Bishop S.C Phillips And T.K.E Phillips V R.T. Phillips (1967)
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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:
“The Lagos Church Mission is under the Lagos District. The Lagos Mission gets its funds by assessments, donations and contributions and bequests from testators ………The Lagos Church Mission still exists. I have been the Treasurer of the Lagos Church Mission since 1948. I became a member in 1932. I do not know of any other Lagos Church Mission. The respondent admitted he did not know of any other Lagos Church Mission in any other denomination. He however, made a feeble attempt to say something about the Anglican Lagos Church Mission. In one breath he said he knew nothing about it, in another he said it is now defunct and that after 1932 it is no more in existence. Notwithstanding the reference to “Lagos Church Missions” we are satisfied that on the evidence before him the learned Judge should have found that the testator was intending to refer to the Lagos Church Mission of the Anglican Church in Lagos. There remains the question of interpretation of the wording of the will. The learned judge considering the words in the will “my trustees shall, at their discretion,” had this to say- “I am clearly of the opinion that the trustees were given absolute discretion to establish a scheme of whatever type or kind they pleased provided the funds accruing therefrom are used to fulfill the testator’s objects. As such a scheme need not be charitable, the trust is clearly not a charitable trust and must fail for uncertainty on this ground……”
Reading the words in the will, we are clearly of the opinion that the discretion left to the trustees here is either to “rent out” or to “sell” the property in dispute. We cannot agree that this destroys the purpose of the gift. The trustees have a discretion whether the property should be sold and the proceeds be utilized for the purpose of the trust or to let or lease out the property and utilize the income for the purpose of the trust. The learned judge took the view that the words “at their discretion” apply to the object of the trust and they are to be read with the words “in connection with the work of the Lagos Church Missions.” We do not agree with this. Arguing, however, on the view taken by the learned Judge on this point, counsel for the respondent submitted that a gift cannot be charitable in the legal sense because in so-far-as the discretion is concerned It was too wide and the object of the trust itself is uncertain. The first question which arises is the question of the discretion given to the trustees. To our mind the words “at their [trustees] discretion” would in that case mean no more than a direction that the particular mode of application within the charitable purpose of the legacy is to be settled by the trustees, or in other words they (the trustees) are given the power to settle the scheme of the trust provided it comes within the scope the testator himself defined and which is charitable. In the case of In re Garrard  1 Ch, 382 where the vicar and churchwardens of a certain parish were to apply certain monies “in such manner as they shall in their sole discretion think fit” it was held that the bequest was a good charitable gift for ecclesiastical purposes in the Parish.
This brings us to the second point raised by the learned judge and which we have to deal with, and that is that the object of the trust is uncertain as the testator did not settle the precise form of the scheme. The learned judge dealing with the above wording of the will in connection with the work of the Lagos Church Mission said- “In the Lagos District an Internal Organisation called the Lagos Mission exists and this organisation is charged with an aspect of the church work which we are told is ‘to further extension of church work and to propagate the christian doctrine.’ An example was given as the training of the clergy. These objects are not exclusively charitable. The establishment of a bookshop for the sale of religious books may be a method of propagating the christian doctrine, but this is not charitable in the legal sense of the term.” In considering the views thus expressed by the learned judge, we would like to refer to some authorities. In the case In re Davies – Lloyds Bank Ltd v. Mostyn (1932) 49 T.L.R. 5 where a bequest in the will of a testator’s residuary estate was made “upon trust to pay the income thereof to the Archbishop for the time being of the Archdiocese of Cardiff for work connected with the Roman Catholic Church in the said Archdiocese” it was held not to be a valid charitable gift.
The report in this case is rather short and unsatisfactory and we are of the view that the case is distinguishable from the earlier case of In re Bain (Public Trustee v. Ross)  1 Ch. 224. In that case where the following words were used by the testator “I devise and bequeath all the residue of my estate whatsoever and wheresoever unto the Vicar of St. Alban’s Church, Brooke Street, Holborn E.C. for such objects connected with the Church as he shall think fit,” Eve, J. held that “the objects connected with the Church” are so wide and vague that they may fall far outside any religious purposes and that the bequest is void. The appeal court however, took a different view, and in reversing Eve, J. the Master of the Rolls, Lord Hanworth, said- “it appears to me that the words ‘such objects connected with the Church’ that is the Church of St. Alban’s are to be interpreted narrowly or rather, perhaps, as relating to the Church in contradistinction to relating to the parish….”
