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A HOLISTIC APPRAISAL OF THE CONCEPT OF TRUST UNDER THE NIGERIAN JURISPRUDENCE

ABSTRACT

According to some authors, the meaning of trust as a legal concept is traceable to the moral connotation of the term which eventually informed its jurisprudential basis. Literally, trust means confidence reposed in others. It was this moral obligation that was eventually developed into a legal concept by the English chancery court and it became part of the Nigerian legal jurisprudence through statutory enactments, its administration regulated by established principles of equity and statutes. In medieval times, trust was widely employed as a means of transferring estates from one person to another for the benefit of a third party. The transferor is variously known as settlor, feoffor or testator, while the person (or persons) for whom the trust is created is called feofee or beneficiary. In the same vein, the person in whose care the settlor entrusts the estate is known as the trustee. It is instructive to note that the office of the trustee is very vital for the smooth administration of the trust. This is so because the estate is vested in the trustee who holds such property in accordance with the terms of the trust for the benefit of the beneficiary. A person may be expressly appointed trustee by an instrument or through some other means recognized by law. The equitable principle that “equity does not want for a trustee” is to the effect that considerable importance is attached to the office of a trustee in the trust administration. Even in situations where the instrument fails to appoint one, a trustee can be appointed by the court or through statutory powers.

This long essay seeks to examine the powers of a trustee vis-a-vis its operational regime under the Nigerian legal system. As a general rule a trustee must be capable of holding and disposing of property in his capacity. He must be competent to deal with the estate as required by the trust instrument for the beneficiary’s benefit. He must not be under any disability by nature or by law. He must be amenable to the jurisdiction of the court and be capable of the business. He must disclose any situation which might result in a conflict between his personal interest and his job as a trustee. A trustee must ascertain the validity of his appointment and understand the terms and nature of the trust.

In our clime, experience has shown that in the course of carrying out their assignments, trustees have come up against a lot of challenges and limitations despite statutory provisions relating to the exercise of their powers. Some of these challenges have to do with our customary and religious beliefs which result many a time in unending litigations.

Essentially, this essay will discourse trust holistically. In pursuance of this objective, this work will be divided into five chapters. Chapter one will deal with the general introduction to the topic which will include the historical evolution of trust and its reception into the Nigerian legal jurisprudence. Aims and objectives, importance of study, scope of study, research methodology, and literature review as well as meaning of trust and parties to a trust will be discoursed in this chapter. Chapter two will examine the relationship between trust and other legal concepts, classification, capacity, and the essentials of trust will be discoursed. Chapter three will focus on the seemingly simple but complex duties and powers of trustees. Chapter four will deal with remedies for breach of trust and liabilities. In closing, chapter five of this long essay will make recommendations, suggestions and propositions on how to improve the administration of trust in Nigeria.

TABLE OF CONTENTS

TABLE OF CASES

TABLE OF STATUTES

TABLE OF CONTENTS

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

1.1.0: BACKGROUND TO STUDY

1.2.0: OBJECTIVES OF STUDY

1.3.0: FOCUS OF STUDY

1.4.0: SCOPE OF STUDY

1.5.0: METHODOLOGY

1.6.0: LITERATURE REVIEW

1.7.0: MEANING OF TRUST

1.8.0: PARTIES TO A TRUST

1.9.0: APPOINTMENT OF TRUSTEES

0.1: CONCLUSION

CHAPTER 2

THE CONCEPT OF TRUST UNDER THE NIGERIAN LEGAL SYSTEM

0.0: INTRODUCTION

2.1.0: TRUST AND OTHER LEGAL RELATIONSHIPS

2.2.0: TRUST AND CONTRACT

2.3.0: TRUST AND BAILMENT

2.4.0: TRUST AND THE OFFICE OF PERSONAL REPRESENTATIVES

2.5.0: TRUST AND AGENCY

2.6.0: CLASSIFICATION OF TRUSTS

2.7.0: PRIVATE AND PUBLIC TRUST

2.8.0: EXPRESS AND IMPLIED TRUST

2.9.0: COMPLETELY AND INCOMPLETELY CONSTITUTED TRUST

2.0.1: RESULTING TRUSTS

2.0.2: CONSTRUCTIVE TRUSTS

2.0.3: TRUST OF PERFECT AND IMPERFECT OBLIGATIONS

2.0.4: EXECUTED AND EXECUTORY TRUST

2.0.5: CREATION OF TRUST

2.0.6: CAPACITY TO CREATE A TRUST

2.0.7: INFANTS AND MINORS

0.8: PERONS SUFFERING FROM MENTALINCAPACITY

3.2.0.9: MARRIED WOMEN

2.0.0.1: CORPORATE BODIES

2.0.0.2: ESSENTIALS OF TRUSTS

2.0.0.3: CERTAINTY OF WORDS

2.0.0.4: CERTAINTY OF SUBJECT MATTER

2.0.0.5: CERTAINTY OF OBJECT

2.0.0.6: EFFECT OF UNCERTAINTY

2.0.0.7: CONCLUSION

CHAPTER 3

EXAMINATION OF THE DUTIES AND POWERS OF THE TRUSTEES

0.0: INTRODUCTION

3.1.0: ANALYSIS OF DUTY AS A CONCEPT

3.2.0: GENERAL DUTIES

DUTY TO COLLECT AND SAFEGUARD THE ASSETS OF THE TRUST
DUTY TO INVEST
DUTY TO DISTRIBUTE
DUTY TO MAINTAIN EQUALITY BETWEEN THE BENEFICIARIES i. The Duty to Convert ii. Apportionment
DUTY TO PROVIDE ACCOUNTS AND INFORMATION i. Accounts ii. Information

