Table of Contents TABLE OF CASES 2 ABSTRACT 3 INTRODUCTION 4 MANAGEMENT OF FAMILY PROPERTY 4 WHO IS THE FAMILY HEAD? 5 WHO IS A TRUSTEE IN STRICTU SENSU? 6 TRUSTEE RELATIONSHIP VIS-À-VIS FAMILY HEAD RELATIONSHIP 7 THE CATEGORIZING OF THE FAMILY HEAD AS A TRUSTEE: A MERE ILLUSION? 11 CONCLUSION 13 RECOMMENDATIONS 14 BIBLIOGRAPHY 15 BOOKS 15 JOURNAL 15 WEBSITE AND BLOGS Error! Bookmark not defined. TABLE OF CASES Adagun V Fagbola & Ors 11 NLR 110. Akande V. Akanbi(1966) NBJ, 86. Akano V Ajuwon(1967) NMLR 7 Amodu Tijani V. Secretary Southern Nigeria (1921) AC 399 Aralawon V Aromire 15 NLR 90. Archibong V Archibong (1947) NLR 117 Balogun V Balogun (1943) 9 WACA 78. Bassey V. Cobhams 5 NLR 92 Inasa V. Oshodi 11 NLR 10 Lewis V. Bankole (1908) 1 NLR 81 Onasanya V. Shiwoniku (1950) WNLR 166. Oshodi V. Aremu (1952) 14 WACA 83. Re Hotonou 1 JAL 89 Solomon & Ors V. Mogaji(1982) 11 SC 1 Taiwo V Dosunmu(1966) NMLR 94 ABSTRACT “The family has one head in whom is vested the control of the estate. The head is generally a man, but in some cases, a woman. The head of the family holds that part of the estate which is not his property in trust for the younger members.” It is believed that the role of the head of the family is quite coterminous with the role of a trustee under the English law so it is apt to categorize the family head as a trustee. However, the other school of thought have opined that the term, “trustee” goes beyond duties and includes so much more. Thus, categorizing the family head as a trustee because they are both fiduciary relationships that share some duties is nothing short of fallacious. Finally, there is another school of thought who have deemed the whole concept of this categorization laughable as they have opined that this not be an issue as a family head may be regarded as a trustee in his powers in so far as he is expected to exercise not to his own benefit but for the benefit of others. This school of thought are of the opinion that it’s not only under the English law that the concept of trust exists. They further accept that the family head is not a trustee in strictu sensu. This work seeks to analyze these school of thoughts and give a clearer view on the nexus between a trust relationship and that of a family head. INTRODUCTION “…Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land but in every case the chief or headman of the village or community or head of the family has charge of the land and in loose mode of speech is sometimes called the trustee Amodu Tijani v. secretary southern Nigeria (1921) AC 399.” Individual ownership is a concept that is so foreign to the customary land tenure system in our locale, as land belongs to the community or to the family unit. Owing to the fact that that land is vested in the family as a corporate unit, it is almost impossible for all the family members to be in control of the family land Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 67.. Thus, the position of family head was developed to act as a proper administrative buffer to the complexities surrounding customary land tenure system, which vests ownership of land either in the community or its subunit, the family. The control and management of the family land is vested in the family head ibid. There have been legal arguments as to whether a family head can be referred to as a trustee. Judges have also tried to explain this concept of classifying the family head as a trustee. MANAGEMENT OF FAMILY PROPERTY The customary land tenure system vests the power of management and control of the family land in the family head Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 75. . The family head also has the principal members ibid to act as a check on him, to prevent him from acting ultra vires. The principal members of the family formed from the branches existing in the family. The appointment of the principal members varies according to each family type. Usually, in a polygamous family, the first child begotten by each wife becomes a principal member whereas in a monogamous family, each child becomes a principal member ibid . Under customary law, children ae the direct offshoot of the founder. The family head and principal members must work hand in hand especially in cases of alienation of family property. For a property to be properly alienated, there must be a concurrence of the vendors (which consists of the family head and principal members). A sale carried out by only the principal members is void and a sale carried out by only the family head is voidable. WHO IS THE FAMILY HEAD? The family head could be the first child as seen in Lewis v. Bankole. (1908) 1 NLR 81 The family head could either be a male or a female in some parts of the country. It is also imperative to note that sometimes the family head could be appointed by the dying predecessor or even the members of the family could even appoint him. Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) P The family head is the manager of the property as held in Akano v. Ajuwon. (1982) 11 SC 1 at p. 72 The Supreme Court reaffirmed the description in Solomon & Ors. v. Mogaji (1982) 11 SC 1. He is the voice of the family at events or gatherings. He personifies the family. The family head wields enormous powers and also has huge responsibilities. The general rule is that when a family head is appointed, he assumes full control of the family land. But his control is devoid of ownership, it’s only the day to day management of the property that is vested in him. It is his responsibility to preserve the property and keep it in a good state. There have been legal arguments as to whether the family head is a trustee in strictee or whether he is only to an extent, a trustee. In Bassey v Cobham, (1924) 5 NLR 90 the learned judge stated that the family head is a trustee. Also, in Amodu Tijani v secretary southern Nigeria (1921) AC 399., viscount Heldane explained that, the family head is to an extent a trustee. The head of the family is in charge and control of the family property Adamu Usman, The Law And Practice Of Equity And Trust,(faith international printers, 2012)p 175. He collects the revenue of family property and he has to make certain disbursements out of family revenue for family purposes; for the upkeep of the family property, funeral, marriage and ceremonial expenses of the members of the family, education of the children, etc. The head of the family has very considerable and numerous duties to perform varying in degree; of course, depending on the wealth of the family Balogun v Balogun (1943) 9 WACA 78.. He is also expected to act in accordance with the customary laws Olugbemi Fatula, Fundamentals Of Nigerian Real Property Law,( Afribic press, 20112) p 150.. WHO IS A TRUSTEE IN STRICTU SENSU? A trust relationship is a relationship in which a settlor gives the trustee a property to hold for the benefit of a third party called the beneficiary. A Trustee owes a duty of honesty, integrity, loyalty and good faith to the beneficiaries of the trust J.O Fabunmi, Equity and Trusts in Nigeria, (University of Ife Press Ltd 1986) .  Trustees are the legal owners of the trust's property, but have a fiduciary duty to beneficiaries and various duties, such as a duty of care and a duty to account ibid. The following are the duties of a trustee: Duty of investment. J.O Fabunmi, Equity and Trusts in Nigeria, ( University of ife press ltd 1986) p 194. Duty of impartiality Duty not to gain profit from the trust property Duty to distribute the property evenly Duty to administer the trust property by its terms Fiduciary matters subcommittee, ‘what it means to be a trustee’ (2005) Actec journal <https://joneskuriloffsargentlaw.com/wp-content/uploads/2014/01/What_it_Means_to_be_a_Trustee.pdf> accessed 5 November 2018 Duty of care and skill J.O Fabunmi, Equity and Trusts in Nigeria, ( University of ife press ltd 1986) Duty to give notice Duty of loyalty Duty not to delegate Duty to segregate the property ibid TRUSTEE RELATIONSHIP VIS-À-VIS FAMILY HEAD RELATIONSHIP As stated in the introduction, different scholars have given their different opinions on whether a family head can be classified as a trustee or not. Some have agreed because they believe that the two positions are so similar and it would fool hardy not to look at them conterminously. The family head is appointed by the settlor who is the founder or the predecessor. He is given a trust property which is the family property to hold in trust for the beneficiaries (the other members of the family). This relationship between the family head, the predecessor or founder and the individual members of the family is very similar to the trustee relationship. The head of the family takes up the position of a trustee in some aspects. The family head is expected to act in good faith just like a trustee under English law. The family head is not expected to act recklessly and in Inasa v. Oshodi 11 NLR 10, the learned judge frowned at such misconduct. The family head is the only one usually called upon in any matter involving the land or property in question. The family head is the voice of the family. So also, is the trustee the voice of the settlor and beneficiary. Christian Egwuogu, ’The Concept Of Trust In Nigeria Customary Land Tenure System’, (legal stand, 17 April 2015)< https://legalstand.blogspot.com/2015/04/the-concept-of-trust-in-nigerian.html?showComment=1541485126752#c1544393676074117654> accessed 5 November 2018 The family head is also the only individual in the family entitled to take or defend actions involving the property. Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 69. The individual members could do so if the family head has neglected to do so upon their own requests. This means that primarily, the duty lies within the jurisdiction of the family. Accountability is quite synonymous to the status of trusteeship. The family head has the duty to make accounts. He is accountable to the members of the family especially when it comes to the rent and profits derived from the family property. Uzor Macfin, ‘The Concept Of Family Property Under Customary Law In Nigeria’ (Uzormacfin’s blog, September 10 2016) <https://uzormacfins.wordpress.com/2016/09/10/the-concept-of-family-property-under-customary-law-in-nigeria/ > accessed on 5 November 2018. Somolu J. in giving his judgment in Akande v. Akanbi (1966) NBJ, 86. stated that the duty to account by the family head is as high as the duty to account by the trustee. He further explained that failure to impose the duty to account on the family head would lead to fraud and negligence. Just like the trustee, he is the only one authorized to allot family land to family members and strangers. He also has the power to state the conditions under which the allotments are made. Adagun v fagbola & ors 11 NLR 110. He is expected to act impartially in the distribution of the assets. The duties of the family head are quite coterminous with the duties of a trustee under English law as both relationships are fiduciary in nature. Ekow Daniels, ‘Some Principles Of The Law Of Trust In West Africa’ (1962)6 journal of African law <https://www.jstor.org/stable/744556?newaccount=true&read-now=1&seq=5#page_scan_tab_contents> accessed on 5 november 2018. Though the obligations of the trustee are not as high as the obligations of the trustee under English law Archibong v Archibong (1947) NLR 117. The other school of thought are those who believe that the family head should not categorized as a trustee because for two positions to be synonymous, they must be so coterminous that it would be difficult to state a difference between the two positions. The mode of appointment of a trustee is different from how a family head is appointed in some cases. There have been instances where the members of the family appointed the family head probably because of his character or affluence whereas in a trust relationship, the trustee is strictly appointed by the settlor. Scholars who have argued that a family head is a trustee explained that the family head and the trustee both have the duty to account. Before the decision in Taiwo v. Dosunmu (1966) NMLR 94, the principle of non-accountability was upheld. In the case of Re hotonou 1 JAL 89, the learned juge stated that the family member was not liable to render a strict account. However the case of Taiwo changed the scenery of accountability. It is not far-fetched to state that the principle of lack of accountability in family head relationship was a key differentiating factor between it and a trust relationship although that position of law has been changed. In a trust relationship, the legal estate is vested in the trustee whereas the legal estate is not vested in the family head. The learned judge in Solomon & ors v Mogaji Adewale Taiwo, The Nigerian land law( Princeton & associates publishing co ltd, 2016)p 175. Explained that he may look like the owner but ownership is not vested in him. In his case, the family head presented a family property as his own, the court held that the sale is void not voidable. The family head becomes the caretaker of the property though the legal estate is not vested in him Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 69. . A trustee is not personally liable for debts proved by him to be incurred on behalf pf the trust property while the head of family has to seek the consent of the family before embarking upon the expenditure of money. Ibid A popular case dealing with this is Aralawon v. Aromire 15 NLR 90.. In this case, the family head, was sued both personally and in his representative capacity for moneys borrowed whIle he was acting as the family head. The learned judge gave trial against him in his personal capacity though there was proof that the money was actually used in the rebuilding of family property and also for the payment of the costs of the law suit. A trustee also has more powers compared to the family head who has the principal members to act as a check on him. Thus, the trustee can validly alienate a trust property though he would be liable for a breach in trust while a transaction made by the family head without the concurrence of the principal members would be voidable Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 69. except in the following cases: Where the family head made a gift of the land without the requisite consent. The fact that the gift was made to a member of the family is immaterial. Oshodi v. Aremu (1952) 14 WACA 83. Where the family head partitioned the land without the consent of the principal members. Onasanya v. shiwoniku (1950) WNLR 166. Where the family head conveyed family property as his own. Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 69. In the following instances, such transaction would be void. THE CATEGORIZING OF THE FAMILY HEAD AS A TRUSTEE: A MERE ILLUSION? Different scholars and authors have opined that the categorizing of family head as a trustee is an illusion. This opinion, according to the writer of this paper is sound and reasonable as it is erroneous to accept that a position can be synonymous to another position because their duties are quite coterminous. So many other factors have to be put into consideration. The decision in Amodu Tijani v secretary southern Nigeria sheds more light and it goes thus: He is to an extent a trustee and as such holds land and as such holds the land for the use…… the family. (1921) AC 399 An analysis of this decision shows that the family head could be a trustee but not in strictu sense as under the English law, a person cannot be half a trustee. Having considered the two sides of the coin, the writer of this paper would like to submit in her humble opinion that there is indeed an illusion of categorizing the family head as a trustee. The writer of this paper further affirms that though the duties of both parties are quite similar, other factors which have been discussed earlier in the paper prevent the categorizing of the family head as a trustee. The writer is of the opinion that if at all a family head should be categorized as a trustee, it should be in the literal sense of a person having trust in another person to protect a property he has kept for his loved one. The writer joins the school of thought of I.O Smith which is of the opinion that it is apt to say that the family head may be regarded as a trustee of his powers in so far as he is expected to exercise his powers not to his own advantage but for the benefit of the family. Imran Oluwole Smith, Practical Approach To Law Of Real Property In Nigeria (Ecowatch publications Nigeria limited 2013) 69. It is hereby submitted that although these two positions are similar, they are not so similar to the extent that trustee could be substituted with family head. The categorizing of the family head is an illusion, it is misleading as one of the major features of a trust relationship is the vesting of the legal estate in the trustee. CONCLUSION From the foregoing analysis, it could be inferred that the two positions of trustee and family head may coincide in some of their duties. However, it should not be construed to mean that the term, “trustee” can be substituted with the term, “family head”. For a person to be regarded as a trustee in the strict sense, the legal estate must be vested in him and clearly the family property is not vested in the family head. Furthermore, the powers and duties of a trustee are ultimately superior to that of a family head as held in Archibong v. Archibong. The writer of this paper submits that in the literal sense, the family head can be classified as trustee but cannot be classified or categorized as a trustee in the strict sense of the English law. RECOMMENDATIONS The duty to account by family head should be enforced by the court in all cases that require that accountability should be the forte of the family head. Though Taiwo v. Dosunmu (1966) NMLR 94 has established this duty, it would be expedient for the courts to lay more emphasis on it by making and enforcing decision similar to the decision given in the Taiwo’s case. Family members should be able to institute legal action against the family head even if they do not have the full backing of the other family members especially in cases of real urgency where irreparable damage would be done against him. Nevertheless, this would expose the family head to vexatious litigation, it also helps in the upholding of natural justice. Also, the family head should be allowed to embark on expenditure as long as it relates to the family property without the initial consent of the family members because there are some times where the family head would have to make decisions on the spot. The land use act should be amended to accommodate more customary land law matters. BIBLIOGRAPHY BOOKS Law of Landlord and tenants by emeka chianu JOURNAL Afe babalola university journal of sustainable development law and policy vol 1. Iss (2013) pp 1-20 National open university of nigeria school of law, land law 1. Acquisition of title to land by adveese possession under the Nigerian land law Limitation law, laws of lagos section 16 2003 Abhraham v. olorunfunmi (1991) NWLR (pt 165) p. 53 Linden gardens trust v. lenesta sludge disposals ltd (1994) 1 AC 85 at 107 D per lord brown-wilkinson 14