ISSUE

Whether, through the operation of law, an executor had become a trustee for sale?

FACTS

The plaintiffs were the children and heirs of the deceased person. The defendant was the administrator and executor of the estate and had commenced drastic repairs to a house in the estate; repairs that involved the partial demolishing of the house initially. The house had been occupied by other descendants of the deceased who had not objected to the work being carried out. The plaintiffs objected, claiming that the defendant had exceeded his powers and had accordingly acted ulta vires his authority as an executor.

In the trial court, the plaintiffs succeeded in having the actions by the defendant declared ultra vires, in obtaining a perpetual injunction to prevent the defendant from continuing with the reconstruction of the house, and was granted damages in respect of the demolition work already carried out by the defendant. They failed, however, in their claim to have the defendant removed as the executor of the estate, that court holding that no proof of criminal misconduct on the part of the defendant had been proved.

In the Court of Appeal, to which both parties had turned with regard to their respective failures in the trial court, Mr Akanni Osho Sodipo was also granted leave to appeal against the findings of the trial court in his capacity as a party interested. The plaintiffs also cross-appealed against the findings not in their favour. All the appeals and cross-appeals were consolidated for determination by the Supreme Court.

HELD (Unanimously dismissing the plaintiffs' appeal, allowing their cross-appeal, allowing the defendant's appeal and dismissing the interested party's leave to appeal and appeal)

1.      On whether the party interested had shown enough cause to be enjoined as such

Showing that he was the son of the deceased whose estate was being administered by the defendant was not enough to qualify as a party interested for purposes of Section 222(a) of the Constitution 1979. Having given evidence in the trial court (on behalf of the defendant) and having conceded in his evidence that he had no interest in the repairs being carried out to the house - the subject matter of the dispute - his conduct disqualified him as a party interested. He had stood idly by while others fought his case for him. His interlocutory appeal was accordingly struck out. Ogundare, JSC at pages 544 and 545

2.      On whether the defendant was acting as trustee

Where the executor of a deceased's estate had completed his administrative functions in the winding up of the estate a long time before, he became the trustee with all the adherent responsibilities of a trustee. Ogundare, JSC at page 553.

3.      On whether the defendant had acted ultra vires

In his capacity as trustee of the beneficiaries, and subject to the provisions contained in the deceased's will, the defendant had a duty of care vis-à-vis the property in the estate. Thus, he was duty-bound to hold the property as family property of the deceased's immediate family. That duty included ensuring that the property was maintained properly, and where necessary, repaired and improved. The defendant had accordingly acted intra vires his powers. Ogundare, JSC at page 553.

4.      On the conduct of a trustee

".as a trustee he must conduct the business of the trust as men of ordinary prudence and vigilance would do." Ogundare, JSC at page 558.

5.      On whether Section 43(1)(c) of the Administration of Estates Law Cap 1 Laws of Ogun State 1978 found application

Where the executor and administrator of a deceased's estate had completed all the administrative functions for which he had been appointed, he became functus officio - thus no reliance on Section 43 was subsequently called for. Ogundare, JSC at page 553.

6.      On the criteria to be fulfilled for the removal of a trustee

Both the trial court and the Court of Appeal had set the level of misconduct necessary for the removal of a trustee too high. The misconduct need not amount to criminal misconduct but may even be conduct merely tarnished by moral turpitude. It need not include an element of dishonesty or breach of trust. Yet, even when the criteria are set lower, there was nothing in the conduct of the defendant in the present case to justify his removal as a trustee. Karibi-Whyte, JSC, at pages 574 and 575.

O.A.R Ogunde for the Plaintiffs

Chief F.R.A Williams, SAN with him Chief A Sikuade and F.R.A Williams, Esquire for the Defendant and Party Interested

The following cases were referred to in this judgment:

Nigeria

Afolabi, In re (1987) 4 NWLR (Part 63) 18

Atanda v Lakanmi (1974) 3 SC 109

Awani v Erejuwa (1976) 11 SC 307

Awijo v Olunlade (1975) 1 NMLR 82

Balogun v Balogun 2 WACA 290

Chief Ojogbo Olaja - Oriri & another v Itsekiri Communal Land Trustees & others (1973) 1 All NLR (Part 11) 272

Chief Registrar v Vamos (1971) 1 SC 33

Coker v Coker (1938) 14 NLR 83

Dairo v Gbadamosi, In re Afolabi (1987) 4 NWLR (Part 63) 18

Ekpeyong v Nyong (1975) 2 SC 71

Elumeze v Elumezu (1969) 1 All NLR 311

Emeka Odumegwu Ojukwu v Military Governor of Lagos State, The & others (1985) 2 NWLR (Part 10) 806

Fregen, E v MA Awoshika (1957) WRNL 156

Ikonne v COP and Nnanna Wachuku (1986) 4 NWLR (Part 36) 473

Motunwase v Sorungbe (1988) 4 NWLR (Part 92) 90

Obioma v Olomu (1978) 3 SC 1

Ogundairo v Abeje (1967) LLR 9

Okhidema v Toto (1962) 1 All NLR 309

Omadide v Adajeroh (1976) 12 SC 87

Omoboriowo v Ajasin (1984) 1 SCNLR 108

Oyediran v Amoo & others (1970) 1 All NLR 313

Renner & others v Renner - (1961) All NLR 233

Tako Tomato v Ajaguna & others (1975) 1 NMLR 122

Ugadu, In re (1988) 5 NWLR (Part 93) 189

Usanga & Others v Okachi & others (1964) 1 All NLR 36

Foreign

A-G for the Gambi, The v Njie [1961] 2 All ER 504

Cockburn's Will Trust, In re (1957) Ch 438

Letterstedt v Brooers (1884) 9 App Cas 371 386

Moore v M'Glynn (1894) 1 Ir R 74

Ponder, In re (1921) 2 Ch 59

Pratt v Haffner & others (1959) 4 FSC 82

Reed Bowen & Co Ex p. Official Receiver, In re (1887) 19 QBD 174

Speight, In re 22 Ch D 727

Timmis, In re (1902) 1 Ch 176

Trollope's Will Trusts, In re (1927) 1 Ch 596

The following statutes were referred to in this judgment:

Nigeria

Administration of Estates Law Cap 1 Laws of Ogun State, 1978: Ss 3, 43(1)(a), 43(1)(c), 58 (1)(b)

Constitution of the Federal Republic of Nigeria, The 1979: S 222(a)

Constitution, 1963: S 117(6)

Law Administration of Estates: S 37

Property and Conveyancy Law of Ogun State, 1978: S 58(1)(b)

Trustee Law of Ogun State: s 29, S 45

Trustees Act, 1925: S 36

Trustee Law Cap 130 of Ogun State: Ss 24, 28

Ogundare, JSC (Delivered the Leading Judgment):- By paragraph 27 of their further amended statement of claim the plaintiffs who sued in their individual capacities as beneficiaries of the Estate of Isaac Ademoye Sodipo, deceased, claimed from the defendant, the Executor and Trustee of the said Estate:

"(1)    A declaration that the continuing demolition and or reconstruction of the plaintiffs' family house at Apagun Market, Ikereku, Abeokuta in the Abeokuta Judicial Division under the authority, direction and with the consent of the defendant is ultra vires the powers of the defendant as the Executor of the Estate of Isaac Ademoye Sodipo (deceased), the father of the plaintiffs and therefore illegal and void.

(2)     A perpetual injunction restraining the defendant, his servants, agents, privies, or other representatives however called from taking any step in further demolishing and or reconstructing the plaintiffs' family property at Apagun Market Ikereku, Abeokuta aforesaid.

(3)     An order removing the defendant as Executor and Trustee of the Estate and appointing Judicial Trustees in his stead.

(4)     N500,000 being damages for breach of trust and damages suffered by the plaintiff as a result of the demolition of the family house."

Pleadings having been filed and exchanged, amended and further amended, the action proceeded to trial on the plaintiffs' further amended statement of claim and the defendant's amended statement of defence. At the conclusion of trial and after addresses by learned Counsel for the parties, the learned trial Chief Judge in a considered judgment found for the plaintiffs on their claims 1, 2, and 4 above and entered judgment in their favour accordingly. He refused their claim (3). He made some orders which became part of the issues contested both in the Court of Appeal and in this Court.

Being dissatisfied with the judgment of the learned trial Chief Judge, the defendant appealed to the Court of Appeal, whilst the plaintiffs also cross-appealed on the part of the judgment not in their favour. Mr Akanni Osho Sodipo who testified at the trial in favour of the defendant applied to the Court of Appeal and obtained leave to appeal against the judgment of the trial Court as an interested party. The appeal of the defendant and that of the party interested succeeded in part, the cross-appeal of the plaintiffs was dismissed. All the parties have again appealed to this Court against various parts of the judgment of the court below not in their favour. In addition, the plaintiffs also appealed against the decision of the Court of Appeal granting the party interested leave to appeal to that Court under Section 222(a) of the Constitution of the Federal Republic of Nigeria 1979. Both their interlocutory and their cross-appeal were consolidated and heard together in this Court.

Perhaps this is a convenient stage to dispose of that interlocutory appeal. The ground of appeal in respect of the interlocutory decision of the Court of Appeal granting leave to the party interested to appeal under Section 222(a) of the Constitution reads as follows:-

"1.     The learned Justices of the Court of Appeal misdirected themselves in law with regard to the quantum of evidence necessary to qualify a person as a 'person interested' under Section 222(a) of the 1979 Constitution when they held that Mr Akanni Osho Sodipo has sufficient interest in the subject matter of this suit to bring him within the provision of Section 222(a) of the 1979 Constitution.

Particulars of Misdirection

(a)     In the notice of appeal exhibited by Mr Akanni Osho Sodipo, Mr Sodipo did not claim any relief for himself but merely for the defendant/respondent who was already well represented.

