A HOLISTIC APPRAISAL OF THE CONCEPT OF TRUST UNDER THE NIGERIAN JURISPRUDENCE
ABSTRACT
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 transfer or 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.
CHAPTER ONE
GENERAL
INTRODUCTION
1.0.0:
INTRODUCTION
The
origin of the legal concept of trust in Nigeria cannot be fully discoursed
without an enquiry into the antiquity and evolution of its history. Trust is a
product of equity. Equity was a rule created to ameliorate the harshness and
rigidity of the common law. In England equity developed separately from the
common law and was administered in separate courts where the chancellors were
judges. In view of this historical relationship, equity was held to be an
appendage of the common law and was used to fill up the gaps where the remedy
available at common law was not sufficient to meet the justice of a particular
situation. The chancellor who is the judge in the court of equity [also known
as chancery court] 1 decided each case on its merit and in accordance with
conscience. His judgments were based not on precedent but on his individual
sense of right and wrong. It was due to this peculiar nature of equity, that Johnseldan
a notable jurist made his famed remark:
‘…equity is a roguish thing. For law (common law) we have
a measure…equity is according to the conscience of him that is chancellor and
as that is longer and 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 which came into force on the 1st of January 1900. It is
instructive to note at this stage that prior to when the British imposed their
legal regime on us, the idea of trust was not unknown to us, it had been in
existence under our native and customary system. The notion of individual
ownership of land for example, was foreign to our native ideas. Land was viewed
as a communal property, never to the individual. All members of the community
have equal rights and access to the communal land but in every case, the chief
or head of the community, village or family has charge over such land and he is
sometimes loosely referred to as the owner. He is in essence in the position of
a trustee and as such holds the land for the common benefit of all members of
the community. The implication of the foregoing is that the community or family
head can validly alienate land to any person or group on their behalf. He is
merely an agent through whom 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. THE SECRETARY OF SOUTHERN NIGERIA, 3Viscount
Haldane was of the opinion that the family head does not own the family
land but administers it on behalf of the family members.
A HOLISTIC APPRAISAL OF THE CONCEPT OF TRUST UNDER THE NIGERIAN JURISPRUDENCE
Format: Microsoft Word
Format: Microsoft Word
Chapters: 1 - 5, Preliminary Pages, Abstract, Bibliography
Delivery: Email
Delivery: Email
No. of Pages: 89
Price: 3000 NGN
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