A HOLISTIC APPRAISAL OF THE CONCEPT OF TRUST UNDER

THE NIGERIAN JURISPRUDENCE

BY
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CERTIFICATION

2
 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.

3
 TABLE OF CONTENTS

COVER PAGE…………………………………………………………………………i

CERTIFICATION PAGE……………………………………………………………...ii

ABSTRACT……………………………………………………………………………..iii

DEDICATION…………………………………………………………………………..iv

ACKNOWLEDGEMENT……………………………………………………………….v

TABLE OF CASES…………………………………………………………………vi

TABLE OF STATUTES …………………………………………………………vii

TABLE OF CONTENTS………………………………………………………...…vii

CHAPTER 1

GENERAL INTRODUCTION

4
1.0.0: INTRODUCTION……………………………………………………………….1

1.1.0: BACKGROUND TO STUDY………………………………………………… 2

1.2.0: OBJECTIVES OF STUDY…………………………………………………….4

1.3.0: FOCUS OF STUDY…………………………………………………………….5

1.4.0: SCOPE OF STUDY……………………………………………………………..5

1.5.0: METHODOLOGY………………………………………………………………5

1.6.0: LITERATURE REVIEW……………………………………………………..6

1.7.0: MEANING OF TRUST……………………………………………………….10

1.8.0: PARTIES TO A TRUST………………………………………………………12

1.9.0: APPOINTMENT OF TRUSTEES…………………………………………..15

1.0.1: CONCLUSION………………………………………………………………..19

5
CHAPTER 2

THE CONCEPT OF TRUST UNDER THE NIGERIAN LEGAL SYSTEM

2.0.0: INTRODUCTION…………………………………………………………….20

2.1.0: TRUST AND OTHER LEGAL RELATIONSHIPS……………………23

2.2.0: TRUST AND CONTRACT…………………………………………………23

2.3.0: TRUST AND BAILMENT…………………………………………………24

2.4.0: TRUST AND THE OFFICE OF PERSONAL REPRESENTATIVES…25

2.5.0: TRUST AND AGENCY………………………………………………………26

2.6.0: CLASSIFICATION OF TRUSTS……………………………………………26

2.7.0: PRIVATE AND PUBLIC TRUST…………………………………………26

2.8.0: EXPRESS AND IMPLIED TRUST………………………………………..27

6
2.9.0: COMPLETELY AND INCOMPLETELY CONSTITUTED TRUST….27

2.0.1: RESULTING TRUSTS………………………………………………………27

2.0.2: CONSTRUCTIVE TRUSTS…………………………………………………28

2.0.3: TRUST OF PERFECT AND IMPERFECT OBLIGATIONS…………29

2.0.4: EXECUTED AND EXECUTORY TRUST………………………………30

2.0.5: CREATION OF TRUST……………………………………………………30

2.0.6: CAPACITY TO CREATE A TRUST………………………………………30

2.0.7: INFANTS AND MINORS…………………………………………………31

2.0.8: PERONS SUFFERING FROM MENTALINCAPACITY…………

3.2.0.9: MARRIED WOMEN…………………………………………………………31

7
2.0.0.1: CORPORATE BODIES……………………………………………………32

2.0.0.2: ESSENTIALS OF TRUSTS…………………………………………………32

2.0.0.3: CERTAINTY OF WORDS…………………………………………………33

2.0.0.4: CERTAINTY OF SUBJECT MATTER…………………………………34

2.0.0.5: CERTAINTY OF OBJECT………………………………………………..35

2.0.0.6: EFFECT OF UNCERTAINTY……………………………………………35

2.0.0.7: CONCLUSION………………………………………………………………36

CHATER 3

EXAMINATION OF THE DUTIES AND POWERS OF THE TRUSTEES

3.0.0: INTRODUCTION……………………………………………………………37

3.1.0: ANALYSIS OF DUTY AS A CONCEPT………………………………..37

8
3.2.0: GENERAL DUTIES………………………………………………………39

(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

i. The Duty to Convert

ii. Apportionment

(E) DUTY TO PROVIDE ACCOUNTS AND INFORMATION

i. Accounts

ii. Information

3.3.0: FIDUCIARY DUTIES…………………………………………………………45

(A) DUTY TO ACT GRATUITOUSLY: Remuneration and Reinbursement

i. Authority in Trust Instrument

ii. Authorization by Statute

iii. Authorization by the Court

iv. Agreement with the Beneficiaries

v. The Rule in Craddock v. Piper

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

Located

(B) DUTY NOT TO PURCHASE TRUST PROPERTY

i. Purchase of Trust Property

ii. Purchase of Beneficiaries Interest

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

9
3.4.0: ANALYSIS OF POWER AS A CONCEPT………………………………53

(A) POWER TO DELEGATE

(B) POWER OF SALE

(C) POWER TO INSURE

(D)THE POWER OF MAINTENANCE AND ADVANCEMENT

3.5.0: CONCLUSION…………………………………………………………………56

CHAPTER 4

BREACH TRUST AND ITS REMEDIES………………………………………

4.0.0: INTRODUCTION………………………………………………………………57

4.1.0: LIAB ILITY FOR BREACH OF TRUST…………………………………….57

(A) LIABILITY IS PERSONAL

(B) MEASURE OF LIABILITY

(C) LIABILITY FOR ACTS OF CO-TRUSTEES

i. Contribution

ii. Indemnity

4.2.0: REMEDIES FOR BREACH OF TRUST…………………………………

60 A. PERSONAL REMEDIES

10
 i. Damages to Compensate Loss

ii. Compelling the Performance of the Trust

iii. Prevention of

Breach B. TRACING

i. Tracing at Common Law

ii. Tracing at Equity

PROPERTY THAT CAN BE TRACED

a. Legal or Equitable Proprietary Interest

b. 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…………………………………………………………………68

CHAPTER 5

CONCLUSION AND RECOMMENDATION

5.0.0: CONCLUSION………………………………………………………………..69

5.0.1: RECOMMENDATIONS……………………………………………………70

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 DEDICATION
This project is dedicated to Jehovah the Almighty God, the author and
finisher of all good things. It is also dedicated to Mrs. Folashade O. Dada,
my tough and loving mother, may the Good Lord continue to bless you.

12
ACKNOWLEDGEMENT

14
 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.

15
• 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.

16
 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.

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 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

1
chancery court] 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

18
 narrower, so is equity. It is also one as if they should make the standard for the

measure, a chancellor’s foot.’2

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

st
which came into force on the 1 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.

2
Kodilinye, An Introduction to equity in Nigeria, 1975, 35th Ed, pg. 2.

19
 3
THESECRETARY OF SOUTHERN NIGERIA, 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.

3
(1921)3 N.L.R 21

20
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

21
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

st
J.O Fabunmi in his work Equity and trust in Nigeria, 1986, 1 Edition, O.A.U Press
4
Ltd. Ile Ife Nigeria, page 137 opined that many authors 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

5
or other objects of the trust.”

There are certain important points arising from this definition. Firstly, it shows that there

can be a trust of equitable interest. For example, a trust is created when A’s right in a

trust fund is given to T1 and T2 on trust for B. Secondly, it is possible for both the legal

and equitable titles to be vested in one person as when he, as a trustee holds a legal

interest in trust for himself. Thirdly, some trusts may be valid eventhough they are for the

4
Hanbury’s Modern equity; 1969 p.85: Underhill, Laws of Trusts and Trustees 12
Ed. P.3 5 Keeton, Law of Trusts, 1963, p.3

22
 6
benefit of purposes. Finally, a trust is not necessarily created whenever legal

and equitable interests are separated.

st
According to D.J Bakinbinga in his book Law of Trusts in Nigeria, 1989, 1 Edition,

7
Unilorin Press Ilorin, page 18, a trust is defined as a relationship which is

recognized by equity. It arises where property is vested in a person or persons

known as trustees and these trustees are under a duty to hold for the benefit of

other persons known as cestuiquetrust (pronounced setikii trust) or beneficiaries.

The interest of the beneficiaries are normally described in the instrument creating the trust.

However, this may be implied or imposed by law. It is also worthy of note to mention that the

beneficiary’s interest is proprietary in the sense that it can be bought or sold, given away or

disposed by will. It ceases to exist where the legal estate passes to a

8
bona fide purchaser for value of the legal estate without notice of the trust.

It is important to note that the subject matter of the trust must be some form of property.

9
Normally, this takes the form of legal ownership of land or of invested funds.

However, it may be any sort of property such as land, money, chattels, equitable

interests or choses in action.

6
For example, charitable trusts and private trusts of imperfect obligations.
7 Keeton, Law of trusts (10th Ed.), for definitional problems see pp. 4-6
8 PILCHER V. RAWLINS (1872)L.R .7Ch. App. 259
9 The governors of states in Nigeria have been described as trustees in relation to the land
the hold by virtue of the Land Use Act, 1978, s.1. It is submitted that it is not the normal trust as
the beneficiaries (Nigerians) can not sue the governors to enforce the trust.

23
In the view of Olayide Adigun in his work Cases and Texts on Equity Trust and

st
Administration of Estates, 1987, 1 Edition, Ayo Sodimu Publishers Ltd. Abeokuta,

Ogun state Nigeria, page 246, he posited that in conventional English legal treatise, a

trust is “an equitable obligation binding a person (who is called the trustee) to deal with

property over which he has control (which is called trust property) for the benefit of

persons (who are called beneficiaries or cetuique trust), of whom he may himself be

10
one…” the beneficiaries may be charity, human or a definite non charitable purpose.

This apparent neutral definition of trust does not tell much about the device called “trust”

which Maitland described as “the greatest and most distinctive achievement performed

by English men in the field of jurisprudence…an institute of great elasticity and generally

11
as elastic, as general contract.”

The trust system is a very flexible device. It permits multiplicity of trustees and

functions. The trustees could be successive or concurrent. In a single trust

instrument, there can be human beneficiaries and benefits for other purposes

which are charitable. Also properties of all types – money, choses in action,

shares and real property can be the subject matter of a trust.

The trust splits ownership of property between the trustee and the cestuique trust or

beneficiary. The trustee holds the legal interest while the beneficiary holds the equitable

interest. The nature of the trustee’s interest is a right in rem, that is, the rights of an owner

10
SeeUnderhill’s Law of Trust and Trustees, 13th
Ed. P1 11 Maitland, Equity, p. 43

24
of property. The trustee can validly confer title over trust property free of the trust to a

third party. However, the third party must be a bona fide purchaser for value without

12
notice. On the other hand, the interest of the beneficiary is described as an interest in

personam. The beneficiary of a trust has a right of personal action against the person of

the trustee who has breached his trust. In the event of a transfer in breach of trust to a

bona fide purchaser, the purchaser’s interest in the trust property supercedes that of the

beneficiary. But any other transfer in breach of trust gives the beneficiary a right to trace

trust property into the hands of the volunteers and creditors of the trustee in his personal

13
capacity.

st
Muiz Banire in his book The Nigerian Law of Trusts, 2002, 1 Edition, Excel

Publishers, page 25 brought to the fore a definition given byLewin whoin turn adopted a
14
definition given by Mayo J. in RESCOTT. It was averred that “trusts refers to the duty or

aggregate accumulation of obligations that rests upon a person described as the trustee.

