CREATION OF FAMILY PROPERTY

The family is a very important unit in customary law, and land is rarely held individually but
collectively. As the communal land holding is diminishing in importance, the family land holding
is becoming more important and relevant in The Gambia today. The communal lands as we have
noted above are normally allotted to the members of the community, and such members have the right
to occupy and use exclusively for their use and benefit. Upon the death of the original allottee the land
is normally inherited by the children and a family property is created. There are five main ways by
which family property may be created. We shall examine this and also the legal position of
grandchildren, slaves and domestics.

DEFINITION OF FAMILY
A family is generally regarded as the man, his wife or wives and children. Dr. Elias described the
family as the smallest social unit in the body polity; (Elias op. cit) children are both male and
female children. However, in terms of family property under native law and custom, the family
property is that property belonging to the family as a unit, it is in its real form undivided interest
in land; and until it is determined continue to be held jointly by the entire family as a unit. The
membership of the family does not take cognizance of the extended family members. So that all
members of a family that can inherit their fathers farms are the collective members of the family
who can lay claim to the joint ownership of the family property. However, the ownership of family
property as we will soon see may depend on the manner of creation and intention of the originator
of the family or the original owner of the family property. Strictly, brothers, sisters, cousins do not
form members of the family. (see Suberu v Sunmonu (1957) 2 FSC 33. A widow cannot inherit
the husband property and therefore do not form part of the members of the deceased husband
family. See Nzeiraya v Okagbue (1963) 1 All N.L.R 352. Only the children of the founder constitute
the family. In some parts of Ibo land, only sons can inherit the land, daughters are therefore
excluded. See Lopez v Lopez (1924) 5 NLR 50.
In cases where the family property was created by will, the persons mentioned in the will even if
they include outsiders, will constitute the family and are entitled to the family property. In
Sogbesan v Adebiyi (1941) 16 N.L.R 26, where a testator devised his property to be held as family
property and appointed his brother as the head of the family, the court held that the family included
his brothers and sisters and their descendants. The judge explained that “it would be contrary to
the conception of native law and custom as well as good sense to appoint a person who himself is
given no interest in the property to act as head of the family”. In cases where specific names of
children are mentioned amongst all the children, then these children mentioned will only be
entitled to create the family property and their descendants.

CREATION OF FAMILY PROPERTY

There are seven ways a family property may be created; (1) Intestacy, (2) will (3) Conveyance, (4)
Purchase of Land, (5) Declaration, (6) Conquest, (7) Settlement.

1. INTESTACY: Where a land owner dies intestate, the land is naturally inherited by his children
under native law and custom, and thereby becomes family property . See Lewis v Bankole (1908)
1N.L.R 89, Ogunefun v Ogunmefun (1931) 10N.L.R 82, Miller B.O. v Ayeni (1924)5 N.L.R 42.
It is immaterial whether the land owner dies leaving only one issue, the land will still be constituted
as family property. This was the decision in Abeje v Ogundairo (1967) LLR 9. Olawoye (op cit
p.26) have criticized this decision on the basis that a family property connotes joint ownership,
and therefore cannot arise where there is a sole heir, Smith (op cit p.35) supports the decision and
even argued that the position taken by Olawoye is unfounded and should be ignored. This is
because, a family property is not founded on the existence of one sole heir, many or no child at all.
The conditions for creation of family property by intestacy are, (1) that the land owner died
intestate and (2) that his estate is governed by native law and custom, once those conditions are
met the property devolves on his children as family property. The position taken by Smith is to be
preferred; this is because under native law and custom, land is regarded as inheritable property no
t only belonging for the use of the current generation, but also for generations’ unborn belonging
to the family. The current generation of children is therefore holding land in trust and as a sacred
object for their own use and generations after then. See Olowosaga v Alhaji Adebajo & others
(1988) 4N.W.L.R (pt. 88) 275.