(b)     Mr Akanni Osho Sodipo gave evidence as a witness for the defendant at the High Court and was already aware of the suit but chose to do nothing.

(c)     The fact that he was a beneficiary of the property in dispute without more does not qualify him as a person interested under Section 222(a) of the 1979 Constitution."

Mr Ogunde, in his brief and oral argument, argued strongly that the Order of the Court of Appeal complained against, was wrongly made. He drew the Court's attention to the notice of appeal to that court of the party interested and observed that there was no single ground of appeal complaining of how his interest would be prejudicially affected. Learned Counsel submitted that in considering whether or not to grant leave to appeal as a person interested, it was not enough to show that the person had interest in the matter. There must be (a) a genuine and legally recognisable interest, (b) in respect of a decision which prejudicially affected such interest and (c) in respect of a person who did not stand by and let others fight his case. He relied on In re Ugadu (1988) 5 NWLR (Part 93) 189, 203. Learned Counsel submitted that the party interested failed tests (b) and (c) and so his application for leave ought to have been refused by the court below. He urged this Court to set aside the leave granted to the party interested and to strike out his appeal.

Chief Williams, SAN who, appeared for the defendant and the party interested in this Court, filed a brief but proferred no argument in that brief in respect of the appeal against the interlocutory decision of the court below granting his client the party interested, leave to appeal under Section 222(a). Neither in his oral argument before us did he profer any submissions on the issue.

I think the appeal against the order of the court of appeal granting Akanni Osho Sodipo leave to appeal as party interested under Section 222(a) is well taken. First, the party interested, in his affidavit in support of his application for leave, deposed inter alia as follows:-

"1.     That I am one of the children of the late Chief Isaac Ademoye Sodipo and I am in the fifth (fifth) position of the twenty-nine (29) surviving children of our late father.

2.      That the first plaintiff ie Chief Harold Sodipo is in the thirteenth (13) position of the twenty-nine (29) surviving children of our late father and I am older than him.

3.      That I know the family property/house at Apagun market in dispute in this case and I gave evidence during the proceedings in the High Court of Ogun State, Abeokuta.

4.      That as the fourth (fourth) defence witness, I am one of the beneficiaries entitled under our late father's will to share and enjoy occupation etc., of the said family property in dispute as family property."

Ogwuegbu, JCA (as he then was) in his lead ruling observed:-

"I have no doubt in my mind that from these uncontradicted averments, the applicant has sufficient interest in the subject matter of the suit to bring him within the provision of Section 222(a) of the Constitution. The applicant has sufficient proprietary interest in the subject matter in litigation and qualifies as a party interested. (See Emeka Odumegwu Ojukwu v The Military Governor of Lagos State & others (1985) 2 NWLR (Part 10) 806).

The applicant is praying the court to grant him extension of time to apply for leave to appeal against the decision in the suit which I have found him to be a party interested. I will readily grant the application having considered all the facts averred in the affidavit of the applicant and the affidavit of his Counsel in support of the application."

Akanbi JCA (as he then was) in his own contribution said:-

"I agree that the applicant, a son of the testator has a stake in the testament of his late father and the property he left behind. He is therefore an interested party."

Kutigi, JCA (as he then was) in his contribution also said:-

"I agree with him that the applicant has shown that he has sufficient interest in the property in dispute to enable this Court grant him extension of time within which to appeal or apply for leave to appeal or both."

With profound respect to their Lordships of the Court of Appeal, it would not appear that they adverted their minds (a) to the evidence of this witness at the trial and (b) to the fact that he gave evidence for the defendant at the trial.

The party interested in his testimony at the trial deposed under cross-examination thus:-

"I was not affected in any way by the repairs being carried out by the defendant. I have no property in the house."

The question arises - Is it sufficient for him to show that he was a son of the deceased testator in order to qualify as a person interested in the matter before the Court under Section 222(a) of the Constitution? Having regard to that piece of evidence of his, I would answer the question in the negative. The person interested failed to show in what manner the judgment he sought to question would or did affect, his interest. Rather his evidence is to the contrary. He was in no sense an unnamed party as to qualify him to be treated as a person interested. As Karibi-Whyte JSC put it in In re Ugadu (supra) at page 202 of the report:-

"Concisely stated the interest which will support an application under the provisions must be a genuine and legally recognisable interest, in respect of a decision which prejudicially affects such witness."

This statement of law is in line with a plethora of decided cases and I accept it as representing the law. See Ikonne v COP and Nnanna Wachuku (1986) 4 NWLR (Part 36) 473; Usanga & others v Okachi & others (1964) 1 All NLR 36; Dairo v Gbadamosi, In re Afolabi (1987) 4 NWLR (Part 63) 18; In re Reed Bowen & Co Ex parte Official Receiver (1887) 19 QBD 174, 178; The A-G for the Gambia v Njie [1961] 2 All ER 504.

I now examine the conduct of Akanni Osho Sodipo, the purported party interested. He gave evidence at the trial in favour of the defendant, the executor. This Court in Chief Ojogbo Olaja - Oriri & another v Itsekiri Communal Land Trustees & others (1973) 1 All NLR (Part 11) 272, 281 was faced with a situation not too dissimilar to the one now on hand. Fatayi-Williams JSC (as he then was) delivering the judgment of this Court held:-

"The phrase 'at the instance of any other person having an interest in the matter' is clearly not intended to apply to a person who stands by and allows his battle to be fought, to his knowledge and on his behalf, by other members of his community and who then applies, because he does not like the judgment, for leave do appeal against it . . ."

This Court was interpreting Section 117(6) of the 1963 Constitution which is in pari materia with Section 222(a) of the 1979 Constitution under consideration in the present proceedings. It cannot be doubted that the 'person interested' in the present proceedings stood by and allowed others to fight his battle, if he had any. He knew of the action and participated by giving evidence for one of the parties. He did not seek to be joined at that stage. After judgment had been given, he chose to show his solidarity with the defendant on whose side he ranged himself, by seeking to appeal against that judgment as a 'person having an interest in the matter.' This he could not do. He has, by his conduct, taken himself out of the ambit of Section 222(a). He thus does not come within the contemplation of that Section of the Constitution. With profound respect to the Justices of the court below, they were, clearly in error in granting him leave to appeal. That leave must be set aside and it is hereby set aside by me. His appeal consequent upon that leave is hereby struck out and his further appeal to this Court is equally struck out by me. The plaintiffs' appeal against the lower court's order succeeds. I award N1,000 costs in favour of the plaintiffs to be paid by the person interested.

I now come to a consideration of the defendant's appeal and the plaintiffs' cross-appeal against certain parts of the judgment of the Court of Appeal not in their favour. But before doing so let me state the facts, albeit briefly. The plaintiffs are some of the children of the late Isaac Ademoye Sodipo who died at Abeokuta in Ogun State in 1966 leaving a will. The defendant is one of two executors and trustees of the will named in the document; the other executor had since died leaving the defendant as the sole surviving executor and trustee of the estate of the said deceased. After bequeathing some legacies to some of his children the deceased by clause 25 of his will devised some houses of his in Abeokuta to be used as family property. The clause reads:-

"25. The property at Ikereku, Abeokuta, will be used as family property by my mother's family; that at Apagun Market to be used as family property by members of family excluding Adebola Sodipo and his children, John Adewunmi Sodipo and his children, Dr Joseph Oladeinde Sodipo, and Badejoko Sodipo and their children. The property at Ago-odo, Igbodo to be used as family property by my father's family."

It is the house at Apagun market that is the subject matter of the present proceedings. It would appear that the defendant had allowed some members of the deceased's family to occupy the house in accordance with the directive of the deceased.

Sometime in 1985, the defendant caused a meeting of the children of the deceased to be held in Isaih Adebola Sodipo's house at No. 100 Apapa Road, Ebute-Metta, Lagos. Adebola is the deceased's eldest child and therefore head of his immediate family, or, at least, so recognise by the other children. The defendant was present at the meeting and explained to the children present the purpose of the meeting which was to deliberate on repairs to be carried out to the Apagun market family property, more so in view of the approaching 20th anniversary of the death of their father. It would appear that the children, while appreciating the need to carry out repairs to the building, resolved to do so at their own expense and not from the estate fund. A second meeting was held without the defendant being in attendance but it would not appear that any progress was made towards contributing money for the repairs to be done to the building. At that stage, Isiah Adebola, Dr Sodipo and Akanni Osho urged the defendant to carry out the repairs with funds from the estate. The defendant agreed and caused work to commence. The plaintiffs protested and instituted the action leading to this appeal and claimed as herein-before stated.

The learned trial Chief Judge, Craig, CJ (as he then was) found:-

1.      That the defendant had no power to demolish the house at Apagun Market or seek to rebuild it and that his action in this regard was ultra vires his powers as Executor of the deceased's Estate.

2.      That a perpetual injunction be granted to restrain the defendant from demolishing or reconstructing the family house at Apagun Market.

3.      That the plaintiffs' claim seeking to remove the defendant as Executor and Trustee and appointment of Judicial Trustees be refused as no misconduct amounting to crime had been proved against him.

4.      That the defendant had been rather tardy in winding up the Estate. Consequently the defendant was ordered to wind up the Estate and to file a full and comprehensive administration account supported by relevant receipts and vouchers showing his dealings with the Estate in respect of the period 1969-1976 and 1977-1987, the said account to be lodged with the Probate Registrar for scrutiny within 3 months of the date of the judgment.

5.      That the books removed from the Apagun Market property by the defendant when reconstruction work on it was to begin be returned to the first plaintiff.

6.      That the defendant was to recover the gold chains and jewelleries of the deceased in the custody of Chief Adebola Sodipo and to sell same and pay the proceeds to the Anglican Mission.

