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In The Supreme
Court of Nigeria
On Wednesday, the 1st day of
November 1967
Before Their Lordships
S.C. 600/1965
Between
And
Judgement of the Court
Delivered by
Adetokunbo
Ademola. CJN
The appellants, who were the defendants in this case in the High Court of
Lagos, have appealed against the order of Onyeama,
J., as he then was; removing the first defendant
from the office of trustee of the will of J. H. Doherty (deceased).
The application before the court, by means of originating summons, was for
an order:—
(i)
to remove the first defendant as trustee
of the trusts of the will of J. H. Doherty; and
(ii)
that
the plaintiff, Richard Ade Doherty, be appointed judicial trustee for the
purpose of administering the trust.
The learned judge, on 8th November, 1964, granted the order to remove the
first defendant but refused to appoint the plaintiff a judicial trustee. The
defendants appealed against the order of removal. On the 13th December,
1963, on the application of some beneficiaries, two other trustees were
appointed and upon motion for stay of execution, the order for removal was
qualified thus:
"The operation of the order of removal of the appellant is suspended pending
the determination of appeal filed on the condition that he will act during
that time only in conjunction with the other trustees."
The plaintiff was dissatisfied with this qualification and filed a
cross-appeal on that issue. As we heard the main appeal at once, it was
unnecessary to continue with the cross-appeal.
The dispute between the parties dates as far back as 1954. The testator,
Joseph Henryson Doherty, a businessman and a man
of affluence, died in March 1928 leaving a will; of the six executors and
trustees of the will the two defendants, who are sons of the deceased, are
the surviving executors and trustees of the will. The plaintiff, one of the
younger sons of the deceased, in 1954 unsuccessfully sought the aid of the
court to remove the first defendant as a trustee. There were also attempts
in 1960 and 1962 respectively, and the present is the fourth attempt to
displace the first defendant. The deceased left many children on his death,
of which thirty-six are now living; he created a trust in
favour of his children, the trust property
comprising forty-two items of real estate yielding, according to the
plaintiff, annual income of £50,000.
There can be no doubt about the complexity of the will which was referred to
by Bennett, J., in 1954, as a "complicated document", and there was no
dispute among the children until the action of 1954 brought by the present
plaintiff. All the children have been educated, and there appears
to
be no dispute about their education, as well as the education of
other relatives provided for in the will.
The present originating summons was objected to in
limine on the plea that previous applications for removal on the
ground of maladministration having been dismissed, the judge was not
competent to "review" the decision of another judge. The learned judge
overruled this submission of res judicata
and held that as the plaintiff alleged new facts, the whole legal rights and
obligations of the parties were not concluded by the earlier
judgements although the facts upon which the
earlier applications were based could not be reopened.
The hearing then proceeded on the complaints or charges made by the
plaintiff/respondent against the appellant; some of them we must admit are
frivolous and unfounded. There were serious allegations that the appellant
had been charged to court for stealing a sum of £75,000 property of a bank
and that in the circumstances he was not a fit and proper person to remain a
trustee of this estate. The allegation about the theft was later withdrawn
because it was not true. We cannot but disapprove that such an allegation
could be made with such levity and with such disregard for truth. There was
also a charge that the appellant made personal use of a sum of £30,000 which
he obtained by mortgaging some of the trust properties, an allegation which
was not supported by evidence before the trial court. It is a matter of some
concern that these allegations were sworn to by the respondent without any
regard to the feelings of the appellant and with utter recklessness, not
caring to ascertain the truth.
Various charges of incompetence were leveled against the appellant but the
principal charges which came up for the consideration of the learned judge
may be
summarised
under two heads:
(i)
that despite the terms of the judgement
of Mr Justice Bennett and the orders made by him, the appellant and his
co-trustee have failed to file an account satisfactorily of rents collected
on the trust properties and also of profits or losses made in the business
which forms part of the trust;
(ii)
that
the appellant has mortgaged some of the trust properties unnecessarily for a
sum of £20,000 and later obtained another £10,000 on the properties for a
further charge both to a firm of which he was a director.
On the first ground, although the complaint was for failure to file an
account satisfactorily, the case was fought on the ground that no account
was filed at all. This point is important since we directed the attention of
counsel for the respondent to an account which was apparently not put in
evidence before the judge. Counsel for respondent agreed that an account was
indeed filed but said that it was an unsatisfactory account. The relevant
portion of the judgement on this point, and it
was the only point upon which the learned judge based his
judgement, is as follows:
"To sum up, I find no misconduct proved against the first defendant, but I
find that he has failed to account for the trust property and that he was
hopelessly at odds with the plaintiff, one of the beneficiaries of the
trust. In the interest of the trust I declare that he be removed from the
office of trustee of the will of J.H. Doherty
..."
