ABSTRACT
The argument that the equitable concept of trust is alien to customary law subsists. It is indeed, a will o’ the wisp to dogmatically decline the statement when the point of discourse is the English concept of trust in its entirety. No doubt, English Law of trust has distinct principles. However, the fact remains that the underlying philosophy of ‘trust-beneficiary’ relationship exists both under the English Law and the customary laws of indigenous traditional societies. The English Law of trusts was formally received into Nigeria legal system through various statutory enactments. However, the practice of trust under customary law has been in existence in the various traditional communities in Nigeria before the advent of colonialism. The peculiarities of such practices, though not as fully developed as the modern principles, testify to the ingenuity of certain legal components of trust under customary law. The aim of this research is to critically peruse the core of the law of trusts under both customary law and English law. Effort is made to contrast the realities of both systems and their concomitant similarities. The research submits that, trusts, as it operates in Nigeria is presently an intermingling of both English law and traditional practices. The research further proffers some key recommendations to ameliorate the present practices of trust in Nigeria.
CHAPTER ONE
GENERAL INTRODUCTION
• Background of the Study
Trust is an institution of equity received into 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.1 The contemporary principles of trust are offshoots of the equitable principles developed by the English Court of Chancery and were formally received into Nigeria legal system through various statutory enactments.2 However, the practice of trust under customary law has been in existence in the various traditional communities in Nigeria before the advent of colonialism. The existence of such practice, though not fully as developed as the modern principles, testifies to the ingenuity of certain legal components of trust under customary law. The concept of family ownership of land in Nigeria served a purpose similar to that of trust, where the concept of individual ownership is a foreign one, rather, land belongs to the family and the head of family holds the family land in trust for the use of the family members. The head of family to some extent assumes the position of a trustee and all members of the family have equal right to the property.3
The concept of trust under customary law is however different from that under the English law in many regards. A very good example includes the norm of regarding the conventional trustee as the owner of the trust property; the head of family is not regarded as the owner of the family property, but rather as the caretaker. It is clear that trust is a device for making disposition of property interest, and the system of ownership implicit in this device may be peculiar to English jurisprudence. Under the English law, trust creates a double system of ownership in the property. The promulgation of the Land Use Act is also a watershed in the development of the various dimensions of trust practices in Nigeria. At the state level, the underlying philosophy behind the equitable principle of trust is borrowed into the ownership and management of land in the various states of the federation. The Land Use Act 1978 embodies the concept of trust by vesting the control and management of land in each State of the federation in the Governors to be held in trust and administered for the use and common benefit of all Nigerians.4 The concept of trust under the Land Use Act is however not the same as in the law of trusts because the trustee under the Act, which is the Governor cannot be compelled to render account as trustee under English law.
Generally, the emancipation of trust as a practice of greater importance in the socio-economic life of Nigerians has been brought to the fore by various factors. With the gradual disintegration of the concept of family property and the predominance of individual landholding, trust has been said to become a veritable vehicle for management of these wealth for the benefit of families and individuals. Another quantum leap in the enhancement of the underlying philosophy of trust in Nigeria is the establishment of incorporated trustees in the Companies and Allied Matters Act.5
It is against this multidimensional backdrop in the operation of trusts in Nigeria that the research seeks to examine the various peculiarities of trust under the Nigerian legal system in its different folds. This is achieved by painstakingly appraising the obtainable inherent contradistinctions in the different systems with apt attention given to the English and customary systems.
• Literature Review
There are various scholarly resources that were consulted in the course of writing this research. The opinions of the various writers on the subject matter of discourse have been critically appraised by the researcher. It is submitted that their respective contributions are of incontrovertible relevance to the subject matter and directly culminates to facilitate the course of the research.
