The Family Head as a Manager: Powers, Duties, and Fiduciary Limits in Nigeria

The courts have described the family head using many different words over the years. Manager. Director. Representative. Agent. Caretaker. Fiduciary. Each of those descriptions appears in decided cases.¹ But the one that best captures his legal position, and the one the Supreme Court used in Akano v. Ajuwon (1982) 11 SC 1, is manager.

The manager label is important because it tells you what he is not. He is not a trustee in the English law sense, even though courts have sometimes used that word loosely. The English law trust splits ownership into two: the trustee holds the legal title and the beneficiaries hold the equitable interest. Family property does not work that way. The family head holds no title at all. Title is vested in the family as a corporate body, and it stays there. As Utuama explained in his Nigerian Law of Real Property, applying the English trustee analogy strictly to the family head is technically inaccurate.²

He is not an owner either. Viscount Haldane in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399 described the family head as someone who “in loose mode of speech is sometimes referred to as the owner,” but immediately clarified that he holds the land to some extent like a trustee. That “loose mode of speech” warning is one that students should take seriously. Calling the family head an owner in an examination answer, without qualification, is a mistake that loses marks.

What he actually is, is a person with authority to manage family property on behalf of everyone, subject to customary rules and the oversight of the principal members of the family.

The Powers of the Family Head

The powers of the family head are extensive but not unlimited. Coker summarised them well in Family Property Among the Yorubas: the family head is responsible for the control of the affairs of the family and all the properties, and he is the proper person to represent the family in all legal actions instituted by or against the family.³

More specifically, his powers cover the following areas.

Allocation of land. It is the primary duty of the family head to allocate portions of family land either to members of the family or to strangers, and to prescribe the conditions under which those allocations are made. See Adagun v. Fagbola (1932) 11 NLR 110. When he allocates a portion to a member, that member becomes entitled to occupy and enjoy it during good behaviour, but does not become the owner of the land as against the family.

Management of income. Where the family land is rented out, the family head collects the rent. He receives any income, tributes, or compensation connected to the family land and is responsible for ensuring that it is distributed to family members in accordance with customary rules.

Protection of family property. The family head has the right to institute legal action to protect family land from trespassers and adverse claimants, even without prior authority from the other members. The court in Sapo v. Sunmonu (2010) All FWLR Pt. 531 confirmed that a head of family can take action in respect of family property even without prior authority of other members of the family.⁴

Alienation with consent. The family head has the power to participate in the alienation of family property, but this power must be exercised in consultation with the principal members of the family. Lloyd was clear in Yoruba Land Law that any dealing in family land must be conducted by the family head, and that he always sues on behalf of the family and all documents should be signed by him.⁵ But the consent of the principal members is the necessary counterpart to his participation. Without it, the alienation is at best voidable.

Enforcement of forfeiture. Customarily, it is only the family head who has the right to enforce forfeiture of the interests of members who have misbehaved, for example by attempting to alienate their allotted portion without consent or by denying the family’s title to the land. This power falls within the scope of what the cases describe as his administrative and quasi-judicial powers. See Idowu Inasa v. Sakariwu Oshodi.

Representation at community level. The family head represents the particular family unit at community meetings, village gatherings, and any occasion where the family needs a voice. He is, as Onakoya described it, the family voice at the village or community meeting.⁶

The Duties That Constrain His Powers

Power without duty is not what the customary law creates for the family head. His authority comes with serious obligations, and the courts have not been shy about enforcing them.

Duty to act for the benefit of the family. Because the family head bears a fiduciary relationship to the family property, he must act in good faith in all his dealings with it and in the interest of the family. He must neither make secret profits nor take personal advantage of his position. The clearest illustration of this duty is Foko v. Foko (1965) NMLR 3, where a family head sold family property to fund his own chieftaincy bid. The court held that he could not deal in family property for personal benefit and the purported sale was void.

Duty to obtain consent before major transactions. The court in Aralawon v. Aromire (1940) 15 NLR 90 stated this plainly: the head of the family undoubtedly has power to bind the family in routine matters, but before borrowing appreciable sums of money, disposing of, or charging family property, he must consult the senior members of the various branches of the family and get their approval, except possibly in a genuine emergency for the benefit of the family.

Duty to maintain the property. Elias summarised the management duties of the family head in Nigerian Land Law to include: the allocation and re-allocation of rooms to members of the household; general supervision of the whole compound with regard to its proper use; execution of major repairs due to fair wear and tear; and provision of accommodation within the precincts of the compound for younger members of the family.⁷

Duty not to make conflicting allocations. Once the family head has allotted a portion of family land to a member who is in occupation without breaching the terms of the grant, the family head cannot make a conflicting grant of the same land to another member. See Adewoyin v. Adeyeye (1963) 1 All NLR 5.

The Accountability Debate: An Unsettled Area of Law

Here is something most notes on this topic will not tell you directly: the question of whether the family head must render accounts to family members is genuinely unsettled in Nigerian law, and the evolution of the cases on this point is itself an examination topic.

The early position, reflected in cases like Re Hotonu and Lopez v. Lopez, was that the family head need not render a strict account to members. The reasoning offered was rooted in traditional respect for elders: asking the family head to account might amount to disrespect, and since property is not technically vested in any individual member, a member cannot strictly demand an account from someone in respect of property the member does not own.

That position was never entirely comfortable with the courts. In Kosoko v. Kosoko (1936) 13 NLR 131, the court did not foreclose the possibility of accountability where there was definite delinquency. A shift became clearer in Taiwo v. Dosunmu (1966) NMLR 94, where the court declined to accept the broad proposition that a family head should never account. Cases like Archibong v. Archibong (1947) 18 NLR 117, Aralawon v. Aromire (1940) 15 NLR 90, Osuro v. Anjorin (1946) 18 NLR 45, and Thomas v. Thomas (1932) 16 NLR 5 all support the position that the family head is accountable to members in appropriate circumstances.

The current state of the law, as the cases reveal it, appears to be this: a family head may be required to account to family members where there is a definite delinquency or misconduct in his management of family property, but the courts will not routinely require him to account as a matter of course the way a formal trustee would be required to. The exact point at which accountability can be compelled depends on the facts of each case.

For students, the practical lesson is this: never state in an examination answer that the family head is never accountable, because that is no longer an accurate reflection of the law. The safer and more accurate position is to acknowledge that accountability is context-dependent and that the courts have shown increasing willingness to hold family heads to account where the evidence supports it.

Removal of the Family Head: When the Power Goes Too Far

The customary law does not leave families helpless when a family head abuses his position. The court in Agara v. Agunbiade (2013) All FWLR pt. 683 confirmed the principle clearly: where the family finds the head thereof misappropriating the family possession or property and squandering them, the legal remedies available include instituting an action to render accounts, seeking to declare void all unauthorised sales or transactions, and in appropriate cases, removing the family head and appointing another person acceptable to the family.

Removal of a family head was largely unknown in ancient times. It became more recognised as the legal system developed and courts became more willing to supervise the conduct of those in fiduciary positions. The family can also, by unanimous resolution, decide for good cause who should be the family head, including replacing someone who has proven unfit. See the discussion in Onakoya’s Family Head Versus Family Members.⁸

This checks-and-balances dimension of the law is something that student notes frequently underplay. The family head’s enormous discretionary powers exist within a system that is designed, at least in theory, to hold him accountable to the people he manages those powers for.

The Constitutional Tension: Gender and the Right to Be Family Head

This is the angle that nobody writing for Nigerian law students has addressed clearly, and it is one that any student dealing with this topic at an advanced level needs to be aware of.

The customary rule in most Yoruba communities is that the family head should be the eldest surviving male child of the deceased founder, known as the Dawodu. Female members of the family are generally excluded from the headship unless there are no suitable male members and the senior female is influential enough to be elected. See Lewis v. Bankole (1909) 1 NLR 81 and Rebecca Taiwo v. Sarumi (1913) 2 NLR 103.

This male-preference rule sits in direct tension with section 42(1) of the Constitution of the Federal Republic of Nigeria 1999, which guarantees that no citizen shall be subjected to any disability or restriction to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject. Section 42(2) further provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

The courts have not yet fully resolved this tension in the context of family headship specifically. What the cases have done is recognise that customary law rules that are repugnant to natural justice, equity, and good conscience are unenforceable. The question of whether the male-preference rule for family headship crosses that threshold has not been definitively decided by the Supreme Court.

What is clear from the cases, however, is that the courts have shown increasing flexibility. In Ricardo v. Abal (1926) 7 NLR 58, the court noted that the eldest female child retains priority of choice in the event of a partition of family property. In Amusan v. Olawunmi, the Court of Appeal held that both male and female children have inheritance rights under Yoruba customary law and that denying a daughter’s successors their rights was wrong. These developments suggest a gradual judicial movement toward greater gender equality in the application of customary land law.

For examination purposes, the safest approach when this issue arises in a problem or essay question is to state the traditional customary rule, identify the constitutional provision that creates tension with it, note that the courts have not definitively resolved the conflict in the specific context of family headship, and argue for the position most consistent with constitutional values and the direction in which the cases appear to be moving.

How the Family Head Is Appointed

The most common route is automatic succession by operation of customary law. In Lewis v. Bankole (supra), the court held that on the death of the founder, the Dawodu (eldest surviving son) succeeds to the headship automatically and without ceremony. When the Dawodu dies, the eldest surviving child of the founder, whether male or female, comes next under Lagos native law, though the position varies across Yoruba communities.