7.      That the deceased's photographs now in the custody of Chief Adebola Sodipo be handed over to the defendant as the Executor of the Estate.

8.      The defendant was ordered to restore the property to its former state within 5 months of the date of judgment or, in the alternative, to pay to the plaintiffs the sum of N82,700 from the Estate fund to enable them carry out the exercise.

9.      The defendant was ordered to pay the sum of N10,000 from the Estate fund to the plaintiffs for the damage done to their family house.

Being dissatisfied with the above judgment the defendant appealed to the Court of Appeal. The plaintiffs also cross-appealed against the refusal of their claim for an order removing the defendant from the office of Executor and Trustee of the deceased's Estate. That Court adjudged :-

1.      The defendant's appeal against claim (1) failed.

2.      The order directing a winding up of the estate was affirmed.

3.      The appeal against the order directing the defendant to file a full and comprehensive administration account was allowed.

4.      The books recovered from the Apagun Market house be returned to the house where they were recovered.

5.      The appeal against the award of N10,000 damages to the plaintiffs failed.

6.      Similarly, the appeal against the order directing that the house be restored to its original condition also failed.

7.      The plaintiffs' cross-appeal also failed and was dismissed.

The defendant has further appealed to this Court and the plaintiffs cross-appealed against the dismissal of their cross-appeal to the Court of Appeal.

The defendant relies on the following grounds of appeal:-

"(i) The Court erred in law in holding that there is no trust or trust for sale in respect of Clause 25 of the Will and that accordingly the defendant 'had no power of management and control over the property at Apagun Market, Abeokuta.

Particulars Of Error

(a)     The conclusion reached failed to take account of the effect of the provisions of the Section 43(a) & (c) of the Administration of Estates Law Cap 1 Laws of Ogun State read with Section 3 and 58 (1)(b) of the same enactment.

(b)     Further and in the alternative an executor who has completed administration and holds the residue of the estate as trustee does, in law, have power of management and control of the properties of the estate including the power to repair.

(c)     The testator's will clearly creates a trust in respect of the property at Apagun Market.

(d)     The distinction drawn by the court below between the case in hand and that of Balogun v Balogun 2 WACA 290 is untenable.

(ii) The court below erred in law in deciding that 'the demolition of the plaintiff's family house at Apagun Market is ultra vires the powers of the defendant.'

Particulars Of Error

Paragraphs (a) and (b) of ground (i) hereof are repeated herein.

(iii) The court below erred in law in upholding the determination of the High Court that 'the estate be wound up' and further in holding that the order to 'wind up the estate' was properly made.

Particulars Of Error

(a)     The expression 'wind up the estate' is imprecise and is likely to involve the defendant in unnecessary controversy or litigation as to what is intended.

(b)     In any event the said order - insofar as the devise of the property at Apagun Market is concerned - is incapable of execution. The argument of the defendant that it is open to the defendant to appoint some of the beneficiaries in exchange for himself as trustee was (with respect) misunderstood up (sic) the estate' thereby equating a mere change of trustees with the 'winding up' or termination of the trusts.

(c)     In the case of family property held under a trust (such as in the case in hand) only an order of court directing a partition or sale can 'wind up' or terminate the trusts.

(iv) The court below erred in law in deciding that certain law books found in the house at Apagun 'should be returned to the house at Apagun or Itapagun Market.'

Particulars Of Error

(a)     According to paragraph 18(h) of the amended statement of claim, the law books belonged to the testator.

(b)     On the testator's death the said books become vested by law in his executors and trustees for purpose of administration and thereafter on trust as part of the residue of the estate.

(c)     There is no direction in the will that the books be kept permanently in the family house.

(d)     Having found that the order as made (that the books shall be delivered to the first plaintiff) cannot stand, the court ought to have merely set it aside, the more so as the plaintiffs never asked for the order as substituted by the court below.

(v) The court below misdirected itself in law when it held as follows (in relation to the award by the High Court of the sum of N10,000 damages):-

'That sum was ordered to be paid not by the plaintiff personally but by the Estate and in this case, the estate has not appealed. What is more I have held that the defendant was not a Trustee of the property in question; and in those circumstances, the award appears to me to be justified having regard to the fact that damages were claimed for the demolition done and the trial Judge so found.'

Particulars Of Error

(a)     There is no basis for the distinction made by the court between the defendant who is admittedly a trustee of the estate and 'the estate.'

(b)     The plaintiffs have sued in this action in their capacity as individuals and not as representatives of the Sodipo Family.

(c)     In the premises the award made in favour of the individuals who have brought the action cannot be justified.

(d)     Grounds (i) and (ii) of these grounds of appeal are repeated."

And in his written brief of argument, his Counsel Chief Williams SAN set out five questions as calling for determination in the appeal, to wit:-

"(i) Whether the court below was correct in (a) concluding that Clause 25 of the Will creates no trust and (b) asking itself the question whether the said clause creates a trust for sale.

(ii) Was the demolition of the family house ultra vires the powers of the defendant as a trustee?

(iii) Was the court below correct in deciding that the order of the Ogun High Court that the estate be 'wound up' was properly made?

(iv) Was the order made by the court below in relation to the law books correct?

(v) Whether the decision of the court below in relation to the N10,000 damages is correct?"

The plaintiffs also rely on the following three grounds of appeal:-

1.      The learned justices of the Court of Appeal erred in law when they set aside the order of the learned trial Chief Judge (as he then was) that the defendant should file a comprehensive administration account covering 1969-76 and 1982-1987 on the ground that the order for account was not a relief specifically asked for by the plaintiffs.

Particulars of Error

(a)     The rule that a Court should not grant a relief not claimed is only a general rule which is subject to exceptions.

(b)     The High Court of Ogun State is allowed under the Rules of Court and under its inherent jurisdiction to grant any relief that it considers necessary to grant in the interest of justice whether or not specifically claimed.

(c)     Since it has already been proved that there had been a previous judgment of court directing the defendant to file accounts which he had wilfully disobeyed, the Court of Appeal ought to have directed the defendant to obey the order of court which he did not appeal against to prevent an abuse of process.

2.      The learned justices of the Court of appeal erred in law in dismissing the plaintiffs' prayer for the removal of the defendant.

Particulars of Error

(a)     The various acts found to have been committed by the defendant namely;

(i) wilful disobedience of an order of Court to file accounts;

(ii) demolishing the family property contrary to the wishes of the majority members of the family;

(iii) commencing the rebuilding of the family house without an approved building plan which resulted in the pasting of a contravention notice by Town Planning Authorities;

(iv)acting impartially as between the children and beneficiaries of the testator;

(v) tardiness in completion of administration;

ought to have been properly reconsidered and their legal implications determined before the learned justices of the Court of Appeal confirm the order of the trial Court not to remove the defendant as Executor and Trustee.

(b)     The fact that all this proven acts may not amount to a crime or wilful misconduct is not sufficient to refuse as prayer for removal.

(c)     The plaintiffs having established that the majority members of the Sodipo family no longer have confidence in the defendant, the Court of Appeal ought to have handed over the estate to persons subject to the control of the Court, like judicial trustees.

(d)     The acts complained of by the plaintiffs as having justified the defendant's removal were some of the issues of fact joined at the trial of this action.

3.      The learned Justices of the Court of Appeal misdirected themselves in law with regard to the consequences of a void act when after holding that the demolition of the plaintiffs' family house was ultra vires the powers of the defendant as Executor and Trustee, they proceeded to make the Estate liable to pay the total sum of N92,700 awarded as a result of the said demolition.

Particulars Of Misdirection

(a)     Since the Court of Appeal had confirmed the finding of the trial court that the defendant had no powers to demolish the plaintiffs' family house, the defendant ought to have been made to bear the loss more so when the defence of the defendant was not that of mistake or misapprehension of the scope of his powers.

(b)     The fact that the Estate has not complained is not sufficient to prevent the Court of Appeal from complying with settled principles of our case law.

(c)     As there was no evidence before the Court as to whether or not the estate was solvent the Court of Appeal ought not to have made an order which is likely to be unenforceable.

(d)     The plaintiffs have an interest in who should pay the sums awarded by the Court in order to prevent multiplicity of suits in the event of the Estate or the residuary legatees refusing to be bound by. . .

(e)     The plaintiffs as children of the testator are sufficiently interested in how their father's estate is administered."

And in their written brief, their learned Counsel, Mr Ogunde set out the following issues as calling for determination in their cross-appeal:-

"1.     Whether the learned Justices of the Court of Appeal were right in setting aside the Order of the learned trial Judge that the respondent should file a full and comprehensive administration account in respect of the period 1969-1977 and 1977-1987.

2.      Whether the learned Justices of the Court of Appeal were right in refusing the appellants' prayer for the removal of the defendant as Executor and/or Trustee of the Estate of Chief I A Sodipo.

3.      Whether the learned Justices of the Court of Appeal were right in affirming the order of the High Court that the total sum of N92,700 awarded against the respondent be paid from the funds of the Estate."

I shall now proceed to consider these two appeals beginning with the issues as formulated in the defendant's brief of arguments. Whether the defendant's action was ultra vires: Issues ii & iii. This is the main issue to be decided in this appeal. The thrust of the argument of Chief Williams, SAN in his brief and oral submissions before us is that both the learned trial Chief Judge and the Court of Appeal misconceived the defendant's contention to the effect that he had the powers of a Trustee for sale. It is Chief Williams' argument that the defendant at no time claimed to be a Trustee for sale but that by operation of law he had powers of a Trustee for sale. Learned Senior Advocate submits that the defendant, as an ordinary Trustee, has a duty to repair the property. He further submits that as an Executor the defendant also has the powers of a Trustee for sale by virtue of Section 43(1)(c) of the Administration of Estates Law Cap I Laws of Ogun State 1978. He further submits that by virtue of Section 58(1)(b) of the Property and Conveyancy Law of Ogun State 1978 such power includes the power:-

"to erect, pull down, rebuild; and repair houses and other buildings and erections".

