Olabode Renner Vs Albert Babatunde Renner (1961)

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UNSWORTH, FJ

This appeal was dismissed on the 19th April, 1961, and I now give my reasons for this decision.

The appeal was from a decision of Duffus, J., in which he (1) directed an account of moneys received by the appellants as trustees, (2) directed the removal of the second appellant as a trustee of the estate of the late M. A. Renner, and (3) granted an injunction to restrain the third appellant from acting in the capacity of trustee or otherwise interfering with the estate.

The main ground of appeal argued by learned counsel for the appellants was that the learned trial Judge was wrong in dealing with the case on the basis that the respondent and the first and second appellants were trustees, because they had not (in their capacity as executors) assented to the property vesting in them as trustees.

The law relating to the vesting of real estate in Western Nigeria is now to be found in s. 40 (4) of the Administration of Estates Law (chapter 1 of the 1959 edition of the Laws of the Western Region). This law came into force on the 23rd April, 1959, and the vesting of property after that date is governed by the provisions of that subsection which is based on section 36 (4) of the United Kingdom Administration of Estates Act, 1925.

The effect of this subsection is that an assent to the vesting of realty must be in writing for the purpose of vesting the legal estate. It is clear, however, that the vesting in this case took place when the administration was completed in 1954 and the law then applicable was the law in force in England prior to the 1st January, 1900, as applied by s. 14 of the Supreme Court Ordinance (chapter 211 of the 1948 edition of the Laws).

In the circumstances mentioned above the relevant law is the Land Transfer Act, 1897. Subsection (1) of section 2 of that Act provides that the personal representatives of a deceased person shall hold the real estate as trustees, subject to the powers, rights, duties and liabilities mentioned in the Act. Subsection (2) of that section provides that all rules of law relating to the administration of personal estate and the powers, rights, duties and liabilities of personal representatives in respect of personal estate, apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in the representatives. The Act also makes provision in section 3 for an assent to the transfer of real estate. The position therefore is that the rules relating to the administration of personal estate apply also to real estate, and it follows that assent can be implied as held in Wise v. Whitburn (1924)1 Ch. 460 and that upon the completion of an administration, executors who are also trustees, though they may remain personal representatives, are deemed to have become trustees in accordance with the principles laid down in the case of Re Ponder (1921) 2 Ch. 59. The application of these rules to realty is illustrated by the cases of Re Peel, Woodcock v. Holdroyd (1899) WN 208 and Re Cowley (1901) 1 Ch. 38, which are referred to in the 1914 Edition of Halsbury’s Laws of England, volume 28, page 61, paragraph 116.

I would add that even if s. 40 (4) of the Administration of Estates Law, or any corresponding provision, applied to this case, I would still hold that the legal estate was vested in the parties as trustees because a formal written assent (even if desirable, as appears from Re Yerburgh (1928) YIN 208) is not strictly necessary where the executors and trustees are the same persons and the legal estate is therefore already at home in its proper resting place.

In the circumstances mentioned above I would not disturb the finding of the learned trial Judge that the parties were in the position of trustees.

Learned counsel also argued that the learned Judge erred in holding that the second appellant was apparently too ill to continue as a trustee. There was clearly evidence that she was ill, and indeed she had recited in the Power of Attorney (exhibit ‘J’) that she had “found it necessary for reasons of health to appoint an Attorney” to act for her in matters relating to the estate. In removing the trustee the learned trial Judge acted in accordance with his inherent power to remove a trustee and the reasons for his decision are to be found in the following passage in his judgment:

I have to decide however, as to what is the best course to adopt for the future protection of the Trust and for its proper administration. My main concern is the interest of the beneficiaries. As a first step I think it essential to prevent future interference by Mr. H. I. Olowu. Mrs. Ibidun Olowu is apparently too ill to continue as a Trustee as the power appointing Mr. H. I. Olowu shows, and I consider it in the best interests of the Trust that she should be removed from being a trustee and further that the injunction asked for against Mr. H. I. Olowu to prevent his further acting in the estate should issue.

In my view the learned trial Judge properly exercised the powers relating to the removal of trustees. These powers were described in the case of Getterstedt v. Broers (1884) 9 App. Cas. 371, as follows:-

The jurisdiction of the Court is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be home in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.

In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on details of great nicety. But they proceed to look carefully into the circumstances of the case.

Counsel also argued a number of other grounds of appeal which were largely designed to show that the case was not properly before the Court below. In my view there was no substance in these grounds of appeal.

For the above reasons I considered that the appeal should be dismissed with costs assessed at twenty—five guineas.

Other Citation: (1961) LCN/0921(SC)