Trusts and Executorships

• Pages: 193-204

193

TRUSTS AND EXECUTORSHIPS.

(64) ADVANCEMENT.

Presumption raised where parent buys property in child’s name, and how rebutted.

“It is pertinent to remark having regard to the state of the authorities that where as in this case, any

specie of property was allotted to and signed for by the children of a father who of his own volition

caused the property to be so assigned to his children, it must be presumed that such property was

given as a gift of advancement to the children by their father. It is for the father, or those who

wished to challenge that presumption that have the onus of providing credible evidence to prove

that the property was not meant as a gift or advancement to the children.”– PerEjiwunmi, J.S.C.,

in Ughutevbe v. Shonowo Suit No. S.C. 160/1997; (2004) 16 N.W.L.R. (Pt. 899) 300 at 331.

(65) BREACH OF TRUST.

Requirement for pleading breach of trust in an action.

“Order 25 rule 5(1) of the Federal Capital Territory High Court (Civil Procedure) Rules 1987

provides: “In all cases in which the party pleading relies on any misrepresentation, fraud, breach

of trust, willful default or undue influence and in all other cases in which particulars may be

necessary, the particulars (with datesand items if necessary) shall be stated in the pleadings.” In

the respondent's brief, counsel cited the following passage byLord Denning in Re Vandervell’s

Trusts (No. 2) (supra): “Mr. Balcanbe for the executors stressed that the point taken by Mr. Mills

was not covered by the pleadings.He said time and again: 'This way of putting the case was not

pleaded. No such trust was pleaded.' And so forth. The more he argued, the more technical he

became. I began to think we were back in the bad old days before the Common Law Procedure

Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the

omission of a single averment.See Bullen and Leake's precedent of pleadings, 3rd Ed. (1868),

P.147. All that has been long swept away. It is sufficient for the pleader to state the material facts.

He need not state the legal result, If, for convenience, he does so, he is not bound by, or limited to,

what he has stated. He can present, in argument any legal consequence of which the facts permit.

The pleadings in this case contained all material facts. It does not c appear that Mr. Mills put the

case before the Judge; but this does not entail any difference in the facts only a difference in stating

the legal consequences. So it was quite open to him.” It is clear from the wordings of Order 25

rule 5 (1) of the rules of Court that the breach of trust shall be pleaded. There is no such pleading

in the statement of defence and that is prejudicial to the case of the respondent. It is trite law that

rules of Court must be followed and obeyed by the parties and the Courts. SeeSolanke v.

Somefun(1974) 1 S.C 141;Dr Aina v. Miss Aina(1986) 2 N.W.L.R (Pt.22) 316;Ibodo v.

Enarofia(1980) 5-7 S.C 42;Olusesi v. Oyelusi(1986) 3 N.W.L.R (Pt.31) 634;John v.

Blakk(1988) 1 N.W.L.R (Pt.72) 648.” – Per Tobi, J.S.C., in Ezeanah v. Atta Suit No. S.C.

226/2000; (2004) 7 N.W.L.R. (Pt. 873) 468 at 501 – 502.

(66) CONFLICT OF INTEREST AS AN EXECUTOR OF SOLICITOR TO AN

ESTATE.

Conflict of interest as an executor of and solicitor to an estate.

“Now, granted the provisions were made in the will and the letter of Wishes of the deceased or

that the beneficiaries requ ired that a solicitor be appointed to render legal services to the deceased’s

estate, equity requires that the respondent should have disqualified his legal firm from rendering

remunerative services to t he estate of the deceased in view the respondent’s position as an executor