He further submits that the facts disclose an ordinary trust and, that being so, the defendant, as a Trustee, would have the powers which he, in fact, exercised and which has led to these proceedings. Learned Senior Advocate observes that the testator's will, Exhibit '2' in these proceedings, appointed the defendant an Executor and Trustee and argues that when an Executor or an Administrator has completed administration by paying funeral and testamentary expenses and the debts of the deceased and has handed over legacies to those entitled under the will, he holds the residue of the Estate purely qua Trustee and not qua Executor or Administrator. He referred us to In re Timmis (1902) 1 Ch 176, 182 - 183 per Kekewich J, and also to In re Cockburn's Will Trust (1957) Ch 438, 439-440 per Danckwerts J; Pratt v Haffner & others (1959) 4 FSC 82, 85 & 86. Referring to Clause 25 of Exhibit 2, learned Senior Advocate, while agreeing with the learned trial Chief Judge that the devise in the said Clause resulted in the creation of a family property, submits that the family property was created under a trust and as the will failed to name a trustee, it would seem clear that the intention of the testator was to vest the management and control of the family property in the hands of the trustees of the will. He relies on Balogun v Balogun 2 WACA 290. In his further submissions, Chief Williams argues that as there is no one to play the role of a family h.ead in relation to the family house especially under the will of the testator, it follows that the management of the property falls exclusively on the defendant as Trustee and that in such circumstance it would amount to a breach of trust on the part of the defendant if he were to fail or neglect to attend to urgent repairs or reconstruction of the property. He cites a number of authorities in support of his submissions. It is learned Senior Advocate's submission that the defendant's act did not amount to wanton demolition of the property and that there has been no appeal against the findings of the learned Chief Judge to that effect. He finally urges the Court to hold that the defendant acted within his powers in his dealing with the property in dispute.

Mr Ogunde, learned Counsel for the plaintiffs submits that the defendant has no power of trustee for sale in respect of the property in dispute either under Section 43(1)(c) of the Administration of Estates Law of Ogun State or any other law. He further submits that there must be clear evidence that the defendant comes within any of the categories laid down in Section 43(1)(c) before he could claim to possess powers of a Trustee for sale. He observes that there is no such evidence on record. He further submits that the defendant must be acting as Executor to claim the powers and argues that the defendant could not be acting as Executor in 1986, 20 years after the death of the testator since by Section 47 of the Administration of Estates Law the defendant had one year after the death of the testator to wind up the Estate. He further submits that the definition of "trust for sale" does not cover defendant's case when Clause 25 of the will gave a specific direction. He urges the Court to affirm the findings of the trial Court as well as that of the Court of Appeal.

To resolve the issues raised in questions (1) and (2) of defendant's brief one must have a look at the testator's will, Exhibit '2' particularly Clause 25 already quoted in an earlier part of this judgment. It will be observed that the testator did not devise any of the properties mentioned in Clause 25 to any specific person; he merely expressed the purpose for which he intended the properties to be put to, that is, that they be used as family property. It is generally agreed by the parties, and I accept this view, that the testator thereby created the properties named in Clause 25 family properties and are, unlike in Balogun v Balogun (supra) where leasing, sale and partition are expressly excluded, subject to all incidents of customary law relating to family property. Again unlike in Balogun v Balogun, the testator did not devise any of the properties affected by Clause 25 to any specific person, As if this was not enough, the testator, unlike in Balogun v Balogun, excluded his most senior child Adebola Sodipo and other senior children from possession of the Apagun Market property. For ease of reference I shall quote once again the vital Clause 25. It reads:-

"The property at Ikereku, Abeokuta, will be used as family property by my mother's family; that at Apagun Market to be used as family property by members of the family excluding Adebola Sodipo and his children, John Adewunmi Sodipo and his children, Dr Joseph Oladeinde Sodipo, and Badejoko Sodipo and their Children. The property at Ago-odo, Igbodo to be used as family property by my father's family."

On the death of the testator, Chief Adebola Sodipo succeeded as head of the testator's family and was so recognised by all members of that family; family meetings were being held in his house at No. 100 Apapa Road, Ebute Metta Lagos. How then is one to interpret Clause 25 and avoid absurdity?

After a careful consideration of the wording of Clause 25 and having regard to Clauses 24 and 26 of the Will (Exhibit '2') where specific devises were made by the testator to the Trustees of his Will on trust for sale, it is my view that in respect of the three properties covered by Clause 25 the testator did not intend to create a trust for sale. To hold otherwise would defeat the intention of the testator. But having said this much, I must also observe that if the intention or wish of the testator must be carried out and absurdity avoided Clause 25 must be interpreted to mean a devise of the properties therein mentioned to the Trustees of the Will with the precatory words that the properties be retained as family property subject to the incidents of that notion under customary law except as to the rights under that law of the head of the testator's family over the Apagun Market property so long as any such head of family is one of the persons excluded from possession. If this interpretation is accepted -and I can fathom no other reasonable interpretation of Clause 25, then a trust was impliedly created in respect of the property in dispute with the Trustees of the Will as trustees of such trust, Unlike in Balogun v Balogun (supra) where the testator specifically forbade partition, etc. the trusts created herein would be subject to all incidents of customary law relating to family property. And the beneficiaries could put an end to the trust by applying to the Court for partition, etc

With respect, I find myself unable to subscribe to the conclusion of the court below, per Akanbi JCA that:-

"I am unable therefore to say that any trust let alone a Trust for sale has been interposed in Clause 25 of the Will."

The correct position, in my view, is that an implied trust was interposed. And if the defendant is a Trustee in respect of the property in dispute, he has power of management and control over the property. While it is desirable to carry the cestui que trustent along in the performance of his duties of management and control of the said property, this is not a legal requirement to the valid exercise of his powers. Where they are dissatisfied, the cestui que trustent could apply to the Court for the defendant's removal. That, in my respectful view, is their only remedy. Where of course there is a breach of trust, they may also sue for this.

I am further reinforced in the conclusion I have reached that the defendant holds the property in dispute in an implied trust by Section 3 of the Administration of Estates Law which provides for the devolution of the real estate of a deceased person in his personal representative(s). Therefore, from the death of the testator in 1966 the legal estate to the property concerned in these proceedings, that is, the Apagun Market property, vested in the defendant and remains in him until he has assented to the vesting of it in some other person. No one has been named in the Will to whom he could vest the legal estate in the property in dispute. As it was not intended that there should be a void, it must necessarily follow that trust is implied in the gift made by the testator in Clause 25 with the trustees of the Will as Trustees thereof. One does not need therefore to have recourse to Section 43(1)(c) of the Administration of Estates Law to determine the powers of the defendant in respect of the property in dispute. With the conclusion I have reached, it is my respectful view that the defendant at all times possessed and still possesses the powers of a trustee subject of course to the direction given by the testator in Clause 25 - that is, that he should hold the property in dispute as a family property of his (testator's) immediate family. And as such trustee he has a duty to maintain the property and to ensure that it does not fall into decay for want of proper care. The learned trial Chief Judge accepted the evidence of Chief Adebola Sodipo and that witness in his evidence described the state of disrepair of the house in 1985-1986. Having regard to this evidence I am of the view that the defendant acted intra vires in embarking on the works he was carrying out on the property at the time of this action. Consequently with profound respect to the learned trial Chief Judge and the Court of Appeal, I am of the view that they were both wrong in holding that the defendant acted ultra vires his powers under Exhibit '2'.

There is yet another angle to this case. It is unnecessary for the defendant to fall back on Section 43(1)(c) of the Administration of Estates Law for protection. Section 43, in my respectful view, is only confined to the duty of a personal representative either in the ordinary course of administration or as conferred on him by Section 37 of the Law or otherwise in relation to the estates undisposed of by Will - see In re Trollope's Will Trusts (1927) 1 Ch 596, 605. This would not appear to be the case here. I say so because the defendant would appear to have completed administration long time ago and would therefore, no longer be an Executor, in fact though in law he remains one, Kekewich J in In re Timmis (supra) discussed the case where an Executor ceases to be an Executor and becomes a trustee. He observed:-

"We have, therefore, the ordinary case, where the same persons are appointed executors and trustees, and some time or other cease to be executors and become trustees. Of course, in the strict sense of the word they never cease to be executors. Having accepted probate, they are, during the rest of their lives, the legal representatives of the testator; but after a certain time they have no duties as executors to perform, and can no longer be said to be doing anything virtute officii. Under a Will framed as this Will is, the ordinary duty of an executor is to pay the debts, funeral and testamentary expenses, and when that is done (in as much as there are no legacies in the ordinary sense) he has done all that is necessary, and though he still remains executor he has done his duty and is functus officio.

Now how, upon this imperfect evidence, am I to solve the difficult question whether these executors were trustees or not? The testator died in 1857, There was no apparent obstacle to winding up the estate in a reasonable time; and I must assume that these executors did their duty, and that long before 1892, and probably before the death of the widow, they had ceased to be executors in the sense of having anything to do, and the fund was held by them as trustees. That, of course, would not free them from any claim for duty. They remained executors and might be sued as such. I think I must assume that in distributing the investments they acted under the express trusts of the Will."

See also In re Cockburn's Will Trusts (1957) 1 Ch 438, 439-440 where Danckwerts J said:-

"Whether persons are executors or administrators, once they have completed the administration in due course, they become trustees holding for the beneficiaries either on an intestacy or under the terms of the will, and are bound to carry out the duties of trustees, though in the case of personal representatives they cannot be compelled to go on indefinitely acting as trustees, and are entitled to appoint new trustees in their place and thus clear themselves from those duties which were not expressly conferred on them under the terms of the testator's will and which, for that purpose, they are not bound to accept.

