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

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

 

RESEARCH BODY

ABSTRACT

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

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

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

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

TABLE  OF  CONTENTS

TABLE  OF  CASES

TABLE  OF  STATUTES   

TABLE  OF  CONTENTS

CHAPTER  1

GENERAL  INTRODUCTION

1.0.0:  INTRODUCTION

1.1.0:  BACKGROUND  TO  STUDY

1.2.0:  OBJECTIVES  OF  STUDY

1.3.0:  FOCUS  OF  STUDY

1.4.0:  SCOPE  OF  STUDY

1.5.0:  METHODOLOGY

1.6.0:  LITERATURE  REVIEW

1.7.0:  MEANING OF TRUST

1.8.0: PARTIES TO A TRUST

1.9.0: APPOINTMENT OF TRUSTEES

1.0.1: CONCLUSION

CHAPTER  2

THE  CONCEPT  OF  TRUST  UNDER  THE   NIGERIAN  LEGAL  SYSTEM

2.0.0: INTRODUCTION

2.1.0:  TRUST  AND  OTHER  LEGAL  RELATIONSHIPS

2.2.0:  TRUST  AND  CONTRACT

2.3.0:  TRUST  AND  BAILMENT

2.4.0:  TRUST  AND  THE  OFFICE  OF  PERSONAL  REPRESENTATIVES

2.5.0:  TRUST  AND  AGENCY

2.6.0:  CLASSIFICATION  OF  TRUSTS

2.7.0:  PRIVATE  AND  PUBLIC  TRUST

2.8.0:  EXPRESS  AND  IMPLIED  TRUST

2.9.0:  COMPLETELY  AND  INCOMPLETELY  CONSTITUTED  TRUST

2.0.1:  RESULTING  TRUSTS

2.0.2:  CONSTRUCTIVE  TRUSTS

2.0.3:  TRUST  OF  PERFECT  AND  IMPERFECT  OBLIGATIONS

2.0.4:  EXECUTED  AND  EXECUTORY  TRUST

2.0.5:  CREATION  OF  TRUST

2.0.6:  CAPACITY  TO  CREATE  A  TRUST

2.0.7:  INFANTS  AND  MINORS

2.0.8: PERONS  SUFFERING  FROM  MENTALINCAPACITY

3.2.0.9: MARRIED  WOMEN

2.0.0.1:  CORPORATE  BODIES

2.0.0.2: ESSENTIALS  OF  TRUSTS

2.0.0.3:  CERTAINTY  OF  WORDS

2.0.0.4:  CERTAINTY  OF  SUBJECT  MATTER

2.0.0.5:  CERTAINTY  OF  OBJECT

2.0.0.6:  EFFECT  OF  UNCERTAINTY

2.0.0.7:  CONCLUSION

CHAPTER  3

EXAMINATION  OF  THE  DUTIES  AND  POWERS  OF  THE  TRUSTEES

3.0.0:  INTRODUCTION

3.1.0:  ANALYSIS  OF  DUTY  AS  A  CONCEPT

3.2.0:  GENERAL  DUTIES

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

(B)   DUTY TO INVEST

(C)   DUTY TO DISTRIBUTE

(D)   DUTY TO MAINTAIN EQUALITY BETWEEN THE BENEFICIARIES                   i. The Duty to Convert                   ii. Apportionment

(E)   DUTY TO PROVIDE ACCOUNTS AND INFORMATION                   i. Accounts                   ii. Information

3.3.0:  FIDUCIARY  DUTIES  

(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

3.4.0:  ANALYSIS  OF POWER AS A CONCEPT

(A)  POWER TO DELEGATE

(B)   POWER OF SALE

(C)  POWER TO INSURE

               (D)THE POWER OF MAINTENANCE AND ADVANCEMENT

3.5.0:  CONCLUSION

CHAPTER 4  

BREACH  TRUST  AND  ITS  REMEDIES

4.0.0:  INTRODUCTION

4.1.0:  LIAB ILITY FOR BREACH OF TRUST  

(A)   LIABILITY IS PERSONAL

(B)   MEASURE OF LIABILITY  

(C)   LIABILITY FOR ACTS OF CO-TRUSTEES

                  i. Contribution                   ii. Indemnity

4.2.0:  REMEDIES FOR BREACH OF TRUST  

A.  PERSONAL REMEDIES

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  

CHAPTER  5

CONCLUSION  AND  RECOMMENDATION

5.0.0:  CONCLUSION  

5.0.1:  RECOMMENDATIONS  

TABLE OF CASES

NIGERIA

•                     ADEMOLA v. SHODIPO (1989) N.W.L.R. at 121 329.                

•                     AMADU TIJANI v. SECRETARY SOUTHERN NIGERIA (1921)3 N.L.R                                 

21.

•                     FREGENE v. AWOSHIKA (1974)3 W.L.R. 64 at 68.                    

•                     OKESUJI v. LAWAL (1988) 2 N.W.L.R. (pt 22) 417 at 438.         

UNITED KINGDOM

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

471-473  

•                     ALLUMINIUM INDUSTRIES VAASEN B.V. v. ROMALPA ALLUMINIUM

LTD. (1976)1 WLR 676.

•                     BOYCE v. BOYCE (1970)2 Q.B 52.                                                    

•                     CRADDOCK v. PIPER (1850)1 Mac. & G. 664, and see (1983)46 M.L.R. 298 at p. 306(bishop and prentiss).

•                     FOSTER v. HALE (1798) Q.B. 21.        

 

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

 


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

 


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