T. Thomas & Anor V. F. J. Nabhan Trading As Nabhan Brothers & Ors (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Declaration as to validity of lease—Will—Settled Land—Powers of trustees ofwill in relation to settled land—Settled Land Acts, 1882 to 1890—ConveyancingAct, 1881, section 43—Land Transfer Act, 1897—Settled Land Act, 1882,section 60.
Facts
Trustees of a will granted a lease of property devised by the will to children of the testator for life with remainder to their children in common. At the date of the testator’s death, the devisees were minors, the youngest of them attaining his majority on 17th October, 1940.
The term of the lease, in the events, was for a total of fifty-five years from 1st June, 1929.
The devisees for a period after both had attained majority received the benefits of the income derived from the lease and adopted it to some extent.
After the beginning of this action they served upon the lessee (first respondent) a notice to quit in which they described themselves as his landlords.
The trial Judge held that the Settled Land Acts, 1882-1890, apply to Nigeria, that the premises were 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.
These conclusions were upheld by the West African Court of Appeal.
The trial Judge also held, however, that by virtue of section 43 of the Conveyancing Act, 1881, and as executors by virtue of the Land Transfer Act, 1897, and as quasi-guardians of the infant devisees, the trustees of the will were empowered to grant the lease and that therefore the lease was not void.
Held
On appeal,
- that section 43 of the Conveyancing Act, 1881, conferred no such powers as above mentioned, nor did the Land Transfer Act, 1897, in the case of (as here) a lease whose term extended forty-four years after the date on which the youngest devisee attained his majority;
- the guardians of an infant tenant for life could not go outside the Settled Land Acts in the disposition of the property;
- the executors or trustees of a will, unless the will creates them trustees also of the settlement, cannot exercise the powers of an infant tenant for life without an order of the Court;
- the lease was therefore void ab
Appeal allowed.