It seems to me that, if they do not appoint new trustees to proceed to execute the trusts of the will, they will become trustees in the full sense. Further, it seems to me that they have the power, under the trusts conferred by Section 36 of the Trustees Act, 1925, to appoint new trustees of the Will to act in their place. That seems to me to have been clearly established by the decision of Sargant J In re Ponder (1921) 2 Ch 59."

Now the learned trial Chief Judge in his judgment disclosed that the defendant in an earlier case AB/153/76 (Exhibit '3' in these proceedings) between the children of the deceased on the one side and the defendant and others on the other raised a plea of plene administravit. The learned trial Judge said:-

"Having said this, I must observe that the defendant himself has been rather tardy in winding up the Estate. The Testator died since 1966 and in the previous case, (Exhibit '3') AB/153/76, when the children of the deceased sued him, he raised a plea of plene administravit in paragraph 17(6) of his statement of defence. He stated that he had paid all the bequests and had executed a vesting assent in favour of the residual legatees, That statement of defence was filed on 18 October, 1980 and judgment in the case was delivered on 15 February, 1982."

It must be presumed therefore, that the defendant had completed the administration of the Estate and has become functus officio. He now holds the Estate including the property in dispute as trustee and in dealing with that property in 1985/86 he was acting as a trustee that he has become and not as executor that he has ceased in fact to be.

Therefore, whatever approach one makes to this case, it is inescapable to conclude that the defendant was a trustee when, at the relevant time, he embarked on reconstruction of the property in dispute and as a trustee he must conduct the business of the trust as men of ordinary prudence and vigilance would do. As Jessel, MR observed in In re Speight 22 Ch D 727, 739-740:-

"In the first place, I think we ought to consider what is the liability of a trustee who undertakes an office which requires him to make an investment on behalf of his cestui que trust. It seems to me that on general principles a trustee ought to conduct the business of the trust in the same manner that an ordinary prudent man of business would conduct his own, and that beyond that there is no liability or obligation on the trustee. In other words, a trustee is not bound because he is a trustee to conduct business in other than the ordinary and usual way in which similar business is conducted by mankind in transactions of their own. It never could be reasonable to make a trustee adopt further and better precautions than an ordinary prudent man of business would adopt, or to conduct the business in any other way."

See also Pratt v Haffner & others (supra) where at page 85 of the report Abbott FJ held:-

"Once the administration of Dr, Carr's estate had been completed I am of opinion that Haffner held the real property as trustee for himself and the other persons beneficially entitled thereto, and evidently from the terms of paragraph 6 of her statement of claim the plaintiff also considered that Haffner was under some liability as trustee."

It has not been shown in this case that the defendant did more than what an ordinary man of prudence and vigilance would do in the management of his own affairs. In Balogun v Balogun (supra) there was no provision in the will that the trustees were to pay out of the family fund available, namely the residuary fund, the cost of the up-keep and repairs of the family house. It was held that such a power was implied. The West African Court of Appeal went further in that case to hold that it must also be implied that the trustees must provide for the upkeep of the headship of the family even though the will was silent on this. All these go to show the extent of what, subject of course to expressed provisions in the Will to the contrary, would be implied where a trust of this nature is created in a Will.

The conclusion I finally reach is that the defendant acted intra vires as Trustee in carrying out the reconstruction of the property in dispute in 1986. This disposes of questions (1 & 2) in the defendant's brief, which questions are resolved in defendant's favour.

Additional Orders made:-

The learned trial Chief Judge had observed in his judgment:-

"Having said this, I must observe that the defendant himself has been rather tardy in winding up the Estate. The Testator died since 1966 and in the previous case, AB/153/76, when the children of the deceased sued him, he raised a plea of plene administravit in paragraph 17(6) of his statement of defence. He stated that he had paid all the bequests and had executed a vesting assent in favour of the residual legatees. That statement of defence was filed on 18 October, 1980 and judgment in the case was delivered on 15 of February, 1982. In those circumstances, I am surprised that in 1987, seven years after these pleadings were filed, the defendant was still engaged in re-building a house and carrying out other contentious projects in the estate. I am also surprised that the defendant had not wound up the Estate and handed over the residue to the beneficiaries mentioned in the Will. No evidence was given about any particular difficulty which makes this impossible for the defendant and if he is suspected of maladministration it is only because he had failed to act promptly and had kept the administration alive for an unreasonable length of time. After giving the matter a great deal of thought, I have come to the conclusion that at this stage of the administration it would cause more delay if the defendant were to be removed and fresh Trustees appointed. In those circumstances it is ordered that the defendant shall take urgent steps to wind up the Estate, and he shall do so within the next 6 months. If he is in any particular difficulty he is at liberty to apply to the Court for directions. It is also ordered that the defendant shall file a full and comprehensive administration account supported by relevant receipts and vouchers showing his dealings with the Estate in respect of the period 1969 - 1976 and 1977 - 1987. It is further ordered that this account shall be lodged with the Probate Registrar for scrutiny within 3 months from today's date."

This passage came under attack in the Court of Appeal. That Court, in the lead Judgment of Akanbi JCA said:-

"It was submitted, and I agree, that as a matter of general principle a Court should not grant reliefs which are not claimed by the parties before it. A long line of cases attests to this. To mention but a few, see Awijo v Olunlade (1975) 1 NMLR 82; Tako Tomato v Ajaguna & others (1975) 1 NMLR 122; Obioma v Olomu (1978) 3 SC 1; Chief Registrar v Vamos (1971) 1 SC 33. However, it must be conceded, that a Court may make consequential orders flowing from its decision but such reliefs must, as Chief Williams himself would appear to have conceded, be related to or incidental to the reliefs claimed.

The first complaint in this regard is against an order directing the defendant to wind up the estate. The contention on behalf of the defendant was that the learned trial Judge was in error to say that 'the defendant himself were tardy in winding up the estate and his error was said to have stemmed from his thinking that 'there was some way in which it was possible for the defendant to have handed over the property to the beneficiaries named in the Will.' It was also submitted that 'the order was erroneous and that in so far as it affects or purports to affect the gift or device to the Anglican Mission or other persons who are not parties to this action, it ought not have been made."

I say with much respect to the learned Senior Advocate, I think the learned trial Judge was right in saying that there has been some tardiness in winding up the estate. Indeed, that is why the estate has become a source of embarrassment to every one. Everything apart, one would have thought that it is in the interest of the defendant himself and the beneficiaries alike that a winding up process should commence. If that had been done earlier, perhaps, the recourse to distressing and painful litigation involving the defendant would have been avoided.

Again with the greatest respect, I find it difficult to appreciate the contention that the remark of the learned trial Judge emanated from his error in thinking that there was some possible way for the defendant to have handed over the property to 'the beneficiaries of the Will'. Clearly, the order that winding up process should commence must have been directed towards providing a way out. And also worthy of note is the view expressed at page 9 of defendant's brief which reads:-

"What the defendant can do is to appoint or apply to the court to appoint as trustees not less than two or more than four of the beneficiaries who will thereafter become trustees of the family property. See Sections 24 and 28 of the Trustee Law Cap 130 of Ogun State."

Whatever is the case, the important point is that on a balanced view of the evidence and the claims before the Court, I am unable to say that the order for winding up is not such an order that is incidental to or unrelated to the reliefs claimed by the plaintiff. Accordingly, I hold that that order was properly made.

This passage has also come under attack in this Court and the same arguments advanced in the court below by Chief Williams SAN, of Counsel for the defendant and Mr Ogunde for the plaintiffs have again been advanced in this Court.

With utmost respect to the learned trial Chief Judge and the eminent Justices of the Court below, they seemed to have laboured under the misconception that in the defendant's dealings with the property in dispute he was still administering the estate of the deceased as executor. That cannot be the case as the learned trial Chief Judge acknowledged that the defendant had, as far back as 1980 raised a plea of plene administravit in Suit No. AB/153/76. Plaintiffs have not advanced any evidence to the effect that the estate was still being administered. It must be presumed that the defendant had, as pleaded by him in 1980, completed administration of the estate and had become functus officio as executor of the testator's will. It would therefore, in my respectful view, be erroneous and unfair and not supported by the evidence before the court to accuse the defendant of tardiness in the winding up of the Estate. What must be remembered is that the defendant is also trustee of some trusts created in the Will. Under some of the trusts some children were to be educated to university level. There is no evidence that the purpose of these trusts have been accomplished. And in any event, it is only the Anglican Mission as the residuary legatee that can complain of tardiness, if any, and not the plaintiffs whose only continued interest in the Estate is limited to the trust over the Apagun Market property, the family property created under Clause 25 of the will. They have not complained that the legacies bequeathed to them in the Will have not been paid by the executors, The trusts created under Clause 25 must, by their nature, be of indefinite duration and the defendant can only extricate himself from those trusts only by his ceasing to be a trustee of those trusts under Section 24 or 28 of the Trustee Law, Cap 128 Laws of Ogun State, 1978 or by the beneficiaries together putting an end to the trusts in the manner that a family property under customary law ceases to be so. In light of all I have just said, I can find no basis for the order made that the defendant do take urgent steps to wind up the Estate. The order is accordingly set aside.

It has been argued before us that the order (as well as other similar orders made by the learned trial Chief Judge) was never sought by any of the parties and should, therefore, not have been made. It is also argued that the order (as well as those similar ones) cannot be said to be ancillary or incidental to any of the reliefs claimed by the plaintiffs. They should have been separately claimed, so argues Chief Williams.

Mr Ogunde however argues to the contrary. He observes that it was in consideration of the relief for removal claimed by the plaintiffs that the learned trial Chief Judge granted the alternative orders be made and submits that the mere fact that a specific relief is not claimed does not preclude a court from granting it if it is appropriate to a relief claimed. Learned Counsel further submits that under Order 37 rule 1 of the High Court (Civil Procedure) Rules of Ogun State applicable at the time of the trial of this case, the trial Court had jurisdiction to grant a consequential order whether asked for or not. He cites in support Motunwase v Sorungbe (1988) 4 NWLR (Part 92) page 90, 102. He urges the Court to affirm the orders made by the learned trial Chief Judge, including those set aside by the Court of Appeal such as the order for account. He submits that in deciding whether or not to set aside a relief granted by the High Court it is not enough to hold that it was not a relief sought since it is not whether a party has claimed any relief that determines if it ought to be granted; the Court must also consider whether such relief cannot be granted when the Court is exercising its equitable jurisdiction. Mr Ogunde finally submits that the claim for account was properly granted by the High Court and urges the Court to restore the order.

I am, in considering Question (iii), in the defendant's brief, also determining Issue (1) of the plaintiffs' cross appeal since they relate to each other. The learned trial Chief Judge in the passage of his judgment quoted above by me had ordered the defendant to file a full and comprehensive administration account. The Court of Appeal, per Akanbi JCA had held:-

"The next complaint relates to the order for administration account. I think here the defendant is on firmer ground. There was no specific claim for account by the plaintiffs. Claim (111) which sought to remove the defendant as Executor and Administrator was not granted. The order cannot be accommodated under the other heads of claim and so I agree with Chief Williams that the order for account having regard to the nature of the claim, as postulated, ought not have been made."

It is well settled rule that a court will not grant a relief not claimed by a plaintiff. In Ekpeyong v Nyong (1975) 2 SC 71, 80-81, Ibekwe JSC (as he then was) delivering the judgment of this Court commenting on this rule, said:-

". . .we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim."

See also Oyediran v Amoo & others (1970) 1 All NLR 313, 317; Omoboriowo v Ajasin (1984) 1 SCNLR 108, 131; Elumeze v Elumezu (1969) 1 All NLR 311; (1969-1970) NSCC 293, 294. The Ogun State High Court rule relied on by Mr Ogunde (and similar rule in other High Court Rules) does not alter this basic rule; it only permits the Court to make an order, though not asked for but which is ancillary or incidental to a relief proved and granted in order to make that relief effectual. Even here too the parties should be heard before such order is made: Atanda v Lakanmi (1974) 3 SC 109; Okhidema v Toto (1962) 1 All NLR 309. It is not defendants contention that the orders complained of are outside the jurisdiction of the Court to make where they are specifically asked for; it is that as they were not specifically asked for in the case on hand the orders ought not to have been made. Motunwase v Sorungbe (supra) and other cases cited in plaintiffs' brief are, in my respectful view, not relevant.

It is not disputed that these orders additional to the reliefs claimed and granted, were never asked for by the plaintiffs. Nor is it right to say, as has been submitted by Mr Ogunde, that the order for account is alternative to the relief for the removal of defendant as executor and trustee. No such alternative relief was ever claimed by the plaintiffs. And none of these orders could be said to be ancillary or incidental to any relief proved and granted so as to make such relief effectual. The Court below set aside the order for account, and rightly in my view, on the ground that it was never asked for but strangely affirmed the order to wind up the estate, a relief that was equally not asked for. It is difficult for me to reconcile this opposing attitude of the Court below to the two orders made by the learned trial Chief Judge.

For the reasons given by me above I have no hesitation whatsoever in allowing defendant's appeal against the Court of Appeal's affirmation of the trial court's order that defendant do wind up the Estate. I equally dismiss plaintiffs' appeal against the decision of the Court below setting aside the trial Court's order for account.

As regards the order made by the learned trial Chief Judge and affirmed by the Court of Appeal that the house that was demolished be restored to its former state or, in the alternative, the plaintiffs be paid N82,700 from the Estate to enable them carry out the exercise, it is argued that this order is incidental to the reliefs claimed. Having by this judgment held that the defendant had power to do what he did, it would appear that the basis for giving N82,700 to the plaintiffs no longer exists. To allow the order to stay will amount to allowing the plaintiffs to take over defendant's power and responsibility for the management and control of the trust property. The order, therefore, is set aside.

As to the lower Court's order relating to the testator's law books found in the property in dispute and taken possession of by the defendant, Mr Ogunde has, quite rightly in my view, conceded that that order ought to be set aside. The evidence is to the effect that the law books belonged to the testator. At his death, property in them devolved on the executors and trustees of his Will. The defendant, as the sole surviving trustee of the Will has property in them and rightly took possession of them. In any event, the order was never asked for and should never have been made. I, therefore, set aside the lower Court's order relating to the law books. This disposes of defendant's Issue (iv).

Award of Damages: Issue (v)

In awarding damages of N10,000 to the plaintiffs, the learned trial Chief Judge had this to say:-

"It now remains for me to decide what damages, if any, are due to the plaintiffs in respect of the demolition of their father's property. I have already found that that demolition was unlawful and the proper course is to order the defendant to restore the house to its original state or as near to it as possible. I have been told that about N82,700 will complete the building of the said house. I hereby order the defendant to restore the said property to its former state within 5 months from today's date or in the alternative, to pay to the plaintiffs the sum of N82,700 to enable them carry out that exercise. This amount is to be borne by the estate. In respect of this order the defendant is at liberty to apply for directions.

Finally, in regard to the general damages, I note that all the children wanted the house to be repaired but the majority of them did not want the Estate to pay the expenses of the repairs. All the same since the defendant had carried out the demolition, contrary to the wishes of the beneficiaries, he is answerable to them for destroying their property. Before this, the house was being used as a family house; elderly members of the family including mothers of some of the children were living in it. Although it is said that the house was old and rather unsafe, it is obvious that the children had great attachment to the house and it can therefore be said to be of some sentimental value to them.

In Law, family property by Yoruba custom is one that is set aside by a father for his wives and children to occupy jointly after his death together with wives of married sons. It can only be mortgaged or sold with the consent of all those entitled to the family house.

Coker v Coker (1938) 14 NLR 83. It is settled Law that such property devolves from father to children and grand children under native law and custom and no child or member of the family can dispose of his interest by Will until the property is partitioned and each member has his or her separate share of the whole.

Ogundairo v Abeje (1967) LLR 9. The sum total of all this, is that they are jointly entitled to the possession of the property and any injury to that possession or to the property itself is an injury to all members of the family jointly. Having regard to all the circumstances of the case, it is ordered that the defendant shall pay to the plaintiffs the sum of N 10,000 for the damage done to the plaintiffs' family house; (this amount is also to be paid from the estate)."

The Court of Appeal, in affirming this award observed, per Akanbi JCA:-

"Next is the order that the sum of N10,000 damages should be paid to the plaintiffs. With respect to the award of damages, Chief Williams said that the step taken by the defendant 'to repair and rebuild the family property' has the effect of 'enhancing its value' and so there was no basis for making that award. The award, he went on to say, was more in the nature of a fine or penalty rather than compensation for damages or loss to members of the family or family property, and should not therefore be allowed to stand. This order relating to the payment of N10,000 can be found at page 187 of the record of proceedings; and there, it was specifically stated that the award was for damages to the plaintiffs' family house', and although the learned trial Judge, after refusing the prayer for the removal of the defendant as Executor and Trustee again stated that the defendant will pay damages assessed at N10,000. I am clear in my view that only one award was intended and made and that is an award of general damages for the damage done to the family house of the plaintiff. That sum was ordered to be paid not by the defendant personally but by the Estate and in this case, the estate has not appealed. What is more I have held that the defendant was not a Trustee of the property in question; and in those circumstances, the award appears to me to be justified having regard to the fact that damages were claimed for the demolition done and the trial Judge so found."

The basis for this award seems to be that the defendant acted unlawfully in causing reconstruction work to be carried out on the property in dispute. This is borne out by the arguments of Mr Ogunde on this issue in his brief. He submitted:-

"The award of N10,000 was made on the basis that the demolition was unauthorised. Evidence was led to show that as a result of the demolition the beneficiaries had to stay in hotels and spent up to N6,000, Exhibits 5-24A see pages 108-110. Evidence was led to show that PW1 also had properties in the house. The award of damages was therefore based on loss suffered by the plaintiffs who testified and for breach of trust.

It is therefore wrong to say that simply because the plaintiffs did not sue in a representative capacity, the loss they suffered would go without remedy. The award was based on claim (iv) in the plaintiffs' statement of claim and so Ground 4 of the respondents' grounds of appeal must fail. The award is sustainable on the ground of breach of the simple trust created by the will."

I have held that the defendant acted within his powers to reconstruct the house in the light of the evidence as to its state of disrepair in 1985-1986. There was, in addition to this, uncontradicted evidence of the defendant and his witnesses that alternative accommodation was provided for those actually living in the house at the relevant time and that these people voluntarily moved from the house in dispute to the alternative accommodation nearby to allow for reconstruction work on the property in dispute. In the light of all these facts I cannot see the basis for allowing the award of N10,000 damages made to the plaintiffs to stand. It is accordingly set aside.

All the issues raised in defendant's brief having been resolved in his favour, it follows that his appeal succeeds and it is hereby allowed by me. The judgment of the Court below in so far as it affects the defendant adversely is hereby set aside. Plaintiffs' claims (i), (ii) and (iv) are dismissed and the additional orders made by the learned trial Chief Judge and affirmed or varied by the Court of Appeal are set aside.

I now turn attention to plaintiffs' cross-appeal. I have already dealt with issue (i) thereof. I am left with Issues (ii) and (ii).

