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Alienations Under the Land Use Act and Express Declarations of Trust in Nigeria

Published online by Cambridge University Press:  23 March 2009

Remigius N Nwabueze
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Abstract

Nigerian conveyancers routinely resort to powers of attorney and agreements to sell (estate contracts) as tools to avoid the prohibitory clauses of the Land Use Act. Judges have shown their sympathy through a strict (but beneficial) construction. Nevertheless, the current system exacerbates the risk of acquiring precarious titles in land transactions. Accordingly, this article suggests that the avoidance objective will be best achieved through the application of the principles of trust and the use of trust instruments such as express written declarations of trust.

Type
Research Article
Information
Journal of African Law , Volume 53 , Issue 1 , April 2009 , pp. 59 - 89
Copyright
Copyright © School of Oriental and African Studies 2009

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References

1 Cap L5, Laws of the Federation of Nigeria 2000 (originally enacted in 1978).

2 But the concept of a state governor as a trustee under the Act has recently been examined in Banire, MA “Trusteeship concept under the Land Use Act: Mirage or reality?” in Smith, IO (ed) The Land Use Act: Twenty Five Years After (2003, Folar Prints) 90Google Scholar. Adigun, O's promising title “The equity of the Land Use Act” in Omotola, JA (ed) The Land Use Act – Report of a National Workshop (1982, University Press) 64–73Google Scholar eventually turned on the equality of treatment in the distribution and management of land under the Act.

3 Land Tenure Law, cap 59, Laws of Northern Nigeria 1963. This statute established state control and management of land in northern Nigeria. It also prohibited alienation without the prior consent of the state.

4 Native Lands Acquisition Act (no 32 of 1917). This legislation regulated the acquisition of land in southern Nigerian by non-Nigerians (aliens); it made the transfer of land to aliens subject to the approval of a designated officer of the government.

5 Almost every state in Nigeria has a state land law. State land laws regulate the use of land acquired by a state for the public purposes of that state. An individual is prohibited from transferring land allotted to him or her under a state land law, unless the prior consent of the state was sought and obtained.

6 For instance Kenya: Crown Lands Ordinance of 1915; and Tanzania: Tanzania Land Act of 1999.

7 Maitland, FWEquity: Also the Form of Action at Common Law – Two Courses of Lectures (1929, Cambridge University Press) at 23.Google Scholar

8 Hayton, D “Developing the law of trusts for the twenty-first century” (1990) 106 Law Quarterly Review 87.Google Scholar

9 For a detailed analysis of the pre-1978 land law in Nigeria, see Elias, TONigerian Land Law (4th ed, 1971, Sweet & Maxwell).Google Scholar

10 The decisions do not show any general principles as they depended heavily on the intention of the parties and the surrounding circumstances: Griffin v Talabi [1948] 12 WACA 371; Akpalakpa v Igbaibo [1996] 8 NWLR (pt 468) 553 (CA). For a detailed examination of the more general problem of when a system of customary law is excluded by an English-type transaction, see Nwabueze, RN “The dynamics and genius of Nigeria's indigenous legal order” (2002) 1 Indigenous Law Journal 153 at 182–92.Google Scholar

11 Amodu Tijani v Secretary Southern Nigeria [1921] 2 AC 399 (PC) at 404–05.

12 Elias Nigerian Land Law, above at note 9 at 73–74.

13 In some parts of western Nigeria, a woman could become the head of family.

14 Also see Gluckman, MIdeas and Procedures in African Customary Law (1969, Oxford University Press) at 9.Google Scholar

15 Lewis v Bankole [1909] 1 NLR 82.

16 Elias Nigerian Land Law, above at note 9 at 125–30.

17 Barimah Balogun and Scottish Nigerian Mortgage and Trust Co Ltd v Saka Chief Oshodi [1931] 10 NLR 36 at 51.

18 Similar to those of Kenya and Tanzania, above at note 6.

19 Land Tenure Law, above at note 3, sec 4.

20 Id, sec 6. Sec 2 defines a “native” as “a person whose father was a member of any tribe indigenous to Northern Nigeria” and a “non-native” as “any person other that a native as above defined”.

