DISCUSS THE RELEVANCE OF TRUST IN NIGERIAN LAW
INTRODUCTION
NIGERIAN LAW
Trust, as a legal term has been variously defined1 by Professor Keeton who states that trust is that relationship which arises wherever 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 cestui que 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 beneficiaries or other objects of the trust2. The above definition, seeks to unveil circumstances where trust can be created either willingly or by operation of law, e.g., constructive trust. The definition went further to reveal over what trust can be created, and those that can be beneficiary of the trust when so created. The definition given by the learned Professor, tells us what trust is all about. Another definition is that given by Lewis on Trusts as follows:
The word ‘trust’ refers to the duty or aggregate accumulation of obligations that rest upon a person described as trustee. The responsibilities are in relation to property held by him, or under his control. That property he will be compelled by a court in its equitable jurisdiction to administer in the manner lawfully prescribed by the trust instrument, or where there be no specific provision, written or oral, or to the extend that such provision is invalid or lacking, in accordance with equitable principles. As a consequence the administration will be such a manner that consequential benefits and advantages accrue, not to the trustee, but to the persons called cestui que 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 advantages will accrue in his favour to the extend of his beneficial inter3.
Lewis’ definition is more elaborative in the sense that it tells the state of affairs where a trust fall short of the requirement, and likely beneficiary of such trust. Trust is defined in Black’s Law Dictionary4 as a fiduciary relationship regarding property and subjecting the person with title to the property to equitable duties to deal with it for another’s benefit; the confidence placed in a trustee, together with the trustee’s obligations toward the property and the beneficiary.NIGERIAN LAW
All definitions of trust given above touch on property. It gives an insight into the boundary of trust law and it is inline with these definitions that our discussion will be basically tailored. However, it is important to state at this stage that the scope of property which these definitions envisage is narrower than what will be covered by this work. This is because the definitions relates to real property alone, other categories of trust such as corporate securities, insurance policy, and intellectual property, shall be examined.NIGERIAN LAW
THE INSTITUTION OF TRUST LAW UNDER NIGERIAN CUSTOMARY LAND LAW
Under Customary law title or ownership to land ranges from individual, Communal, to family ownership. The Term ownership is a multi-referential word, which does not lend itself to an apt or precise definition. The issue becomes more complex when the word is to be defined in the context of customary land law. The ordinary meaning of ownership is defined as collection of rights to use and enjoy property, including right to transmit it to others. It is the complete dominion, title to proprietary right in a thing or claim5. It means the entirety of the powers of use and disposal allowed by law. It is the right of one or more persons to possess and use a thing to the exclusion of others. It is the right by which a thing belongs to someone in particular to the exclusion of all other persons.NIGERIAN LAW
It means the exclusive right of possession, enjoyment, and disposal involving as an essential attribute the right to control, handle and disposal6. Black’s Law Dictionary defines ownership to mean the collection of rights allowing one to use and enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing, regardless of any actual or constructive control. Nwabueze explained the concept of ownership “as the most comprehensive and complete relation that can exist in respect of any thing. It implies the fullest amplitude of rights of enjoyment, management and disposal over property. Put differently, it implies that the owner’s title to these rights is superior and paramount over any other rights that may exist in the land in favour of other persons7.”NIGERIAN LAW
The next issue for determination is that of ownership of land under customary law. In other words who owns land under customary law? This has been succinctly stated in the celebrated case of Amodu Tijani vs. Secretary of Southern Nigeria8.NIGERIAN LAW
The next fact which it is important to bear in mind in order to understand native law is the notion of individual ownership is quite foreign to native ideas land belongs to the community, the village or the family, never to the individual…
In this case, the appellant was one of the Idejo white cap chiefs of Lagos. He was the head Chief of the Oluwa family or community and one of the Idejos or land owing white cap Chiefs of Lagos and the land in question was situated at Apapa and was occupied by persons some of whom paid rent or tribute to him. By a notice dated November 12, 1913 certain lands situated at Apapa were acquired by the Government of the Colony under the Public Lands Ordinance (No. 5 of 1903) for public purposes.NIGERIAN LAW
The appellant as Head Chief of the Oluwa Family claimed compensation on the basis of ownership of the lands, Speed, C.J. held that the appellant was entitled to compensation on the basis of his having merely a right of control and management not on the basis of absolute ownership. That decision was affirmed by the full court. On appeal to the Judicial Committee of the Privy Council it was held that the radical title to land by the White Cap Chiefs of Lagos is in the Crown, but a full usufructuary title vests in a Chief on behalf of the community of which he is the head. Concerning the land held by White Cap Chiefs being acquired for public purposes under the Public Lands Ordinance, 1903, it was held that compensation was payable on the footing that the Chief was transferring the land in full ownership (except so far as it was unoccupied), the compensation was to be distributed among the members of the community of which he was Chief according to the procedure provided by the Ordinance.NIGERIAN LAW
Also in Lewis v. Bankole9, Where a certain Lagos chief called Mabinuori died in 1874 leaving twelve children and three separate plots of land; on one, the family compound, he lived with his wives and some of his children and domestics; on another he built houses for his eldest daughter and two of his sons; whilst the third was dedicated to the worship of the family fetish. About thirty years after his death, certain of his grandchildren, including the issue of the children for whom separate house were built, brought this action, claiming that the family compound which had since remained in the occupation of some of the children and grandchildren was the common property of the entire family. Speed Ag. C.J. held that by tacit mutual arrangement and acquiescence of all parties extending over a number of years, the various properties left by the deceased chief had been separated and come to be considered as separately owned. In a notorious passage, the learned judge observed:
Now to these facts I am asked to apply strict native law and custom and to declare that the property has always been the family property of Mabinuori’s family and that the defendants who have been in undisturbed occupation for upwards of 30 years should now be told that they are only joint tenants with the rest of the family. I am asked to throw the property into the melting pot of an acrimonious family feud. I have no doubts that plaintiffs have native law and custom on their side. I mean native law and custom as it was understood and possibly applied 40 years ago, but I decline to say that it is existing native law and if it is I am Confident that it is my duty to decide that it is repugnant to the principles of equity and to refuse to enforce i10.NIGERIAN LAW
DISCUSS THE RELEVANCE OF TRUST IN NIGERIAN LAW
