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The Application of Equitable Doctrines by the Courts in East Africa

Published online by Cambridge University Press:  28 July 2009

Stephen Cretney
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Extract

This article is concerned with the application of the doctrines of equity by the courts in East Africa. “Equity” is used in two main ways in the laws of Commonwealth Africa: firstly, the courts were directed to apply the doctrines of equity;2 secondly, the courts were commonly directed to exclude indigenous laws if they were repugnant to “natural justice, equity and good conscience”.3 Sometimes it is used in a broad sense—“justice, equity and good conscience” is to be applied in resolving cases for which there is no other available rule. This article is concerned with the first meaning, equity in the technical, rather than the general, sense,4 with the circumstances in which the courts have applied the doctrines of equity (although it will be seen that the boundary between technical equity and equity in the sense of natural justice is notas rigid as is sometimes supposed). 5

Type
Research Article
Information
Journal of African Law , Volume 12 , Issue 3 , Autumn 1968 , pp. 119 - 145
Copyright
Copyright © School of Oriental and African Studies 1968

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References

2 As at the date of incorporation; in Kenya this is 12th August, 1897; in Tanzania, 22nd July, 1920; and in Uganda, 11th August, 1902. In Tanzania the situation is complicated by the Land (Law of Property and Conveyancing) Ordinance, which applies the law of England as at 1st June, 1922, in relation to personal property, mortgages, leases and tenancies, and trusts and trustees. In each case the application is limited to take account of local circumstances. See infra, p. 122, n. 1.

3 Ghana Courts Ordinance, s. 87, now repealed; in East Africa the draftsman has generally preferred to refer simply to “justice and morality”. See, e.g. the Judicature Act 1967 of Kenya s. 3 (2), following the form used in earlier legislation.

4 See Allott, Essays in African Law, pp. 8, 119.

5 Infra, pp. 127—129.

6 If for no other reason than that the indigenous peoples were usually dealt with in separate courts.

page 120 note 1 14 I.C.L.Q. 1144; see also W. C. E. Daniels, “The influence of equity in West African law”, 11 I.C.L.Q. 31; Hannigan, “Equity and the law in Ghana” (1967), 4U. Ghana L.R. 28 and Derrett: 15 I.C.L.Q. 1205 where the attempts by the courts in India to grapple with the legal problems of the joint family are concerned, and the relevance of Indian decisions to African problems pointed out; see also J. D. M. Derrett, “Justice, Equity and Good Conscience”, in Changing Law in Developing Countries, 114, where the exclusive reliance by courts in Africa on English authorities in the interpretation of this phrase is convincingly criticized.

page 120 note 2 1963; see particularly ss. 120 and 121. On the working of this Act and Land Consolidation in practice see Sorrenson, Land Reform in the Kikuyu Country, passim, but particularly pp. 215–6.

page 120 note 3 The Act makes provision for the rights of beneficiaries who are not registered to be secured, but these provisions of the Act do not seem to be working well in practice.

page 120 note 4 Maitland, “The Unincorporate Body”, Coll. Papers III, 278.

page 120 note 5 Sir C. K. Allen, Law in the Making, 7th edition, p. 417.

page 121 note 1 And judges. Sometimes this lack of specialization leads to difficulty: see Weston (1968), 3 E.A.L.J. 337.

page 121 note 2 See, e.g., the judgment of Diplock, L.J., in Re Satterthwaite's, W. T., [1966] 1 All E.R. 919, at p. 925: “With that humility which is becoming in a common lawyer when confronted with such an arcane branch of the Chancery law, I agree with the judgments which have been delivered”. See also per Sachs, L.J., in Re Leek, “1968” 1 All E.R. 793, at p. 801: “There is however, a further matter to which I would advert with the natural diffidence of one who has for the first time entered the hallowed fields of trusts and powers, of uncertainties, and of perpetuities, and has incidentally found roaming there one no less than the Attorney-General seeking to achieve on the construction of a short document the one result which could be manifestly contrary to the legitimate intentions of the dead man, and also contrary to the interests and wishes of each and every one of all others concerned”.

page 122 note 1 Generally by reference to the provision in the source law, which provides “that the said common law, doctrines of equity and statutes of general application shall apply only so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary”: Kenya Judicature Act 1967, s. 3, following earlier Kenya legislation, which has its counterpart in the other countries.

page 122 note 2 Except between people who can be assumed to govern their lives by reference to it, e.g. expatriate Europeans: Bilous v. Bilous, “1957” E.A. 96.

page 122 note 3 Per Horsfall, J., in Raya Binti Salim bin Khalfan el Busaidi v. Homed Bin Suleiman el Busaidi and another, [1962] E. A. 248, at p. 255.

page 122 note 4 Bishen Singh Chadha v. Mohinder Singh (1956), 29 K.L.R. 20.

page 122 note 5 Shallo v. Maryam, [1967] E.A. 409, C.A.

page 122 note 6 “The word ‘Benami’ is a Persian compound word, made up of be which means without and nam which means name. It means literally without a name, and denotes a transaction effected by a person without using his own name, but in the name of another. The practice of putting property into a false name, that is, the name of a person other than the real owner, is not uncommon. The practice has arisen partly from superstition—some persons and some names being considered as lucky, others as unlucky. Partly also the practice is due to a desire to conceal family affairs from public observation”. Mulla's Principles of Hindu Law (12th Ed.), p. 748, cited in Shallo v. Maryam, supra, pp. 412–3.

page 123 note 1 Which in turn depends on presumed intention. In Busoga Millers and Industries Ltd., v. P. C. Patel (1955), 22 E.A.C.A. 388, the presumption was applied, although perhaps without a full examination of the factors involved.

page123 note 2 Jacob v. Administrator General of Zanzibar (1946), 13 E.A.C.A. 38.

page 123 note 3 In Shallo v. Maryam, supra, Harris, J., applied the principle with some hesitation, on the ground that it was not clear that this particular qualification on the application of English law was rendered necessary by the circumstances of Kenya and its inhabitants: see p. 413, letter H. But if the courts are to consider presumptions of intention, surely they must consider the usages of the section of the community which practises them? It is not true that any particular community is governed by a sectional or communal law or practice, save in so far as this may be expressly (for instance in the field of marriage and succession laws–see e.g. the Mohammedan Marriage, Divorce and Succession Act, Cap. 156, Laws of Kenya, 1962 ed.), or generally (as with African customary law), applied. Where the question is: “what intention did the parties have”?, then local usage and customs rather than those of English society may be referred to. For an interesting application of this principle in effect working a change in the substantive law applicable to a community see the line of cases on marriage brokerage: Fazaldin Satardin v. Din Mohamed and Hajra Begum (1928), 11 K.L.R. 41; Mistry Amar Singh v. Hazara Singh (1946), 12 E.A.C.A. 18; and Vishram Dhanji v. Lalji Ruda, [1957] E.A. 110.

page 123 note 4 This would be comparable to the English rule which does not allow a resulting trust to be set up where it would be contrary to public policy so to allow.

page 123 note 5 See pp. 131 et. seq., infra and p. 145, n. 3, infra.

page 123 note 6 [1959] E.A. 368.

page 123 note 7 Cap. 156, Laws of Kenya, 1962 Ed.

page 124 note 1 As defined in the Act.

page 124 note 2 For a similarly mechanical application of the rules of Muslim law in cases of succession, ignoring arguments of fairness, see Ali Ganyuma v. Ali Mohamed (1927), 11 K.L.R.30.

page 124 note 3 In Century Automobiles Ltd., v. Hutchings Biemer Ltd., [1965] E.A. 304, at p. 311.

page 124 note 4 [1965] E.A. 629. By virtue of the Law of Contract Act, cap. 23, Laws of Kenya, 1962 Ed., the English common law of contract applies in Kenya with effect from 1st January 1961; hence also the English law relating to undue influence: cf. Ottoman Bank v. K. S. Mewani, [1965] E.A. 464.

page 124 note 5 Per DeLestang, J.A., at p. 631. In Kenya there is thus a substantial number of topics, normally within the province of equity, which are governed initially by statute: e.g., the Indian Succession Act and the Probate and Administration Act deal with administration of estates, election, donationes mortis causa, and the rule against perpetuities and accumulations, while the Transfer of Property Act deals with assignment and priority. See however Rule (ii).

page 124 note 6 (1955), 29 K.L.R. 236, particularly per Cram, Ag. J., at p. 239.

page 124 note 7 [1957] E.A. 96.

page 125 note 1 Cf. the rule in English law that an assignment which, for some reason, fails to comply with the rules for a statutory assignment, under the Law of Property Act 1925, s. 136, may still be effective as an assignment in equity. On the other hand, if a purported transfer fails to comply with s. 130 because it lacks the necessary intention to transfer, it will fail altogether: A. M. Marwaha v. Exors of R. K. Parmar (1937), 4 E.A.C.A. 16. In the early case of Chodri Jawaya v. Robitsek and Reis (1911), 4 E.A.L.R. 14, the judgment seems to rely purely on the Transfer of Property Act, and no reference is made to equitable principles, but the report of the judgment is not very full, and the facts are not clear. In Uganda the law relating to assignment is less clear; in Ambalal & Co. Ltd. v. Boury (1955), 23 E.A.C.A. 68 the Court of Appeal accepted what was described as the “general view of practitioners” that an absolute assignment of a chose in action has the same effect as it would now have in England under the Law of Property Act 1925, s. 136 (1) replacing Judicature Act 1873, s. 25 (6). But the court declined to choose between the view that the 1873 Act was a “statute of general application” and the view “that the basis of jurisdiction of the High Court as provided by s. 15 of the 1902 Order in Council is only compatible with the existence in Uganda of a fused system of common law and equity such as existed in England after the Judicature Act 1873 and is incompatible with the existence of separate systems of law and equity such as prevailed before that date”. Hence in what was prima facie an absolute assignment it was not necessary to join the assignor.

page 125 note 2 (1932), 14 K.L.R. 76.

page 126 note 1 E.g. the formal requirements for the grant of a lease: Walsh v. Lonsdale (1882), 21 Ch.D.9. There is a line of Uganda cases on the rights of persons who have failed to comply with the apparently mandatory terms of the Registration of Titles Ordinance: see Musitafa Ndigejserawa v. Isaka Kizito (1952), 7 U.L.R. 31; Jamal Ramji v. Mikaili Musaka (1926), 3 U.L.R. 208; cf. Isaka S. Wamala v. G. H. Muguluma (1952), 7 U.L.R. 33 and Daudi Busulwa v. Texas Co. (South Africa) Ltd. (1933), 5 U.L.R. 55.

page 126 note 2 [1957] E.A. 96. See also S. K. Ndugwa v. The Buganda Butchers Ltd. (1946), 6 U.L.R. 150, a case where relief was sought from a loan contracted at an interest rate of 60% on the grounds that this was “harsh and unconscionable”. Ainley, J., felt he could not give relief by reference to the English cases on unconscionable bargains, because s. 16 of the Indian Contract Act in Uganda ousted those rules (cf. rule (i), supra); nevertheless, it was possible to give relief under the Civil Procedure Ordinance, s. 26.

page 126 note 3 [1965] E.A. 304.

page 127 note 1 Cap. 280, Laws of Kenya, 1962 ed. (now Government Lands Act).

page 127 note 2 Cf. Abdurbabi s/o Musa v. R. (1956), 23 E.A.C.A. 555.

page 127 note 3 [1963] E.A. 304. Note now the Hire Purchase Act 1966, and see McNeil (1966), 2 E.A.L.J. 84.

page 127 note 4 The English law on the redemption of mortgages applies in the absence of express contrary provision: Premier Investment Trust Ltd. v. Amarchand, [1967] E.A. 498.

page 127 note 5 [1962] A.C. 600.

page 127 note 6 But cf. Cityland and Property (Holdings) Ltd. v. Dabrah, [1967] 2 All E.R. 639, where Goff, J., in relieving a mortgagor from the terms of his agreement, seems to have equated “unfair and unconscionable” with “unreasonable”: sed quaere.

page 128 note 1 Mere hardship in the applicability of a statute is not suggested as a ground for equitable interference; the petitioner must be able to bring himself within the framework of the system: cf. Twentsche Overseas Trading Co. Ltd. v. Sanches (1937), 1 T.L.R. (R) 496—hardship not a ground for departing from limitation legislation.

