L.L.

B
LECTURER: BARRISTER. ABIBOLA KHADIJAT
COURSE TITLE: PROPERTY LAW
COURSE CODE: PPL 404

PROPERTY LAW ASSIGNMENT

Creation of Family Property and the Legal Position of Grandchildren in Ownership of Family Land under
Nigerian Law

GROUP 6

GROUP MEMBERS

HAJARA YUSUF ISAH U23LW2012

NTA TIKU U22LW1015

ALICIA SAMUEL U24LW3044

KELLY IYORA U23LW2009

ESTHER OKPARA U22LW1018

1 | Page
ABSTRACT
This paper examines the creation of family property under Nigerian customary law and analyses
the position of grandchildren in relation to the ownership of family land. It highlights the various
ways family property may be established, including intestate succession, express dedication,
acquisition through family funds, gifts, and customary settlements. The study further explores the
legal incidents of family property, focusing on collective ownership, management by the family
head, restrictions on alienation, and the principle of representation for descendants. In particular,
it evaluates how grandchildren, though not direct holders of independent rights during their
parents’ lifetime, derive their interests through representation and the continuity of the family
lineage. The paper demonstrates that family land in Nigeria is not merely an economic asset but a
cultural and moral trust, protected both by customary principles and judicial authority, ensuring
its preservation for present and future generations.

Keywords: Family property, Nigerian customary law, grandchildren, ownership, representation,

legal incidents, inheritance, family land.

2 | Page
 I. INTRODUCTION
Family property, often referred to as family land under Nigerian customary law, represents one of the most
enduring institutions of communal ownership in Nigeria. It embodies the principle that land is not merely
an economic asset but a social heritage preserved for both the living members and those yet unborn.1The
origin and legal status of family property can be traced to the early decision in Lewis v. Bankole, 2 where
Osborne, C.J., described family property as land that devolves upon a family, with ownership vested not in
an individual but in the family as a collective entity.
Under Nigerian law, family property is created and regulated primarily by customary law, although certain
principles have also been recognized and enforced by the received English law.2The nature of the interest
held by members of the family is such that no individual can claim exclusive ownership; rather, each
member holds a beneficial interest subject to the overall authority of the family head and principal
members.3 Consequently, the way family property is created directly determines the legal status of the
parties involved, as well as their rights and duties in relation to the land.
Furthermore, the concept of family property is vital to understanding land relations in traditional Nigerian
communities. It governs how property devolves from one generation to another and ensures that land
remains within the family lineage.4Hence, the creation of family property affects not only present ownership
but also the proprietary rights of descendants, including grandchildren, who may inherit through the doctrine
of representation.
The subsequent sections of this paper will therefore examine the recognized ways through which family
property can be created, the legal incidents of such property, and finally, the position of grandchildren in
relation to ownership and inheritance of family land under Nigerian law.

II. WAYS IN WHICH FAMILY PROPERTIES CAN BE CREATED

The form in which a family property is created is very important because it determines who the rightful
members of the family are in relation to the property and the extent of their rights over it. Under Nigerian
customary law, there are several ways through which land can become family property. These include
creation by intestate succession, by express declaration or dedication, by purchase with family funds, by
gift to a family, and by customary settlement.5 Each method carries its own implications on ownership and
control.

a. By Intestate Succession
The most common way family property is created is through intestate succession. When a person dies
without a will, his property automatically devolves on his family as a collective unit, to be managed by the
family head and shared according to customary law. In Lewis v. Bankole, the court explained that upon the

1 Adefi M.D. Olong, Land Law in Nigeria (2nd edn, Malthouse Press Ltd, 2012) 2
Lewis v Bankole (1908) 1 NLR 81.
2 Elias, Nigerianp Land Law (4th edn, 1971) p. 105.
3 Ekpendu v Erika (1959) 4 FSC 79
4 Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399.
5 Adefi M.D. Olong, Land Law in Nigeria (2nd edn, Malthouse Press Ltd, 2012) p. 78 7

Elias, Nigerian Land Law (4th edn, 1971) p. 109.