The responsibilities are in relation to property held by him, or under his control. He will be

compelled by a court in its equitable jurisdiction to administer that property in the manner

lawfully prescribed in the trust instrumentor where there is no specific provisions written or

oral, or to the extent that such provision is invalid or lacking, in accordance with the equitable

principles. As a consequence, the administration will be in such a manner that the

consequential benefits and advantages accrue, not to the trustee but to the

12 Cave v. Cave (1880) 15 Ch. D. 639

13 Sinclair V. Brougham (1914) A.C. 389
14 (1948) S.A.S.R 193 at 196

25
person called cestuique trust, or beneficiaries, if there be any; if not for some purpose

which the law will recognize and enforce. A trustee may be a beneficiary, in which case

the advantages will accrue in his favor to the extent of his beneficial interest”

1.7.0: MEANING OF TRUST

Under the English law, trust is placed on a prominent pedestal, it is an institution

considered unique and it has been held to be vital to human civilization. But as it

is the case with many important legal concepts, attempts by various authors at

arriving at a cogent and concise definition has recorded little success. Black

Law’s Dictionary defines trust as a right of property, real or personal held by

one party for the benefit of another. It also went further to add that trust can be

defined as an arrangement whereby property is transferred with the intention that

it shall be administered by the trustee for another’s benefit

Coke’s attempt at defining trust was summed up as the confidence reposed in

some other not issuing out of the land but a thing collateral thereto, annexed in

privities to the estate of the land and to persons touching on the land for which

the cestuique trust has no remedy by subpoena in chancery.

Maitland on his own part described trust as the greatest and most distinctive development

performed by English men in the field of jurisprudence. He also said it is an institution of

15
great elasticity and generally as elastic as general contract. In the view of SirFredrick

15
Oakley, Modern law of trust, 1994, 6th edition, pg.9

26
Underhill, it is an equitable obligation imposed upon a person who is called the trustee the

duty of dealing with property over which he has control which is called the trust property for

the benefit of persons called beneficiaries or cestuique trust of whom he may

16
himself be one and of anyone of whom may enforce the obligation.

However, the most popular definition was the one given by professor keeton where he

posited that trust is the relationship which arises whenever 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 object permitted by law in such a way that the real

benefit of the property accrues not to the trustee but to the beneficiary or other objects of

17
the trust.

The importance of trust cannot be overemphasized. The system of trust is a very flexible

contrivance which permits the multiplicity of trustees and functions. In one single trust

instrument, there may be human beneficiaries and benefits for other purposes which are

humanitarian or charitable. In addition, all kinds of properties whether real or personal,

movable or immovable can be subjects of trust. Cash, debts, shares in joint-stock

companies, debentures or other choses in action can be subject-matters of trust. The

trustees has the legal interest while the beneficiary has the equitable interest. The nature

of the trustee’s interest is a right in rem (right of an owner of the property). In other

16
Oakley ibid
17
Fabunmi ibid pg.137

27
words the trustee can validly transfer title over the trust property to a third party.

But the third party must be a purchaser for value without notice. Conversely, the

beneficiary’s interest is a right inpersonam. The beneficiary of a trust has a right

to personally sue the trustee who has breached his trust.

1.8.0: PARTIES TO A TRUST

A trust arrangement involves three principal parties namely; the settlor, the

trustee and the beneficiary.

SETTLOR; A trust can be created generally by any person who has the

capacity to dispose of an equitable interest or legal interest in an estate.

The person with the capacity to dispose is called the settlor. However, not

every person has the requisite capacity or qualification to be called a

settlor. This restriction includes infants and minors i.e persons that have

not attained the age of 18 years cannot create a trust on land or realty as

provided for by section 1(1) FAMILY LAW REFORM ACT, 1969. But in

the case of personal property, [other properties not related to land] a

settlement made by him after he attains the age of majority [18 years] is
18
binding unless repudiated within reasonable time of that date.

Also the class of persons covered under the MEDICAL ACT, 1959 cannot make a valid

disposition. Section 103(1)of the Act grants the court the jurisdiction to direct settlement

18
Oakley, ibid pg.33

28
 19
of the property of a mentally unsound person of full age. Hitherto, married women

were restricted by the rules of common law. Under the law a married woman’s

chattel belongs to her husband. But with the enactment of the MARRIED WOMEN’S

PROPERTY ACT, 1882 as amended by theMARRIED WOMENTORTFEASOR ACT,

1935, any married woman can now create a trust as if she was femesole.

TRUSTEE; a very vital party to the trust arrangement is the trustee. This is because it

is the trustee that defines how the estate would be dealt with. It is the trustee that is

required by law to administer the estate for the beneficiary’s benefit. As earlier held in

the introduction to this essay, the legal title to the res i.e. subject-matter of the trust is

vested in the trustee, but he is to deal with it in accordance with the intention of the

testator as directed by the trust instrument. A person with the requisite capacity can

be appointed trustee. One condition for such appointment is that such person must

be of full age. Under the law the age of capacity otherwise known as age of majority

is 21 years. Where the appointment is made by the court, then a beneficiary under

the trust who has attained full age can be so appointed. However a beneficiary’s

solicitor or spouse or a person

20
resident outside the court’s jurisdiction cannot be appointed.

19 Keeton and Sheridan, 10th Edition, pg.47

20 Oakley, ibid

29
By virtue of section 18 of the PROPERTY AND CONVEYANCING LAW, 1959 an infant

is not eligible to be appointed trustee in relation to any settlement. The section further

provides that such appointment will be void but without prejudice to the power to appoint

new trustees to fill the vacancy. However, the same statute makes provision to the effect

that an infant can hold property other than a legal estate in land resulting from

21
an implied or constructive trust . By section 17(3) of the above law, the conveyance of

legal estate to an infant or two or more persons jointly both or all of whom are infants on

any trust operates as a declaration of trust and does not pass any estate. A married

woman can be appointed trustee to any property. This was made possible courtesy

MARRIED WOMEN’S PROPERTY ACT,1882 which removed the restriction placed on

married women, as amended by the MARRIED WOMEN’S PROPERTY ACT, 1893.

Beneficiaries can be appointed trustees but such appointment is not desirable as there is

the possibility of conflict between the former’s interest and the latter’s duty. Corporations

can also be appointed. Such corporations must however be corporate bodies

empowered by the CAC or the court to carry on the business of trusteeship such as the

trustee department of a bank or the public trustees as empowered by the PUBLIC

22
TRUSTEES ACT, 1958 section 9.

BENEFICIARIES; the persons in whose favor the testator or donee of the power
23
applies the property are known as the beneficiaries . They include those enjoying

21
Ibid.
22
Kodilinye, ibid
23
Akinyelure, Executoip, trusteeship, bankruptcy law and accounts. 1994, 1st Edition, pg.92

30
 the benefits of the property created in their favor. It is worthy of note to state that

any person capable of holding interest in the trust property can be a beneficiary.

By way of analogy, an infant who has an equitable interest in land can be a

beneficiary of a trust involving real or personal property. Incorporated companies

under the COMPANY’S ACT, 1948 can be beneficiaries. Foreigners may also be

beneficiaries under a trust with the exception of one involving a British ship

according to the ALIEN’S ACT, 1914 and the BRITISH NATIONALITY ACT,

24
1948. Married women are also qualified to be beneficiaries.

1.9.0: APPOINTMENT OF TRUSTEES

A person cannot just by his whim assume the role of a trustee. For him to qualify

as one, he must first be appointed. The issue of appointment is very crucial in a

trust settlement. However, the following are the ways a trustee can be appointed;

by settlor

by statutes, and

by the court

Appointment by Settlor; originally, trustees are normally appointed by the settlor or

testator. However if all trustees appointed in the settlement disclaim or if all the

trustees die, the testator if still alive will hold the property as trustee. But where

24 S.M Abdulrazaq, Notes on trust, 1998. Pg.12

31
 the testator is no more and either all the trustees disclaim or die, the

personal representative of the last surviving trustee will hold the property

in trust. This is the whole essence of the maxim ‘equity never wants for a

trustee’. Where trust is created by a will, the same persons appointed

executors may as well be appointed trustees. But where this is not the

case, the executor may still be the one nominated by the trust instrument

[will] to appoint trustees. In this instance, the executor will be empowered

to appoint not as testator but as the person nominated.

Moreso, in a trustintervivos [trust created by a will] the testator may appoint himself in

25 26
the first instance. In the case of ADEMOLA V. SODIPO, it was held that a

trustee is generally appointed by the settlor or the person who erects the trust.

Appointment Made Under Statute; this is governed by theENGLISH

TRUSTEESACT, 1893 which is a Statute of General Application

operational in all the states of the federation except the defunct old

Western States of Ogun, Oyo, Ondo and Bendel which apply the

TRUSTEES LAW. Section 21 of the TRUSTEES LAW provides that new

trustees may be appointed in writing by deed:

i} by person or persons nominated in the trust instrument,

ii} by continuing trustees but if they are dead,

25
Kodiliye, (supra) pg.2
26
(1989)5 NWLR pt 121, pg.329 C.A.S

32
 iii} by the personal representative of the last surviving trustee or

iv} by the court.

The appointment of a new trustee or trustees may be made whenever a trustee is dead,

remains outside of the country for a period exceeding twelve months or desires to be

discharged, refused to act; is unfit to act or is incapable of acting or has been removed under

the power conferred in the trust instrument. In all of these cases, in the old Western States

where the TRUSTEE’S LAW is applicable, a person making the appointment may appoint

himself. Whereas under the TRUSTEES ACT of 1893, the person exercising the power

cannot appoint himself. Although, section 10 of the Act of 1893 and section 24 of the

Trustee’s Law, 1959 requires that the appointment of trustees be made by deed because in

this case the trust property is automatically vested in the new trustee and this

27
makes a separate vesting instrument unnecessay.

Appointment by the Court; the court may make an appointment by virtue

of its jurisdiction. This power of appointment is conferred by section 25 of

the TRUSTEES ACT, 1893and section 38 TRUSTEES LAW (laws of

Western Nigeria, 1959). Such powers may be exercised by the court

whenever it deems it expedient to do so. Such powers may be for the

28
appointment to or in addition to existing trustees.

27
Fabunmi (supra), pg. 182
28
Fabunmi (supra), pg. 183

33
In any such situation, there is a discretion exercisable by the court except where

exceptional circumstances justify this, the court will not be bound to consider the wishes

of the testator or the beneficiary. Particularly and without prejudice to the generality of

the provision, the court may make an order for the appointment of a new trustee where

one of the trustees has been convicted of a felony or is declared insolvent. It appears

that on the proper construction or interpretation of the above provision, the powers

conferred bysection 10(1) TRUSTEES ACT, 1893 and section 24 TRUSTEESLAW must

first be exhausted before applying to the court for it to appoint new trustees. However,

an application to the court can be made for the appointment of new trustees where for

example, the last surviving trustee dies intestate without leaving any estate so that no

grant of administration is made in respect of his property and no one else is given power

to appoint new trustees. In situations like this, the court is to exercise its discretion

judiciously within the ambit of established rules and general principles as laid down by

29
TURNER L. J. in RE-TEMPEST , which is summarized as follows:

‘1) The court will respect a settlor’s wish where these have

been made known expressly or by implication.

2) It is unlikely that an appointment will be made if the

person so appointed would have conflicting interest with

those of the beneficiaries.

29
(1886) ICH, APP, 485.

34
 3) The court will take into consideration whether the

proposed appointment will result in the promotion of the

execution of the trust or whether it may impede it.’

