⦿ CASE SUMMARY OF:
Theophilus Adebayo Doherty & Anor. v. Richard Ade Doherty (1967) – SC
⦿ LITE HOLDING
The Appellant filed statement of account of the trusts and so was not acting in contravention of the trial judge order. The respondent tend to be acting with malice as the respondent is at loggerheads with the Appellant.
⦿AREA OF LAW
– Statement of account.
– Originating summons.
Theophilus Adebayo Doherty, Henry Ade Doherty
Richard Ade Doherty
⦿ LEAD JUDGEMENT DELIVERED BY: .
Adetokunbo Ademola, CJN
* FOR THE APPELLANT
– Chief O. B. Akin-Olugbade.
* FOR THE RESPONDENT
– G. L. Impey.
⦿ FACT (as relating to the issues)
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 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 filed 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.
1. Whether the Appellant has failed to account for the trust property?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. There was abundant evidence before the court that the first defendant and the plaintiff have been at logger-heads and were unable to get on together, but it is clear from the evidence available that the plaintiff seemed to be the only one of the many beneficiaries standing in such a position with the first defendant. Whatever may be the reason for this it is not by itself alone enough to remove the first defendant as trustee. In regard to the matter of the failure to account on which the learned judge based his judgement, it was not alleged that he did not file any account: as already stated, counsel for the respondent agreed that an account was filed; so the learned judge proceeded on a mistake of fact in arriving at his decision.
ii. The respondent to this appeal was to blame, and that in two respects; he chose an unsuitable procedure for a hostile attack (originating summons), and under the guise of it he sought to reopen the accounts which had been considered by Bennett J.; he was wrong in both respects, and ought to pay the costs of this appeal and in the court below, for it cannot be said with any show of reason that he was acting in the interests of the estate.
⦿ SOME PROVISION(S)
Underhill’s Law Relating to Trusts and Trustees, 1959 ed. at p. 537-538 that — “It is generally inadvisable, however, to employ an originating summons for hostile proceedings against a trustee, and this procedure is, of course, quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Counsel for the plaintiff in the present case before Onyeama, J., submitted that no accounts had been filed by the defendants since the 1954 case and all that the defendants were relying upon was a plea of res judicata. On the other hand counsel for the defendants referred the judge to paragraph 15 of the first defendant’s counter-affidavit and exhibit A attached to it stating that accounts had been given to the plaintiff after the judgement of Bennett, J. We think the learned Judge (Onyeama, J.) erred in thinking that the defendants had not given an account. We are of the view that the blame must rest on the plaintiff. Having failed to appeal from the order of 28th May, 1960, by Bennett, J,, he now seeks by the present originating summons to reopen matters which had been laid to rest by that order so far as compliance with the judgement of 29th March, 1956 was concerned since it is clear that it is that judgement which is relied upon in the plaintiff’s affidavit. – Ademola, CJN. Doherty v. Doherty (1967)
The plaintiff did not complain in the High Court, as he well might have done, that the defendants have not supplied details of certain leases which the order of 28th May, 1960 enjoined them to supply within seven days. The defendants, on the other hand, did not specifically say that they had been supplied. Counsel for the plaintiff/respondent stated before us, when arguing the appeal, that they had not been supplied, but these were not the bases or the gravamen of the complaint on accounts before the learned judge. We note, however, in passing, that in the record of appeal there are details of leases, but they appear at a subsequent proceeding after judge ment; this was only in proceedings before the learned Judge (Onyeama J.,) after an appeal had been lodged by way of motion before the court in proceedings for a stay of execution. No mention was made of these leases in the earlier proceedings. It is not clear when they were supplied, if ever they were; but if they were not supplied as ordered in May 1960, the plaintiff could have at that time taken appropriate steps to bring the first defendant to book by attachment or some sort of action for disobedience to the order of May 1960. The present originating summons is certainly not the appropriate remedy and it must be dismissed. – Ademola, CJN. Doherty v. Doherty (1967)