Bishop S.C Phillips And T.K.E Phillips V R.T. Phillips (1967)

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ADEMOLA,C.J.N.

The appellants, who were the plaintiffs in the High Court of Lagos, are executors and trustees of the will of their uncle Adolphus Phillips (deceased), who died in Lagos on or about 29th day of July,1934, with a wife and two children him surviving. He died possessed of a house known as No. 12 Alli Street, Lagos, hereinafter referred to as the property in dispute. In his will made a few days before his death, and indeed dated the 26th day of July, 1934, the testator devised the property in dispute to his daughter Violetta Omoleye Phillips for life, directing that his wife Lucretia should continue to live in the premises during her life time. It was the wish of the testator that his son, the respondent, should be permitted to live in two small rooms in the premises but only on payment of rent and subject to good behaviour.

There was a further provision in the will to the effect that should he (respondent) survive his mother and sister, he should not beallowed to remain in the said two rooms for more than three months after that event. The penultimate paragraph of the will then stated as follows:

“My Trustees shall, at their discretion should my daughter Violetta die without an issue, rent out or sell my said house at 12 Alli Street and the rents and proceeds therefrom shall be utilized on a scheme, whereby my name will be continually kept in remembrance or perpetuated in connection with the work of the Lagos Church Missions…”

Lucretia, the wife of the testator, died many years ago and the daughter Violetta died on or about 25th December, 1961, without issue. The trustees sought to remove the son Reuben (respondent) from the two rooms in the property in dispute in order to carry out the trust and to settle the debt owed by the testator; the respondent, who has been collecting rents from tenants on the portion of the property in dispute which he was not using himself, refused to give up possession. Whereupon the present action was instituted against him for

(1) a declaration that he had no right to collect rents from the tenants,

(2) an order that the respondent give an account of all rents received by him up-to-date and to pay the amount due to the plaintiffs-appellants,

(3) an order for possession of the two rooms occupied by him, and

(4) an injunction to restrain him (respondent) from interfering with the tenants on the premises by demanding rents from them.

The facts are all admitted and not in dispute. The respondent in his Statement of  Defence, and indeed in the court below, averred that the trust which the testator sought to create in respect of the property in dispute is void because its object is uncertain. He further averred that he had always treated the portion of the will relating to the property in dispute as void, and as the only surviving son of the testator and the next of kin, the trust having failed on the death of his sister Violetta, the property in dispute devolves on him.   It is not disputed, and in fact it was conceded by the appellants’ counsel, that if indeed the trust fails, the respondent is the right person to inherit the property in dispute. The learned Judge in the court below found that the trust created is clearly not a charitable one and must fail for uncertainty; that the functions of the Lagos Church Mission are not exclusively charitable and so the bequest must fail. The appeal before us was therefore fought on these two grounds.

It was argued before us that a will creating a trust in favour of the Lagos Church Missions is rather vague since it is possible that denominations in the country other than the Anglican Church have Church Missions in Lagos. There is evidence that the testator was a member of the Anglican Church in his life time: he was in fact a lay reader in the Lagos C. M. S. Church (Anglican); his three nephews whom he appointed as his executors and trustees (one has since died) are Anglican by religion, two of them in holy orders of that denomination. Further, there was no evidence before the learned judge that there are other denominations other than the Anglican Church having a Lagos Church Mission.

We, therefore, do not share the doubts of the learned judge that the testator might have in mind another denomination other than the Anglican Church. It was also submitted that it was possible that in the Lagos District of the Anglican Church there are more than one Church Missions. There is abundant evidence that there is only one Church Mission in the Lagos District and in this respect we refer to the evidence of Bishop Phillips (first appellant) who said:   “I am not in any doubt as to the existence of Lagos Church Missions. It has existed for a very long time ever since I was young and it still exists. It is over 50 years old and has celebrated its golden jubilee. I was a Canon Residentiary of the Cathedral in Lagos from 1930 to 1944 and during this period the Lagos Church Mission existed as part of the organisation of the Church. It is a permanent body established to further the extension of church work.” This evidence was followed by that of the Bishop’s brother Mr. Thomas King Ekundayo, Phillips whose evidence In this regard was as follows:

“I am a member of the Lagos District Council governing the Lagos Church Mission ……. There is only one Lagos Church Mission in the Lagos District Council.”

Mr. Isaac John Oluwole Soyode, the accountant for the Diocese of Lagos and Treasurer for the Lagos District as well as treasurer of the Lagos Church Mission, in his evidence said: