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In The Supreme Court of Nigeria

On Wednesday, the 1st day of November 1967

 

Before Their Lordships

 

Adetokunbo Ademola

......

Chief Justice of Nigeria

Vahe Bairamian

......

Justice, Supreme Court

George Baptist Ayodola Coker

......

Justice, Supreme Court

 

S.C. 600/1965

 

 

Between

 

Theophilus Adebayo Doherty

Henry Ade Doherty

 .......

Appellants

 

And

 

Richard Ade Doherty

.......

Respondents

 

 

 

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

 

 

Chief O. B. Akin-Olugbade

with him

Olusanya

......

For the Appellants

 

 

 

G. L. Impey

with him

S. M. Adesina

......

For the Respondents

 

 

Appeal was from High Court of Lagos Suit M/74/63