3 | Page
death of the original owner, the property vests in the family, not in any single heir, thereby becoming family
land.7This process ensures that land remains within the lineage and cannot be alienated without the consent
of family members.

b. By Express Declaration or Dedication

A person may also create family property during their lifetime by expressly dedicating or declaring land as
belonging to the family. This can be done either orally or in writing, and the intention to benefit the family
must be clear and unequivocal.6Once such a declaration is made, the land ceases to be the individual’s
personal property and becomes subject to the rules governing family property. In Ekpendu v. Erika, the
Supreme Court held that a father who allows his children to occupy land and treats it as belonging to the
family has effectively dedicated it to them as family land.9

c. By Purchase with Family Funds

Family property can also arise where land is acquired using family resources or where the purchaser clearly
intends to hold the land on behalf of the family. In Esan v. Faro, the court recognized that land purchased
with the proceeds of family funds becomes family property, even if it was registered in the name of one
person. The key factor is the intention at the time of purchase if the land was bought for the family’s
collective benefit, it automatically assumes the character of family property.7

d. By Gift to a Family
Another recognized method is where a donor makes a gift of land to an entire family rather than to an
individual. Once a gift is made to the family as a unit, all members acquire beneficial interest, and the land
can no longer be treated as personal property of any single member. The case of Suberu v. Sunmonu
illustrates this principle, where the court held that a gift to a family confers ownership on the family
collectively, to be enjoyed according to customary law.8

e. By Customary Settlement
Lastly, family property may also arise through traditional or customary settlement. This usually occurs when
a community grants land to a family in recognition of their services, status, or as part of a peace arrangement.
Once the land is accepted and occupied by the family, it becomes family property, governed by customary
law rules of ownership and succession.

III. LEGAL INCIDENTS OF FAMILY PROPERTY

When land assumes the character of family property, certain legal consequences immediately attach to it.
These consequences, often called the incidents of family ownership, define how the land is managed, used
and protected under customary law. Family property is collectively owned by all members of the family,
both living and unborn, and no individual can claim exclusive title to any portion of it. The ownership is

6 I.O. Smith, Practical Approach to Law of Real Property in Nigeria (Revised edn, Ecowatch Publications, 2013) p. 215. 9
Ekpendu v Erika (1959) 4 FSC 79.
7 Elias, Nigerian Land Law (4th edn, 1971) p. 115.
8 Suberu v Sunmonu (1957) WRNLR 33.

4 | Page
thus communal in nature, while the family head and principal members act as trustees who manage it for
the general benefit of the family.9
The head of the family is responsible for administering the property and allocating portions for use by
members, but he must do so in consultation with the principal members. Any attempt to alienate family land
whether by sale, lease or mortgage without the consent of these principal members renders the transaction
voidable at the instance of the family. 10 This rule preserves the unity of ownership and prevents the
permanent loss of ancestral property.
Every member of the family has a right to occupy and use the land in accordance with family decisions.
This right, however, is not equivalent to absolute ownership; it is a usufructuary interest that allows the
member to enjoy the produce or use of the land while keeping the title vested in the family as a collective.
Because the head of the family stands in a fiduciary position, he must manage the land honestly and in the
interest of all. If he mismanages or attempts to alienate the property without proper consent, he may be
removed or made to account for his actions before the family or the court.
Another important feature of family property is its continuity. The land remains family property from
generation to generation, ensuring that each branch of the lineage retains representation in ownership
through the principle of inheritance. Courts have consistently protected this communal nature of ownership,
describing it as one of the enduring features of Nigerian customary law. It not only sustains social cohesion
within families but also safeguards the economic base of the community as a whole.