2. WILL: A testator may create family property by specifically stating in his will that he wishes to
create a family property, this is by declaring in his will that his property be held on his death jointly
by his children jointly as family property. In the case of Frank Coker v George Coker & ors (1938)
14 N.L.R 83, one Edward Foster in his will made the following bequest of his dwelling house
which was situated in Lagos – “I leave and bequeath my present dwelling house to the whole of
my family or blood relation and their children’s children throughout and cannot be sold for any
debt or debts that may be contracted by any of them, but at present the house should be occupied
by my grandson Nath and my son Edward subject to the approval of my executors or
otherwise……”The house was sold by order of court and the suit was to determine who is entitled
to share in the proceeds of the sale. The court held that the intention of the testator was to make
his dwelling house a family house, following the Yoruba custom and so that consequently those
entitled to share in the proceeds of its sale were those of his descendants entitled under the custom
to reside in the premises at the time of sale.
See also Jacobs v Oladunni Bros. (1935)12 N.L.R 1, George v Fajore (1939) 15 NLR1.
Slaw v Kehinde (1947) 18N.L.R.129.

3. CONVEYANCE: Where the land owner, confers title to his property on named members of his
family by Deed with a declaration of his intention to create a family property in the named
members, a family property is thereby created. In the case of Olowosago v Alhaji Adebanjo &
others (1988)4 N.W.L.R (pt 88) 275. Where the family conveyed by Deed of grant parcel of land
to eight people who were children and grand children of the land owner, the land was subsequently
sold to the plaintiff, the respondents relied on the Deed of grant; it was held that the Deed created
family property. The court also explained that to qualify as family land, it will be necessary to
identify not only the origin of the land by also its status.

4. PURCHASE OF LAND WITH FAMILY FUNDS: Family property may be created by

conveyance Inter vivus. Where land is purchased with money belonging to the family, a family
property is thereby created. In the case of Nelson v Nelson (1913) 13
N.L.R 248. The family decided to use money paid by government as compensation for acquisition
of family property to another parcel of land. The conveyance was done in favour of the family
head in English form. The family head thereafter sold the land to a third party, in an action to set
aside the sale, the court held that the land is a family property notwithstanding the form in which
it was conveyed. See also Dosumu v Adodo (1961) LLR 149.

5. DECLARATION: Where the land owner during his lifetime decides to designate his land as
family property for the benefit and enjoyment of members of his family only; family property is
thereby created. See Nelson v Nelson (1951) 13 WACA 243.

6. CONQUEST: Family property may also be created by conquest. Where there is only one
particular progenitor, mainly hunters and warriors, in time past, who had fought and conquered
the original settlers and chased them from the land, upon his death, his children will inherit under
native law and custom, and thereby a family property is created. See more others v Nwalusi &
others labadi (1933) 1 W.A.C.A 278, Kuma v Kuma (1934) 2 W.A.C.A 178.

7. SETTLEMENT: Family property is also created by first settlement. Where the original land
owner was the first settler on land, upon his death the property will devolve upon his children
under native law and custom. The property therefore becomes family property. In the case of
Idundun v Okumagba (1976) 10 SC 227 the Supreme Court accepted the finding of the lower court
that the family that was able to prove that their ancestor first settled on land created family property
and the family are the owners thereof.
POSITION OF GRAND CHILDREN
As we have discussed above, the family includes only the man, his wife or wives and children.
Family property therefore belongs only to the family or those who can inherit the property of the
deceased under native law and custom, or otherwise as discussed above. Therefore the
grandchildren are not entitled to any share until the death of his own parent, and then he can step
into their shoes. In the case of Lewis v bankole (op cit) the court had that a grandchild could not
demand as of right a portion of family land for building.

DOMESTICS
Domestic servants no matter how long they have stayed in the family are not part of the family.
They are therefore not entitled to any portion of family property. The Supreme Court in the case
of chairman, L.E.D.B v Fahn (unrep FSC 140/621 16/3/63) observed that domestics were their
masters chattels and were themselves the object of inheritance. One may need to separate
domestics from the observation of the Supreme Court. This is because the domestics are mainly
working for their master for a fee or reward. The domestic may in fact benefit from the family
property of the land owner where the owner includes the domestic in his will or declaration. See
Dabiri v Gbajumo (1961) 1 All W.L.R. 225.

CONCLUSION
The form in which a family property is created will determine the status of the parties and the
property. The family property is owned by the family as a unit and does not belong to the individual
members. To prevent this, the party must be able to prove when and how the property was
converted from individual ownership of the land holder to that of his family.