Introduction

Generally, for something to attain the status of validity, it must meet all the proper requirements

and follow the laid-down procedure for its creation.Trust evolved from the application of equity

of general juristic sense by the Court of Chancery. The auxiliary jurisdiction of Equity evolved to

assist the defective remedies at Common law. Although it succeeded in this regard, however it

provided for strict procedures to be adhered to for this remedy to avail litigants. For example

where Equity provided for redemption of mortgage, it also provided that the mortgagor must

provide the mortgagee with sufficient notice before he can exercise this right. This goes to show

that Equity laid down guidelines for the enforcement of rights granted by it.This principle can be

illustrated in the Equitable maxim of ‘He who seeks Equity must do Equity’. Scholars are not

unanimous on the formalities required for the creation of a valid trust. However, most scholars

agree that a trust cannot exist without some certain elements. These elements will be extensively

discussed in this paper.

Professor Keeton defined Trust as a relationship which arises whenever a person called a trustee

is compelled in Equity to hold property, whether real or personal and whether by legal or

equitable title, for the benefit of some persons (of whom he may be one and whom are termed

cestui que trust) or for some object permitted by law in such a way that the real benefit of the

property accrues not to the trustee but to the beneficiaries or other objects of the trust 1

From the above definition, one can deduce that a trust cannot be created without the existence of

certain requirements;

1. There must be a trustee.

2. There must be a beneficiary.

1
Keeton G. W. (1974) The Law of Trusts. London: Professional Books Ltd
 3. There must must be a settlor vesting property in the trustee.

4. There must exist a property to be vested in the trustee.

Trustee

A trustee is the person in whom the legal interest in a trust property is vested. He is compelled to

hold the trust property for the beneficiaries. The property is vested in the trustee who holds legal

title to the property in accordance with the terms of the trust. Equity will not allow a trust to fail

for want of trustee, and therefore, will ensure that at least one trustee exists to give effect to the

wishes and instructions of the settlor or testator. Generally, a trustee is appointed by the settlor.

However trustees may be appointed by the person nominated in the instrument, the court or

existing trustee. A trustee must be honest and trustworthy as he is in a fiduciary position. He will

be compelled by the law to exercise utmost good faith and care in the management of the trust

property. Where there are multiple trustees, for their decision as regards the trust property to be

effective, their decision must be unanimous. Any person is eligible to be a trustee provided he is

capable of owning property and is not barred by any law. In line with this, infants, lunatics and

corporations have limited capacity to act as trustees.

Beneficiary

A beneficiary is entitled to the beneficial interest in the trust property. Any person(a) or

institution(s) can be beneficiaries. Beneficiaries may be single or multiple. Also, beneficiaries

may be objects or human beings or even animals. Accordingly, the beneficiaries of a charitable

trust are usually a particular community or the society at large. For a valid trust to come into

existence, the beneficiaries of that trust must be ascertained or ascertainable.A beneficiary has
the freedom to accept or reject a trust settlement. However, his acceptance of the settlement is

what enables him to acquire certain rights in respect to the trust relationship. A beneficiary who

has accepted the settlement can compel the trustee to carry out the conditions contained in the

trust instrument.2 The beneficiaries can determine the trust in whole or in part if they are

aggrieved by the manner the trustee administers it. This right can be exercised by the

beneficiaries notwithstanding the existence of a discretionary trust if the beneficiaries are sui

juris and unanimously concur to put the trust to an end. 3 It may be stated as a general rule,that if

a trustee be guilty of any unreasonable delay in investing or transferring the fund, he will be

answerable to the cestui que trust for interest during the period of his laches.

The remedy of a cestui que trust against his trustee for breach of trust of any sort may be barred

by the concurrence of the cestui que trust, or by his acquiescence, or by his executing a release.