1.0.1: CONCLUSION

Since there is no provision in the statute to guide the court in the exercise of its powers of

appointment, the above rules as enunciated by Turner L.J. are sufficiently broad to be

applicable to the Nigerian situation. It is therefore submitted that Nigerian judges when faced

with similar problems of appointing trustees, may well adopt the above principles.

35
 CHAPTER 3

THE CONCEPT OF TRUST UNDER THE NIGERIAN LEGAL

SYSTEM

The idea of trust in relation to the Nigerian legal system cannot be fully understood

without an indepth study of its history. Though this has partially been done in the

preceeding chapter, it is suffice to say that it was merely for the purpose of analogy

as a proper study of the history of trust will provide a solid foundation with a view to

having a proper appreciation of its application under the Nigerian legal system.

2.0.0: INTRODUCTION

During the early period of the growth of the common law, there was rapid development as

new writs were created to meet new cases, and, moreover, the common law judges had a

wide discretion to do justice, particularly in the informal procedure by means of plaint or bill

(as opposed to action begun by writ), and in proceedings in the general Eyre. At first there

was little scope for a jurisdiction to remedy the defects of the common law. However, this

early rapid development ceased with the provisions of Statute of Oxford of

30
1258, and only proceeded slowly after the controversial “in consimilicasu” clause of the

th
Statute of Westminster 11 in 1285, so that it is fair to say that by the end of the 13

30
See (1931), 31 Col . L.R. 778 (T.F.T Plucknett) ; (1931), 47 L.Q.R 334 (W.S Holdsworth); (1936),
52 L.Q.R 220 (T.F.T Plucknett) ; (1937) , 46 Yale L.J. 1142 (Elizabeth Dix) ; Fifoot, History and
Sources of the Common Law pp. 66 et seq. ; Kiralfy, The Action on the Case, pp. 19 et seq.s

36
century, the common law formed a rigid system that it was unadaptable, or at least could

only be slowly adapted to meet new type of cases. Moreover, plaint without writ, for

th
reasons which were not explained apparently ceased to exist in the 14 century, and at

about the same time the general Eyre ceased to be held. Consequently, hardship

increasingly often arose because of the defects in the law, and petitions began to be brought

on this ground. In granting relief in these cases, new laws were being created and it was

these laws which became known as equity in contrast to the common law dispensed in the

common law courts. For a long time there was close consultation between the common law

judges and the chancellor as regards the type of cases in which relief should be granted.

This reduced conflicts from the point of view of personalities, and from the point of view of

principle. Conflicts between the two jurisdictions were reduced by the fact that it was a

cardinal rule of the court of chancery that equity acts in personam. Thus in the central

institution of equitable jurisdiction- the trust, the chancellor never disputed that the trustee

was never the legal owner of the trust property, but merely insisted that the trustee deal with

it accordance with the trust for the benefit of the beneficiaries. Failure to comply with the

chancellor’s decree was deemed a contempt of court, which was punishable by

imprisonment until the trustee was ready to comply with the chancellor’s order. Originally,

this procedure in personam against the person of the

31
defendant was the only process of the court of chancery for enforcing its decrees.

31
Sequestration was introduced towards the end of the 16th century and now there are various powers of
the court to make vesting orders etc, see e.g Trustees Act 1925, ss. 44 et seq. ; Judicature Act 1925 s. 47

37
 th
Nonetheless, conflicts did arise in the 16 century as the chancellor extended and

consolidated his jurisdiction. The dispute centered on injunctions issued by the chancellor

restraining parties to an action in common law either from proceeding the action at law, or,

having obtained judgment from enforcing it. The dispute finally came to a head under

James1, Coke was Chief Justice and Ellesmere Lord Chancellor. The validity or otherwise

of these injunctions would, it was recognized determine the question whether legal

supremacy was vested in the common law courts or the chancery. The matter was then

referred by James 1, the king to Bacon the Attorney-General and other counsels, and in due

course he accepted their advice that the injunctions were valid, and in 1616 accordingly

issued an order in favor of the chancery. This proved to be a final settlement of the dispute,

although it was not fully accepted by the common law lawyers until the end of the century.

From a broad point of view the settlement did not prove altogether satisfactory by reason of

the defects that emanated from the court of chancery during the

th th
latter part of the 17 and 18 century. There was massive corruption and gross abuse of

32
court processes, inadequate number of judicial personnel, too many incompetent judicial

staffs, an over elaborate system of rehearing appeals and a generally unsatisfactory

organization which led to too much over-head, delays and injustice to such extent that the

business of the court declined. After piecemeal reforms beginning with the appointment of a

new vice-chancellor in 1813, and becoming much more numerous beginning with the Whig

victory of 1830, the court of chancery finally ceased to exist as

32
The chancery became ready to issue injunctions by reason of the profits which thereby
accrued, and litigants were able to use them purely as delaying tactics.

38
a separate court as a result of a major reorganization of the whole judicial system by the

JUDICATURE ACT of 1873 to 1875. Its jurisdiction was transferred to the Supreme

Court of the Judicature, most of the jurisdictions of the first instance being assigned to

the chancery division of the High Court, though the separation of the High Court into

divisions being simply for administrative convenience, all three divisions having

jurisdiction and a duty to recognize and give effect to all equitable rights, obligations and

33
defenses.

2.1.0: TRUST AND OTHER LEGAL RELATIONSHIPS

2.2.0: TRUST AND CONTRACT

An agreement is essential to the formation of a contract; similarly, many trusts also have

34
their origin in agreement. The two relationships differ in the following respects;

(i) A trust relationship is equitable, but a contractual relationship is legal.

(ii) A trust gives virtually a right in rem; a contract gives a right in personam

(iii) While agreement is essential to the formation of a contract, it is not essential

in the formation of a trust, for the latter can be created by way of a grant

without any agreement between the trustee and the beneficiary.

33
See practice duration, (1973) 2 All ER 233; (1973) 2 WLR
627 34For example the traditional marriage settlement.

39
 (iv) Vide the rule of privity of contract, only a party to a contract can sue on it.

But a beneficiary of a trust can sue to enforce the trust even though he

is not a party to its creation.

(v) Unless a contract is under seal, it must be supported by consideration for it to

be enforceable; a beneficiary however may enforce the trust even though

he is a volunteer so long as the trust is completely constituted.

(vi) An agreement to create a trust in consideration of marriage is enforceable

by those providing the consideration and all those within the marriage

consideration namely, the husband, the wife and the children of the

marriage, whereas by the rule of privity of contract, only parties to a

contract can sue or be sued on it.

2.3.0: TRUST AND BAILMENT

A bailee is given possession of a chattel for specific purpose after which the property must

either be returned to the bailor or according to his direction. So, a bailee may be regarded as

holding upon a kind of trust. There are however striking distinctions between them. A trust

relationship is equitable, while that of bailment is legal. Only chattels may be bailed whereas

any kind of property may be subject matter of trust. A bailee does not have a general

property in the chattel bailed and can therefore not pass a good title on it

35
even to a bona fide purchaser. Whereas, a trustee on the other hand has the general

35
This is subject to the Nemodat rule.

40
property in the subject matter of the trust and he is usually the legal owner and

can transfer a perfect title on it to a bonafide purchaser.

2.4.0: TRUST AND THE OFFICE OF PERSONAL REPRESENTATIVE

Trustees and personal representatives are vested with properties which they are under

an equitable obligation to deal with for the benefit of others. Generally a personal

representative may be a trustee if the testament so make him; but in the old Western

States of Oyo, Ogun, Ondo and Bendel, he is always a trustee for the sale and

conversion of real and personal property where the deceased died intestate. In other

parts of Nigeria, most of the powers of the trustee under the TRUSTEES ACT are

exercisable by the personal representative. Indeed, section 2 of the TRUSTEES LAW

applicable in the old Western States defines a trust to include the duties incidental to the

office of personal representative. But there are important differences:

(i) The primary duty of the trustee is to hold property, while that of the

personal representative is to distribute.

(ii) At least two trustees of a trust corporation are required to give a valid

receipt of proceeds of sale of land; however, such rule does not apply

to personal representatives.

(iii) The authorities of trustees are strictly joint with regards to realty (land) but

joint and several with regards to pure personalty. The implication of the

41
 foregoing is that a personal representative can pass a good title to a

bona fide purchaser.

2.5.0: TRUST AND AGENCY

Trustees and agents are in fiduciary position and as such certain rules are common to

both of them. For example, both must not only act in good faith, but they must not make

secret profits. But there are differences, while trust relationship is equitable agency is

legal. An agent does not own his principals property though he is able to dispose of it

and pass a good title by virtue of the authority conferred on him either by his principal or

by law, whereas a trustee is the legal owner of the trust property. An agent acts in

accordance with the authority conferred on him by the principal, a trustee acts in the best

interest of the trust and he is not subject to the beneficiaries control.

2.6.0: CLASSIFICATION OF TRUST

Trust may be classified as follows:

2.7.0: PRIVATE AND PUBLIC TRUST

A private trust is a trust for the benefit of an individual or a class. Public or

charitable trust is a trust whose object is the promotion of public welfare even if it

confers benefit on individual or class. A private trust must be enforced by any of

its beneficiaries, while a public trust can be enforced by the Attorney-General.

42
2.8.0: EXPRESS AND IMPLIED TRUST

This arises where the owner of the property either declares himself a trustee of

the property for the benefit of another, or he vests the property in another person

for the benefit of yet another person. For example, A owns X piece of land and

declares himself a trustee of the latter for the benefit of B, or he conveys X piece

of land to C to hold in trust for B.

2.9.0: COMPLETELY AND INCOMPLETELY CONSTITUTED TRUST

A trust is completely constituted when the settlor or the testator has declared

himself as the trustee of the property for the benefit of the cestuique trust or has

vested the trust property in the trustees of the trust. Until the settler or testator

has done this, the trust is incompletely constituted.

2 .0.1: RESULTING TRUST

“A resulting trust in the ordinary circumstances is in one sense not really a trust at all.

Where property is settled or devised upon limitations which do not exhaust it, a resulting

36
use or trust of the unexhausted part is left in the settler or devisor.” It is not expressed but it

automatically arises where a trust is created for a purpose and there is a surplus of the

corpus after the purpose has been fulfilled. Where there is a failure of the object of the

36
Per Astbury J. in Re Llanover Settled Estates (1926) Ch. 626 @ 637.

43
trust, which may be due to various reasons, the trustees hold the trust property on a

37
resulting trust for the settlor or his estate. It also arises where in the eye of

equity the holder of the legal estate in a property holds it for the benefit of

another on the basis of a fictitional intent implied from the facts of a case. For

example, where A conveys his property to B, a volunteer, there is a presumption

that A retains the beneficial interest, and where one party provides funds for the

purpose of a property which is conveyed in the name of another, it is presumed

that the person in whose name the property is conveyed holds such property on

a resulting trust for the benefit of the party who provided the purchase money.

2.0.2: CONSTRUCTIVE TRUST

This trust arises by operation of law. The trust is imposed by equity regardless of

the intention of the owner of the property where it will be unconscionable for the

“apparent beneficial owner” or trustee to hold the property for his own benefit.