page 128 note 2 But the sentiments apply even more forcibly to the doctrines of equity. In this passage Lord Denning is considering the proviso that the common law shall only be applied so far as local circumstances permit, but the reasoning is apt here.

page 128 note 3 Nyali Ltd. v. A.-G., [1956] 1 Q.B. 1, at p. 17.

page 128 note 4 (1923), 3 U.L.R. 120.

page 128 note 5 (1952), 7 U.L.R. 1.

page 129 note 1 One point which ought to be mentioned is that Edmonds, C. J., considered that since this was essentially a mortgage transaction it was doubtful if the District Native Court had had power to try it: its jurisdiction was limited to cases arising under customary law, and (he said) the law of mortgages was clearly not part of law and custom in Teso 50 years ago.

page 129 note 2 Sir C. K. Allen, Law in the Making, 7th ed., p. 401.

page 129 note 3 Page 199.

page 129 note 4 [1961] E.A. 745, at p. 762.

page 129 note 5 [1963] E.A. 618.

page 130 note 1 Cf. Quistclose Investments Ltd. v. Rolls Razor Ltd., [1967] 1 All E.R. 864, reversed, [1968] 1 All E.R. 613 [1968] 3 All E.R. 651.

page 130 note 2 See also Bilous v. Bilous, [1957] E.A. 96; Busoga Millers and Industries Ltd. v. P. C. Patel (1955), 22 E.A.C.A. 348; Bishen Singh Chadha v. Mohinder Singh (1956), 29 K.L.R. 20; Jacobs v. Administrator General of Zanzibar (1946), 13 E.A.C.A. 38; Shallo v. Maryam, [1967] E.A. 409. On the degree of proof required to establish the existence of a trust see also Maria R. S. Godinho v. C.I.T., [1960] E.A. 97.

page 130 note 3 [1966] E.A. 8.

page 130 note 4 [1944] Ch. 83.

page 130 note 5 Sed quaere: he would presumably suffer financial loss if they were unable to work for him.

page 130 note 6 Cf. Vandepitte v. Preferred etc. Insurance Corp. of N.Y., [1933] A.C. 70.

page 130 note 7 See Treitel, The law of contract, 2nd ed., p. 464.

page 130 note 8 [1966] E.A. 144.

page 130 note 9 The decision follows Williams v. Baltic Insurance Association, [1924] 2 K.B. 282, but it is not at all clear in that case or this why a trust could be implied.

page 130 note 10 At p. 153, applying Leopold Walford v. Les Affréteurs Réunis S.A., [1918] 2 K.B. 498.

page 131 note 1 See Whitford (1968), 3 E.A.L.J. 338.

page 131 note 2 (1940), 19 K.L.R. 1.

page 131 note 3 (1874), L.R. 18 Eq. 11.

page 131 note 4 (1956), 2 T.L.R. (R) 288).

page 131 note 5 Per Sinclair, V.P., in Sheikh Fazal Ilahi Noordin's case (infra) at p. 418, and see Caffoor v. Commissioner of Income Tax, Colombo, [1961] A.C. 584 (P.C.), particularly at p. 601: “there is no necessity to include in those general principles rules of the English law that appear to be specially associated with English local conditions or English history or which appear to be now accepted as anomalous incidents of the general law”: per Lord Radcliffe.

page 131 note 6 [1957] E.A. 616.

page 132 note 1 [1931] 2 Ch. 122.

page 132 note 2 The court did not consider the suggestions put forward by the Court of Appeal in Camille and Henry Dreyfus Foundation Inc. v. I.R.C., [1954] Ch. 672 that the requirement that there should be public benefit to the donor country depended on the type of charitable gift.

page 132 note 3 National Anti-Vivisection Society v. I.R.C., [1948] A.C. 31.

page 132 note 4 E.g., Re Young, [1951] Ch. 344—distressed gentlefolk.

page 132 note 5 Cf. Re Shaw, [1957] 1 All E.R. 745; Re Hopkins W. T. [1964] 3 All E.R. 46.

page 132 note 6 [1959] E.A. 1057.

