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A Holistic Appraisal Of The Concept Of Trust Under The Nigerian Jurisprudence

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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.

TABLEOFCONTENT

CERTIFICATION     

 ABSTRACT

 DEDICATION

 ACKNOWLEDGEMENT

 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

 1.0.1: CONCLUSION

CHAPTER 2

THE CONCEPT OF TRUST UNDER THE  NIGERIAN LEGAL SYSTEM

 2.0.0:  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 REPRESENTATIVE

 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

 2.1.3  TRUST OF PERFECT AND IMPERFECT OBLIGATIONS

 2.1.4  EXECUTED AND EXECUTORY TRUST

2.0.5: CREATION OF TRUST

 2.0.6: CAPACITY TO CREATE A TRUST

 2.0.7: INFANTS AND MINORS

 2.0.8: 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

CHATER 3

 EXAMINATION OF THE DUTIES AND POWERS OF THE TRUSTEES

3.0.0: INTRODUCTION

 3.1.0: ANALYSIS OF DUTY AS A CONCEPT

3.2.0: GENERAL DUTIES

(A)    DUTY TO COLLECT AND SAFEGUARD THE ASSETS OF THE TRUST

(B)    DUTY TO INVEST

(C)    DUTY TO DISTRIBUTE

(D)    DUTY TO MAINTAIN EQUALITY BETWEEN THE BENEFICIARIES

  1. The Duty to Convert
  1. Apportionment

(E)    DUTY TO PROVIDE ACCOUNTS AND INFORMATION

  1. Accounts
  1. Information

3.3.0: FIDUCIARY DUTIES

(A)    DUTY TO ACT GRATUITOUSLY: Remuneration and Reinbursement

  1. Authority in Trust Instrument
  1. Authorization by Statute

iii.   Authorization by the Court

  1. Agreement with the Beneficiaries
  1. The Rule in Craddock v. Piper

Located

  1. Authority by Law of Foreign Country where Trust Property is

(B)   DUTY NOT TO PURCHASE TRUST PROPERTY

  1. Purchase of Trust Property
  1. Purchase of Beneficiaries Interest

(C)    DUTY NOT TO MAKE INCIDENTAL PROFITS FROM THE TRUST

3.4.1  ANALYSISOFPOWERASACONCEPT

(A)    POWER TO DELEGATE

(B)    POWER OF SALE

(C)    POWER TO INSURE

(D)THE POWER OF MAINTENANCE AND ADVANCEMENT

3.5.0: CONCLUSION

CHAPTER 4

BREACH TRUST AND ITS REMEDIES

 

          4.0.0:  INTRODUCTION

4.1.0: LIAB ILITY FOR BREACH OF TRUST

(A)    LIABILITY IS PERSONAL

(B)    MEASURE OF LIABILITY

(C)    LIABILITY FOR ACTS OF CO-TRUSTEES

  1. Contribution
  1. Indemnity

 4.2.1  REMEDIES FOR BREACH OF TRUST

  1. PERSONAL REMEDIES
  2. Damages to Compensate Loss
  1. Compelling the Performance of the Trust

iii.   Prevention of Breach

  1. TRACING
  1. Tracing at Common Law
  1. Tracing at Equity

PROPERTY THAT CAN BE TRACED

  1. Legal or Equitable Proprietary Interest
  2. Identity of the Trust Fund or Property: Mixture with other funds

(i) In the hands of trustees

(ii) In the hands of another beneficiary

(iii) In the hands of third parties

4.3.0: CONCLUSION

 CHAPTER 5

CONCLUSION AND RECOMMENDATION

5.0.0: CONCLUSION

5.0.1:  RECOMMENDATIONS

 

CHAPTER 1

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

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 1st 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 sutransaction 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, 3Viscount 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

Themethodofapproachthatwould beemployedinthiswrite-upwillbebasedmainlyontheuseofsecondarydata.Thesecondarydatawillincludetextbookswrittenbyrenownedauthorsandscholarswhobytheir wideknowledgeandgraspofthesubjectandotherancillarylegalpreceptsareexpertsinthefield.Localstatutesaswellasjudicial

decisions of Nigerian courts on the subject of trust will be examined so as to give it a Nigerian perspective notwithstanding its foreign origin.

1.6.0: LITERATURE REVIEW

J.O Fabunmi in his work Equity and trust in Nigeria, 1986, 1st Edition, O.A.U Press Ltd. Ile Ife Nigeria, page 137 opined that many authors4  have attempted what a trust is with little success. Perhaps the most successful definition was that given by professor Keeton. He defined trust as follows: “a trust is a relationship which arises where a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuique trust) or for some objects permitted by law, in such a way that the real benefits of the property accrues not to the trustee but to the beneficiaries


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