There was abundant evidence before the court that the first defendant and
the plaintiff have been at logger-heads and were unable to get on together,
but it is clear from the evidence available that the plaintiff seemed to be
the only one of the many beneficiaries standing in such a position with the
first defendant. Whatever may be the reason for this it is not by itself
alone enough to remove the first defendant as trustee. In regard to the
matter of the failure to account on which the learned judge based his
judgement, it was not alleged that he did not
file any account: as already stated, counsel for the respondent agreed that
an account was filed; so the learned judge proceeded on a mistake of fact in
arriving at his decision.
The respondent's complaint, as already stated, was that the first defendant
and his co-trustee had not accounted satisfactorily under the
judgement and orders made by Bennett, J., on
29th March, 1956 in Suit No. 20/1954.
The respondent attached a copy of that judgement,
but did not attach to his affidavit any account,
he only attached a letter from a firm of accountants dated 20th November,
1958, giving their comments on the accounts furnished and making certain
requests asking for more particulars. We can only assume that the respondent
was asking for judgement in his
favour on the strength of the accountant's
letter.
It is convenient here to state that on 28th May, 1960, before Bennett, J.,
in the same suit (No. 20/1954) the plaintiff moved the court to order the
defendants to supply further particulars of proof and accounts and to remove
the first defendant from office, arguing that he had not complied with the
accountants' letter. All that Bennett, J., ordered was that the first
defendant should supply details of certain leases within 7 days; he declined
to order personal accounts, stating that the first defendant had given the
information needed about the £14,000 from Shell Company. All that was left
outstanding therefore under the judgement of
Bennett, J., was no more than the details of certain leases to be supplied
within seven days of the order made on 28th May, 1960.
In the present case, the first defendant in paragraph 15 of his
counter-affidavit, which forms part of the record in this case, set out the
aforesaid order of 28th May, 1960, and reiterated that there was no appeal
by the plaintiff from that order.
Counsel for the plaintiff in the present case before
Onyeama, J., submitted that no accounts had been filed by the
defendants since the 1954 case and all that the defendants were relying upon
was a plea of res judicata. On the other
hand counsel for the defendants referred the judge to paragraph 15 of the
first defendant's counter-affidavit and exhibit A
attached to it stating that accounts had been given to the plaintiff after
the judgement of Bennett, J. We think the
learned Judge (Onyeama, J.) erred in thinking
that the defendants had not given an account. We are of the view that the
blame must rest on the plaintiff. Having failed to appeal from the order of
28th May, 1960, by Bennett, J,, he now seeks by the present originating
summons to reopen matters which had been laid to rest by that order so far
as compliance with the judgement of 29th March,
1956 was concerned since it is clear that it is that
judgement which is relied upon in the plaintiff's affidavit.
The plaintiff did not complain in the High Court, as he well might have
done, that the defendants have not supplied details of certain leases which
the order of 28th May, 1960 enjoined them to supply within seven days. The
defendants, on the other hand, did not specifically say that they had been
supplied. Counsel for the plaintiff/respondent stated before us, when
arguing the appeal, that they had not been supplied, but these were not the
bases or the gravamen of the complaint on accounts before the learned judge.
We note, however, in passing, that in the record of appeal there are details
of leases, but they appear at a subsequent proceeding after
judgement; this was only in proceedings before
the learned Judge (Onyeama J.,) after an appeal
had been lodged by way of motion before the court in proceedings for a stay
of execution. No mention was made of these leases in the earlier
proceedings. It is not clear when they were supplied, if ever they were; but
if they were not supplied as ordered in May 1960, the plaintiff could have
at that time taken appropriate steps to bring the first defendant to book by
attachment or some sort of action for disobedience to the order of May 1960.
The present originating summons is certainly not the appropriate remedy and
it must be dismissed.
We cannot help thinking that the confusion in the court below was due to the
procedure being used for beginning this case. It is said in
Underhill’s Law Relating to Trusts
and Trustees, 1959 ed. at p. 537-538 that—
"It is generally inadvisable, however, to employ an originating summons for
hostile proceedings against a trustee, and this procedure is, of course,
quite unsuitable where the facts are in dispute, as the evidence is by way
of affidavit."
In this case the proceedings were hostile indeed,
Moreover, the affidavits and counter-affidavits were cumbersome and by no
means lucid or precise. Furthermore, the parties decided not to adduce oral
evidence. What either party could have done, if he wished to question any
statement of fact made by his opponent, was to give notice to him to attend
for cross-examination.
If that had been done, it would doubtless have been brought to the notice of
the learned trial judge that accounts had been delivered; they would have
been produced and canvassed, and things would have become clearer to him.
The way the proceedings were conducted did not help the learned judge.
The respondent to this appeal was to blame, and that in two respects; he
chose an unsuitable procedure for a hostile attack, and under the guise of
it he sought to reopen the accounts which had been considered by Bennett J.;
he was wrong in both respects, and ought to pay the costs of this appeal and
in the court below, for it cannot be said with any show of reason that he
was acting in the interests of the estate.
We assess the costs in this Court at 100 guineas and 40 guineas in the court
below.
Counsel
Appeal was from High Court
of Lagos Suit M/74/63
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