A cestui que trust may, by a release or confirmation, prevent himself from taking proceedings

against trustees for a breach of trust, but neither will be binding on him unless he had a full

knowledge of the facts of the case.4

Settlor

A settlor is the person that creates a trust creates a trust in order to protect his assets or because

he wishes to provide for specific persons or projects 5. A trustee and a settlor may be one and the

same where the owner of a property declares himself a trustee of the property for the benefit of

another person. More commonly, the settlor vests the property in another person as trustee for the
2
Abdulkarim Ibrahim. Basic Principles of Equity and Trust Lecture Book. Department of Private Law, Faculty of Law.
Ahmadu Bello University, Zaria.
3
Aguocha v Aguocha
4
Magarry, R. & Baker, P.V. (1973) Snell’s Principles of Equity. London: Sweet & Maxwell
5
Taiwo & Akintola (2016) Introduction to Equity and Trusts in Nigeria. Lagos: Princeton & Associates Publishing Co.
Ltd.
benefit of yet another person. Where he does this, he has the responsibility to provide the trustee

with sufficient means to enable him carry out his task. Thus, the settlor must transfer the trust

property to the trustees of the trust, the legal title must be vested in the trustees but if he cannot

do this, he can establish that he has done all within his power to get the property vested in the

trustees. Additionally, the settlor must ensure that the trust instrument contains all the

requirements for a valid trust thereby enabling the law to support and enforce it. For a settlor to

be able to create a trust in property, he must have the capacity to hold legal or equitable interest

in property. By virtue of this, certain individuals have limited capacity or no capacity to create

trust;

a) Infants

Any person of full age and capacity can act as a trustee. 6 An infant cannot create

trust as he is incapable of holding a legal title in property. Section 18 of the

Property and Conveyancing Law7 provides that the appointment of an infant to be

a trustee in relation to any settlement shall be void, but without prejudice to the

power to appoint a new trustee to fill the vacancy. However, Fabunmi argued that

section 18 of the Property and Conveyancing Law 8 relates only to express trust so

that an infant can hold a legal estate in land upon resulting, implied or

constructive trust.9 Abdulkarim holds that whereas an infant cannot create a trust

in respect of legal interest, he can create a valid trust in respect of equitable

interest. Similarly, an infant can create a settlement on trust but this is voidable as

he can repudiate it during his minority or within a reasonable of his attainment of

6
Bokani A.M. The duties of The Trustees In The Management of Real Property In Nigeria: Can Trustees In Nigeria Be
Trusted. UNIZIK, LAW JOURNAL 19, (1) 2023.
7
The Property and Conveyancing Law, Cap. 100 Laws of Ogun State 1978
8
The Property and Conveyancing Law, Cap. 100 Laws of Ogun State 1978
9
Fabunmi, J.O. (2006). Equity and Trusts in Nigeria. Ile-Ife: Obafemi Awolowo University Press Ltd. 2nd ed.
 majority. The settlement must be in respect of equitable interest. As to the

question of who an infant is, the laws on appointment of trustees in Nigeria do not

state the age of majority for an individual to be appointed as trustees.10

b) Insane/ Lunatics

A lunatic is a a person who is mentally imbalanced. Many laws exempt lunatics

from liability in respect of contractual obligations. Section 180 of the Property

and Conveyancing Law 195911 provides that the court may direct a settlement to

be made of the property of a lunatic or any part thereof or any interest therein, on

such trusts and subject to such powers and provisions as the court may deem

expedient. If the interests of the patient or of his family so require, the settlement

need contain no power of revocation in the event of the patient recovering his

sanity. There is also power to vary any such settlement at any time before the

death of the patient if it appears that any material fact was not disclosed when the

settlement was made or that there has been any substantial change in

circumstances.12 Thus, a trust may not be enforced a lunatic if he contends that he

does not appreciate the implications of the trust. However, If the trust was created

during the time that such an insane settlor was in his lucid period and he/she fully

understands the nature of his act and the consequences of the same, such trust

may be upheld as valid.13

c) Married Women

10
Bokani A.M. The duties of The Trustees In The Management of Real Property In Nigeria: Can Trustees In Nigeria
Be Trusted. UNIZIK, LAW JOURNAL 19, (1) 2023.
11
The Property and Conveyancing Law, Cap. 100 Laws of Ogun State 1978
12
Magarry, R. & Baker, P.V. (1973) Snell’s Principles of Equity. London: Sweet & Maxwell
13
Adekoya C.O. Equity and Trusts II. National Open University of Nigeria.
 Prior to the enactment of the Married Women Property Act, the common law

position was that a woman could not own property as she herself was considered a

chattel of her husband. Subsequently, a married woman can now own and dispose

of her property as she wishes. Section 42 of the 1999 Constitution of the Federal