2.0.3: TRUST OF PERFECT AND IMPERFECT OBLIGATION

37
In Bhankes V. Salisbury Diocesan Council of Education Incorp. (1960) 1 Ch. 635, in 1840 T gave
property on trust for the purpose of establishing a school which was duely established and named
Studland Church of England school. By some British Acts of parliament, the legal estates of the school
vested on the defendants (the Council of Education) in 1949, the Act also repealed the trust affecting
the school and many others. In 1956, the use of the trust premises as a school ceased. Then the
plaintiffs as successors to the settlor sued the defendants claiming that the Council held the property
on trust for them. It was held inter alia that on the true constructuion of the of the deed dated 1840, the
avoidance clause since it referred to the support of the school, was not limited in time but imposed a
continuing condition, and, therefore operated whenever the property ceased to be in use as subject to
the trust permit it uses as a school and if for any reason the premises ceased to be used as school,
then a resulting trust arises in favor of the plaintiffs.

44
Trusts which have no human beneficiary or objects that can enforce them are known as

trusts of imperfect obligation. Examples of such trust are trusts for the maintenance of good

understanding between nations and preservation of independence and objectivity of

38 39
newspapers, a trust for pursuing enquiries into new alphabets etc. For such trusts to

be valid they must satisfy the requirement of perpetuity and they have been held by the

40
courts to be valid. These cases have been held to be anomalous exceptions

which should not be extended. Charitable trusts are not trusts of imperfect

obligations since they are enforceable by the Attorney-General. A perfect trust is

one which has human beneficiaries who can enforce the trust. Even here, for the

trust to be valid, the duration must be limited to the perpetuity period.

2.0.4: EXECUTED AND EXECUTORY TRUST

A trust is executed where the settler or testator has vested the trust property in the

trustees and has specified the precise interest which each beneficiary is to take. A trust

is executory where the instrument or declaration requires the execution of a further

41
instrument setting out the detailed terms of the trust. An example of this is the

marriage articles from which a formal marriage settlement is to be prepared later.

38
Re Astor’s S.T (1952) Ch. 534.
39 Re Shaw (1957) 1 WLR 729; Re Endacott (1960) Ch. 232
40 Re Dean (1899) 41 Ch.D 552, Re Hooper (1932) 1 Ch. 38; Re Thompson Public Trustee V.
Lloyd (1934) Ch. 342
41 See Parker and Mellows; The Modern Law of Trust (26th Edition)

45
2.0.5: CREATION OF TRUST

In general, equity is more concerned with the substance rather than the form,

and it therefore does not require the use of any particular form to create a trust.

Once the requirements of the three certainties are satisfied, a valid trust must be

deemed to be created.

A trust may be created orally, in writing or be implied from the conduct or the circumstances

of the case. However, as earlier noted, resulting trust and constructive trust are inferred from

the conduct or surrounding circumstances of the transaction. To create a trust in land, the

intention must be evidenced in writing, see section 7 of the STATUTE OF FRAUD 1677 and

section 78(1) of the PROPERTY AND CONVEYANCING LAW, laws of Western Nigeria,

1958 applicable to the defunct Western States of Nigeria. Where there is no evidence in

writing, the trust in land will be unenforceable, not void since the purpose of the writing is

only to manifest and prove the trust not to create it, see

42
FORSTER V. HALE . The evidence in writing may come long after the trust has

been created but must exist before the action is brought on the trust.

2.0.6: CAPACITY TO CREATE A TRUST

The capacity to create a trust is dependent on the settlor’s ability to hold or

dispose of a property. Once a person can hold or dispose of a property, he can

create a trust of his interest. The interest in a property may be legal or equitable.
42
(1798) Q.B. 21.

46
2.0.7: INFANTS AND MINORS

An infant or a minor cannot hold a legal estate in real property. He can however hold

an equitable interest in real property as well as a legal and equitable interest in

personal property. Therefore, an infant or minor can create a trust settlement in his

equitable interest in realty as well as his interest in personalty. But such settlements

remains voidable since the infant can repudiate it in his infancy or soon after his

attainment of maturity. If he does not repudiate, the settlement binds him. Where an

infant in military service creates a trust under a will, that trust will be binding.

2.0.8: PERSONS SUFFERING FROM MENTAL INCAPACITY

Mentally incapable persons cannot create a trust unless under the direction of the court.

However, in moments of lucid intervals, any trust created would be upheld if the lucid

interval is established by persons claiming under the trust. Where a settlor makes a

disposition which is clearly disproportionate and fails to understand the conflicting

43
claims on the property, the court would void the trust, see RE BEARNEY .

2.0.9: MARRIED WOMEN

44
A married woman can be a trustee of any property be it realty or personalty. The reason

being that, the restriction on married women has been removed by the MARRIED

43
(1978)2 A.P. 221.
44
Keeton, Law of Trusts, 9th Ed. (1968) p. 53

47
 45
WOMEN PROPERTY ACT 1882. This Act has been modified by the MARRIED

WOMEN PROPERTY ACT 1893 which is accepted as a statute of general application in

46
Nigeria except in the old Western States of Oyo, Ogun, Ondo and Bendel where the

47
MARRIED WOMEN PROPERTY LAW 1959 is applicable.

2.0.0.1: CORPORATE BODIES

Corporate bodies can create a trust where it is not specifically excluded by statute or its

memorandum or article of association. In Nigeria, a company has the rights of a natural

person, and therefore can in the execution of its objects do whatever a natural person

can do, see section 31(1) COMPANIES AND ALLIED MATTERS ACT, 1990.

2.0.0.2: ESSENTIAL ELEMENTS OF TRUST

Generally, equity does not require any special form for the creation of a valid trust, it is

however necessary in the case of express trust that the rules relating to the three

certainties be complied with. Thus as early as 1823, Lord Eldon observed in WRIGHT

48
V. ATKYNS, that for a trust to be valid; “first, that the words must be as certain

as the subject”. The purport of this statement is the basis for the requirement of a

valid trust, which is often designated as the three certainties:

45 See Re Dickson’s Trust (1902) W.N 104

46 Ss. 18 and 24 Married Women Property Law (cap 76), Laws of Western Nigeria, 1959 substantially
incorporated the provisions of the English Married Women Property Act, 1882 as modified by the 1893 Act
47 See Harvey, The Law and Practice of the Nigeria Wills, Probate and Succession 1963 p. 35
48
(1898) 2 K.B. 335.

48
 (a) Certainty of Words

(b) Certainty of Subject matter

(c) Certainty of Objects

2.0.0.3: CERTAINTY OF WORDS

It is trite that technical words are not required for the creation of a trust. This is

because equity looks to the intent rather than the form. The question in each

case is whether on the proper construction of the words used, the testator can be

proved to have shown a manifest intention to create a trust. The words must be

examined in each case to see whether they impose an obligation of trust on the

donee, if on the construction of the words used, it is clear that the testator intends

to create a binding duty to carry out his wishes, a trust is created.

Generally, the use of a trust is not popular among Nigerians. Nevertheless, a few

members of the community sometimes make use of the received English law of trusts. In

49
the case of SHAW V. TAYLOR, the question for determination was whether the

words which the testator used were sufficient declaration of intentions to create a

trust. The testator, in relation to property not specifically devised, directed his

trustees to use it to build a hall, “which shall be and remainfor the absolute use of

my countrymen of the Lagos community forever”. The court held that, construing

the words used as a whole, it was clear that he intended to create a trust.

49
(1930)1 K.B. 12

49
2.0.0.4: CERTAINTY OF SUBJECT MATTER

The declaration of trust must make clear the property that is to be bound by the trust. The

property must be certain and clearly identifiable otherwise the purported trust is void as

50
in PALMER V. SIMMONDS where the subject matter of the trust was the “bulk of my

51
saidresiduary estate.” Similarly, in SPRANGE V. BARNARD, a testatrix gave property

to her husband “for his use” and continued: “at his death, the remaining part of what is

left, that hedoes not want for his own wants and use, to be divided between abrother and

sisters.” It was held that there was no trust since it was uncertain what would be left at

the death of the husband. The husband took absolutely.

The beneficial interest to be taken by the beneficiaries must be certain. If it is not certain,

the interest will fail for uncertainty and the trustees will hold on a resulting trust for the

52
settlor as in BOYCE V. BOYCE where a testator devised two houses to trustees

on trust to convey one to Maria “whichever she may think proper to choose or select”

and the other to Charlotte. Maria having predeceased the testator, it was held that

Charlotte had no claim. But where the trustees are given the discretion to determine

the exact quantum of the beneficial interest, there will be no uncertainty.

Uncertainty may be cured in some cases, for example, the court may apply the maxim

“equalityis equity” and divide the property in equal shares. Further, if the settlor does not

50
(1945)3 K.B. 42.
51
(1954)1 Q.B. 132.
52
(1970)2 Q.B. 52.

50
immediately specify the beneficial interests but confers upon the trustees a

discretionary power to pay or apply the trust fund among a class of persons as

they deem fit, the uncertainty is cured. Also, if the whole of the beneficial interest

is given to one beneficiary subject to the right of other beneficiaries to an

uncertain part of it, the direction as to the uncertain part fails and leaves the

principal beneficiary entitled to the whole.

2.0.0.5: CERTAINTY OF OBJECTS

Certainty here requires that the beneficiaries must be ascertainable and the interest they

should take must be discoverable. Charitable trusts are exempted from this requirement.

An example of trust that fails for uncertainty of object is provided by I.R.C. V.

53
BROADWAY COTTAGES TRUST where the Court of Appeal held that a trust for

such members of an unascertained class as the trustees should elect was void. In

such cases, what is important is whether the class is capable of ascertainment: if the

class is capable of being ascertained the trust is valid; if not it is void for uncertainty.

It is noteworthy to mention that whilst a trust for the unascertainable objects is

void, a power exercisable in favor of an unascertained class may be valid

2.0.0.6: EFFECT OF UNCERTAINTY

53
I.R.C. v. BROADWAY COTTAGES TRUST (1972)2 A.P. 331 at 335.

51
If there is uncertainty of words, the trust fails and the donee takes beneficially. If there is

uncertainty of subject matter in relation to the trust property, the trust fails and the donee

54
takes beneficially. In RE JONES, a testator left property by will, to a wife, followed by a

direction that “such parts of my real and personal estate as she shall not have disposed

of” should be held on trust for other persons. It was held that no trust was created and

the wife took an absolute interest. However if the uncertainty is in relation to the

beneficial interest of the beneficiaries, trustees will hold on a resulting trust.

2.0.0.7: CONCLUSION

As a way of conclusion, the essential elements of a trust otherwise known as the

three certainties are sine quanon if the trust is to be valid and enforceable.

54
(1971)1 A.C. 101 at 105.

52
 CHAPTER 3

EXAMINATION OF THE DUTIES AND POWERS OF TRUSTEES

3.0.0: INTRODUCTION

In view of the onerosity of the responsibility placed on their shoulders, it is

considerably important to analytically examine these all important duties and

powers of trustees. But first let us consider the analysis of duty as a concept.

3.1.0: ANALYSIS OF DUTY AS A CONCEPT

It is noteworthy to highlight duty as a concept before making incursions into

specific duties of trustees. The Black Law’s Dictionary defines duty as a human

action which is exactly comfortable to the laws which require us to obey them. It

further defines it as a legal or moral obligation. It is an obligation imposed by law

or contract. It is also an obligation to conform to legal standards of reasonable

conduct in the light of apparent risks.

The law regulates and guides human conduct by decreeing that humans act in certain ways

through the formulation of legal duties. Any misconception of what is to be under a duty is

almost certain to result in a misunderstanding of how the law operates. There exist so many

types of duties which may be moral, legal, social or even religious. For instance, the duty to

keep one’s promise is moral, the duty to obey the laws of the land is legal,

53
moreso the duty to be hospitable to strangers is social, while the duty to adhere

to the doctrine of one’s creed is religious.