3.3.0: FIDUCIARY DUTIES

DUTY TO ACT GRATUITOUSLY: Remuneration and Reinbursement
- Authority in Trust Instrument ii. Authorization by Statute iii. Authorization by the Court iv. Agreement with the Beneficiaries
- The Rule in Craddock v. Piper
- Authority by Law of Foreign Country where Trust Property is Located
DUTY NOT TO PURCHASE TRUST PROPERTY
- Purchase of Trust Property ii. Purchase of Beneficiaries Interest
DUTY NOT TO MAKE INCIDENTAL PROFITS FROM THE TRUST

3.4.0: ANALYSIS OF POWER AS A CONCEPT

POWER TO DELEGATE
POWER OF SALE
POWER TO INSURE

(D)THE POWER OF MAINTENANCE AND ADVANCEMENT

5.0: CONCLUSION

CHAPTER 4

BREACH TRUST AND ITS REMEDIES

0.0: INTRODUCTION

4.1.0: LIAB ILITY FOR BREACH OF TRUST

LIABILITY IS PERSONAL
MEASURE OF LIABILITY
LIABILITY FOR ACTS OF CO-TRUSTEES

i. Contribution ii. Indemnity

4.2.0: REMEDIES FOR BREACH OF TRUST

PERSONAL REMEDIES
1. Damages to Compensate Loss ii. Compelling the Performance of the Trust iii. Prevention of Breach
TRACING
1. Tracing at Common Law ii. Tracing at Equity

PROPERTY THAT CAN BE TRACED

Legal or Equitable Proprietary Interest
Identity of the Trust Fund or Property: Mixture with other funds
In the hands of trustees
In the hands of another beneficiary
In the hands of third parties

3.0: CONCLUSION

CHAPTER 5

CONCLUSION AND RECOMMENDATION

0.0: CONCLUSION

5.0.1: RECOMMENDATIONS

TABLE OF CASES

NIGERIA

ADEMOLA v. SHODIPO (1989) N.W.L.R. at 121 329.
AMADU TIJANI v. SECRETARY SOUTHERN NIGERIA (1921)3 N.L.R

21.

FREGENE v. AWOSHIKA (1974)3 W.L.R. 64 at 68.
OKESUJI v. LAWAL (1988) 2 N.W.L.R. (pt 22) 417 at 438.

UNITED KINGDOM

ABERDEEN RAILWAY CO. v. BLAIKIE BROTHERS (1854)1 Macq. 461 at

471-473

ALLUMINIUM INDUSTRIES VAASEN B.V. v. ROMALPA ALLUMINIUM

LTD. (1976)1 WLR 676.

BOYCE v. BOYCE (1970)2 Q.B 52.
CRADDOCK v. PIPER (1850)1 Mac. & G. 664, and see (1983)46 M.L.R. 298 at p. 306(bishop and prentiss).
FOSTER v. HALE (1798) Q.B. 21.
I.R.C. v. BROADWAY COTTAGES TRUST (1974)2 A.C. 331 at 335.
KEECH v. SANFORD (1726) SelCas. T. King 61.
LEWIS v. NOBBS (1878)8 ch.d 591.
LISTER & CO. v. STUBBS (1980)45 Ch.D. 1.
LLIOYDS BANK v. DUKER (1987)1 W.L.R. 1324.
NESTLE v. NATIONAL WESTMINSTER BANK (1993) W.L.R. 1200.
PALMER v. SIMMONDS (1945)3 K.B. 42 at 45.
PROTHEROE v. PROTHEROE (1968)1 N.W.L.R. 519 (1968)32 Conv.

(N.S)220( crane) 51

RE BEARNY (1978)2 A.P. 221.
RE BROGDEN (1888)38 Ch.D. 546.
RE CITY EQUITABLE FIRE INSURANCE CO. LTD. (1925) Ch. 407 at 525
RECONSELLIS (1887)34 Ch.D. 681 at 682.
RE DIPLOCK (1970)2 A.C. 315 at 318.
RE JONES (1971)1 A.C. 107 at 105.
RE NORTHESCOTE’S WILL TRUST (1949)1 ALL E.R. 442.
RE SCOTT (1948) S.A.S.R. 193 at 196.
RE TEMPEST (1886)1 Ch. App. 485.
ROURKE v. DARBYSHIRE (1920) A.C. 581 at 619
SHAW v. TAYLOR (1930)1 K.B. 12.
SPRANGE v. BARNARD (1954)1 Q.B. 132.
THOMPSON’S TRUST IN BANKRUPTCY v. HEATON (1974) W.L.R. 605 at

525.

