a legal link between trust property and trustee under the Nigerian legal system
In most common law system, trust properties are those managed by one person, a group of people or organizations for the benefit of another. The modern rules of equality owe their origin and development to the English court of chancery1 and were formally received into the Nigerian legal system through various statutory enactments. Trust is an institution of equity which is received into the Nigerian legal system and just like all other equitable institutions and remedies, any claim arising from trust must be shown to have an ancestry founded in history and in the practice and precedents of courts administering equitable jurisdiction.
It is a notable fact that the doctrine of equity developed in order to mitigate the harshness of common law, hence the law of trust which is an equitable principle is one of such development. The reception of the English law of trust in Nigeria was not a voluntary act of Nigeria. It was enforced through the Re-english laws received into Nigeria which became operative from the 1st of January, 1900. It should however be noted that before the colonialists imposed their legal system on us, the concept of trust has been in operation under our own customary laws. To this end, one can logically affirm that the reception of the English law of trust into the Nigerian legal system is a blessing since the property to be held by the trustee on behalf of the beneficiary will be administered judiciously without fear of exploitation and even if there is exploitation the maxim ‘equity will not suffer a wrong without a remedy’ will be applied in such a case. Under the common law (legal systems), a trust is a relationship whereby property (including real, tangible and intangible) is managed by one person (persons or organizations) for the benefit of another. A trust is created by a settlor or testator who entrusts some or all of his property to people of his choice (trustee(s) or reoffer to uses). The trustees hold legal title to the property for the benefit of one or more individuals or organizations (beneficiary or cestui que trust) usually specified by the settlor, who hold equitable title. The trustee(s) owe(s) a fiduciary duty to the beneficiaries, who are the beneficial owner of the trust property.
The trust is governed by the terms of the trust document, which is usually written and occasionally set out in deed form. It is also governed by local law. The trustee is obliged to administer the trust in accordance with both the terms of the trust document and the governing law. Trust relationship creates a fiduciary relationship among all the parties to the trust which has regards to property and subjects the person with title to the property to equitable duties to deal with it for another’s benefit, thereby placing a confidence in the trustee for the proper management of the property and the enjoyment of the beneficiary. Trust property is the essence for which trust relationship was created. Without the existence of a trust property alone without the vesting of such property in the trustee does not warrant a valid trust but rather the trust property must be properly vested in the trustee
1.1.0: BACKGROUND TO THE STUDY
The long essay leans on the wall of trust relationship which centers on trust property and trustee under the Nigerian legal system envisaging the legal link between the two concepts. The vesting of trust property in the trustee shall be examined and other related concepts to it under the Nigerian legal system shall not be left out. In the light of the above, recourse shall be made to the definition and examination of trust property and trustee complemented with definitions of other related terms which fall within the scope of this long essay.
1.2.0: OBJECTIVES OF THE STUDY
This study focused on the below highlighted objectives: a. To examine the concept of trust relationship and its relevancy under the Nigerian legal system b. To examine the concept of trust property and trustee under the Nigerian legal system. c. To examine the rights, powers and duties of a trustee over the trust property d. To establish the nature of rights that exists under a trust relationship. e. To examine the concept of trust and other legal relationships showcasing the distinction between them and the uniqueness of trust over them. f. To examine the concept of vesting trust property in the trustee as the legal link between them and its effect in a trust relationship. g. To draw attention to the need to develop this area of property law so as to make it be in tune with modern reality.
1.3.0: FOCUS OF THE STUDY
This work has its focus on the legal link between trust property and the trustee under the Nigerian legal system by way of establishing the concept of vesting of trust property in the trustee and its effect if properly done or not. It also goes further to examine the different types of trustees and the scope of operation of each type.
1.4.0: SCOPE OF THE STUDY
Discussion on trust relationship centers on trustee(s) and trust property. Hence this study limits it tentacles to the principle of law regulating the relationship between trustees and trust property though with reference to the beneficiaries’ interest in the trust property.
This project employs historical, analytical and ethical methods to examine the relevant principles of law on the concept of trust property and trustee under the Nigerian legal system. It examines the issue from the historical perspective to afford the readers historical benefits on the development of legal principles in this area of property law. In carrying out a study like this, the sources of information could be relied on viz: primary and secondary source of information which will be gathered from textbooks both Nigerian and foreign authors, newspapers, law journals, judicial decisions, relevant statutes, law reports, the Nigerian constitution(1999) amongst others. Information gathered from the internet will equally be of immense help.
1.6.0: LITERATURE REVIEW
Various authorities on trust relationship have been consulted in the course of writing this research work and these authorities have immensely contributed to the development of trust agreement. Most writers and judicial decisions on the concept of trust as they relate to the relationship between trustee and trust property has been expressed and a review of this shall be examined.
