A Holistic Appraisal Of The Concept Of Trust Under The Nigerian Jurisprudence

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A Holistic Appraisal Of The Concept Of Trust Under The Nigerian Jurisprudence


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.


Chapter Five


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 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 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 responsibilities. For instance, a trustee can exercise power of sale and power to 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.


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