Beyond automatic succession, a family head may also be appointed by:

A will made by the deceased founder, naming his preferred successor. This became more common after testamentary law was introduced through British contact. Such appointments are almost always respected by the courts. See Sogbesan v. Adebiyi (1941) 16 NLR 26.

Election by the family members, which typically happens when the headship is vacant and no automatic succession applies, or where the sitting head has been removed. In Inyang v. Ita (1929) 9 NLR 84, the court confirmed that the family has the discretion to choose any member to be head through election.

Nomination on the deathbed of the outgoing family head. See Ajoke v. Olateju (1962) LLR 32 and Balogun v. Balogun (1934) 2 WACA 290.

The founder of the family has an essentially unfettered discretion to appoint whoever he wishes as his successor, including a stranger if he so chooses. See Sogbesan v. Adebiyi (supra). The courts will generally respect such appointments.

Common Examination Mistakes on This Topic

Students consistently lose marks in predictable ways when answering questions about the family head.

The first mistake is describing him as the owner of the family land. He manages it. He does not own it. That distinction is fundamental.

The second mistake is treating the trustee analogy as accurate without qualification. The courts use the word trustee loosely. The technical position is that the family head is not a trustee in the English law sense because he holds no legal title. Always qualify the analogy when you use it.

The third mistake is stating categorically that the family head is not accountable to family members. The old cases said that. The more recent cases have moved away from it. The accurate position is that accountability depends on the circumstances and that definite misconduct can attract an obligation to account.

The fourth mistake is ignoring the constitutional dimension when an essay question asks you to “critically examine” or “discuss” the position of the family head. Section 42 of the 1999 Constitution is a relevant authority. Using it shows that you understand that customary law does not operate in isolation from the constitutional framework.

Quick Reference Table

Key Cases for This Topic

Akano v. Ajuwon (1982) 11 SC 1 — Supreme Court describes the family head as a manager, not an owner.

Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399 — Privy Council clarifies that the family head is sometimes loosely called the owner but holds the land in a trustee-like capacity.

Foko v. Foko (1965) NMLR 3 — family head cannot use family land for personal benefit; such a transaction is void.

Aralawon v. Aromire (1940) 15 NLR 90 — family head must consult senior members before major transactions.

Sapo v. Sunmonu (2010) All FWLR Pt. 531 — family head can protect family property without prior authority of other members.

Taiwo v. Dosunmu (1966) NMLR 94 — the court declined to accept that a family head should never account to members.

Agara v. Agunbiade (2013) All FWLR pt. 683 — confirms remedies available against a family head who mismanages, including removal.

Lewis v. Bankole (1909) 1 NLR 81 — establishes how the family head is appointed and who qualifies.

Sogbesan v. Adebiyi (1941) 16 NLR 26 — founder can appoint successor by will, even a stranger.

Inyang v. Ita (1929) 9 NLR 84 — family can choose any member as head through election.

Adagun v. Fagbola (1932) 11 NLR 110 — allocation by family head to member does not confer ownership.

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Footnotes

¹ See L.T.C. v. Soule (1939) 15 NLR 22 at 24 (representative); Ruttermern v. Ruttermern (1937) 3 WACA 178 at 180 (caretaker); Akande v. Akande (1967) 1 All NLR 102 at 105 (fiduciary); Akano v. Ajuwon (1982) 11 SC 1 at 72 (manager).

² A.A. Utuama, Nigerian Law of Real Property (Shaneson C.I. Ltd, Ibadan, 1989) p. 14.

³ G.B.A. Coker, Family Property Among the Yorubas (2nd ed., Sweet and Maxwell, London, 1958) p. 135.

⁴ See also Sogunle v. Akerele (1967) NMLR 58; Animashaun v. Osuma (1972) 4 SC 200.

⁵ P.C. Lloyd, Yoruba Land Law (Oxford University Press, London, 1962) p. 83.

⁶ O. Onakoya, ‘Family Head Versus Family Members: Legal Issues in Management of Family Land Under Yoruba Customary Law’ (2015) 39 Journal of Law, Policy and Globalization 219, 222.

⁷ T.O. Elias, Nigerian Land Law (4th ed.) p. 113.

⁸ Onakoya (n 6) 232.

For a full understanding of how family property is created and what rights members hold within it, see our note on Family Property in Nigerian Customary Law: Ownership, Control, and Legal Status. For the rules on when a sale of family land is void, voidable, or valid, see our note on Alienation of Family Land in Nigeria: Analysing Valid, Void, and Voidable Sales. For a broader understanding of how customary law sits within the Nigerian legal system, see our note on Sources of Law in Nigeria.