Plaintiffs' Issue (ii) - Removal Of A Trustee:-

The third relief claimed by the plaintiffs in the High Court, is an order removing the defendant as Executor and Trustee of the Estate of the deceased and appointing Judicial Trustees in his stead. In refusing this claim, the learned trial Chief Judge said:-

"Now, having recounted what I conceived to be the proper background to the whole case, I must now decide on the submissions made by the plaintiffs' Counsel as to whether or not the defendant had been guilty of such misconduct as might lead the Court to remove him. As I stated in my judgment in the earlier case (Exhibit '3') the Court has inherent power to remove a Trustee, and will remove any Trustee found guilty of acts of misconduct or mismanagement. See the cases of - Renner & others v Renner - (1961) All NLR 233; E Fregene v MA Awoshika (1957) WRNL page 156. But in my view the acts which would amount to misconduct vary from case to case; but generally they would be those which go beyond mere inadvertence and come within the reach of a criminal offence such as, embezzling the funds of the Estate or using Trust funds for the Executor's personal affairs or conveying trust property to unauthorised persons, Indeed, misconduct has always been associated with any act of moral turpitude, fraud, and dishonesty, The defendant herein may, in the course of his administration, have been guilty of inaction, over zealousness, or such similar conduct, but I do not think that the plaintiffs have succeeded in proving fraud or dishonesty against him. I note that although the plaintiffs called for an account and must have examined it, they have not shown that the defendant had falsified these accounts or had failed to account for any moneys which came into his hands. The truth of the matter is that the Will of the Testator was draconian in nature and this has given room to a lot of discontent. It failed to make provisions for the needy children of the family and, apart from a few monetary bequests, it left the residue of the Estate which, by today's evaluation would amount to a sizeable figure, to the Anglican Mission. This no doubt must have upset the children quite a lot. And in the earlier suit (Exhibit '3') they challenged the Will and sought to set it aside; but they failed. At that time all the children joined hands together to attack the Executors. But at the time of filing this action there appeared to be some dissensions, amongst them. Those who were not given anything looked with disfavour and suspicion on others who got something and those who were forbidden to enter the family house quietly nursed grievances against other children of the family. All these in my view have generated some amount of disharmony within the family. But it seems to me however that later on senior members of the family attempted to heal those wounds by making the 20th Anniversary of their father's death the focal point. They held family meetings and probably got the defendant, as Executor of their father's estate, to lend his support to their plans. This probably led the defendant into a relaxed state in his position as Executor. In consequence, he allowed a son to use the premises of one of the deceased's house as his Workshop, and perhaps failed to raise objection to Madam Badejoko occupying the family house. Although in this latter respect, it was not proved that this lady moved into the house with the knowledge and consent of the defendant, nor was it shown that he knew of her presence and failed to eject her. Whatever it is, I have come to the conclusion that the defendant is not guilty of the sort of misconduct as would enable me to remove him."

On appeal by the plaintiffs to the Court of Appeal, the latter Court, per Akanbi JCA, observed:-

"I now turn to the plaintiffs' cross appeal. Two issues were formulated in respect of the cross-appeal filed on behalf of the plaintiffs. They read as follows:-

'(1)    Whether the learned trial Judge ought to have ordered the defendant's removal as Executor and Trustee.

(2)     Whether the Estate ought to bear the monetary award made against the defendant.'

The argument of Mr Ogunde in relation to issue (i) is to the effect that on the facts proved, head of claim (iii) ought to have succeeded and the defendant removed as Executor and Administrator. He argued that a trustee who delegated his functions to 'strangers' or failed to make account or did not comply with the directives in the Will, or exposed trust property to risk or as between the beneficiaries, he failed to be impartial can be and ought to be removed. All these acts he argued, could constitute a mismanagement of the trust property justifying such removal from office. He said that it is not only in cases where fraud or crime has been committed, as held by the trial Judge that a Trustee may be removed, he could be thrown out even for misconduct.

The short answer to this submission is firstly for me to say that a careful perusal of the plaintiffs' statement of claim shows that the entire plaintiffs' claim was built around the destruction of the house at Apagun Market. That was the property tampered with by the defendant that grounded their claim. The matters now complained about, and on the basis of which it is urged that the defendant be removed, were not the real issues raised by the claim before the Court. In any case, the trial Judge did not find any deliberate act of misconduct on the part of the defendant to warrant his removal let alone any criminal or fraudulent act. And this is what he said as regards the alleged misconduct:-

'I have come to the conclusion that the defendant is not guilty of the sort of misconduct as would enable me to remove him.'

The implication of this finding, is that not only is the defendant not guilty of any criminal or fraudulent act but on the evidence tendered it cannot be said that he is guilty of any serious misconduct to warrant his removal. I may add that I have my doubts as to whether or not he can be removed at the instance of the present plaintiffs alone or the action as presently constituted. However that may be, it is enough to say that nothing that has been urged by Mr Ogunde is in my view compelling enough as to justify a reversal of the decision of the learned trial Judge that a case for the removal of the defendant as 'Executor and Trustee' has been made out."

Mr Ogunde's complaint is that the learned trial Chief Judge set a standard which was too high for a beneficiary seeking to remove a trustee and the Court of Appeal ought to have disapproved of that principle.

I agree with Mr Ogunde, Section 29 of the Trustee Law of Ogun State which empowers the Court to remove a private trustee does not set such a high standard as the learned Chief Judge seemed to have done. Section 29 reads:-

"29. The court may remove a private trustee if the court is satisfied that the continuance of the existing trustee in office may be detrimental to the execution of the trust notwithstanding that misconduct or maladministration has not been proved against him."

Misconduct amounting to dishonesty or crime need not be proved before a court can exercise its power under Section 29.

This, however, is not the end of the matter. Mr Ogunde submits that on the evidence and findings of both the trial court and the court below the defendant would have been removed if the learned trial Chief Judge had properly directed himself on the law. He submits thus:-

"Even to the Court of trial and the Court of Appeal, it was not in doubt that the respondent did not act impartially as between the children of the deceased. This alone is a ground for removal. In addition to this, the respondent commenced the demolition and reconstruction of the family house of the appellants against their wishes and without an approved building plan. He failed to obey a judgment of court directing him to file a full and comprehensive account. All these acts clearly warrant his removal as Trustee of the Estate whether or not any criminal conduct has been established against him."

I have carefully considered the totality of the evidence led in this case. I am not satisfied that upon proper direction on the law the learned trial Chief Judge would have come to a decision different to the one he reached. It is not correct to say that the defendant failed to obey a judgment of court directing him to file a full and comprehensive account. The evidence is to the effect that he filed one but directed it to the principal registrar rather than the probate registrar. On his dealings with Chief Adebola Sodipo and Dr JA Sodipo, I cannot hold this to be a misconduct. After all, all the other children of the deceased, including the plaintiffs, recognised Chief Adebola as their head and held family meetings in his house. It would have been imprudent of the defendant to ignore such an important member of the Sodipo family merely because his father was displeased with him for undisclosed reason(s), notwithstanding that the testator built a house - No. 100 Apapa Road, Ebute Metta, Lagos for this son. The same remark goes for Dr JA Sodipo. In any event, the evidence does not show that the defendant abdicated his rights, powers and duties as trustee to these gentlemen.

Nor has it been shown in what way he had been partial in his dealings with the children of the deceased. All of them and led by Dr JA Sodipo joined in instituting Suit No. AB/153/76 against the defendant and others seeking to avoid their father's Will.

In my respectful view, the learned trial Chief Judge was right to have refused plaintiffs' claim (3) and the Court of Appeal was equally right in affirming that decision. I see no merit in the plaintiffs' appeal against the decision and it is accordingly dismissed by me.

Issue (iii)

The main complaint here is that the trial court was in error to order that certain sums ordered to be paid to the plaintiffs were to be paid from the Estate fund rather than to be borne by the defendant personally. The Court of Appeal was also in error to affirm that order, so it is argued. It is further submitted that the Court of Appeal could not hold that the defendant acted ultra vires and his act therefore was null and void and at the same time make the Estate to bear the loss simply because the Estate has not complained. Mr Ogunde further submits that the Court of Appeal was in error in not following the established principle that a trustee who acts ultra vires must prima facie bear the loss except he comes within Section 45 of the Trustee Law. It is Counsel's final submission that on the evidence the defendant would not come within the protection of Section 45.

Having held that the defendant acted intra vires his powers as Trustee and having set aside the award to the plaintiffs of the total sum of N82,700 this issue no longer arises. I shall notwithstanding consider it for all that it is worth. I have carefully considered the submissions of learned Counsel. Section 45 of the Trustee Law provides the answer, It reads:-

"45. If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Law but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve him either wholly or partly from personal liability for the same."

The Court has a discretion to relieve a Trustee who has acted honestly and reasonably of personal liability for breach of trust. The trial Court, in this case, exercised its discretion in favour of the defendant. The Court of Appeal affirmed this exercise of discretion. I have not been persuaded that the discretion was exercised under a mistake of law or in disregard of principles or under a misapprehension of the facts or that irrelevant matters were taken into account or that it occasioned any injustice. See Awani v Erejuwa II (1976) 11 SC 307, 315; Omadide v Adajeroh (1976) 12 SC 87, 96. It is not being suggested that the defendant acted dishonestly in reconstructing the house in dispute and having regard to the evidence as to its state of disrepair. I am not prepared to say that he acted unreasonably either. Consequently I see no ground for me to interfere with the exercise of the Court's discretion in favour of the defendant. Issue (3), is therefore resolved against the plaintiffs.

All the plaintiffs' grounds of appeal having failed, their cross-appeal also fails and it is dismissed by me. I affirm the judgment of the Court of Appeal which itself affirms the dismissal by the trial Court of plaintiffs' claim (3).

