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Published online by Cambridge University Press: 28 July 2009
“Of all the exploits of equity, the largest and the most important is the invention and development of the trust.”
These were the words of Maitland.2 In the course of his lecture, the learned professor ascribed the invention of the Law of trusts to the work of English lawyers. Before going any further, it should be pointed out that the institution of trusts is one which is not peculiar to English law.
2 Maitland, F. W., Equity, etc., at p. 23.Google Scholar
3 Meek, C. K., “The Katab and their neighbours,” (1928) 28 J.A.S. 265–273, at p. 266.Google Scholar
4 Little, K. L., “Land and labour among the Mende,” (1948) 47 African Affairs 23–31, at p. 25.Google Scholar
5 Maitland, F. W., Equity, Lecture V; Keeton, G. W., The Law of Trusts, 5th ed. (1949), at p. 50.Google Scholar
page 165 note 1 Thus in the Nigerian case of Oshodi v. Dakulo, [1930] A. C. 667, at p. 668, Viscount Dunedin, delivering the advice of the Privy Council, said: “The Paramount Chief is owner of the lands, but he is not owner in the sense in which owner is understood in this country.” This statement is moderate compared with what one South African judge said in 1947: “The conception that a chief may hold property only as a sort of trustee for the tribe is a modern one that owes its origin to European influence.” Sibasa v. Ratsialingwa & Hartman N.O. 1947 (4) S.A. (T) at 390; cited by Kerr, A. J., The Native Common Law of Immovable Property in South Africa (Durban, 1953), p. 19Google Scholar. As far as South Africa is concerned, Kerr writes that “The new doctrine of trusteeship therefore applied to ‘the waste lands’ or to ‘the unappropriated lands’ and it was control over the distribution of the land rather than the enjoyment of rights of ownership therein that was desired. … It therefore appears that the meaning to be ascribed to the term when it is used of a Chief is that which it possesses in the law of sovereignty” (ibid., p. 20). This view is similar to that described by Hayford, C, in his Gold Coast Native Institutions. On page 45 it is stated: “there are general lands of the State over which the king exercises paramountcy. It is a sort of sovereign oversight which does not carry with it ownership of any particular land”. There is no need to discuss this matter further, for the position in West Africa has undergone considerable change. The foregoing clearly shows that it has never been the law that the Chief in West Africa is the owner of community lands.
page 165 note 2 Esu, Biyi, “Temne Land Tenure,” (1913) 12 J.A.S. 407–420, at p. 409.Google Scholar
page 165 note 3 Keith, A. B., “Land Tenure in Nigeria,” (1912) 11 J.A.S. 325–331. See also Cd. 5102 and 5103.Google Scholar
page 165 note 4 (1923), 5 N.L.R. 17, at p. 19. See also Ogegede & ors. v. Chief Dore Numa, (1926), 6 N.L.R. 124.
page 165 note 5 [1921] A.C. 399.
page 165 note 6 Ibid., at p. 404.
page 166 note 1 Author's italics.
page 166 note 2 The position may be different among the Ibo of Nigeria: cf. Green, M. M., Ibo Village Affairs, p. 34.
page 166 note 3 Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399, at p. 410. Quarm v. Yankah III & anor. (1930), 1 W.A.C.A. 80, at p. 83, per DEANE, C.J.
page 166 note 4 This, in effect, is the definition given in Underhill's Law of Trusts and Trustees (11th ed.), p. 3. But see the criticism of this definition by Keeton, G. W., Law of Trusts (5th ed.), p. 3.
page 166 note 5 W.R. No. 45 of 1958.
page 166 note 6 Ibid., s. 3 (b).
page 167 note 1 Section 7 (1). Here, the chiefs will be acting as trustees in the strict legal sense.
page 167 note 2 Section 7 (2).
page 167 note 3 Section 5 (1).
page 167 note 4 Section 10.
page 168 note 1 No. 28 of 1958.