Finally, he said-
“I have come to the conclusion that if we were to give a loose interpretation to the words “objects connected with the Church” we should be violating the rule which requires us to give an effective interpretation to the testatrix’s words; and I think we should be importing from outside something into those words which they do not necessarily convey…. It is because we have got the Church as the centre of this bequest and not the parish that I think we are right in rejecting outside considerations and in saying that this is a good bequest to the Vicar as a trustee for the purposes of this Church, that is, for the fabric and for the services which are conducted therein.”
In his judgment in the same case Lawrence L. J. said:-
“The discretion vested in the vicar is in my judgment limited to directing the mode of application of the bequest within the scope of the indicated church purposes which are described as “objects connected with the church ……. Here the words, to my mind, are apt and proper to describe objects which are directly connected with the Church in contradistinction to objects which are orgy conducive to the welfare of the parishioners, or to the congregation who attend the Church……”
It appears that the distinction between this case and In re Davies (supra) is that the words in In re Bain merely directed to a particular church, the words in In re Davies were not directed to a particular church but to ‘The Roman Catholic Church in the Archdiocese.” Thus, in the case In re Eastes, Pain v. Paxon  Ch. 257, a gift to a vicar and churchwardens of. St. George’s Church, Deal to be used by them for any purpose in connection with the said church which they may select was said to be a valid charitable gift, Jenkins, J. (as he then was) adopting the case In re Bain (supra) and distinguishing In re Davies – Lloyds Bank Ltd. v. Mostyn (supra), about which he said as follows-
“As to that, I would make two observations. In the first place, this is a very short report of the case of In re Davies. In the second place, the gift clearly did not relate to any specific church, its fabric and services, but related to the work carded on by the religious body known as The Roman Catholic Church in a particular Archdiocese, and it seems to me that that is a material distinction between In re Davies and this case.”
From all the authorities we have examined it seems to us that the courts have accepted the principles laid down in In re Bain (supra) as correct. It appears to us also that the distinctions which can be drawn in some of these cases are so fine that extra care must be taken by the courts where possible, to give a construction to the terms of a will which will enable it to be upheld. Once the overwhelming intention of the testator to create a charitable trust is established, effort should be made to make the gift effectual. Lord Chelmsford, L.C. In Bruce v. Presbytery of Deer, L. R. 1 Sc. 96, H.L. at 97 put it thus:-
“When it is said that charitable bequests must receive a benignant construction, the meaning is, that when the bequest is capable of two constructions, one which would make it void, and the other which would make it effectual the latter must be adopted.”
One more authority to which we must draw attention – In re Flinn, Public Trustee v. Flinn  Ch. 241 where a testator directed as follows: ‘To His Eminence The Archbishop of Westminster Cathedral, London, for the time being I bequeath all the rest residue and remainder of my property of every nature and kind….. to be used by him for such purposes as he shall in his absolute discretion think fit.”
It was held that the Archbishop held the residuary estate on a valid charitable trust for ecclesiastical purposes. Jenkins J.(as he then was) in his judgment, considering the words ‘for such purposes as he shall in his absolute discretion think fit” said- “In my judgment the only effect that can be properly attributed to the words in question is the effect attributed to the very similar words in In re Garrard  1 Ch. 382… So here it seems to me that the words …. merely direct that the particular mode of application within the charitable purposes of the gift is to be settled by ‘his Eminence The Archbishop of Westminster Cathedral, London, for the time being.’ ”
Finally, it was submitted to us that the words of the will, namely, “whereby my name will be continually kept in remembrance or perpetuated…….” is an indication that all the testator wanted was not so much to make a charitable gift but that his name should be perpetuated and that this should render the gift void. We can only point out that even though the testator had such intention, we are hardly in doubt as to what was prevalent in his mind, and that the centre of thought was the Lagos Church Mission, whose objects have been amply described by Bishop.
Phillips We think it would be wrong to give the words of the will any meaning other or wider than that given to the similar words used in In re Bain (supra).
For the above reasons, we must disagree with the learned Judge that the be-quest fails and that the property in dispute should pass on intestacy to the defend-ant/respondent as the next of kin.
The appeal will, therefore, be allowed. Judgment of the court below is set aside, and judgment is entered in terms of the writ and this will be the judgment of the Court. The plaintiffs are entitled to costs in the court below, which we assess at 35 guineas, and in this Court, assessed at 55 guineas.
Other Citation: (1967) LCN/1514(SC)