Theophilus Adebayo Doherty & Anor V. Richard Ade Doherty (1964)

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ADEMOLA, C.J.N.

The appellants, who were the defendants in this case in the High Court of Lagos, have appealed against the order of Onyeama, J., as he then was, removing the first defendant from the office of trustee of the will of J. H. Doherty (deceased).

The application before the court, by means of originating summons, was for an order:-

(i) to remove the first defendant as trustee of the trusts of the will of J. H. Doherty; and

(ii) that the plaintiff, Richard Ade Doherty, be appointed judicial trustee for the purpose of administering the trust.

The learned Judge, on 8th November, 1964, granted the order to remove the first defendant but refused to appoint the plaintiff a judicial trustee. The defendants appealed against the order of removal. On the 13th December, 1963, on the application of some beneficiaries, two other trustees were appointed and upon motion for stay of execution, the order for removal was qualified thus:-

‘The operation of the order of removal of the appellant is suspended pending the determination of appeal riled on the condition that he will act during that time only in conjunction with the other trustees.”

The plaintiff was dissatisfied with this qualification and filed a cross-appeal on that issue. As we heard the main appeal at once, it was unnecessary to continue with the cross-appeal.

The dispute between the parties dates as far back as 1954. The testator, Joseph Henryson Doherty, a businessman and a man of affluence, died in March 1928, leaving a will: of the six executors and trustees of the will the two defendants, who are sons of the deceased, are the surviving executors and trustees of the will. The plaintiff, one of the younger sons of the deceased, in 1954 unsuccessfully sought the aid of the court to remove the first defendant as a trustee. There were also attempts in 1960 and 1962 respectively, and the present is the fourth attempt to displace the first defendant. The deceased left many children on his death, of which thirty six are now living; he created a trust in favour of his children, the trust property comprising forty-two items of real estate yielding according to the plaintiff, annual income of £50,000.

There can be no doubt about the complexity of the will which was referred to by Bennett, J., in 1954, as a “complicated document;” and there was no dispute among the children until the action of 1954 brought by the present plaintiff. All the children have been educated, and there appears to be no dispute about their education, as well as the education of other relatives provided for in the will.

The present originating summons was objected to in limine on the plea that previous applications for removal on the ground of maladministration having been dismissed, the judge was not competent to “review” the decision of another judge. The learned judge overruled this submission of res judicata and held that as the plaintiff alleged new facts, the whole legal rights and obligations of the parties were not concluded by the earlier judgments although the facts upon which the earlier applications were based could not be reopened.

The hearing then proceeded on the complaints or charges made by the plaintiff/respondent against the appellant: some of them we must admit are frivolous and unfounded. There were serious allegations that the appellant had been charged to court for stealing a sum of £750,000 property of a bank and that in the circumstances he was not a fit and proper person to remain a trustee of this estate. The allegation about the theft was later withdrawn because it was not true. We cannot but disapprove that such an allegation could be made with such levity and with such disregard for truth. There was also a charge that the appellant made personal use of a sum of £30,000 which he obtained by mortgaging some of the trust properties, an allegation which was not supported by evidence before the trial court. It is a matter of some concern that these allegations were sworn to by the respondent without any regard to the feelings of the appellant and with utter recklessness, not caring to ascertain the truth.

Various charges of incompetence were levelled against the appellant but the principal charges which came up for the consideration of the learned judge may be summarised under two heads:-

(i). That despite the terms of the judgment of Mr. Justice Bennett and the orders made by him, the appellant and his co-trustee have failed to file an account satisfactorily of rents collected on the trust properties and also of profits or losses made in the business which forms part of the trust;