21 Id, sec 34.

22 Land Use Act, above at note 1, sec 48.

23 James, RWNigerian Land Use Act: Policy and Principles (1987, University of Ife Press Ltd).Google Scholar

24 Some of the legal issues raised by the Act were also explored by Omotola, JAEssays on the Land Use Act (1984, Lagos University Press)Google Scholar; and Omotola (ed) The Land Use Act, above at note 2. It must be said, however, that the volume of recent cases on the interpretation of the Act is such that these pioneering works can only be regarded as being largely of historical importance.

25 For instance, the right of occupancy system in northern Nigeria based on the Land Tenure Law (above at note 3) and the dual system in southern Nigeria based on customary land law and the estate system received from English law. The nature and incidence of customary land tenure have been explored in a long line of cases in the context of the Land Use Act: Abioye v Yakubu [1991] 5 NWLR (pt 190] 130 (SCN); Ogunola v Eiyekole [1990] 4 NWLR (pt 146) 632 (SCN); Anibire v Womiloju [1993] 5 NWLR (pt 295] 623 (CA); Abidoye v Alawode [1994] 6 NWLR (pt 349) 242 (CA); Nyagba v Mbahan [1996] 9 NWLR (pt 471) 207 (CA). These cases also show that the Act has not successfully obliterated the incidence of customary tenancy under customary land law. Nor has it abolished the proof of ownership through traditional history: Okpalugo v Adeshoye [1996] 10 NWLR (pt 476) 77 (SCN). See generally Sholanke, OO “The Nigerian Land Use Act – A volcanic eruption or a slight tremor?” (1992) 36 Journal of African Law 93Google Scholar; Agbosu, LK “The Land Use Act and the state of Nigerian land law” (1988) 32 Journal of African Law 1.Google Scholar

26 In Nkwocha v Governor of Anambra State [1984] 1 SCNLR 634 at 652, the first case on the Act to reach the Nigerian Supreme Court, Eso JSC observed that the tenor of the Act was “the nationalization of all lands in the country by the vesting of its ownership in the State leaving the private individual with an interest in land which is a mere right of occupancy”. A similar view was expressed by Musdapher JSC in Kachalla v Banki [2006] 8 NWLR (pt 982) 365 at 383. This view was, however, rejected in Savannah Bank Ltd v Ajilo [1989] 1 NWLR (pt 97) 305 at 332 (NSC) by Nnamani JSC.

27 It has been rightly argued that only a political trust was anticipated: Nwabuzor, EO “Real property security interests in Nigeria: Constraints of the Land Use Act” (1994) 38 Journal of African Law 1 at 2–5CrossRefGoogle Scholar. No court has jurisdiction to question this trust or the statutory vesting of land in the governor: sec 47. This section, however, seems to be void for inconsistency with sec 272 of the 1999 Nigerian Constitution; see Lemboye v Ogunsiji [1990] 6 NWLR 210 (CA); Babalola v Obaoku-Ote [2005] 8 NWLR 386 (CA).

28 For instance secs 5(1)(a), and 6(1)(a)(b) of the Act; also secs 34, 36 and 46.

29 Sholanke, OO “Applicability of the Nigerian Land Use Act to non-Nigerians” (1992) 36 Journal of African Law 183CrossRefGoogle Scholar.

30 The Act, sec 49. For interesting analysis of this section in respect of land held by the Nigerian police force before the commencement of the Act, see Ofodile v COP Anambra State [2001] 3 NWLR (pt 699) 139 (CA).

31 Under sec 3 of the Act, the governor may by order designate parts of the state as urban land. It appears, however, that a court may properly infer that a piece of land is in a non-urban area if it is used for farming or other agricultural purposes: Dieli v Iwuno [1996] 4 NWLR (pt 445) 622.

32 The Act, sec 2. The Land Use and Allocation Committee seems to have its own separate legal personality: Sachia v Kwande LGC [1990] 5 NWLR 546 at 559 (CA).