page 168 note 2 Ante, p. 166.
page 168 note 3 Sarbah, J. M., Fanti Customary Laws (2nd ed., 1904), p. 89.Google Scholar
page 168 note 4 Fenton, J. S., Outline of Native Law in Sierra Leone (1951), p. 18.Google Scholar
page 169 note 1 Allott, A. N., “The problems of private and collective property among primitive peoples,” in International Academy of Comparative Law, Fifth Congress, Brussels, 4th-9th August, 1958; 25–32, at p. 28.Google Scholar
page 169 note 2 Abusatu Balogun & anor. v. Amodu Balogun & ors. (1935), 2 W.A.C.A. 290, at P. 299.
page 169 note 3 (1947), 18 N.L.R. 117,123.
page 170 note 1 Loc. cit.
page 170 note 2 Reported in 1 J.A.S. 87–89.
page 170 note 3 Ibid.
page 170 note 4 (1937), 13 N.L.R. 131.
page 171 note 1 (1937), 13 N.L.R. 131, at p. 132.
page 171 note 2 Chief Eyo Archibong & ors. v. Etubon Archibong & ors. (1947), 18 N.L.R. 117, at p. 123.
page 171 note 3 Author's italics.
page 171 note 4 At p. 90.
page 172 note 1 See Solomon & Vanderpuye & ors. v. Botchway (1943), 9 W.A.C.A. 127, at p. 131.
page 172 note 2 F.C. ‘23-’25, 158, at p. 160.
page 172 note 3 (1946), 12 W.A.C.A. 102. The facts of the case are given here as set out in the headnote.
page 172 note 4 (1946), 12 W.A.C.A. 102, at p. 104.
page 172 note 5 Loc. cit.
page 173 note 1 Pappoe v. Kweku, F.C. ‘23-’25, 158, at p. 159.
page 173 note 2 Ibid., at p. 161; author's italics.
page 173 note 3 Ibid., at p. 163.
page 173 note 4 Pappoe v. Kweku, 165; Fynn v. Gardiner (1953), 14 W.A.C.A. 260, at p. 261.
page 173 note 5 Griffith, W. B., Digest of and Index to the Reports of Cases decided in the Supreme Court of the Gold Coast Colony, 1844–1931, p. 4.Google Scholar
page 174 note 1 Pappoe v. Kweku, at p. 161, per GARDINER SMITH, J.
page 174 note 2 Ennin v. Prah (1959), G.L.R. 44.
page 174 note 3 (1937). 3 W.A.C.A. 178, at p. 180.
page 174 note 4 (1932), 1 W.A.C.A. 215.
page 174 note 5 At p. 217.
page 175 note 1 Balogun v. Balogun (1935), 2 W.A.C.A. 289, at p. 305.
page 175 note 2 At p. 299.
page 175 note 3 Laws of the Gambia, 1955 Revision, cap. 37.
page 175 note 4 Ordinance No. 24 of 1952.
page 175 note 5 W.R. No. 19 of 1959.
page 175 note 6 W.R. No. 8. of 1959.
page 175 note 7 29 Car. 11, c. 3. Cf. Akwei v. Akwei (1943), 9 W.A.C.A. 111, at p. 116.
page 176 note 1 Cap. 127 (1951 Revision).
page 176 note 2 Section 48 (1).
page 176 note 3 Author's italics.
page 176 note 4 Cap. 127, s. 48 (2).
page 176 note 5 (1957), 2 W.A.C.A. 357. See also the editorial note thereto.
page 176 note 6 (1950), 19 N.L.R. 75.
page 177 note 1 (1726), Sel. Cas. t. King 61, 2 W. and T.L.C. 648.
page 177 note 2 (1947), 12 W.A.C.A. 229; Khoury v. Fojo (1956), 1 W.A.L.R. 102.
page 177 note 3 At p. 231.
page 177 note 4 (1948), 19N.L.R. 11.
page 177 note 5 At p. 12.