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 CASES
- ADEMOLA v. SHODIPO (1989) N.W.L.R. at 121 329.
- AMADU TIJANI v. SECRETARY SOUTHERN NIGERIA (1921)3 N.L.R
- 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.
- 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.
- 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
- WRIGHT v. ATKYNS (1898)2 K.B. 335.
TABLE OF STATUTES
- 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.
- 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.
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 1 MuizBanire, The Nigerian law of trust, 2002, 1st edition, pg.2
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