The concept of duty is emersed in great confusion in the minds of many. To conclude

that the vast majority of people including some jurists have a faulty opinion of the idea of

trust is no exaggeration. Some legal theorists and philosophers have contended that for

there to be “duty”, there must be corresponding sanctions attached to it. A particular

philosopher in the name of Benthen is one of the few proponents of the sanction theory

of duty. However, this sanction theory has been criticized on the premise that it is

tantamount to placing the cart before the horse. Attaching sanctions to the failure to act

in a certain way will only be justified if such failure constitutes a breach of duty.

The duties of trustees are extremely onerous implying that they have to be performed

55
with utmost diligence, otherwise, they will be liable for breach of trust. In the

determination of the standard of care owed by trustees, a distinction is often drawn

between duties and discretion. The rule is that in discharging his duties, a trustee must

act exactadiligentia, whereas, in exercising discretion, he is only required to use as

much intelligence as a prudent man of business would employ in the management of his

own affairs. In the light of the above, the trustees’ duties are broadly classified into two

namely, general and fiduciary. The former will now be considered.

3.2.0: GENERAL DUTIES OF TRUSTEES

55
Syndenham Angela, Nutshell on Trust (1997) 1st Ed. P. 5.

54
 56
A. Duty to Collect and Safeguard the Assets of the Trust

On appointment, the trustees’ first duty is to ascertain the terms of the trust. He should find

out the nature and extent of the trust property, and where necessary, ensure that it is

57
safely and ( in appropriate cases) properly invested. If there are doubts as to the

directions contained in this, it is advisable that the trustees obtain legal advice. In
58
NESTLE V. NATIONAL WESTMINSTER BANK, there were doubts as to the exact

nature and extent of powers of the trustee bank as expressed in the trust instrument.

Dillon L.J held that it was “inexcusable that the bank took nosteps at any time to obtain

59
legal advice as to the scope of its powers.”

The trustee must then reduce the trust property into possession. He should ensure that all

trust property not already vested in him is transferred to him. If chattels are included, a

proper inventory should be taken. If the properties consists of, or includes equitable

interests, and the legal estate can not immediately be transferred to the trustee, he should

immediately notify the person in whom the legal estate is vested so that he can obtain

60
priority over any subsequent encumbrance. Where choses in action are involved, the

trustee must secure payment as soon as possible. The trustee’s liability in this regard is

stringent and he will be held liable if loss should result to the estate by reason of his

56
See (1974) Kingstons Law Review 18.
57
Hallows v. Lloyd (1888) 39 Ch. D 688, per Kekewich J. at p. 691.
58
(1993) 1 W.L.R 1260.
59
Ibid. at p. 1265.
60
Jacob v. Lucas (1839) 1 Beav. 436.

55
 61
failure to perform his duties. In RE BROGDEN, the trustee bank failed to obtain

the payment of funds convenanted to be paid to them under a marriage

settlement. They had taken all steps considered by them to be reasonable to

obtain the payments, but they declined to sue, believing that it would imperil the

family partnership that formed the basis of the trust.

The Court of Appeal held that the trustees were liable. Whatever may have been

the situation within the family, the trustees should have done all they could to

enforce the covenant. The only excuse for not taking action would have been a

well founded belief that such action would not secure the payment. The burden of

proving the belief was on the trustees, and they failed to discharge it.

B. Duty to Invest

A trustee is under a duty to invest trust funds coming into his hands. The trust funds

should be invested into the purchase of anything from which interest or profit might be

62
expected. There may be a life tenant entitled to the income generated by the investment of

the fund, and a remainderman whose interest is in the capital, and the trustees must

consider the interest of both. Therefore, the investment must be such as generates income

63
while maintaining the capital. Trustee investment usually involves either the giving out

of loans on interests from the funds of the trust, or participation in some profit making

61
(1888) 38 Ch. D. 546; see also Buttle v. Saunders (1950) 2 All E.R
193. 62Re Wragg (1919) 2 Ch. 58 at p. 14, per P.O Lawrence J.
63
Re Power (1947) Ch. 572; Re Peczenik’s Settlement Trusts (1964) 1 W.L.R 720; cf. Re Wragg (ibid)

56
activity, such as purchase of shares. Generally, the trustee’s powers of investment are

64
either stated in statutory provisions regulating authorized trustee investments,

or, in some cases, expressed in the trust instrument.

C. Duty to Distribute

A trustee is entitled to distribute trust property to persons entitled thereto as at when due.

The duty extends to both the income and to the capital, and liability for its breach is strict.

The trustee will be liable and will have to make good any loss occasioned by his breach,

even if this does not result from any fault on his part. Thus, trustees were held liable

65
when payments were made upon a forged marriage certificate, or upon an erroneous

66
but bona fide construction of the trust instrument. The trustee may still be liable even if

67
legal advice was sought before the payments.

D. Duty to Maintain Equality between Beneficiaries

Equity expects a trustee to maintain a balance between beneficiaries. Therefore, the

trustee must be impartial in the execution of the trust, and must not favor the interest of

one beneficiary at the expense of another. The operation of this rule may manifest itself

68
in various ways. A fairly recent example occurred in LLIOYD’S BANK V. DUKER,

64
Learoyd v. Whiteley (1887) 12 App. Cas. 727.
65
Eaves v. Hickson (1861) 30 Beav. 136.
66
Hiliard v. Fulford (1876) 4 Ch. D. 389
67
National Trustees Company of Australia Ltd. V. General Finance Company of Australia Ltd.
(1905) A.C 373.
68
(1987) 1 W.L.R. 1324.

57
which concerned 999 shares in a private company, which formed part of the residuary

th
estate of the testator. He left 46/80 of this to his wife, and the rest to other

beneficiaries. It was held that the wife could not claim the 574 shares which

represented her portion, for that would give her such a majority holding that

would give her such control of the company as would be out of proportion to the

interests of the remaining beneficiaries. The trustees were ordered to sell all the

shares and distribute the proceeds in the specified proportions.

E. Duty to Provide Accounts and Information

69
Trustees, like other accounting parties, must be prepared at all times to furnish

information to the beneficiary about the state of the trust property and his

dealings with it. The obligation gives rise to two related duties in the trustee: the

duty to keep accounts of the trust and the duty to provide information as to the

administration of the trust when properly called upon to do so.

i. Accounts

A trustee should keep accurate financial accounts of the trust, and should be ready to

70
produce them for inspection by the beneficiary at all reasonable times. Trustees who

fail to keep proper accounts may be compelled to do so by the courts, and may be

69
E.g agents and personal representatives.
70
Pearse v. Green (1819) 1 Jac.& W. 135s

58
 71
compelled to bear the costs of the application. The beneficiary may exercise

the right to inspect either by himself or through a solicitor employed at his own
72
expense. The beneficiary’s right is merely to inspect the accounts; if he wishes to be

73
supplied a copy, it will be produced at his expense, although, in practice,

trustees often produce a copy for each beneficiary. A beneficiary who is in

possession and who is entitled to possession and who is entitled to the

income of the trust may call for full accounts, but aremainderman can only call

for such accounts if it affects capital transactions.

ii. Information

The principle is that a trustee is bound to furnish the beneficiary with all information

relevant to the trust. It is therefore advisable that the trustee keeps a diary in which

the decisions concerning the administration of the trust are recorded. In this way the

trustee will have at all times, a ready supply of up-to-date information to supply

whenever the beneficiaries demand it. This diary and all other title deeds connected

with the trust are part of the trust property, and the beneficiaries, consequent to their

equitable interest in the trust property have a right to inspect them at all reasonable

74
times. As Lord Wrenburyobserved in ROURKE V. DARBYSHIRE,

71
Re Skinner (1904) 1 Ch. 289; and see (1936) 52 L.Q.R 365
(Hanbury). 72Re Bosworth (1889) 58 L.J. Ch. 432.
73
Ottley v. Gillby (1845) 8 Beav. 602.
74
(1920) AC. 581 at p. 619.

59
 ‘A beneficiary has a right of access to the documents which

he desires

to inspect and upon what has been called in judgment in this case a

proprietary right. The beneficiary is entitled to see all trust

documents,

because they are trust documents and because he is beneficiary. They

are, in this sense, his own.’

3.3.0: FIDUCIARY DUTIES OF TRUSTEES

A. The duty to act Gratuitously: Remuneration and reimbursement

Equity regards a trustee as a volunteer. Thus the general rule is that he acts gratuitously,

75
and is not entitled to any remuneration for his services, notwithstanding that those
76
services are professional in nature. This rule does not mean that reward for services is

77
repugnant to fiduciary duties, but is based on the consideration that:

‘The court of equity will not allow a man to place himself in a

position in which his interest and duty are in conflict. If it were

not for the rule, a trust estate might be heavily burdened by

reason of business being done by a trustee or executor

employing himself as commission agent for the

75
Robinson v. Pett (1734) 3 P. Wins. 349; Barret v. Hartley (1866) L.R. 2 Eq. 786.
76
Crosshill v. Bower (1863) 32, Beav. 83; Re Gates (1933)
Ch. 913. 77 See Dale v. I.R.C (1954) A.C. 11 at p. 27.

60
 estate. The difficulty will be in saying in each particular case

that the business was not required to be done.’78

However, the trustee is entitled to be reimbursed for legitimate out-of-pocket expenses

79
that he incurs in the execution of the trust. The right to reimbursement is contractual.

The general rule prohibiting a trustee from obtaining remuneration is subject to

the following exceptions:

i. Authority in Trust Instruments

The trust instrument may authorize remuneration for trustees. This is done by a way of

charging clause, which authorizes the trustee to charge fees for his services. Such clauses

80
are construed very strictly against the trustee, and should be drafted in a very wide

manner if the trustee is to be entitled to charge for all work done by him in the

administration of the trust. The remuneration to be received by the trustee may be

81
expressed to be income from part of the estate, or part of capital by virtue of a power of

82
appointment or authorization given to the trustee to utilize trust money for his own
83
purposes. A charging trust contained in a will operates as a legacy, so that by section 15

78
Re Barber (1886) 34 Ch.D. 77, at p. 81, per Chitty,
J.S 79Re Spurling’s Will Trusts (1966) 1 W.L.R. 920.
80
Re Gee (1948) Ch. 284.
81
Public Trustee v. I.R.C. (1960) A.C. 398.
82 Re Beauty'
83 See for example Space Investment Limited v. Canadian Imperial Bank of Commerce
Trust Company (Bahamas) Limited (1986) 1 W.L.R. 1072.