M.I. Jegede in his book is of the view that trust is an institution received into the Nigerian legal system and like all equitable institutions and remedies, any claim arising from trust must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. He went further to say that one of the distinctive features of a trust is that it provides for a situation in which property is managed by one for the benefit of another. Even though other institutions provide for such property management relationships, notwithstanding that fact, when they are seen and examined in the context of the essential requirement of a trust, the difference becomes clear and the uniqueness of a trust becomes more pronounced. The office of a trustee is important to the smooth administration of a trust. The trust property is vested in the trustee who holds such property in accordance with the terms of the trust.
PROFESSOR KEETON in his book described trust as the relationship which arises where 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 trust.
J.O. FABUNMI in his book stressed that if a new trustee is appointed by deed which contains a declaration by the appointor to the effect that the trust property vests in the persons who by virtue of the deed became and are trustees for performing the trust, that declaration without any separate conveyance or assignment operates to vest in those persons the trust property.
MUIZ BANIRE opined that the trust property must be specified with reasonable certainty. If it is not so specified and it is incapable of precise ascertainment, the trust will fail, in the sense that the donee has nothing to hold absolutely and there can be no trust resulting to the estate of the testator since there is nothing to form the subject matter of such a trust. Hence a trust is not properly constituted unless the trust property is properly linked to the trustee i.e. properly vested in the trustee. A trustee cannot deal properly with the trust property until it is properly vested in him.
D.J. BAKIBINGA expressed that mere appointment of a trustee does not, of itself vest property in him. It is of great necessity for the appointment to also provide for the vesting of the trust property in the trustees in order to properly constitute a valid trust. ROGER LEROY MILLER and GAYLORD A. GENTZ offered a definitive description of the concept of trust. They defined trust to mean ‘any arrangement through which property is transferred from one person to a trustee to be administered for the transferor’s or another party’s benefit’. They also defined it as ‘a right or property, real or personal, held by one party for the benefit of another’. They said a trust can be created for any purpose that is not illegal or against public policy. They gave its essential elements which are: a. a designed beneficiary b. a designated trustee c. a fund sufficiently identified to enable title to pass to the trustee. d. actual delivery to the settlor or grantor to the trustee with the intention of passing. They also gave explanation on how a trust should be. They said there is a separation of interest in the trust property. The trustee takes a legal title, which is the complete ownership and possession but which does not include the right to receive any benefit from the property. The beneficiary takes equitable title, which is the right to receive benefit from the property.
1.7.0: DEFINITION OF TERMS
Trust relationship is not just an area we can discuss without first appreciating the meaning of its basic concept. Ideas are better illuminated and impacted when the basic principles of legal concepts in respect of a subject are well spelt out. Finding meanings to each of the terms to be used in this research make the research work easier. It assists in discussing the subject matter within its confines. The foundation of this project will be laid by bringing out the meaning of the legal terms or concepts associated with trust relationship such as trust, trustee, trust property, vesting etc. However, the definitions here will be brief as the in-depth meaning of each term shall be brought out later on in the subsequent chapters.
The Black’s Law dictionary9 defined the term trust as ‘A right of property, real or personal, held by one party for the benefit of another.’ ‘A confidence reposed in one person, who is termed trustee, for the benefit of another who is called the cestui que trust, respecting properly which is held by the trustee for the benefit of the cestui que trust’.
The Black’s law dictionary10 defined a trustee as ‘person holding property in trust. The person appointed, or required by law to execute a trust; one in whom estate, interest or power is vested, under an express or implied agreement to administer or exercise it for the benefit or to the use of another called the cestui que trust’.
Dictionary of English Law11 defined trustee as ‘a person who holds property upon trust’.
iii. TRUST PROPERTY
The Black’s Law dictionary12 defined trust property as ‘the property which is the subject matter of the trust; The property of which the trust consists. It may be real or personal and the trustee has legal title.’
iv. CESTUI QUE TRUST
The oxford concise English dictionary13 defined beneficiary as ‘a person who receives benefit especially under a trust, will, or life insurance policy’.
Blacks law dictionary14 defined beneficiary as ‘one who benefits from acts of another. A party who will benefit from a transfer of property or other arrangement’.
The administration of the trust property should be treated with kid gloves because of its delicate nature and which if not wisely and properly administered would lead to a loss on the trust estate and the beneficiary, so the contributions of the trustee to the smooth running of the trust property should not be overlooked. Hence the acronym: existence of trust property coupled with the vesting of the property in the trustee on behalf of a beneficiary brings about trust relationship.