page 132 note 7 I.e. of Pemsel's case: C.I.T. v. Pemsel, [1891] A.C. 531.

page 132 note 8 Per Crawshaw, J., at p. 1062.

page 132 note 9 [1964] E.A. 590.

page 133 note 1 Omar Fakirmohamed v. Remtulla Talab (1927), 1 T.L.R. (R) 440; Abdulla Rehemtulla Waljee v. Alibhai Haji. (1943), 10 E.A.C.A. 6; Sheikh Fazal Ilahi Noordin Trust v. I.T.C. (supra).

page 133 note 2 Cf. Gilmour v. Coats, [1949] A.C. 426.

page 133 note 3 For other cases in which this has been done see: (i) Re Borges (1943), 20 (2) K.L.R. 4—gift by will to Roman Catholic church and “to the poor and homeless peopel (sic) of England—London Relif (sic) Fund”—valid; (ii) Re Smithson (1943), 20 K.L.R. 13—gift by will to the Governors of Sedbergh School, the income to be applied “towards a holiday trip for a few Sedbergh School selected boys to go to the continent of Europe yearly”—a valid educational charity; Re Mariette, [1915] 2 Ch. 284 applied; residuary gift to “African Leper Missionaries and Leper Hospitals at present and to be established in Africa only”—good gift for the relief of poverty. The doubt in this case may have been that it was not clear that a trust for the relief of illness per se was charitable. This by itself is a remarkable commentary on the inadequacy of the law. It now seems to have been accepted that such a trust is charitable: Le Cras v. Perpetual Trustee Co. Ltd., [1967] 3 All E.R. 915; (iii) Re Mayers (1954), 27 K.L.R. 13—trust inter vivos for erection and endowment of hostel to be named so as to perpetuate the memory of the settlor's son, the hostel to be for the use of “such persons of pure European descent as the Kenya League of Mercy might nominate who would benefit by a holiday at the Coast”. Accepted as a valid charity for a sufficiently large section of the community; sed quaere.

page 133 note 4 “… What is to be regarded as beneficial to the community can be decided only by her Majesty's Judges pronouncing upon matters brought and disputed before them, and having regard ultimately to what Queen Elizabeth's legislators laid down 350 years ago”. The Judicial Committee of the Privy Council have recently shown a robust approach to the Statute of Elizabeth by holding that a gift to a hospital is prima facie charitable, “because the case for the sick is, in modern times, accepted as a public benefit suitable to attract the privileges given to Charitable institutions” and not merely because the statute refers to gifts for the relief of the “impotent”: Le Cras v. Perpetual Trustee Co. Ltd., supra. Cf. the rather less flexible approach of the House of Lords in Scottish Burial Reform and Cremation Society Ltd. v. Glasgow City Corporation, [1967] 3 All E.R. 215.

page 133 note 5 None of the recent English statutory amendments of the law (Charitable Trusts (Validation) Act 1954, Recreational Charities Act 1958 or Charities Act 1960) applies.

page 133 note 6 Infra, p. 134.

page 134 note 1 It may be that the courts will construe “impossibility” as flexibly as the English courts did in later years: see Re Dominion Students’ Hall Trust, [1947] Ch. 183.

page 134 note 2 Para. 29, 1st Schedule.

page 134 note 3 The mere fact that the income may be expended outside East Africa would not debar the trust from being exempted on income which was in fact spent in East Africa. On the other hand, if income could be spent on purposes which are not within the enumerated heads, even if in fact it is spent on those heads, the trust will lose its charitable status. Semble: a trust established “for such charitable purposes as my Trustees shall select” would not now be entitled to exemption, since the whole of the fund could be applied for purposes within the 4th (excluded) head, even if in fact none of it is. This seems harsh. One of the heads of charity which was formerly within this head has been preserved (relief of public distress) but it seems strange that, e.g., trusts to promote the efficiency of the armed forces should lose their charitable status for tax purposes, as also trusts for medical services, unless it can be said that they are for the relief of poverty or distress. Interesting questions could arise as to whether expenditure outside East Africa resulted in benefit to the residents of East Africa.