61
 84
of the WILLS ACT, 1837, the trustee should not attest the will. The trustee cannot charge

what he likes under a charging clause, but must always charge what is reasonable.

ii. Authorization by Statute

Certain categories of trustees are empowered by statute to charge for their services. Thus,

85
the Public Trustees may charge for their services, regardless of whether the trust

instrument contains a provision to that effect. The charge may be by way of percentage

or otherwise as fixed by the state. Also, where the court appoints a judicial trustee, it can

86 87
authorize remuneration for him. And by section 29 of the Trustee Law, where the

trust appoints a trust corporation “…other than the public trustee to be a trustee,

either solely or jointly with another person, the trust may authorize the corporation to

charge such remuneration for its services as trustee as the court may think fit.”

iii. Authorization by the Court

Aside its statutory jurisdiction to award remuneration to a trustee, the court also has

88
inherent jurisdiction to authorize remuneration for trustees and other fiduciaries and to
89
increase authorized remuneration for them. The power may be exercised whether or not

84
Re Pooley (1888) 40 Ch.D. 1; Re White (1898) 2 Ch. 217.
85 Public Trustees Laws, Lagos And Western Nigeria, s. 19.
86 Judicial Trustees Act, 1896, s. 1(5).
87 Cap. 125, Laws of Western Nigeria.
88
Re Freeman’s Settlement Trusts (1887) 37 Ch.D. 148; Re Masters (1953) All E.R. 19.
89
Re Barber’s Settlement Trusts (1974) 1 W.L.R. 1198; Re Duke of Norfolk’s Settlement Trusts
(1982) Ch. 61.

62
 90
the trustee was appointed by the court. It will, however, be authorized only if the
91
trustee’s services have been of exceptional benefit to the trust, or if he is put to

exceptional trouble in the administration of the trust, and it is especially desirable that the
92
trust should have the services of that particular trustee. In all other cases, the trustee will

93
only be entitled to reimbursement.

iv. Agreement with the Beneficiaries

Where the beneficiaries are all sui juris, and are between them absolutely entitled to the

whole of the beneficial interest under the trust, the trustee may contract with them that

he should be remunerated for his services. Such contracts are, however, viewed with

suspicion by the courts and, like charging clauses, are construed very strictly against the

94
trustee. Where some of the beneficiaries are not sui juris, or do not agree to the

contract, the agreement only binds the individual beneficiaries who are of full

capacity and agree to it. The trustee cannot be paid out of the general trust

property, and has to be remunerated by the beneficiaries bound by the

agreement or out of their beneficial interest.

95
v. The Rule in Craddock v. Piper

90
Re Masters (1953) 1 W.L.R. 81 at p. 83, per Danckwerts, J.
91
Re Protheroe (1968) 1 W.LR.519; contra.Boardman v. Phipps (1967) 2
A.C. 46. 92Re Si.Freeman’s Settlement Trusts (1887) 37 Ch.D. 148.
93
Re Protheroe (ibid)
94
Ayliffe v. Murray (1740) 2 AtK.58; Douglas v. Archbutt (1858) 2 De G. & J. 148.
95
(1850) 1 Mac.& G. 664, and see (1983) 46 M.L.R. 289 at p. 306 (Bishop and Prentiss).

63
 96
This curious rule authorizes a solicitor-trustee to charge for his fees if he has

acted for a co-trustee as for himself in litigation that relates to the trust. In RE
97
CORSELLIS. CottonL.J. stated that the basis for this rule was that:

‘It is not that the business of a trustee, though he is a solicitor, to act

as a solicitor for his co-trustees. But the exception in Craddock v.

Piper is limited to the costs incurred in respect of business done in an

action or suit, and it may be an anomaly that the exception should

apply to such a case, and should not apply to businesses done out of

court by the solicitor for himself as trustee for his co-trustee. But there

may be a reason for it that in an action, although costs are not

hostilely taxed, yet there may be a taxation where parties other than

the trustee-solicitor may appear and test the propriety of the costs,

and the court can disallow altogether the costs of any proceeding

which may appear to be vexatious or improperly taken.’

98
The rule has been strongly criticized, and although it is now firmly established, it will

99
not be extended.

vi. Authorization by Law of Foreign Country where Trust Property is Located

Where trust property is situated abroad, and the law of the country where the property is

situated permits trustees to charge for their services, it appears that they would be

96 Described as ‘illogical’ by Parker and Mellows (6th Ed.) 1994, p. 535; and anomalous by
Keeton and Sheridan (12th Ed.) 1993, p. 356.
97 (1887) 34, Ch.D. 681 at p. 682.
98
See for example Lincoln v. Windsor (1851) 9. Hart.158; Re Barber (1886) 34 Ch. D. 77.
99
Re Corsellis (ibid) at pp. 687-688.

64
allowed to keep the remuneration they so obtain. In RE NORTHECOTE’S WILL
100
TRUSTS, the court refused to assist in recovering remuneration obtained by

the trustee in this manner, holding that trustees need not account for such sums.

B. Duty Not to Purchase Trust Property

i. Purchase of Trust Property

This duty is another aspect of the principle that a trustee should not place himself in a

101
position where his duty will conflict with his own interest. As Kolawole J.CA. put it in

102
OKESUJI V. LAWAL,

‘It is a settled rule of equity that no one having duties of a

fiduciary nature to discharge shall be allowed to go into

engagements in which he has or can have personal

interests conflicting, or which possibly may conflict with

the interest of those whom he is bound to protect.One

consequence of the rule is that a trustee for sale may not

purchase the trust property for himself …It has been held

that however honest and fair the sale may be, and even if

made at public auction, or for a price higher than that

obtainable on the open market, any beneficiary has an

absolute right to have the conveyance set aside.’

100
(1949) 1 All E.R. 442.
101
Boardman v. Phipps (1967) 2 A.C. 46 at p. 123, per Lord
Upjohn. 102 (1986) 2 N.W.L.R. (pt. 22) 417 at p. 433.

65
A trustee who sells or leases trust property to himself is in breach of his fiduciary duty,

and is liable to have the transaction set aside. This liability has nothing to do with

103 104
adequacy or inadequacy of the price, or whether or not the trustee was honest. In

such cases, the trustee is both the vendor and the purchaser, so that it is impossible to

105
determine whether or not he has obtained an advantage from the purchase. In
106
ABERDEEN RAILWAY CO. V. BLAIKIE BROTHERS, Lord Cranworth, L.C.,

in affirming this principle stated:

‘It may sometimes happen that the terms upon which the trustee

has dealt or attempted to deal with the estate or the interests of

those for whom he is a trustee, have been as good as could have

been obtained from any other person, they may even at the time

have been better. But still, so inflexible is this rule that no enquiry

on the subject is permitted.’

ii. Purchase of Beneficiary’s Interests

where the property purchased by the trustee consists, not of the trust property itself, but of

the interest of the beneficiary in it, equity takes a less stringent view of the transaction. In

such cases, the trustee merely purchases the equitable interest that belonged to the

beneficiary prior to the sale. He is not both vendor and purchaser. Therefore, equity will allow

the sale if the trustee can establish that he obtained no advantage from his position.

103
Ibid.
104
Wright v. Morgan (1926) A.C. 788.
105
Ex. Parte Lacey (1802) 6 Ves 625 at p. 627, per Lord
Eldon, L.C. 106(1854) 1 Macq. 461 at pp. 471-2

66
Unlike in the case of a purchaser of the trust property itself, the price at which the

property is sold is important here. The trustee must show “that he gave full value, and

107
that all information was laid before the cestuique trust at the time of sale.” The

beneficiary must be proved to have clearly understood the nature of the transaction, and

108
to have agreed to waive all objections.

C. Duty not to make Incidental Profits from the Trust

This is another manifestation of the policy that a trustee should not put himself in a

position where his personal interest will conflict with his duty to the trust. The principle is

that a trustee should not make any profit from handling the trust property, or from

information he acquired from the administration of the trust. Any incidental profits so

made must be handed over to the beneficiaries. This principle operates in various ways,

109
perhaps the best known of which is the rule in KEECH V. SANFORD. The rule prevents a

trustee from keeping for his own benefit, a renewal of a lease that he was able to obtain by

reason of being a trustee of the original lease. Equity compels him to hold

110
the renewed lease for the beneficiaries, and holds him a constructive trustee thereof.

The position is less clear where the trustee has obtained a reversion of the lease. It would

accord with the principle that the trustee should also hold the reversion on constructive trust

if he obtains it by virtue of his position as a trustee of the lease, and this was often

107
Thompson v. Eastwood (1877) 2 App. Cas. 215 at p. 236.
108
Randall v. Errington (1805) 10 Ves.423 at p. 427, per Grant, M.R.
109 (1726) Sel. Cas. T. King 61.
110 See ante., Chapter 7.
67
 111
the case. But it also used to be relatively settled that if the lease in question is not

renewable, the acquisition of the reversion by the trustee could not have been said to
112
prejudice the beneficiary, so that the trustee could keep the benefit of the renewal.

113
However, in PROTHEROE V. PROTHEROE, the Court of Appeal, without referring to

the earlier cases, held that a trustee of a leasehold property can never acquire the

freehold for himself, and that in all such cases, a constructive trust will be imposed. This

principle, as enumerated by the Court of Appeal, was applied in THOMPSON’S

114
TRUSTEE IN BANKRUPTCY V. HEATON. Pennycuick V.C. considered himself

bound by PROTHEROE V. PROTHEROE. It is submitted that this unqualified statement

is unduly harsh, and the better approach is that represented by the earlier cases.

3.4.0: ANALYSIS OF POWER AS A CONCEPT

Trustee’s powers are as contained in the trust instrument (if any), or in statutory

provisions. Powers are discretionary, and in the absence of bad faith, the courts

will not interfere with the exercise of the trustee’s discretion.

The following are some of the powers usually conferred on trustees:

A. Power to Delegate

111
See e.gGtiffin v. Owen (1907) 1 Ch. 105.
112
Philips v. Philips (1885) 29 Ch. D. 673; and Phipps v. Boardman (1964) 1 W.L.R. 993 at p.
1009, per Wilberforce J.
113
(1968) 1 W.L.R. 519; see also (1968) 32 Conv. (N.S.) 220
(Crane). 114 (1974) W.L.R. 605 at p. 606.

68
 The office of a trustee is one of confidence. The confidence is reposed in the individual

trustee, so that he has a personal duty to act personally in the execution of the trust.

Thus, the general rule is that trustees are not allowed to delegate their duties,

115
and a trustee who does this is liable for his agent’s default. But it has long been

recognized that delegation should be permitted if the trustee can show that it accords

with ordinary commercial practice, or that it was reasonably necessary in the

116
circumstances of the case. Even then the trustee must be careful in the choice of

117
agents, and must exercise general supervision over him. However,

discretionary power in a trustee can never be delegated.

B. Power of Sale

Trustees may be conferred with the power to sell trust property by the trust instrument or

by statute. Where the enabling provision imposes a trust for sale, the trustees have an

obligation and not a mere power to sell. However, they usually have a power to postpone

sale at their discretion. When selling, trustees can adopt any of the usual modes, e.g.

public auction or private contracts. The trustee must however ensure that

118
the sale is to the maximum advantage of the beneficiaries. The beneficiaries may

retain a proposed sale by way of injunction if the trustees fail to do this. However, where

the sale has been accomplished, the beneficiaries can only impeach it if there is

115
Turner v. Corney (1841) 5 Beav. 515.
116
Speight v. Gaunt (1884) 9 App. Cas. 1; Learoyd v. Whiteley (1887) 12 App.
Cas. 727. 117Rowland v. Witherdeen (1851) 3 Mac.& G. 568.
118
Buttle v. Saunders (1950) 2 All E.R. 193; Marley v. Mutual Security Merchant Bank and Trust
Company (1993) 3 All E.R. 198.

69
 a collusion between the purchaser and the trustees, and the consideration was thereby

119
rendered inadequate. But even if it is not proved and the beneficiaries cannot avoid

120
the sale, the trustees may be held liable for breach of duty.