Republic of Nigeria,1999, as amended, provides that no person shall be

discriminated against on the basis of sex. By virtue of Section 6 of the Married

Women Property Act, Married Women can now create a trust of their property.

d) Corporations

Statutory bodies and incorporated companies can also create trusts if the power to do

so is contained in their enabling law and memorandum of association, otherwise any

trust created will be declared ultra vires. By virtue of Section 38(1) of the Companies

and Allied Matters Act, incorporated companies have all the powers of a natural

person of full age andcapacity in the execution of its business and objects. In effect,

they can create trusts without such powers being expressly contained in their memo,

the power to do so may be limited by their memorandum of association or by law.14

Trust property

Any property, which can be owned privately, can be held on trust. Such property may be real or

personal, legal or equitable, unless some special rules of law prevent it from being held on trust. 15

The above discussed elements form the basic requirements in the creation of trusts generally.

However, as there are different categories of trusts, there are certain requirements attached to the

14
Adekoya C.O. Equity and Trusts II. National Open University of Nigeria.
15
Fabunmi, J.O. (2006). Equity and Trusts in Nigeria. Ile-Ife: Obafemi Awolowo University Press Ltd. 2nd ed.
creation of these distinct trusts which are unique to each of them.For example, before a trust can

qualify as a charitable one, the element of public benefit, i.e. it must be for public benefit and the

class of the intended beneficiaries must not be on the basis of personal relationship. This

condition is however not applicable to private trusts.

In another vein, it was laid down by Lord Langdale M.R. 16 that for the creation of trust three

things are necessary;

i. The words must be so used that on the whole they ought to be construed as imperative;

ii. The subject matter of the trust must be certain; and

iii. The objects or persons intended to have the benefit of the trust must be certain.

These are called the three certainties. If there is any uncertainty as regards to any of the three, the

effect is that the trust fails and the donee takes beneficially. 17They are broad headings under

which the validity of trusts come under heavy scrutiny. A close examination of all the categories

of trusts and their respective principles show that there is no strict application of the three

certainties in determining the validity as certain exemptions are made. A paramount example of

this is the Cy-pres doctrine which postulates that public trusts fail for uncertainty of object. So

long as the trust instrument shows a clear intention to devote the property to charity, it is

immaterial that the particular mode in which the intention is to be carried into effect is left

uncertain.18

Constitution of Trusts

16
Knight v Knight ( 1840) 3 Beav 148 at 173
17
Fabunmi, J.O. (2006). Equity and Trusts in Nigeria. Ile-Ife: Obafemi Awolowo University Press Ltd. 2nd ed.
18
Magarry, R. & Baker, P.V. (1973) Snell’s Principles of Equity. London: Sweet & Maxwell
Proper constitution is of vital importance to a trust property. Failure to properly constitute a trust

results in no interest being passed to the beneficiaries and the will being voided. The trust is said

to be completely constituted when the settlor has vested or has done all that is required or

necessary to properly vest the trust property in the trustee. Except the property has been

transferred, the trust cannot be enforced, as equity will not perfect an imperfect gift or aid a

volunteer.19 In order to constitute a trust, the nature of the trust property (whether personalty of

realty) will determine the mode of doing this. Also, where the settlor is both the settlor and the

trustee, this might affect the mode of transfer. To constitute a trust in respect of realty, the settlor

must comply with all necessary requirements of the law. A cardinal issue here, is that there must

be evidence in writing of such transaction. See for example, Section 3 of the Registration of

Titles Act, Cap. 181, Laws of Nigeria, applicable in other parts of the country and Section 77 of

the Property and Conveyancing Law, and the Statute of Frauds Section 7, on requirement as to

writing provide that the land be registered in the trustee’s name or that he has done all that is

required to of him with nothing left to be done by the settlor, otherwise, the trust cannot be

enforced for lack of constitution. If the interest to be transferred is an equitable one, the settlor

need not vest the legal title in the trustee since he has none. All that is required is that the

disposition of the equitable interest must be evidenced in writing.20

To effect the constitution of pure personalty, mere delivery of the property suffices. In respect of

intangible property – such as shares, etc., the settlor must have executed the necessary transfer

form for this purpose and the transfer registered in the company’s register. Where a deed was

executed for this purpose but the required transfer form was not used, the transfer will be

ineffective.21

19
Milroy v. Lord (1862) 4 De G.& J. 264 at 274 per Turner L.J.
20
Adekoya C.O. Equity and Trusts II. National Open University of Nigeria.
21
Milroy v. Lord (Supra)
GOVERNOR’S CONSENT

Having understood that when a trust to is created, the settlor vests title to a property in the trustee

who becomes the legal owner of such property and who holds this property for the benefit of the

beneficiary, the issue of whether governor’s consent is required for a valid transfer of the interest

in a trust property arises.