I award to the defendant N1,000 costs of this appeal to be paid by the plaintiffs.

Uwais, JSC:- I have had the opportunity of reading in draft the judgment read by my learned brother Ogundare, JSC. I entirely agree that:-

1.      The appeal by the party interested, even though is with the leave of the Court of Appeal, is incompetent and must therefore be struck out. It is hereby struck out with N1,000 costs to the plaintiffs.

2.      The appeal by the defendant succeeds and it is hereby allowed with N1,000 costs against the plaintiffs.

3.      The cross-appeal by the plaintiffs fails and it is hereby dismissed with no order as to costs.

Karibi-Whyte, JSC:- I have had the privilege of reading the judgment of my learned brother Ogundare JSC in this appeal. I agree entirely with his conclusions that all the issues from the grounds of appeal and cross appeal argued, fail. The appeal is accordingly dismissed.

This judgment is a brief comment on the issues formulated from the claim relating to the second and third issues concerning the removal of the defendant as trustee and the award of damages against him.

In the writ of summons dated 18 April 1986, plaintiffs in their claim inter alia sought the following order:-

"(3)    An order removing the defendant as Executor and Trustee of the Estate and appointing Judicial Trustees in his stead."

This claim was refused by the learned Chief Judge. The learned Chief Judge referred to the inherent powers of the Court to remove a trustee on the grounds of established misconduct or acts of mismanagement. He went on to hold that "the defendant is not guilty of the sort of misconduct as would enable me to remove him." In specifying the misconduct relied upon and which he rejected, as not sufficient to support the removal of the defendant as trustee, he stated as follows :-

". . . But in my view the acts which would amount to misconduct vary from case to case; but generally they would be those which go beyond mere inadvertence and come within the reach of a criminal offence such as embezzling the funds of the estate, using trust funds for the Executor's personal affairs or conveying trust property to unauthorised persons. Indeed misconduct has always been associated with any act of moral turpitude, fraud and dishonesty. The defendant herein may in the course of his administration, have been guilty of inaction, overzealousness, or such similar conduct, but I do not think that the plaintiffs have succeeded in proving fraud or dishonesty against him. I note that although the plaintiffs called for an account and must have examined it, they have not shown that the defendant had falsified these accounts or had failed to account for any monies which came into his hands. . ."

The learned Chief Judge referred to the aspects of the will which did not make any provision for the needy children of the family, and the dissatisfaction amongst the children who had failed in their action to set aside the will. On the basis of these findings, the learned Chief Judge concluded as follows :-

". . . Whatever it is, I have come to the conclusion that the defendant is not guilty of the sort of misconduct as would enable me to remove him."

On appeal on the same issue inter alia to the Court of Appeal, the Court agreed with the learned trial Judge. It did not consider the criticism of the statement basing the criteria for the removal of the trustee on a criminal misconduct as too high and not representative of the law. The Court, after referring to the finding of the learned Chief Judge said:-

"The implication of this finding, is that not only is the defendant not guilty of any criminal or fraudulent act, but on the evidence tendered it, cannot be said that he is guilty of any serious misconduct to warrant his removal. I may add that I have my doubts as to whether or not he can be removed at the instance of the present plaintiffs alone or the action as presently constituted. However, that may be, it is enough to say that nothing that has been urged by Mr Ogunde is, in my view, compelling enough as to justify reversal of the learned trial Judge, that a case for the removal of the defendant as "Executor and Trustee" has been made out."

Mr Ogunde's submission before us, which I concede is a correct proposition, is that the trial learned Chief Judge relied on too high a standard of misconduct for a beneficiary seeking to remove a trustee. The Court of Appeal ought to have disapproved of that principle.

Section 29 of the Trustee Law of Ogun State, which enables the Court to remove a private trustee, provides as follows :-

"The court may remove a private trustee if the court is satisfied that the continuance of the existing trustee in office may be detrimental to the execution of the trust, notwithstanding that misconduct or maladministration has not been proved against him."

The criteria prescribed above is somewhat vague. Conduct which is detrimental to the execution of the trust, and whether misconduct or maladministration has been proved against a trustee, may range from criminal conduct to mere moral turpitude. (See Letterstedt v Brooers (1884) 9 App Cas 371 386). The conduct may not constitute an actual breach of trust, yet it could be sufficient to ground his removal. (See Moore v M'Glynn (1894) 1 Ir R 74). Misconduct need not amount to dishonesty or criminal conduct to ground removal. The learned trial Chief Judge was therefore wrong to have stated so high a criterion. The Court of Appeal should not have accepted the criterion.

Mr Ogunde has submitted that there was sufficient evidence before the learned Chief Judge to support removal of the defendant as trustee. He argued that the fact that defendant did not act impartially as between the children of the deceased, and that he commenced the demolition and reconstruction of the family house against their wishes and in the absence of an approved building plan, are valid grounds for removal. Counsel also referred to the allegation that defendant failed to obey a court order directing defendant to file a full and comprehensive account. Learned Counsel referred to these acts as sufficient misconduct on which his refusal could be founded.

A careful evaluation of the evidence relied upon discloses that the learned trial Chief Judge could not have come to a different conclusion. In the first place, it is not correct that the defendant had disobeyed the Order of Court to file a full and comprehensive account. The evidence is that the account he filed was to the principal registrar and not to the probate registrar.

The evidence before the court of the dealings with the children of the deceased cannot rightly be described as misconduct on the part of the defendant. Defendant recognised Chief Adebola Sodipo and Dr JA Sodipo as the children of the deceased, who they are. He did not use the fact that the deceased was displeased with them and did not make further bequests to them in his will as a ground for ignoring them. I think the defendant correctly assessed the attitude of all the other children who regard Chief Adebola Sodipo as their head and continued to hold family meetings in his house, and the important position of Dr JA Sodipo in the family. There was no evidence that the defendant did not discharge his duties correctly as a trustee, but allowed Dr JA Sodipo and Chief Adebola Sodipo to do so on his behalf.

The allegation of partiality in the discharge of duties towards the beneficiaries is effectively negated by the fact that the children, led by Dr JA Sodipo, were plaintiffs in Suit No. AB/153/76 seeking to set aside the will of the testator.

In my view, the learned trial Chief Judge did not have before him sufficient grounds to enable him to remove the defendant. He was therefore right to have refused claim 3. The Court below was also right to have affirmed the decision. I also hereby affirm the decision.

The third issue is the payment of the award of N92,700 against the respondent/defendant, from the funds of the Estate, rather than to be borne personally by the defendant. The Court of Appeal affirmed the award. It has been argued that the Court of Appeal was in error to affirm the award.

Mr Ogunde's argument is that, the Court of Appeal having held the defendant acted ultra vires and the transaction accordingly null and void, could not impose the burden of such ultra vires acts on the Estate. It was submitted that the principle is that a person who acts ultra vires must prima facie bear the loss except if his conduct falls within Section 45 of the Trustee Law. Learned Counsel submitted that defendant did not come within the exceptions.

I think it is now unnecessary and irrelevant to consider this issue. The defendant, having been held to have acted intra vires his powers as Trustee, and the award to the plaintiffs of the sum of N92,700, having been set aside, the issue no longer arises.

Be that as it may, Section 45 of the Trustee Law empowers the Court to exercise its discretion in cases of established breach of trust, to relieve a trustee who has acted "honestly, and reasonably, and ought fairly to be excused of personal liability for breach of trust". The courts below have exercised their discretion in favour of the defendant. Learned Counsel to the appellant has not shown that there was any error in the exercise of their discretion. It has not been shown that the discretion was exercised under a mistake of law or in disregard of established principles for the exercise, discretion or under a misapprehension of the facts or that irrelevant factors had been taken into account. (See Awani v Erejuwa 11 (1976) 11 SC 307; Omadide v Adajeroh (1976) 12 SC 87).

There was no suggestion that in the conduct of the defendant in reconstructing the house in dispute, he acted dishonestly. It cannot be seriously disputed that in the state of disrepair in which the building was, the defendant acted unreasonably.

For the above reasons and the much fuller reasons in the judgment of my learned brother Ogundare JSC, I will allow the defendant's appeal and dismiss the cross-appeal. I abide by the orders made in the judgment of my learned brother Ogundare JSC.

I award N1,000 as costs to the defendant to be paid by plaintiffs.

Kawu, JSC:- I have had the advantage of reading in draft, the lead judgment of my learned, brother, Ogundare JSC which has just been delivered. I completely agree with him that this appeal should be allowed.

Under the terms of the will (Exhibit 2) the appellant was appointed an executor and trustee, and at the time he embarked on the demolition and reconstruction of the family house at Apagun market, he was, no doubt, acting in his capacity as a trustee. That being the case, I am, with profound respect, unable to agree with both the High Court and the Court of Appeal that the appellant's action was ultra vires his power under the will.

For all the reasons fully set out in the lead judgment of my learned brother, Ogundare JSC which I respectfully adopt as mine. I also allow the appellant's appeal and dismiss the respondent's cross-appeal. I agree with all the consequential orders made in the lead judgment, including the order as to costs.

Wali, JSC:- I am privileged to have read before now the lead judgment of my learned brother Ogundare JSC and I entirely agree with the reasoning and conclusions arrived at by him on both the main appeal and the cross appeal.

For those same reasons ably stated in the lead judgment by Ogundare JSC and which I hereby adopt as mine, I hereby also dismiss the cross-appeal and the main appeal and abide by the consequential order relating to costs made in the lead judgment.

Omo, JSC:- I have been privileged to read, in draft, the judgment of my learned brother, Ogundare JSC in which all the issues canvassed have been admirably dealt with. I so entirely agree with his conclusions therein and his reasons for arriving at them, that I have only a few brief comments of a general nature to make.