page 134 note 4 The trust would remain charitable for other purposes, e.g. the application of the rule against perpetuities (in Kenya dealt with in the Indian Succession Act 1881) and the relaxed requirement of certainty of objects.

page 134 note 5 I.e., The 4th head of the classification in Pemsel's case.

page 134 note 6 [1960] E.A. 521.

page 134 note 7 Presumably it was not objected that this was not a trust for the public benefit by virtue of the inclusion of relatives (cf. Oppenheim v. Tobacco Securities Trust, [1951] A.C. 297) because they would have to be poor relatives (cf. Re Scarisbrick, [1951] Ch. 622) or because they only formed part of the class.

page 135 note 1 [1959] E.A. 453.

page 135 note 2 The reason was simple: while the trustees had purchased land for use as a school, they had not, according to the reported facts, invested any of the liquid capital (some shs. 7,000,000/-) and had left it all on current account with a bank.

page 135 note 3 (1943) 20 K..L.R. 13.

page 135 note 4 It may have been that the extent of the application of the funds would have had to be limited during the war, but that is very far short of impossibility.

page 135 note 5 As distinct from becoming impossible after it has vested. In this case it is not necessary to show a general charitable intent.

page 135 note 6 [1913] 1 Ch. 314, at pp. 320, 321: “First of all we have a class of cases where, in form, the gift is given for a particular charitable purpose, but it is possible taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft onto the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect. Then there is the second class of cases where on the true construction of the will no such paramount general intention can be inferred and where the gift being in form a particular gift—a gift for a particular purpose and it being impossible to carry out that particular purpose, the whole gift is held to fail”.

page 135 note 7 (1954). 27 K.L.R. 213.

page 136 note 1 Supra.

page 136 note 2 E.g., “I find that the legacy …is a good charitable bequest but void for uncertainty and impossibility of performance”.

page 136 note 3 To adopt the classification in Snell's Principles of Equity, 26th Ed. Chap. 7. See also R. E. Poole, “Equities in the making” (1968), 32 Conv. (N.S.) 96.

page 136 note 4 Per Lord Denning, M.R., in Inwards v. Baker, [1965] 1 All E.R. 446, at p. 448; see also Ward v. Kirkland, [1966] 1 All E.R. 609; E.R. Ives Investments Ltd. v. High, [1967] 1 All E.R. 504.

page 136 note 5 [1966] E.A. 562.

page 136 note 6 Reversing the trial judge, who had held that the defendant was entitled to compensation.

page 137 note 1 “Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon”, such interest may be enforced against a volunteer or transferee with notice. The basic finding in Ujagar Singh's case is therefore that the agreement to pay compensation was personal to the original licensee, and died with him, so that it could not even be recovered by his estate.

page 137 note 2 Ramsden v. Dyson (1866), L.R. 1 H.L. 129.

page 137 note 3 (1909), 3 E.A.L.R. 12.

page 137 note 4 In the sense developed from Hughes v. Metropolitan Ry. (1877), 2 App. Cas. 439:—“The principle, which has been described as quasi-estoppel and perhaps more aptly as promissory estoppel, is that when one party to a contract in the absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party. This equity is, however, subject to the qualification (a) that the other party has altered his position, (b) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position, (c) the promise only becomes final and irrevocable if the promisee cannot resume his position”. Ajayi v. R. T. Briscoe (Nigeria) Ltd., [1964] 3 All E.R. 556, at p. 559.

page 137 note 5 [1963] E.A. 304.

page 137 note 6 But in any case, in the absence of a statute, it would presumably have been incorporated by the Order in Council.

page 137 note 7 Per Newbold, J.A., at p. 317.

page 138 note 1 On three previous occasions they had purported to determine the hiring, but had then allowed it to continue.

page 138 note 2 Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd., [1955] 1 W.L.R. 761; Ajayi v. R. T. Briscoe (Nigeria) Ltd., [1964] 3 All E.R. 556, at p. 559; Morrow v. Carter, [1957] N.I. 174.

page 138 note 3 [1965] E.A. 304.

page 138 note 4 There seems to have been no argument to the contrary.

page 138 note 5 [1963] E.A. 304.

page 138 note 6 [1963] E.A. 648.

