The entrance of family property or communal property are, though distinct by birth and spellings, jingles well within the roof of native law. Disposition is “to alienate” property. Under native law, the members of a family have no right to sell a property without a patent nod or appended sigature from the head of the family. This is majorly mirrored in the southern part of Nigeria as the North sings in cacophony or are strangers to the just buttressed proposition. For Northern states, members can alienate to a non native so long as the minister spearheading land matters raises his thumbs; where it is alienation to a native, the native authority situate at the area the land flourishes, calls the shot. To be on one straight line and for meteoric purpose, the writer would be defining the ginormous muscle of a family head with respect to the handling of family property.
The precept of the law has not changed its skin as far as this area of the law is concerned. The sale by members of a family is void ab initio if done behind the knowledge of the head of the family, it is merely voidable if the family head opts to alienate it without obtaining acquiescence from principal members of the family. It is voidable because it is deemed a sale with flesh and blood which can be challenged with promptitude by family members; the moment the members of the family claim not their legal rights to title within sunny days, then the unfortunate implication is the attainment of menopause to legal claim over family land due to overt or tacit acquiescence. The voidability needs now be succinctly exposed. In the event that the family head alienates family land with transparent procedural defaults e.g. selling family property under personal capacity, the sale is void but will be voidable if he breaches procedure albeit selling as family property. This position is not inexistent in a legion of judical decisions imperative is Solomon v Mogaji. In no way does this share similar lexical outlook with the point where the family head sells his exclusive land —in this way, he seizes to operate under the representative or constitutional capacity; as a beneficial owner is a favourable term.
Unclad gospel worthy of a vox is the fact that the family head is the engine box in a native law environ, and as underscored supra, no sale occurs without his reverence or approval. A situation where a family head, in the presence of principal members, alienates family property, the sale is valid and not even the contention of a junior family member can bias the court’s stand. This was the laughable fate of the claimant in Anifowoshe v Siyanbola. Furtherance on this interesting area of the law, it is not invalid for sale of family land be conducted by a family council approved ab onitio by family members. Where a council is set up, the unarguable digest of sane minds is the fact that the council acts in representative stature. In nine out of ten cases, there is a family head plus a council. The case of Foko v Foko had this same feature. Categorically speaking, the law does not open arms to embrace an erring family head who fails to abide by the dictates of his custom with respect to family property.