T. THOMAS, O. THOMAS
V.
F. J. NABHAN TRADING

JELR 80877 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1946-49 12 WACA 229-232
CORAM
HARRAGIN, C.J. (GOLD COAST), VERITY, C.J. (NIGERIA). LUCIE-SMITH, C.J. (SIERRA LEONE)
Core Terms Beta
life
appellants
first respondent
third respondents
land
executors
meaning of those acts
trustees of the settlement
trustees of the will
premises
settled land acts
trustees of a will
virtue of the land transfer act
benefits of the income
guardians of an infant tenant
learned trial judge
meaning of the settled land acts
order of the court
sub-section
such powers
trial judge
virtue of section
findings of the learned trial judge
land acts
last findings
life estate
personal estate
present case
property of the estate
real estate
second appellant
second contention of the respondents
trustees of the will of the appellants

This is an appeal from a decision of the Supreme Court in an action whereby the appellants sought a declaration as to the validity of a certain lease granted to the first respondent by the second and third respondents as executors and trustees of the will of the appellants’ deceased father.

The premises, the subject of the lease, were devised to the appellants under their father's will ,. for life, with remainder to their children in common “. The second and third respondents were appointed by the testator to be “executors and trustees of this my will” .

The lease which was executed on 17th February. 1932, purported to assure to the first respondent certain premises the property of the estate of the deceased for the term of twenty-five years from 1st June, 1929. On 27th November, 1934, by a memorandum of endorsement alleged by the respondents to relate to this lease, the term thereof was extended for a further thirty years, that is to say,- fifty-five years in all from 1st June, 1929. It is admitted that at the date of the execution of both lease and memorandum the appellants were minors and that they attained their majority before the commencement of the action. There is no evidence as to the date when either appellant came of age but the second appellant, who appeared in person at the hearing of the appeal, admitted that he did so on 17th October, 1940. It would appear, moreover, that the first appellant is his elder brother. It is admitted also that the appellants for a certain period after they had attained their majority received the benefits of the income derived from the lease and adopted the lease in so far as they dealt therewith from time to time as though they were the lessors, consenting to a sub-lease thereunder and assigning the rent reserved thereby. Eventually, having failed in an attempt by negotiation to dispose of their interest to the first respondent, they brought this action in order to determine the validity of the lease and after action brought served upon the first respondent a notice to quit in which they described themselves as his landlords.

The grounds upon which the appellants sought a declaration that the lease is void are that, by the terms of the will, the premises became settled land within the meaning of the Settled Land Acts, 1882-90; that the second and third respondents as trustees of the will were not trustees of the settlement within the meaning of those Acts and therefore had no power to grant a lease of the premises.

The learned trial Judge upheld the contentions of the appellants.. that the Settled Land Acts are applicable to Nigeria, that the premises are settled land within the meaning of those Acts and that the trustees of the will were not trustees of the settlement within the meaning of those Acts. He held, however, that the trustees of the will, by virtue of section 43 of the Convincing Act, 1881, and, as it would appear, as executors by virtue of the Land Transfer Act, 1897, and as “quasi-guardians of the appellants during infancy, were empowered to lease the demised premises in order to secure income for the maintenance and advancement of the infant tenants for life. He held therefore that the lease was not void.

It is from these last findings that the appellants have brought this appeal.

In the first place, we accept the findings of the learned trial Judge that the Settled Land Acts are applicable to Nigeria, that the demised premises are settled land within the meaning of those Acts and that the second and third respondents are not trustees of the settlement under the Acts.

The respondents contend, however, and the learned Judge held, that they could derive the power to grant the lease from the provisions of section 43 of the Conveyancing Act, 1881. We are unable to agree that this section confers any such powers. It provides, in so far as it is applicable to the present case, that: “Where any property is held by trustees in trust for an infant either for life or for any greater interest. ..the trustees may, at their sole discretion, pay to the infant’s parent or guardian, if any, or otherwise apply for or towards the infant’s maintenance, education or benefit, the income of that property or any part thereof.”

We can find nothing in this section empowering such trustees to grant leases of the property or in fact to dispose thereof in any way. It refers, in our view, solely to the application of the income derived from the property. It is true that section 42 of the Act confers upon certain classes of trustee powers of management including power:-

“To make allowances to and arrangements with tenants and others and to determine tenancies and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management” but even if it could be held that the powers so conferred extended to the granting of such a lease as was granted by the second and third respondents in this case, it is clear from sub-section (1) of section 42, that the respondents were not trustees within the meaning of that section which is clearly limited to the powers of trustees who conform to the definition prescribed by sub-section 2, in terms almost identical in effect, if not in words, with the definition of trustees under the Settled Land Acts. We are unable, therefore, to uphold the contention that the second and third respondents derived any authority from section 43 of the Conveyancing Act, 1881, to grant the lease with which this action is concerned.

The second contention of the respondents is that by virtue of the Land Transfer Act, 1897, the power to grant such a lease is conferred upon the executors and trustees of the will. The effect of this Act is to make real estate liable to be administered for payment of the deceased person's funeral and testamentary expenses and debts in the same manner as personal estate, that is to say, the executor is empowered to dispose thereof by sale or mortgage in payment of debts, expenses and pecuniary legacies. We know of no authority, nor was any cited to us, which would enable an executor or trustee of a will to grant, in the course of the administration of the estate, a lease the term of which extends for forty-four years beyond the date upon which the youngest of the infants entitled to a life estate therein attained his majority, that is to say, forty-four years after the time would be ripe for the winding-up of the administration of the estate. It is, moreover, clear to us that, where the property is settled land within the meaning of the Settled Land Acts, it is not open to the trustees or guardians of an infant tenant for life, to go outside these Acts in the disposition of the property. The powers of trustees of an infant tenant for life cannot be greater than those of the tenant for life himself, and it is specifically provided by section 60 of the Settled Land Act, 1882, that:-

“where a tenant for life is an infant the powers of a tenant for life under this Act may be exercised on his behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court on the application of a testamentary or other guardian or next friend of the infant either generally or in a particular instance orders.”

The effect of this enactment is, in our view, that the executors or trustees of a will, unless they are created thereby trustees also of the settlement, cannot of themselves exercise the powers of the infant tenant for life save under an order of the Court. The second and third respondents in this case were not trustees of the settlement and they did not apply to the Court for an Order authorising them or any other person to exercise the powers of the infant tenants for life. The lease granted by them to the first respondent was therefore bad and must be declared to have been void ab initio. In such case no question of ratification by the infants on attaining majority can arise.

We are of the opinion that the learned Judge erred when he declared that the lease was not void and that he should on the contrary have answered the first question in the summons to the effect that the lease was void. The other questions would not then have arisen.

By paragraph 10 of his statement of defence the first respondent pleaded estoppel, and in the Court below argued that he had been made to expend money on the land the benefit of which the appellants had enjoyed for over seven years since they became of age, and submitted that by their conduct the appellants are estopped from attacking the lease and seeking to avoid it. This line of defence is not identical with that of alleged ratification. It does not seek to establish the validity of the lease but merely to preclude the appellants from alleging its invalidity. In view of his findings as to the validity of the lease the learned trial judge did not deal with this aspect of the matter in his judgment. Nor did the respondents argue this defence at the hearing of the appeal. Upon it, therefore, we do not propose to express any opinion.

The appeal is allowed, the judgment of the Court below is set side and judgment will be-entered therein declaring that the lease granted by the second and third respondents to the first respondent is void. The appellants will have their costs in the Court below assessed at thirty guineas and their costs of this appeal assessed at £39 14s. 3d.

Appeal allowed.