33 Usman v Garke [2003] 14 NWLR (pt 840) 261 (SCN).

34 Dabo v Abdullahi [2005] 7 NWLR 181 (SCN).

35 The Act, sec 1.

36 Id, sec 5.

37 Adeniran v Alao [1992] 2 NWLR 350 (CA).

38 Julius v Lord Bishop of Oxford [1880] 5 app cas 214 (HL).

39 Compare Anthony v Governor of Lagos State [2003] 10 NWLR (pt 828) 288 (CA), where the payment for the statutory right of occupancy was not accepted on behalf of the governor. The court, accordingly, refused to order the governor to issue a statutory right of occupancy. Also, Julius v Lord Bishop of Oxford, above at note 38; Stitch v AG Federation [1986] 5 NWLR (pt 46) 1007. See generally Sholanke, OO “Is the grant of governor's consent under the Land Use Act automatic?” (1990) 34 Journal of African Law 42.CrossRefGoogle Scholar

40 Ohenhen v Uhumuavbi [1995] 6 NWLR (pt 401) 303 (CA).

41 Adebiyi v Williams [1989] 1 NWLR 611 (CA).

42 Ugo v Gbatse [1995] 6 NWLR (pt 401) 314 (CA).

43 Angbazo v Sule [1996] 7 NWLR (pt 461) 479 (CA); Adebo v Omisola [2005] 2 NWLR (pt 909) 149 (CA).

44 Leko v Soda [1995] 2 NWLR (pt 378) 432 (CA). OO Sholanke “Reflections on some judicial decisions on the construction of the Nigerian Land Use Act” (1993) 37 Journal of African Law 89 at 91.

45 Musa v Osawe [1991] 8 NWLR 238 (CA); Ofoeze v Ogugua [1996] 6 NWLR (pt 455) 451 (CA); Dakat v Dashe [1997] 12 NWLR (pt 531) 46 (SCN); Kaigama v Namnai [1997] 3 NWLR (pt 495) 549 (CA).

46 Sehindemi v Governor of Lagos State [2006] 10 NWLR 1 (CA).

47 Some of these powers are contained in secs 5, 11, 12, 17, and 28 of the Act.

48 Kari v Ganaram [1997] 2 NWLR (pt 488) 380 (SCN).

49 The Act, sec 8. This attracts the lease analogy.

50 Id, secs 8, 9 and 10. A certificate of occupancy merely has an evidential value, so that the grant of a statutory right of occupancy can be proved, in the absence of a certificate of occupancy, by other documents, such as a letter of grant from the governor: Usman v Jorda [1998] 13 NWLR (pt 582) 374 (CA).

51 Ogulaji v Attorney General of Rivers State [1997] 6 NWLR (pt 508) 209 at 223 (SCN); Kari v Ganaram, above at note 48.

52 The Act, sec 6.

53 Adene v Dantunbu [1994] 2 NWLR 509 (SCN); Gankon v Ugochukwu Chemical Industries Ltd [1993] 6 NWLR (pt 297) 55 (SCN).

54 Sec 5(2) of the Act reads: “Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land, which is the subject of the statutory right of occupancy, shall be extinguished.”

55 Alade v Akande [1994] 5 NWLR (pt 345) 468 (CA).

56 Nwokoro v Onuma [1994] 5 NWLR (pt 343) 191 (CA). Iroegbu v Okwordu [1995] 4 NWLR (pt 389) 270 (SCN).

57 Okpalugo v Adeshoye [1996] 10 NWLR 77 (SCN).

58 Oja v Ogboni [1996] 6 NWLR (pt 454) 272 (SCN).

59 Sec 34 nevertheless makes a distinction between a deemed grant of developed land in an urban area and undeveloped land in the same area. A deemed grantee is entitled to all his developed land, but only to a particular portion of his undeveloped land.

60 Kyari v Alkali [2001] 11 NWLR (pt 724) 412 at 440–43 (SCN). Sec 36 also makes distinctions relating to the deemed grant of rural land based on whether the land was developed or used for agricultural purposes. The result seems to be that, while the deemed grantee of agricultural land is the “occupier or holder”, the deemed grantee of developed land is the person in whom the land is “vested.” The semantic change in sub-secs 36(2) and (4) is not without significance and seems to capture the differences between title (a person in whom the land is vested) and actual possession (the holder or occupier who may or may not have legal title). While in Onwuka v Ediala [1989] 1 NWLR 182 the Supreme Court held that the customary landowner is the deemed grantee under sec 36, it held by a majority in Abioye v Yakubu [1991] 5 NWLR (pt 190) that the customary tenant is the deemed grantee under sec 36; Ansa v Ishie [2005] 15 NWLR (pt 948) (SCN) is to the same effect. The Court of Appeal has followed Onwuka's case in Alade v Akande, above at note 55, and Laniyi v Oyedele [1994] 6 NWLR (pt 348) 83.

61 Provost, LACOED v Edun [2004] 6 NWLR 476 at 499 (SCN).

62 The Act, sec 28(2)(a). Since sec 28 only deals with the power of a governor to revoke a statutory right of occupancy and sec 6(3) only allows a local government to revoke for public purposes, it is arguable that a local government cannot revoke a customary right of occupancy for failure to obtain prior consent before alienation.

63 Id, sec 5(1)(f) and sec 20.

64 UBN Plc v Ayo Dare & Sons [2000] 11 NWLR (pt 679) 644 (CA).

65 The ejusdem generis rule of statutory interpretation was applied by the Nigerian courts in Nasr v Bouari [1969] 1 All NLR 35; Jammal Steel Structures Ltd v ACB [1973] 11 SC 77; and Onasile v Sami [1962] 1 All NLR 272.

66 Eton Rural District Council v Thames Conservators [1950] 1 Ch 540.

67 Palmer v Snow [1900] 1 QB 725.

68 Gregory v Fearn [1953] 1 WLR 974.

69 Id at 976.

70 Okuneye v First Bank of Nigeria, Plc [1996] 6 NWLR (pt 457) 749.

71 Ofodile v COP Anambra State, above at note 30 at 164, per Olagunju JCA. Compare Isichei v Allagoa [1998] 12 NWLR (pt 577) 196 (CA) where a lessee paid annual rents and continued to be in possession after a void lease (for want of consent) had expired. The Court of Appeal seemed to have held that an annual tenancy could not have risen in the circumstances. It is, however, suggested that, since the initial possession was not illegal, an annual tenancy arose by operation of law and was outside secs 22 and 26 of the Act.

72 Savannah Bank Ltd v Ajilo, above at note 26.

73 Nnamani, Kawu, Agbaje and Craig JJSC.

74 Savannah Bank Ltd v Ajilo, above at note 26 at 339.

75 Id at 354.

76 Id at 324.

77 Adedeji v National Bank of Nigeria [1989] 1 NWLR 212.

78 Adedeji's case was recently followed in Jegede v Citicon Nigeria Ltd [2001] 4 NWLR (pt 702] 113 (CA). It has also been held that the lack of consent must be raised in the statement of defence: Jibrin v Baba [2004] 16 NWLR (pt 899) 243 (CA). Adedeji's principle has also been applied in the context of an irregular transfer of shares: Inyang v Ebong [2002] 2 NWLR 284 (CA).

79 Adedeji v National Bank of Nigeria, above at note 77 at 225. However, the principle of benefiting from one's own wrongdoing does not apply where a landowner conveyed his land (without the required consent) to his former employer, in exchange for freedom from criminal prosecution in respect of an unproven crime alleged by the employer against the landowner: Calabar Central Co-Operative v Ekpo [2001] 17 NWLR (pt 743) 649 (CA).

80 For instance: Bucknor-Maclean v Inlaks Ltd [1980] 8-11 SC 1; Solanke v Abed [1962] 1 All NLR 230; Quo Vadis Hotels & Restaurant Ltd v Commissioner of Lands, Mid-Western State & Others [1973] 6 SC 71; Oilfield Supply Centre Ltd v Joseph Lloyd Johnson [1986] 5 SC 310.

81 In Awojugbagbe Light Industries Ltd v Chinukwe [1995] 4 NWLR (pt 390) 379 at 426 (SCN), Onu JSC thought that the ruling in Ajilo's case tempered that of the Court of Appeal in Adedeji's case.

82 Ugochukwu v Cop & Comm Bank Ltd [1996] 6 NWLR (pt 456) 524 at 542 (Ogundare JSC).

83 See generally Oshio, PE “Mortgages under the rights of occupancy system in Nigeria” (1989) 33 Journal of African Law 19.CrossRefGoogle Scholar

84 Onamade v ACB [1997] 1 NWLR (pt 480) 123 (SCN).

85 In England, where consent is required (under certain instruments) for a disposition or transfer of shares, some courts have considered whether a court order can amount to such a transfer or disposition of shares: In re Holt's Settlement: Wilson v Holt [1969] 1 Ch 100; Sun Alliance Insurance Ltd v Inland Revenue Commissioners [1971] 2 WLR 432; Hambro v Duke of Marlborough [1994] Ch 158. Therefore, to the extent that a court-ordered partition can be regarded as an act of disposition or transfer, English courts would seem to have considered a similar issue.

86 Stephen v Pedrocchi [1959] NRNLR 76.

87 It is argued below that a court-ordered partition has the same legal effect as the sale of land inter vivos.

88 Nkeaka v Nkeaka [1994] 5 NWLR (pt 346) 599.

89 Id at 605

90 Edozie JCA (as he then was) agreed in Akpadiaha v Owo [2000] 8 NLWR (pt 669) 439 at 454 that partition confers ownership. The Supreme Court appears to accept this conclusion in Obasohan v Omorodion [2001] 13 NWLR (pt 729) 206 and Olurunfemi v Asho [2000] NWLR (pt 643) 143, though it observed in the latter case that it is a question of fact whether what took place amounted to a partition or mere allotment under customary law. Oludayo, A “Partition: Meaning and effect under customary law” (2003) 22 Journal of Private & Property Law 152.Google Scholar

91 Burn, EH and Cartwright, JCheshire and Burn's Modern Law of Real Property (17th ed, 2006, Oxford University Press) at 459.Google Scholar

92 Which will make the instrument rather than the court order the relevant document for consent.

93 Ogunbambi v Abowab [1951] 13 WACA 222; Orasanmi v Idowu [1959] FSC 40 (SCN); Okoye v Dumez Nigeria Ltd [1985] 1 NWLR (pt 4) 783 (SCN); Provost, LACOED v Edun, above at note 61; Agbabiaka v Okojie [2004] 15 NWLR (pt 897) 503 (CA); Aminu v Ogunyebi [2004] 10 NWLR (pt 882) 457 (CA).

94 Jaffey, PPrivate Law and Property Claims (2007, Hart Publishing) at 249.Google Scholar

95 Lysaght v Edwards [1876] 2 Ch D 499 at 506.

96 Paragon Finance v Thakerar [1999] 1 All ER 400 (CA) at 409. Also Lord Browne-Wilkinson in Westdeutsche v Islington [1996] AC 669 at 705–07 (HL).

97 Okuneye v FBN Plc, above at note 70. Also, Doherty v Ighodaro [1997] 11 NWLR (pt 530) 694 (CA).

98 Ogbo v Adoga [1994] 3 NWLR (pt 333) 469.

99 Id at 477 (emphasis original).

100 Ibekwe v Maduka [1995] 4 NWLR (pt 392) 716.

101 FMB v Akinola [1998] 4 NWLR (pt 545) 325 at 335–36.

102 Igbum v Nyarinya [2001] 5 NWLR (pt 707) 554 (CA).

103 International Textile Industries (Nigeria) Ltd v Aderemi [1999] 8 NWLR (pt 614) 268 (SCN). A better basis for the judgment in this case was the view articulated by Uwaifo JSC (at 298) that equity will not allow sec 22 of the Act to be used as an engine of fraud.

104 This was the basis of Orah JCA's concurring judgement in Ogbo's case, above at note 98 at 480.

105 Awojugbagbe Light Industries Ltd v Chinukwe, above at note 81.

106 Adetuyi v Agbojo [1997] 1 NWLR (pt 484) 705 (CA) epitomizes such conditional alienations. In that case the agreement to sell was conditional on the vendor obtaining a deed of release from his mortgagee and the consent of the governor. Also: Best Nigeria Ltd v Blackwood Hodge Nigeria Ltd [2001] 10 NWLR (pt 720) 35 (CA); Oyebanji BMS Ltd v UBA Plc [2001] 6 NWLR 80 (CA).

107 FMB v Akinola, above at note 101 at 334.

108 Mainagge v Gwamna [1997] 11 NWLR (pt 528) 191 (CA).

109 Okonkwo v Co-operative & Commerce Bank Ltd [1997] 6 NWLR (pt 507) 48 (CA); Majekodunmi v Co-Op Bank Ltd [1997] 10 NWLR (pt 524) 198 (CA).

110 Onamade v ACB, above at note 84.

111 Incidentally, that was the decision of the Court of Appeal in Jacobson Eng Ltd v UBA Ltd [1993] 3 NWLR 586. Although the Court of Appeal held that the equitable mortgage in that case offended sec 22 of the Act, its decision is also justifiable under sec 26 of the Act.

112 FBN Plc v Songonuga [2007] 3 NWLR 230 at 262 (CA).

113 Denning v Edwardes [1961] AC 245.

114 Sec 88(1) reads: “No person shall, except with the written consent of the Governor, sell, lease, sub-lease, assign, mortgage or otherwise by any means whatsoever, whether of the like kind to the foregoing or not, alienate, encumber, charge or part with the possession of any land which is situate in the Highlands, or any right, title or interest whether vested or contingent, in or over any such land to any other person, nor, except with the written consent of the Governor shall any person acquire any right, title or interest in any such land for or on behalf of any person or any company registered under the Companies Ordinance; nor shall any person enter into any agreement for any of the transactions referred to in this subsection without the written consent of the Governor.” Sec 88(3) reads: “Any instrument, in so far as it purports to effect any of the transactions referred to in subsection (1) of this section shall be void unless the terms and conditions of such transactions have received the consent of the Governor which shall be endorsed on the instrument.”

115 Denning v Edwardes, above at note 113 at 253.

116 International Textile Industries (Nigeria) Ltd v Aderemi, above at note 103 at 298–99.

117 Okuneye v FBN, above at note 70 at 756–57.

118 Iragunima v Uchendu [1996] 2 NWLR (pt 428) 30. There was evidence in this case that consent had been applied and paid for, and there were follow-up visits. It is thought that in cases like this equity might perfect the imperfect transfer.

119 Extra-judicially, Niki Tobi JSC seems to support that approach: Tobi, N “The Land Use Act and judicial activism” (2003) 23 Journal of Private & Property Law 1 at 12–13.Google Scholar

120 The Act, sec 7.

121 Sec 7 evinces a clear legislative intention that a person under the age of 21 shall not have any interest in land except through a trustee or inheritance. See generally In re Neath and Brecon Railway Co [1874] LR 9 Ch App 263 (CA).

122 The Supreme Court restated the exemption for such agreements in Owoniboys Technical Services Ltd v UBN Ltd [2003] 15 NWLR (pt 844) 545, although the decision was obiter.

123 Ohiwerei v Okosun [2003] 11 NWLR (pt 832) 463 at 493 (CA).

124 Majekodunmi v Co-Op Bank, above at note 109 at 220.

125 The same conclusion was reached under the Land Tenure Law of northern Nigeria: Stephen v Pedrocchi, above at note 86.

126 Kachalla v Banki, above at note 26 at 385.

127 Id at 386.

128 Id at 388.

129 Id at 387.

130 In certain circumstances void transactions can give rise to constructive trusts: Yaxley v Gotts [2000] Ch 162 (CA).

131 Kachalla, above at note 26 at 389.

132 Ude v Nwara [1993] 2 NWLR (pt 278) 638 (SCN).

133 Id at 665.

134 Chime v Chime [2001] 3 NWLR 527 (SCN); Amadi v Nsirim [2004] 17 NWLR (pt 901) 111 (CA); Oshola v Finnih [1991] 3 NWLR 192 (CA).

135 Ndukauba v Kolomo [2001] 12 NWLR 117 at 129–30 (CA); Chime v Chime, id at 555.

136 Ndukauba v Kolomo, id at 127.

137 Olorunfemi v NEB Ltd (2003) 5 NWLR 1 (CA).

138 Ibid.

139 Ihekwoaba v ACB Ltd [1998] 10 NWLR (pt 571) 590 (CA), per Uwaifo JCA (as he then was). Although the minority judgement considered the power of attorney in that case to amount to a sale or transfer of the mortgaged property to the donee of the power, it did not consider the effect of non-compliance with secs 22 and 26 of the Act.

140 Johnson v Banjo [1973] N.N.L.R. 187 at 189–90 (CA).

141 Abu v Kuyabana [2002] 4 NWLR 599 at 614 (CA).

142 Ndukauba v Kolomo, above at note 135 at 127.

143 Paul v Constance [1977] 1 WLR 527.

144 Knight v Knight [1840] 3 Beav 148.

145 Scottish Law Commission Discussion Paper on the Nature and the Constitution of Trusts (2006, The Stationery Office).

146 For instance, Tierney v Wood [1854] 19 Beav 330; M'Fadden v Jenkyns [1842] 1 PH 153.

147 Milroy v Lord [1862] 4 De GF & J 264; Richards v Delbridge [1874] LR 18 Eq 11; Jones v Lock [1865] LR 1 Ch App 25.

148 Re Rose, Midland Bank v Rose [1949] Ch 78; Re Rose, Rose v IRC [1952] Ch 499.

149 Choithram International SA v Pagarani [2001] 1 WLR 1; Pennington v Waine [2002] 1 WLR 2075.

150 As in London and County Banking Co v Goddard [1897] 1 Ch 642.

151 JE Martin Hanbury & Martin Modern Equity (17th ed, 2005, Sweet & Maxwell) at 88 and 119.

152 D Hayton, “Developing the obligation characteristics of the trust” (2001) 117 Law Quarterly Review 96 at 97.

153 P Parkinson “Reconceptualising the express trust” (2002) 61 Cambridge Law Journal 657 at 679.

154 Maitland Equity, above at note 7 at 74.

155 For instance, Requirements of Writing (Scotland) Act 1995, sec 1(2)(a)(iii). The Commission noted that this provision was intended “as a protection against impulsive gestures by the truster which he might later regret”: Scottish Law Commission Discussion Paper, above at note 145 at 24.

156 Id at 22–23.

157 Id at 26.

158 Grey v Inland Revenue Commissioners [1960] AC 1 (HL).

159 Id at 16.

160 Id at 5.

161 Directions to trustees regarding an equitable interest have been clearly recognised as a disposition of the equitable interest: In re Chrimes, Locovich v Chrimes [1917] 1 Ch 30; Timpson's Executors v Yerbury [1936] 1 KB 645.

162 Green, B “Grey, Oughtred and Vandervell - A contextual reappraisal” (1984) 47 Modern Law Review 385 at 394.CrossRefGoogle Scholar

163 Battersby, G “Some thoughts on the Statute of Frauds in relation to trusts” (1975) 7 Ottawa Law Review 483 at 487.Google Scholar

164 Grey v IRC, above at note 158 at 16.

165 However, it has been argued that, while a pledge and tenancy under customary law do not involve transfer of ownership, the possession given to the pledgee and the customary tenant comes within the purview of sects 21 and 22 of the Act and, therefore, requires the prior consent of an appropriate authority to be valid: Oshio, PE “The Land Use Act and the institution of family property in Nigeria” (1990) 34 Journal of African Law 79 at 89–91.CrossRefGoogle Scholar

166 Kari v Ganaram, above at note 48 at 397.

167 Nkwocha v Governor, above at note 26 at 647, per Eso JSC. Also Onwuka v Ediala, above at note 60 at 207, per Oputa JSC.

168 The New Webster Encyclopaedic Dictionary of the English Language (1984, Avenel Books) at 176.

169 Heritable Reversionary Co Ltd v Millar (M'Kay's Trustees) [1892] AC 598 (HL).

170 Maitland Equity, above at note 7 at 122.

171 Gray, K “Equitable property” (1994) 47 Current Legal Problems 157CrossRefGoogle Scholar; Hayton “Developing the obligation characteristics”, above at note 152; Parkinson “Reconceptualising”, above at note 153.

172 Parkinson “Reconceptualising”, id at 682.

173 Scott, “The nature of the rights of the Cestui Que Trust” (1917) 17 Columbia Law Review 269.CrossRefGoogle Scholar

174 Matthews, P “From obligation to property and back again? The future of non-charitable purpose trusts” in Hayton, (ed) Extending the Boundaries of Trusts and Other Ring-Fenced Funds (2002, Kluwer) 203Google Scholar; Matthews, P “The comparative importance of the rule in Saunders v Vautier” (2006) 122 Law Quarterly Review 266.Google Scholar

175 Waters, “The nature of the trust beneficiary's interest” (1967) 45 Canadian Bar Review 219Google Scholar; Nolan, RC “Equitable property” (2006) 122 Law Quarterly Review 232.Google Scholar

176 Note that sec 26 of the Act deals with conferring on or vesting in any person “any interest or right over land”, which suggests the creation of rights in rem.

177 As such, the beneficiary's interest is traceable, transferable and can be used in commercial transactions to secure a loan or used as security for a mortgage.