiah stated that family land belongs to the family and never loses its common ownership even when the family land is allotted to a family member, thus this means that the family land cannot without the consent of the family be alienated.
In the alienation or sale of family land, neither the head of the family alone, nor the principal
members alone can make any valid alienation or give title to any person with respect to family land.A head of family not acting as such cannot convey a valid title in respect of family
land.
However, where the head of a family conveys land without the consent of the principal members of the family, such a transaction is voidable and can be avoided by an action instituted by any member of the family.
It is the consent of a majority of principal members of the family that is required
and not that of every member for the alienation of unpartitioned family property or land. Perhaps, if the alienation, sale, lease or allotment is made by the principal members of the family without the consent of the head of the family who is recognized as the custodian of the family property, the same will be void ab initio.
It is essential to the validity of sale of family land that the head of family must join in the
conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void ab initio.
Furthermore, unimpeachable title can only be transferred from one community to another when the head of the family does so with the consent and concurrence of the principal members of the family or community. Family land can only be sold or disposed of with the consent of the head/principal members of the family. Even where a family member makes the sale, he must receive the consent or ratification of the other principal members of the family for the sale to be validated.
Moreover, the controversy as to whether a group or a section of a family or even a single member of a family has locus standi to institute an action in respect of wrong done to the family property has been laid to rest. So, any member of the family can take steps to protect the family property or his interests in it, even if he does not have the authority of the family to bring the action.
Consequently, where the alienation of the family property is irregular the court is entitled, at the instance of any member of a family, whether principal or not, to declare the sale void.
Presently, some vices such as greed and selfish individualistic tendencies of men are fast eroding the concept of family land which was meant to preserve the unity of the family or clan in perpetuity.
