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WHAT IS A RESULTING TRUST

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Now, what is resulting trust? An implied trust or resulting trust is a trust founded upon the unexpressed intention of the settlor. One example of such a situation is where a purchased property is conveyed into the name of someone other than the purchaser or where, as in this case, a person applies for leasehold of a right of occupancy in the name of another person. The clear result of such cases is that the benefit accrues to the person who advances the money. Further, the same situation would arise even if the advancement of money is indirect, as where one party pays expenses which the other would otherwise have had to pay.

– Musdapher, JSC. Atta v. Ezeanah (2000)

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IMPLIED TRUSTS DOES NOT REQUIRE AGREEMENT BETWEEN THE SETTLOR & TRUSTEE

An implied trust founded upon the unexpressed intention of the settlor and same is raised and created by implication of law from the surrounding circumstances of the case. It does not require agreement between the settlor and trustee. See Adekeye v Akin Olugbade (1987) 3 NWLR (Pt. 60) 214 at 227; Kotoye v Saraki (1994) 2 NWLR (Pt. 357) 414 at 443 Paragraph H. Constructive trust is neither granted nor accepted, but it is foisted upon the parties by the operation of law. To that extent, the question of whether the Appellant produced evidence of the resolution of the Board of the Respondent authorizing such a trust does not arise at all.

— P.A. Galumje, JSC. Huebner v Aeronautical Ind. Eng. (2017) – SC.198/2006

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TYPES OF TRUST – WHERE IMPLIED TRUST WILL ARISE

To this end, there are Express Trusts, Implied or Resulting Trusts and Constructive Trusts. Express Trusts arise when the owner declares himself a trustee of the property for the benefit of another person or vests property in another person as trustee for the benefit of another person. Implied or Resulting Trust arise from the presumed intention of the owner, and the presumed intention arises by operation of law not by agreement of parties Constructive Trusts are trusts imposed by equity regardless of the intention of the owner of the property, where it will be unconscionable for the “apparent beneficial owner” or trustee to hold the property for his benefit- see Equity and Trust in Nigeria 2nd Ed. by J. O. Fabunmi. We are concerned with implied or resulting trusts, which may arise in the following circumstances – (i) Where an express trusts fails (ii) Where the beneficial interest under an express trust is not fully disposed of or exhausted. (iii) Where there is a purchase in the name of another or where a person makes a voluntary conveyance of his property to another.

— A.A. Augie, JSC. Huebner v Aeronautical Ind. Eng. (2017) – SC.198/2006

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FORECLOSURE PROCEEDING IS FOR EQUITABLE MORTGAGE – MORTGAGOR HOLDS LEGAL ESTATE IN TRUST

In considering the scope of the rights of an equitable mortgagee (not by way of charge) it should be borne in mind that the general rule is that foreclosure (and not sale) is the proper remedy of an equitable mortgagee (See James vs James (1873) L.R. 16 E. 153 citing with approval Pryce vs Bury at 154); and when an equitable mortgagee by deposit of title deeds and agreement to give a legal mortgage if called upon to do so takes foreclosure proceedings to enforce his security, the court usually decrees that the deposit operates as a mortgage and that in default of payments due under the mortgage the mortgagor is trustee of the legal estate for the mortgagee and that he must convey that estate to him.

– Idigbe JSC. Ogundiani v. Araba (1978)

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RESULTING TRUST IS BASED ON THE PRESUMED INTENTION OF THE PARTY

One other expression for resulting trust is implied trust. An implied trust is one founded upon the unexpressed but presumed intention of the settlor. Such trusts are also referred to as “resulting” because the beneficial interest in the property comes back or results to the person who provided the property or to his estate.

— N. Tobi, JSC. Ezennah v Atta (2004) – SC.226/2000

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WHAT CONSTITUTES A RESULTING TRUST – CANNOT RELY ON RESULTING TRUST IF NOT PLEADED

For the definition of what constitutes resulting trust see the case of Shephard vs. Cartwright (1995) AC 431 at 445. See also Black’s Law Dictionary, 6th edition at page 1315. As clearly illustrated in the leading judgment of my learned brother, Tobi, JSC, there are no hard and fast rules about what amounts to resulting trust especially as it relates to land. Where it arises, the claimant of the piece of land must prove by hard and concrete evidence that he actually owned and/or was entitled to the land but voluntarily or involuntarily opted that the Title Deed or Deed of Assignment be made in favour of another in anticipation of a marriage of whatever the case may be. Where a party as in the instant case, fails to properly plead the issue of resulting trust (or any other trust) he cannot raise the issue at the address stage or on appeal as the evidence or arguments or submissions on facts not hitherto pleaded, go to no issue.

— Onu, JSC. Ezennah v Atta (2004) – SC.226/2000

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TRUST SIMPLICITER

Trust, simpliciter, is the right enforceable solely in equity to the beneficial enjoyment of property to which another person holds the legal title. It is a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property. Certainty of subject matter is an important element in trust. It should reflect the settlor’s intent and be created for a lawful purpose.

— A. Fabiyi, J.S.C. Ibekwe v. Nwosu (2011) – SC.108/2006

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