IV. THE POSITION OF GRANDCHILDREN IN THE OWNERSHIP OF FAMILY LAND

Under Nigerian customary law, family land is regarded as a continuing inheritance that extends beyond the
immediate children of the original owner to include future generations. However, the extent of the rights of
grandchildren in family property is not absolute; it depends on the customary law of the particular
community and the principle of representation through their parents. Generally, grandchildren do not
possess independent rights in family land while their parents, who are direct members of the family, are still
alive.11

a. Rights through Representation

The law recognizes that grandchildren can only exercise rights over family land through representation that
is, by standing in the place of their deceased parent. This principle ensures continuity in ownership within
the family lineage. In Lukan v. Ogunsusi, the Supreme Court explained that grandchildren derive their title
and interest from their parent, and cannot claim any separate or superior right as long as the parent who
connects them to the family is still alive. 12This means their interest is contingent rather than vested until the
death of that connecting ancestor.

9 See Adefi M.D. Olong, Land Law in Nigeria (2nd edn, Malthouse Press Ltd, 2012) p., where the author explains that the head
of the family holds the property in trust for the collective benefit of all members.
10
See Lukan v. Ogunsusi (1972) 5 SC 40, where the Supreme Court held that a sale of family land without the consent of the
head and principal members is voidable at the instance of the family.
11 Niki Tobi, Cases and Materials on Nigerian Land Law (M.I.J. Professional Publishers, 1992) p. 156.
12 Lukan v. Ogunsusi (1972) 5 SC 40.

5 | Page
b. When the Parent is deceased
Upon the death of a parent who is a member of the family, the grandchildren step into that parent’s position
and assume equal rights with other members of the same generation. Their entitlement arises by substitution,
ensuring that each branch of the family continues to be represented in the ownership of the land.13This rule
aligns with the customary belief that the family property is for the collective benefit of all descendants,
whether born or unborn.
c. Limitations to Grandchildren’s Rights
Although grandchildren have beneficial interests, their rights are not absolute. They cannot demand
partition, alienation, or allocation of specific portions of family land unless recognized and approved by the
family head and principal members.17This is because family land is managed collectively, and the rights of
younger members are exercised under the supervision of the family authority. Any attempt by a grandchild
to deal with family property without the consent of elders is void under customary law.18

d. Judicial Recognition of Descendants’ Rights

Nigerian courts have consistently upheld the inclusive nature of family land ownership. In Ekpendu v.
Erika,19 it was affirmed that family land is held not only for existing members but also for the unborn
generations. Similarly, in Adeleke v. Iyanda,20the Court of Appeal emphasized that family property belongs
to the lineage and that every descendant, however remote, retains a potential interest. Therefore,
grandchildren’s rights, though indirect, are fully protected under the law once their link to the original
ancestor is established.

e. Customary Variation
It is also important to note that the position of grandchildren may vary across communities. Among the
Yoruba, for instance, representation is strictly through the male line, while in some Igbo and Edo customs,
both male and female descendants may have representative rights.21The law therefore defers to the particular
customary norms of each locality, provided they are not repugnant to natural justice, equity, and good
conscience.

V. CONCLUSION
The creation and ownership of family property occupy a central position in Nigerian customary land law.
The form in which such property is created determines the status and rights of all who claim interest in it,
from the family head to the youngest descendant. Whether it arises by intestate succession, dedication, gift,
or purchase with family funds, family property remains a collective inheritance that binds members of a
lineage together across generations.
The incidents of ownership emphasize unity, consultation, and accountability ensuring that no single
member can dispose of the land without the family’s consent. Grandchildren, though not direct holders of
independent rights while their parents live, are not excluded from ownership. They step into their parent’s
position upon the parent’s death, maintaining continuity within the family line.
Ultimately, family property represents more than a legal interest; it is a cultural and moral trust, preserved
for the benefit of both present and future generations. Nigerian courts, through consistent application of

13 A.O. Obilade, Nigerian Legal System (Sweet & Maxwell, 1979) p. 211.

6 | Page
customary principles, have continued to protect this communal character, reinforcing the idea that family
land is not just property it is heritage.

17 Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1.

18 Ogunmefun v. Ogunmefun (1931) 10 NLR 82. 19 Ekpendu v. Erika (1959) 4 FSC 79.
20 Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729)
21 Abdul Karim, “Customary Inheritance and Family Land Administration in Nigeria” (2011) 2(1) International Journal of

Advanced Legal Studies and Good Governance 210.

7 | Page