WRIGHT v. ATKYNS (1898)2 K.B. 335.

TABLE OF STATUTES

NIGERIA

Companies Act, 1948.
Companies and Allied Matters Act, 1990.
Family Law Reform Act, 1969.
Married Women Property Law,1959.
Property and Conveyancing Law, 1959.
Public Trustees Act, 1958.
Trustees Law, 1959.

UNITED KINGDOM

Alien’s Act, 1914. • British Nationality Act, 1948. • English Trustees Act, 1893.
Judicature Act, 1873-1875.
Married Women Property Act, 1882.
Married Women Property Act, 1893.
Married Tortfeasor Act, 1935.
Medical Act, 1959.
Trustees Act, 1893.
Wills Act, 1837.

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

The origin of the legal concept of trust in Nigeria cannot be fully discoursed without an enquiry into the antiquity and evolution of its history. Trust is a product of equity. Equity was a rule created to ameliorate the harshness and rigidity of the common law. In England equity developed separately from the common law and was administered in separate courts where the chancellors were judges. In view of this historical relationship, equity was held to be an appendage of the common law and was used to fill up the gaps- where the remedy available at common law was not sufficient to meet the justice of a particular situation. The chancellor who is the judge in the court of equity [also known as chancery court] ¹ decided each case on its merit and in accordance with conscience. His judgments were based not on precedent but on his individual sense of right and wrong. It was due to this peculiar nature of equity, that Johnseldan a notable jurist made his famed remark:

‘…equity is a roguish thing. For law (common law) we have a measure…equity is according to the conscience of him that is chancellor and as that is longer and

1 st

1 MuizBanire, The Nigerian law of trust, 2002, 1 edition, pg.2

narrower, so is equity. It is also one as if they should make the standard for the measure, a chancellor’s foot.’^{^[1]}

1.1.0: BACKGROUND TO STUDY

The reception of the English law of trust in Nigeria was not a voluntary act. It was in a manner of speaking practically forced down our throat through the received English laws which came into force on the 1^st of January 1900. It is instructive to note at this stage that prior to when the British imposed their legal regime on us, the idea of trust was not unknown to us, it had been in existence under our native and customary system. The notion of individual ownership of land for example, was foreign to our native ideas. Land was viewed as a communal property, never to the individual. All members of the community have equal rights and access to the communal land but in every case, the chief or head of the community, village or family has charge over such land and he is sometimes loosely referred to as the owner. He is in essence in the position of a trustee and as such holds the land for the common benefit of all members of the community. The implication of the foregoing is that the community or family head can validly alienate land to any person or group on their behalf. He is merely an agent through whom such transaction is to take place and he must deal with it in such a way that not only is his interest affected but those of the others. In the celebrated case of AMADU TIJANI V.

THESECRETARY OF SOUTHERN NIGERIA, ^[2]Viscount Haldane was of the opinion

that the family head does not own the family land but administers it on behalf of the

family members.

1.2.0: OBJECTIVES OF STUDY

Since trust is foreign to Nigeria, most of the English ideas about it have not yielded much to us. To this end, this essay is aimed at shedding more light on the concept of trust in the Nigerian setting, duties and powers of trustees and the ways by which these responsibilities can be carried out without impeding the interests of the beneficiaries in the estate. As a result of the research work done in this project, it was discovered that some trustees exceed the limit s of their normal powers and sometimes fail to carry out the necessary duty of care that is expected of them which in effect leads to a breach of the trust. Solutions would be proffered to this problem in this work.

In addition, experience has shown that trustees in the course of carrying out their duties have been faced with a lot of challenges and limitations. This is inspite of the statutory provisions relating to the exercise of their powers. Some of these challenges have to do with religious beliefs, customs and disagreements between beneficiaries. This essay will also examine whether the statutory powers of trustees are sufficient to surmount these challenges.

1.3.0: FOCUS OF STUDY

The reasons for the examination of this topic are not far-fetched. This work will help make an illumination on the enormity of the oversight that settlors or property owners need to exercise on the trustees. Moreso, beneficiaries would be better educated that decisions of trustees are not absolute, they can exert influence on the trustees especially after the attainment of the age of majority. In similar manner, a trustee is expected to act in good faith and exercise independent judgment, taking into consideration the intention of the testator and the interests of the beneficiary, he is not a puppet that is pulled at the end of a wire.

1.4.0: SCOPE OF STUDY

As the heading connotes, an enquiry into the idea of trust will be made, its historical evolution, its application in Nigeria vis a vis its jurisprudential basis as well as the onerous responsibility of trustees in the administration of the trust estate.

1.5.0: METHODOLOGY

The method of approach that would be employed in this write-up will be based mainly on the use of secondary data. The secondary data will include textbooks written by renowned authors and scholars who by their wide knowledge and grasp of the subject and other ancillary legal precepts are experts in the field. Local statutes as well as judicial decisions of Nigerian courts on the subject of trust will be examined so as to give it a Nigerian perspective notwithstanding its foreign origin.

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