C. Power to Insure

121
Subject to an express provision in the trust instrument requiring trustees to insure,

122
trustees are not bound to insure trust property. However, it would appear that the

trustee’s general duty of care and maintenance of trust property requires them to

give careful consideration to the question whether or not the trust property needs

insurance. If after such consideration, they consider insurance unnecessary, they

cannot be compelled to take out a policy, and would not be held liable should loss be

occasioned to the trust property through a risk that might have been insured.

D. Power of Maintenance and Advancement

These powers enable trustees to make provisions for beneficiaries, usually

but not necessarily infants, who for certain reasons are not entitled to the

income of the trust property. Such powers are especially important in the case

of contingent gifts, which are not vested until some condition, often the

attainment of the age of majority by the beneficiary, is attained.

119
Trustee Act 1893, s. 14(2); Trustee Law, s. 5(2); Dunn v. Flood (1885) 28
Ch.D 568. 120Re Judd, Poland and Sketchers Contract (1906) 1 Ch. 684.
121
Bailey v. Gould (1840) 54 E.R. 479.
122
Re mc Eacham (1911) 103 L.T. 900.

70
3.5.0: CONCLUSION

Although it is a fundamental principle that a trustee must faithfully observe the

diretion as contained in the trust. This however, does not preclude the court from

ordering a deviation from the testament in emergency situations, when such

would be advantageous to the beneficiaries. The Trustee Law (applicable to the

old Western States) provides that the court may sanction a departure from the

terms of the trust “where in the management or administration of the trust

property vested in the trustee any transaction is expedient for the trust as a

whole, but the trustee lacks such power in the trust instrument to effect it.”

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 CHAPTER 4

BREACH OF TRUST AND REMEDIES

4.0.0: INTRODUCTION

A breach occurs when a trustee fails to comply with the duties imposed upon him by

equity, the trust instrument or some statutory provision. Should the beneficiary suffer

loss by reason of the breach, the trustee will be liable to compensate them. And

even when the beneficiaries suffer no loss, the trustees may still be liable to account

to them if he has made any profit from the breach. Liability for breach of trust does

not depend on fraud or incompetence in the trustee; in fact breach could be merely

technical. It could result from dealing with trust property with improper motives or

from failure to exercise proper discretion in making trust decisions or from failure to

comply with some technical provisions in the instrument.

4.1.0: LIABILITY FOR BREACH OF TRUST

A. Liability is personal

A trustee is only liable for his own breach of trust and not for that of his co-trustees. A

123
trustee will not be vicariously liable for a breach in which he did not take part.

However, it may be the case that although the trustee did not actively participate in the

123
Bakin v. Hughes (1886) 31 Ch. D. 390.

72
breach, his conduct is not entirely free from blame, and in such cases he may be held

liable. Thus a trustee will be liable where he allows trust property to remain in the sole

124
custody of a co-trustee and thereby facilitates misappropriation, or where he stands

back while a breach of trust is committed or where, on becoming aware of a breach, he

125
fails to take appropriate action to obtain redress.

The personal liability of the trustee is given statutory backing in section 12 of the Trustee

126
Law. The section provides that a trustee “shall be answerable and accountable only

for hisown acts, receipts, neglects or defaults, and not for those of any other trustee…or

for any other loss, unless the same happens through his own default.” Considering this

127
provision in RE CITY EQUITABLE FIRE INSURANCE CO. LTD. Warrington L.J.
128
approved the observations of Romer J. to the effect that:

‘a person is not guilty of ‘willful neglect or default’ unless that he is conscious

of doing the act which is complained of, or in omitting to do the act which it is
said he ought to have done, he committing a breach of his duty, and also, as he
said, recklessly careless whether it is a breach of duty or not.’

One consequence of the foregoing is that a trustee is not liable for breach of trust
129
committed before his appointment, but if he discovers that a breach has been

committed before his appointment, he should take proceedings to remedy the breach. If

he fails to do this, he will be personally liable unless he can show that he is reasonably

124 Lewis v .Nobles (1878) 8 Ch.D. 591.

125 Miller’s Trustees v. Polson (1897) 34 Sc. L.R. 789.
126
Cap 135, Laws of W.R.N. 1959.
127 (1925) Ch. 407 at p. 525.
128
Ibid at p. 434.
129
Re Strahan (1856) De G.M. & G. 291.

73
 130
satisfied that it will be useless to institute proceedings. However, where there is no
131
evidence suggesting breach, he is entitled to assume that there has been no breach. On

the other hand, a breach may be committed after the trustee’s retirement. In such cases, the

trustee is not liable unless his retirement was in contemplation of the breach, and with

132
the intention of facilitating its commission. If the trustee has committed a breach

before retirement, he remains liable even after retirement and if he dies, his estate
133
remains liable after him.

B. Measure of liability

The basic principle is that the trustee must make good any loss occasioned to the estate

134
directly or indirectly from his breach. The object is to obtain restitution for the estate,

135
so that the rules governing remoteness of damage does not apply. And since the

object is not to punish the trustee, liability will still lie even if he has not been guilty of any
136
moral lapse. But where the trustee has been fraudulent or guilty of other grave

misconduct, the court may show its displeasure by ordering him to pay higher rates of

137
interest than would normally be payable.

C. Liability for acts of co-trustees

130
Re Forest of Dean Coal Co. (1878) 10
Ch.D. 450. 131Re Strahan, supra, n. 8.
132
Head v. Gould (1898) 2 Ch. 250.
133
Devaynes v. Robinson (1857) 24 Beav. 86.
134
Knott v. Cottee (1852) 16 Beav.77; Bartlett v. Barclays Trust Co. Ltd. [NO.2] (1980) Ch. 515.
135 Re Dawson (1966) 2 N.S.W.R. 211 at p. 214.
136
See e.g. Tebbs v. Carpenter (1816) 1 Madd. 290; Cackelt v. Bethune (1820) 1 Jac.& W. 588.
137
Burdick v. Garrick (1870) L.R. 5 Ch. App. 233 particularly at pp. 241-242, per Lord Hatherley L.C.

74
Unless the trust instrument provides otherwise, the trustees are under a duty to act jointly

138
and trusteeship decisions should be made unanimously. One consequence of this is that

trustee’s liability is joint and several. A trustee cannot escape liability by claiming that he took

no part in the actual breach. A beneficiary claiming for breach of trust may proceed

139
and levy execution against one, some or all of the trustees for the whole sum.

Where the beneficiary does not opt to enforce his right against all the trustees,

the person or persons against whom it is enforced may be entitled to claim some

contribution or indemnity from his co-trustees.

4.2.0: REMEDIES FOR BREACH OF TRUST

The basis for the foregoing has been the personal liability of the trustee for the breach of

trust i.e. the right of the beneficiary to proceed personally against the trustee for breach.

A personal remedy may also be sought against third parties who have been involved in

the trustees’ breach of trust, or into whose hands trust property has wrongfully come.

Such remedies are based on a claim inpersonam operating against the person against

whom it is sought. They can be distinguished from proprietary claims in rem that attach,

not to the person against whom it is sought, but to the property of the trust that has been

wrongfully disposed or acquired. It is a claim to trace identifiable assets of the trust into

the hands of anyone to whom it has come.

138
Thames Guaranty Ltd. v. Campbell (1985) Q.B 210 at p. 212, per
Mann J. 139Fletcher v. Green (1864) 33 Bear. 426.

75
There are many reasons why a proprietary claim could be more beneficial than a

personal one. Firstly, where a proprietary claim lies, it enables the beneficiary to

trace trust property and other property acquired with its proceeds in priority to the

creditors of the trustee or other person to whom the property has come if that person

is insolvent. Therefore, the claim would not be liable to compensation and it would

escape the bankruptcy of the trustee or other person who acquires the trust property,

provided of course that the property, or its proceeds can still be identified. Secondly,

in consequence of the property being treated in equity as belonging to the

beneficiary, a proprietary claim enables him to take advantage of any increase in the

value of the property from when it came to the person in breach. Finally, as regards

income providing assets, judgment in a proprietary claim carries interest from the

date the property came into the hands of the defendant, while a judgment in a claim

inpersonam carries interest only from the date of judgment.

A. PERSONAL REMEDIES

A personal claim to remedy breach of trust usually has as its aim, one of three

objects: obtaining damages to compensate for loss arising from the trust;

compelling the performance of the trust; or preventing a threatened breach.

i. Damages to compensate for lossThis is perhaps the most often employed

personal remedy. It involves a claim for damages from the trustee, (or for that

76
 140
matter any person who assisted him in the breach) for breach of fiduciary

obligations. Like in all claims for damages, the measure of damage would

ordinarily be the loss occasioned to the interest of the beneficiaries by reason of

the breach. However, the object is always to obtain restitution for the estate, and

the common law rules governing remoteness of damage do not apply. Once loss

results to the estate by reason of the breach, the trustee is liable to

make it good, no matter how unlikely it was that the loss would result in

the ordinary course of things.

ii. Compelling the performance of the trust

Where the trustee neglects the administration of the trust or fails to take all

necessary steps in protecting the estate, the courts may intervene on behalf

of the beneficiaries to ensure that all necessary actions are taken in defense

141
of the estate. Thus a trustee who fails to renew a renewable lease held on

142
behalf of the trust may be compelled to do so at the suit of the beneficiary.

Also, where, under the terms of the trust, the beneficiary is entitled to

143
possession of chattels, he can sue a trustee who detains them.

iii. Prevention of breach

140
Such a person may thereby become a constructive
trustee. 141Foley v. Burnell (1783) 1 Bro. C.C. 274.
142
Bennet v. Colley (1832) 5 Sim. 181 at p. 192.
143
International Factors Ltd. Rodriguez (1979) Ch. 351.s

77
 Where there are circumstances that suggest that a breach of trust is contemplated or

that the trust property is endangered, the court may act on behalf of the beneficiary to

prevent the breach. In such cases the court provides an anticipatory remedy and grants

144
an injunction restraining the breach. An injunction will be granted restraining a
145
trustee from selling trust property at an undervalue, or from making unauthorized
146
investments. The court will also grant an injunction at the suit of a beneficiary

whenever there is the fear that the trust property has been endangered, such as when

147
the trustee has or is about to become insolvent or there is fear that he is dishonest.

B. TRACING

Where a trustee has disposed of trust property in breach of trust, the personal

remedies discoursed above will only be of benefit to the beneficiary if the trustee

has the means to make good the loss. If the trustee is insolvent or otherwise

without means, this remedy loses all attractiveness for the beneficiary. In such

circumstances, it would be more profitable for him to adopt a remedy that makes

it possible for him to lay hands on the trust property.

144
Milligan v. Mitchell (1833) 1 My & K
446. 145 Ibid.
146
Wigglesworth v. Wigglesworth (1852) 16 Beav. 269.
147
Everett v. Prythergch, (1841) 12 Sim.363; Re Sir Lindsay Parkinson & Co. Ltd.
Settlement Trusts.

78
The remedy of tracing is available both at common law and equity. However, the

attitude of the common law to tracing differed extensively from that of equity. It is

therefore necessary to consider these separately.

i. Tracing at common law

A person who seeks to exercise proprietary claim at common law need only to show a

better title than his adversary to the property in question. If he can do this he will be

entitled to relief. The remedy to which he is entitled will depend on the type of property

being claimed. If the property were land, a claim would be made for specific recovery of

the land. If the plaintiff is able to establish a better title than the defendant, then, subject

148
to a few defenses based on delay and acquiescence, the plaintiff would be able to obtain

recovery of the land. His right to the land is really in rem and it attaches to the land at all

times. Where the property in question consists of chattels, the common law did not provide a

remedy which allows the plaintiff to demand specific return of the chattels. Although

recognizing the plaintiff’s title, the common law did not develop an action for return of specific

chattels. The defendant had a choice between paying damages and returning the chattels.