In his book titled, Equity and Trusts in Nigeria,6 Fabunmi argues that there is no doubt that some attribute of family heads are similar in some respect to that of trustees under Received English Law, for instance, the head of family manages and controls family property, trustees manage and controls trust property. They both can sell property under their control but the head of family needs the consent of the principal members, otherwise, such a sale is voidable. He, however, submits that it is evident that the two institutions (trust relationship under English Law and customary law) are products of two different systems and cannot be put in the same compartment. He further suggested that in developing the institution of the family head to meet the social and economic realities of our time, judges should invoke judicial creativity to achieve this end.7 The foregoing view, as submitted by the research, is validated by the dynamism that characterizes the system of law which directly necessitates the need for the judiciary to be proactive.
With respect to the concept of trust under the Land Use Act 1978, Fabunmi considers the provision of section 1 of the Act which states that subject to the provisions of the Act, all land comprised in the territory of each state in the federation are vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act. He viewed the idea of trust which is the underlying philosophy of family and communal properties under the native law and custom as the same behind the Land Use Act. The researcher disagrees with this view to the extent that certain key differences distinguish trust under customary law from trust under the Land Use Act. As he pointed out the differences between the trustee under the Act and trustee under the received English Law, it is submitted in this research that, so also exists certain key differences between trust the philosophies encapsulated in the trust practice under customary law and the Land Use Act.
The position of Jegede is that the limited power of the head of family under customary law to dispose of family property indicates a very significant distinction between the powers of a head of family as trustee of family property and those of a trustee under the received English law of trust. He also gives credence to the privilege attached to the office of the family head as a trustee of family property which is the exemption from accounting. This exemption has been a feature of the tenure from very early times and has gained recognition by the courts until recent times where traditional loyalty has been replaced by individual ambitions for wealth and the other good things of life. The researcher pitches his tent with this view putting into consideration the various ostensible dichotomies between the two systems. However, he submits that practice where the burden of management is that of the family head while the beneficial enjoyment of the property vests in members of the family is the basis of trusteeship ideas in the customary law system of property ownership and is also the premise upon which fiduciary principles relating to management and control of family property are formulated.
The sociological circumstances surrounding family ties give the legitimate force to the duties and rights attached to the position of the family head. This force may not necessarily find refuge in a legal norm but may be said to be encapsulated in moral attachment and recognition. As a family head, he is supposed to be in the best position to execute certain commissions on behalf of the entire family members who look up to him as an elder statesman. This was probably the belief of Jegede8 when he argued that the legal proposition that the head of a family holds family possessions in trust for himself and other members of the family is not derived from the received English law of trust. He canvassed that it is rather a composite designation of a traditional system of property holding which system, by itself, creates a unique species of trust.
According to Taiwo and Akintola9, the law of trusts in Nigeria is a combination of the English common law principles, doctrines of equity as well as various statutory provisions of the Property and Conveyancing Law10, the Land Use Act, 197811, Administration of Estates Law12(among others), incorporated into the Laws of the various States such as Edo, Delta, Oyo, Osun, Ogun, Lagos, Ekiti and Ondo carved out of the Western Region of Nigeria, Trustees Investments Act, Public Trustee Act and Law.13 They further submitted that the Supreme Court Ordinance No. 4 of 1876 formally introduced the doctrines of equity as part of English laws to be applied in Nigeria courts. However, they recognized the English law on trusts as received into Nigeria by the various enabling statutes without paying attention to the pre-existing customs of indigenous communities and the resemblance of the English principles which were operative amidst them. It is, however, argued in this research that the successful operation of the English principle on trust in Nigeria derives it legitimate force and general acceptance from the people because it has a common elements with the local reality of the people. Nevertheless, the extant legal framework which is operational in the various part of the country still remains the legal anchorage for the subsistence of trust practices in Nigeria.
Furthemore, Emri and Giwa14 canvass that, today, trust is developing outside traditional boundaries of family and friendship relationship and is extending its relief and remedies into commerce. All of these have been made possible by the flexible nature of trust and flexibility of purposes for which it may be employed, especially its capacity to manipulate private property
For more Commercial Law Projects Click here
===================================================================Item Type: Project Material | Size: 78 pages | Chapters: 1-5
Format: MS Word | Delivery: Within 30Mins.
===================================================================
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.