page 139 note 1 Page 652; cf. Robertson v. Minister of Pensions, [1949] 1 K.B. 227; Lyle-Meller v. A. Lewis & Co. (Westminster) Ltd., [1956] 1 W.L.R. 29.

page 139 note 2 Cf. Ajayi v. R. T. Briscoe (Nigeria) Ltd., [1964] 3 All E.R. 556, at p. 559, where a “change of position” was regarded as essential.

page 139 note 3 E.g., by committing funds to other activities, re-organizing his business (see Ajayi v. Briscoe) or even by employing an accountant to work out revised figures and negotiate on them.

page 139 note 4 This at least was the effect of Hughes v. Metropolitan Ry. (1877), 2 App. Cas. 439, and would seem to be the only way in which the doctrine can be reconciled with Foakes v. Beer (1884), 9 App. Cas. 605. The doctrine has developed since 1877, and the courts in East Africa will have to decide whether they are going to apply these modifications, and if so, on what juristic basis.

page 140 note 1 Ajayi v. R. T. Briscoe (Nigeria) Ltd.; Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd., supra.

page 140 note 2 Cf. Mulji Jetha Ltd. v. I.T.C., infra.

page 140 note 3 [1967] E.A. 50.

page 140 note 4 Combe v. Combe, [1951] 2 K.B. 215: sed quaere. This is attaching too great a significance to the procedural accident that the plaintiff initiated the proceedings; all he was seeking was a declaration that he would have a good defence in certain circumstances. If this line of approach were carried to a logical conclusion a person seeking to rely on a representation might be in a cruel dilemma: if he takes no action, save to rely on the representation, he may subsequently be told he is guilty of laches; if he seeks a declaration as to his rights he will be told he is seeking to found a claim, which an estoppel cannot do. In Lyle-Meller v. A. Lewis & Co. (Westminster) Ltd., [1955] 1 W.L.R. 29 the plaintiff used estoppel to rebut a defence which he would otherwise have had. On the application of laches in East Africa, see Elias, in Law, Justice and Equity (ed. Holland and Schwarzenberger), pp. 102, 105.

page 140 note 5 Although there seemed no statutory authorization for this.

page 140 note 6 See also Harnam Singh v. Jamal Pirbhai, [1951] A.C. 688.

page 141 note 1 In Kenya, the Trustee Act, cap. 167, Laws of Kenya, 1962 ed.; other relevant statutes are the Public Trustee Act, cap. 168 and the Trusts of Land Act, cap. 290. In Tanganyika the (English) Trustee Act 1893 is applied by the Land (Law of Property and Conveyancing) Ordinance, cap. 114; see also the Trustees Incorporation Ordinance, cap. 375.

page 141 note 2 But not necessarily identical. The provisions regulating trustees“ powers of investment in Kenya, introduced by the Trustee (Amendment) Act 1967 of Kenya, are clearly influenced by the Trustee Investment Act 1961 of England, but there are many significant differences.

page 141 note 3 (1942), 20 (1) K.L.R.

page 141 note 4 (1884), 27 Ch. 584, at p. 587.

page 141 note 5 The common-form professional trustee charging clause permitting a trustee to charge for acts which a layman could have done personally.

page 141 note 6 (1919), 8 E.A.L.R. 26.

page 141 note 7 Cf. Boardman v. Phipps, [1967] 2 A.C. 46.

page 141 note 8 [1904] 2 Ch. 160. See also Re Mayers (1940), 19 (2) K.L.R. 4.

page 141 note 9 Cf. Asante, op. cit. and Daniels, op. cit.

page 141 note 10 [1957] E.A. 616, decided under the Income Tax Ordinance, cap. 254.

page 142 note 1 “The settlor shall be free to deal personally and beneficially with the trustees and the trust fund in like manner in all respects as if he were not a trustee and no sale lease loan mortgage or charge by the trustees shall be void or voidable merely by reason of the fact that the settlor is one of the trustees].

page 142 note 2 Which in England are becoming slightly more flexible: Holder v. Holder, [1968] 2 W.L.R. 237.

page 142 note 3 [1964] E.A. 257.

page 143 note 1 Page 263.