Section 22 of the Land Use Act, 1978 states that, “It shall not be lawful for the holder of a

statutory right of occupancy granted by the government to alienate his right of occupancy or

any part thereof by assignment, mortgage, transfer of possession, sublease, or otherwise

however without the consent of the governor first had and obtained.” Section 21 of the Act

has the same requirement of governor’s consent when relating to customary right of occupancy.

Since the Land Use Act has abolished the old English forms of estate like fee simple and fee tail,

the only interest that can be transferred is the right of occupancy. This means that if a settlor

wants to create a trust in a particular property (real property), he can only transfer the right of

occupancy that has been granted to him by the governor and such transfer can only be legitimate

when the governor has given his consent. The contention is that alienation by trust was not stated

among the vehicles through which land can be conveyed under Section 21 and 22 of the Land

Use Act. Does this then mean that transfer of the trust property does not require governor’s

consent or the law does not recognise the trustee’s interest as valid?To reconcile this problem,

recourse must be taken to the ejusdem generis rule of interpretation. The Black’s Law

Dictionary (6th ed.) describes the operation of ejusdem generis in the interpretation of statutes

and other documents as follows:

“Under ‘ejusdem generis’ canon of statutory construction, where general words follow an

enumeration of particular classes of things, the general words will be construed as applying

only to things of the same general class as those enumerated.”

This means that where there is a list of items followed by a general word, then other items not

contained in the list but form part of the class of the items expressly stated can be interpreted

together with such provision.

Going by the list of transactions stipulated in Section 21 and 22 of the Land Use Act which

includes ... assignment, mortgage, transfer of possession, sublease, or otherwise..., it is evident

that trust was not expressly stated here. However, a basic similarity of these transactions is that

there is transfer of interest in a property from one party to another; thus, they can be jointly

classified as transactions for the conveyance of interest in property which the transfer of interest

in a trust property can also fall under.

For this reason, the creation of trust, though not explicitly listed among the transactions

in Section 21 and 22, but falls under the class of transactions where the interest in property is

transferred, can be captured by the general word, “otherwise” as stated in the sections above

with support from the ejusdem generis rule.

Conclusion

From all that has been discussed so far, it can be deduced that the paths to creating a valid trust

are as numerous as the categories of trust itself. However, some factors are common to all these

categories. The laws in Nigeria do not outrightly prescribe the formalities for constituting trusts

in Nigeria. As a result, scholars are not unanimous but rather diverse in their submission.

Therefore, it is our recommendation that a law should be enacted to guide the creation of trust
while being in conformity with the socio-economic trends of the society. The law should

expressly state the procedure to be adopted in creation of trusts, particularly express trusts.

Additionally, Dr A. M. Bokani, in his article, 22 suggests that, regarding the issue of the age of

majority from which an infant can adopted as a trustee, a law should be enacted to expressly state

the age in order to put an end to the controversy surrounding the issue. We wholeheartedly

concur with this submission.

Also, it is quite inconsistent with the spirit of the consent provisions that the

draftsmen of the Land Use Act will exclude some transactions from the requirement

of consent even though the right to the property is to be transferred from one person to

another. Doing so will extricate some transactions from under the management and

administration of the governor, which in turn will not correspond with Section 1 of

the Land Use Act which vests all land in the territory of each state in the governor of

that state.

Accordingly, it is submitted that transfer of the trust property from the settlor to the

trustee must be done with the governor’s consent; failure of which will render such

transfer null and void.

22
Bokani A.M. The duties of The Trustees In The Management of Real Property In Nigeria: Can Trustees In Nigeria
Be Trusted. UNIZIK, LAW JOURNAL 19, (1) 2023.