And if the property was money or choses in action, the plaintiff was limited to an action for

money had or received, a purely personal claim. Thus except for an action for recovery of

land, a proprietary claim to chattels at common law rarely amounted to a claim in rem, and

one to money or other choses in action never did.

148
Such as limitation of actions, laches and acquiescence.

79
 149
However, THE COMMON LAW PROCEDURE ACT, 1854 gave the courts a

discretion to award specific recovery in the tortuous action of detinue.

Although the plaintiff could not demand the specific recovery of his property, his

ownership was still relevant. The law recognized his right to the chattel or its full

value, a right that could not be defeated by the defendant’s insolvency. But this

right inured only to the legal owner of the property, who, in the case of the trust

property, was the trustee. The effect of this is that in most cases, the

beneficiaries will not be able to bring a tracing claim at common law and, in

relation to the trust, the common law remedy of tracing will be limited to claims

made by the trustees where third parties had defrauded them of trust property.

ii. Tracing at equity

The proprietary remedy of tracing has been further refined in equity to take care of major

hindrances faced at common law. A plaintiff who relies on the remedy in equity must show

that he has some equitable proprietary interest in the property that has come into the hands

of the defendant. Being an equitable interest, his claim will be defeated by a bona fide

purchaser for value of the legal interest without notice of the plantiff’s claim. But where the

claim succeeds, and the plaintiff can show that the property in the hands of the defendant

belongs to him, he is entitled to call for its transfer to himself. If his claim is to only part of the

property, as is the case where the property is purchased with funds part of

149
S. 78.

80
which form the proceeds of his property, the plaintiff will be entitled to a lien or

charge to an extent proportionate to the amount obtained from his property. In

either case, his right attaches to the property, it is a right in rem.

Property that can be traced in Equity

a. Legal or equitable proprietary interest

it is conventional that a plaintiff who seeks the remedy of tracing in equity must show

some “equitable proprietary interest” in the property in question. Initially, this

requirement was the logical consequence of the separation of the common law and

equitable jurisdictions: equity could only give relief in respect of claims that were

based on equitable rights. They may accept the rights of a legal owner, but they

could not give relief in respect thereof. That was beyond equity’s jurisdiction.

But since the two jurisdictions became fused, the relevance of this distinction became

diminished. A beneficial owner of property was owner both in equity and common law,

and both the legal and equitable jurisdictions were exercised in the same court. Thus

there seemed to be no reason in logic why the equitable remedy of tracing should not be

applied in favor of a person who was beneficial legal owner. However, in RE DIPLOCK,

the Court of Appeal seemed to suggest that the remedy could not be available in the

absence of some situation creating equitable as opposed to legal ownership.

81
This has led to suggestions that an “equitable” as distinct from legal proprietary interest

150
was necessary for the remedy to lie. But as the above analysis shows, there is no

reason today why it should not also apply to legal proprietary interests. In fact in
151
ALLUMINIUM INDUSTRIE VAASEN B.V. V. ROMALPA ALLUMINIUM LTD.,

the Court of Appeal granted the remedy to a beneficial owner of legal interest,

although this point was not considered.

b. Identity of the trust fund or property: mixture with other funds

The funds or the property claimed must be identifiable or should at least exist in some

form in which it could be traced. If this is not the case, the remedy will cease to exist.

The problem that could arise in this regard is the mixture of the trust funds with other

property. Where there has been no such mixture, there would be no difficulty in obtaining

a tracing order. Even if the property has been sold or otherwise disposed of, the

beneficiary may still have the property i.e. he may take the proceeds of the sale or

whatever property he has purchased with it. He is entitled to “elect either to take money

laid out in the purchase; or as we generally express it, he is entitled at his election either

to take the property, or to have a charge on property for theamount of the trust

152
money.” If the trustee becomes insolvent, the beneficiary’s right will be given priority

150
But see (1975) 28 C.L.P. 64 (Oakley), suggesting that legal ownership was
sufficient. 151(1976) 1 W.L.R. 676.
152
Re Hallet (1880) 13 Ch.D. 169 at p. 709, per Jessel M.R.
82
 153
over those of the other creditors. The claim will also defeat that of any insolvent

volunteer into whose hands the property has come, although it will be postponed to that

154
of a bona fide purchaser for value without notice.
4.3.0: CONCLUSION

Therefore, where trust property is realty, and has come into the hands of a third party, the

remedy of tracing is only available if the third party is not a bona fide purchaser for value

without notice. Where the property in question ispersonalty, the rule of bona fide purchaser

will not be applicable. This distinction may be justified on the basis that in the sales of real

property, there is a duty on the purchaser to investigate his vendor’s title, failure to do this

will fix him with constructive notice of the trust. He is therefore only able to claim the benefit

of the doctrine if he can discharge the onerous burden of proving that, despite his

investigation, the existence of the trusts were concealed from him. But in the case of

chattels, there is no duty to investigate and the doctrine of constructive notice

155
does not apply. In such cases, the answer to the question whether the remedy of tracing

is available or not will depend on whether the third party received the property knowing that

there had been a breach of trust, or whether he had knowingly assisted a trustee in a

156
fraudulent design.

153
Taylor v. Plumer (1815) 3 M. & S. 562; Re Oatway (1903) 2 Ch. 353.
154
Thorndike v. Hunt (1859) 3 De G. & J. 563; Polly Peck Intl. Plc v. Nadir (No.2) [1992] 4 All
E.R. 769. 155 Joseph v. Lyons (1884) 15 Q.B.D. 280; Maitland, Equity (rev. Brunyate) p. 146.
156
Agip (Africa) Ltd. V. Jackson (1991) Ch. 547.

83
 CHAPTER 5

CONCLUSION AND RECOMMENDATIONS

5.0.0: CONCLUSION

It is a fact believed in some quarters by some writers that the concept of trust is

traceable to the moral connotation of the term which eventually informed the

basis for the juristic trust. This concept is premised on the “confidence reposed in

some other”. This gave rise to the moral obligation which the court of equity

eventually developed into a legal concept.

Based on all that have been discoursed in the previous chapters, we can therefore

conclude that trustees are very fundamental to the progress of any sort of trust created.

Their contribution to the smooth administration of the trust estate must never be

overlooked. They assist in no small terms to oversee and carry out the wishes and

desires of the testator as indicated in the testament, and they also go a long way in

ensuring that the interests of the beneficiaries are not tampered with and that the

benefits of the trust accrue to them. All these they carry out as part of their duties and

powers transferred on them by the trust instrument, the testator or the court.

However, the trustees sometimes fall short of their responsibilities, resulting in breach, in

which case the beneficiaries will be entitled to a number of remedies depending on the

nature of the breach as has been discoursed in the previous chapters. Moreso, there are

84
some situations or circumstances where the powers and duties expected of trustees are

inadequate and cannot allow for smooth administration of the trust. These situations have to

be revisited in order to create an enabling environment for the trustees to function effectively

without unnecessary constraints or restraints either directly or indirectly.

Inspite of the fact that trustees sometimes err, it is worthy of note to mention that

the duties and powers exercised by them in furtherance of the trust

administration is immensely appreciated.

5.1.0: RECOMMENDATIONS

Since trustees sometimes fall short of their responsibilities which in effect affects the

administration of the estate and the interests of the beneficiaries as a result of not having

sufficient powers to act or indiscriminate use of their instincts or discretionary powers, it

appears that certain steps need be taken in order to expand the scope of their powers

and duties with a view to making them function well in the administration of the trust.

In order words, where a trustee has discretion on whether or not to make distribution to a

beneficiary, the trustee need evaluate the beneficiary’s current needs, his future needs, his

other sources of income and the trustee’s responsibilities to other beneficiaries before

making a decision. All of these considerations, however, must be made in the light of the

trust. Often times, the most important role of a trustee is his ability to say “no”, and set

85
limits on the use of the trust assets. Though, this can be difficult when the need

for timely assistance is readily apparent.

The trustee will be said to have adequate powers to carry out his duty with

respect to distributing the income from the estate when he can use his discretion

to make additional distribution to a beneficiary who is in apparent need of such

assistance even though it is not in line with the provision of the trust instrument.

To this end, the following recommendations are therefore provided with the hope

that it will help assuage the situations mentioned above.

The Trustee Act, 1893 a statute of general application in force in States like Ogun,

Oyo, Ondo, etcetera, have directly been repealed under the English law and has

been replaced by the Trustee Act, 1925 and the Trustee Law, 1959. However, in

Nigeria, those States where the Trustee Act still apply, operate the Trustee Act,

1893. It is therefore recommended that the law should in like manner be abrogated

by the parliament, thereby preventing the use of extinct or out-dated laws. In doing

so, therefore, all the provisions restraining the extent of powers exercisable by a

trustee should be amended in order to enable the trustee elbow room to administer

fully the trust estate so as to achieve the set objectives.

Equally important is the issue of discretion exercisable by trustees in the discharge of

their responsibilitie. For instance, a trustee can exercise power of sale and power to

86
postpone sale without consulting the beneficiaries. But it is recommended that such

powers should not be reduced, but expanded the more not because the trustee is

expected to go haywire or uncontrollable by such expansion, but to forestall

unnecessary confrontation and interference by the beneficiary with the trust instrument.

Lastly but not in the least unimportant is the issue of oath taking by the trustee.

The trustee on assumption of office must be made to undergo a process of oath

taking as regards the proper administration of the estate with a view to promoting

the interests of the beneficiary in strict adherence to the testament. If trustees are

compelled to undergo this process, it would having been instilled on their minds

be difficult for them to contravene the very essence of the oath they had willingly

subscribed to, and this will serve to prick their conscience whenever they are

about wandering astray, which in the long run wouldultimately lead to a smooth,

hitch-free and successful administration of the trust estate.

87
 BIBLIOGRAPHY

BOOKS

• Adigun Olayide, Cases and Texts on Equity trust and administration of estates,

1987, 1st Edition, Ayo Shodimu Publishers Ltd. Abeokuta, Ogun State, Nigeria.

• Akinyelure, Executorship, Trusteeship, Bankruptcy Law and

Accounts, 1994, 1st Edition.

• Bakinbinga D.J. Law of Trusts in Nigeria, 1989, 1st Edition, Unilorin

Press Ilorin.

• Elegido, Jurisprudence.

• Fabunmi J.O. Equity and Trust in Nigeria, 1986, 1st Edition, O.A.U

Press Ltd. Ile Ife.

• Jegede, Principles of Equity, 1981, 1st Edition.

• Kodinlinye, An Introduction to Equity in Nigeria.

• BanireMuiz, The Nigerian Law of Trust, 2002, 1st Edition, Excel Publishers.

• Brunyate, Equity, 2nd Edition.

• Keeton and Sheridan, Law of Trusts, 12th Edition, 1993.

88
• Oakley, Modern Law of Trust, 1994, 6th Edition.

• Maitland, Equity.

• Syndenham Angela, Nutshell on Trust, 1997, 1st Edition.

• Underhill Fredrick, Law of Trust and Trustees, 13th Edition.

89