page 143 note 2 (1942), 9 E.A.C.A. 1.

page 143 note 3 [1959] E.A. 453.

page 143 note 4 [1957] E.A. 869.

page 143 note 5 [1960] E.A. 327.

page 144 note 1 See p. 119 n. 2, supra. The law applied included the statute law of England on the relevant topics at that date: Perry v. Carson, [1963] E.A. 91 (thus s. 9 applied by virtue of this Act, and it was not necessary to decide whether the Statute of Frauds was a statute of general application; as to which see: Bennett v. Garvie (1918), 7 E.A.L.R. 48; White Wilson & Co. v. Chagbai (1922), 9 E.A.L.R.; Abdulresul & Sons v. Amersi Mawji (1930), 1 T.L.R. (R) 457, not cited in Hansen & Soehne A.m.b.h. v. Jetha Ltd., [1959] E.A. 563.) The corresponding English enactment is now the Trustee Act 1925, s. 8.

page 144 note 2 (1951), 1 T.L.R. (R) 631

page 144 note 3 Lands Ordinance, cap. 113, s. 16.

page 144 note 4 See also the early case of Standard Bank of South Africa Ltd. v. Mathies (1923), 9 E.A.L.R. 143, which, however, turns essentially on the construction of an English trust deed.

page 144 note 5 (1919), 8 E.A.L.R. 26.

page 145 note 1 See also Heinrichsdorff-Gies v. Dodd, [1957] E.A. 869 which, although decided on the construction of an express indemnity clause, also contains valuable dicta on the circumstances in which a trustee may seek relief under the Trustee Act 1925 of England, s. 61 and its equivalents and on the meaning of the expression “wilful default” in the Trustee Act.

page 145 note 2 But not the numerous cases on procedure and remedies.

page 145 note 3 (i) Fazalan Bibi v. Tehran Bibi (1921); 8 E.A.L.R. 200; (ii) Re A.C.B. (1922), 10 K.L.R. 70; (iii) Hamisi Bin Ali v. Mariamu Binti Ali (1929), 12 K.L.R. 51; (iv) Nana Binti Mzee v. Mohamed Hassan (1942), 20 K.L.R. 2; see also (1941), 8 E.A.C.A. 12 (1944), 11 E.A.C.A. 4; (v) Gajree Siri Krishnan v. Krishna Kumari (1955), 28 K.L.R. 32—holding, inter alia, that the Custody of Children Act 1891 and other English Acts were not statutes of general application; (vi) Re G.M., [1957] E.A. 714. In Kenya the matter is now governed by the Guardianship of Infants Act, the effect of which on the earlier case-law is considered in Abdul Rehman Bazmi v. Sughra Sultana, [1960] E.A. 801. In Tanganyika English law was applied by Spry, J., in a most interesting judgment on the applicability of personal law: Re Nathoo, [1959] E.A. 917. In Kenya the matter has been complicated by the fact that cases involving Africans were governed by customary law and tried by separate courts. There is a line of decisions in the Court of Review mostly decided on the question of whether a particular customary law was so contrary to natural justice that it could be ignored: Ondara Obaigwa v. Osara Mokaya (1953), 1 C.R.L.R. 6; Maurono Onchoke v. Kerebi do Ondieki (1958), 6 C.R.L.R. 2; Mwasabu Kadogo v. Hamisi Gohu (1959), 8 C.R.L.R. 3; Timina Olenja v. Elam Keya (1961), 10 C.R.L.R. 8.

page 145 note 4 Shariff Abdulla bin Mohamed v. Zwena Binti Abedi (1912), 4 E.A.L.R. 86; Abubakr bin Omar v. Mtongweni Bin Moosa (1917), 7 E.A.L.R. 43; Mbaruk bin Diwansap v. Hamsini Bin Jumbe Kimemeta (1927), 11 K.L.R. 57; Ngeso arap Leseret v. Ibrahim (1929), 12 K.L.R. 50; Nona Binti Bakari v. Mauwa Binti Jabiri (1932), 15 K.L.R. 63. See also Re Solamalay (1941), 19 (2) K.L.R. 50.

page 145 note 5 The kind of point which arose in Re G.M. supra, which was decided before the Act.