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Wednesday, 16 December 2015



Trusteeship is a very imperative aspect of the Nigerian Legal system. This is because of the relevance it commands with respect to private and property Law. In this vain, the Powers and duties of a trustee operates side by side and are sometime difficult to distinguish. In the words of Kekewich, J., he stated thus:

“I think that when persons are asked to become new trustees, they are bound to inquire of what the property consists that is proposed to be handed over to them and what the trusts are. They ought also to look into the trusts documents and papers to ascertain what notices appear among them of incumbrances and other matters affecting the trusts.”[1]

Similar view was held in the case of Low v. Bouvery.[2] The trustee has many duties such as, duty of investment, duty of impartiality, duty to distribute trust property, duty not to conflict profit and interest, etc. However, for the purpose of this work, cognizance will be taken with respect to the duty not to conflict profit and interest. For a trustee to give a perfect job, interest must be secondary. But how do trustees threat this aspect of their fiduciary duty? This will form the basis of our discourse. Thus, the aim of this work is to take a look at the duty of the trustee not to conflict profit and interest. In this light, a case study of the case of William v. Barton[3] will be considered. In other words, the aim of this work is to report and give an arrant appraisal of the above stated case.


The defendant was a trustee to a trustee estate, of which he is a co-trustee. He was formerly a stockbroker but ceased to be a member of the stock exchange in 1919. In 1920, he entered the employment of a firm of stockbrokers, George Burnand & Co. The terms of the employment was that he is obliged to provide to the firm his services in connection with Bank of England transfer work and for the information provided, he will be paid half the commission earned when relied on. In 1924, Sir John Roper Parkington, the testator of the defendant died. By this, it became necessary to have his securities valued. However, through the pressure of the defendant, George Burnand & Co, had the testators securities valued. After the valuation, the trustee’s share of half the acquired commission was paid to him. Being dissatisfied, the plaintiff, co-trustee, sued.

SYNOPSIS OF ISSUE: That the defendant is not entitled to make profit from his trusteeship.


The counsels, Spens K.C. and R. M. pattisson argued as follows:

(1) That the defendant’s salary depends upon the amount of business introduced by him. By virtue of his position as trustee, the defendant has introduced to his firm the business of the trust estate and has thereby increased his profit. Where a person has the management of property as a trustee he is not entitled to get any personal profit by availing himself of his position as affirmed in the case of In re Duke of Cleverland’s Settled Estates[4].

(2) The defendant cannot retain for his own benefit the half commission paid to him by his firm for the introduction of his business, but is bound to treat it as a part of the testator’s estate.[5] For anything to the contrary would amount to a conflict of his duty and interest.


Gavin Simonds K.C. and F. McMullan, counsels for the defendant argues as follows:

 Relying on the case of In re Dover Coalfield Extension, Ld[6], it was held that the sum paid to the defendant is remuneration earned by him as a clerk and not as a trustee, and therefore he is not liable to account. In that case, a certain trustee worked for Dover Company. He received remuneration for work done as a director of Kent Company. It was held that he received the same not as a profit so to say from the use of the Dover Company’s shares.

HELD: RUSSEL J, whilst giving the leading judgment stated as follows:

1) As a trustee, it is his duty to give the estate the benefit of his unfettered advice in choosing the stockbrokers to act for the estate.

2) That a person who has the management of property as a trustee is not permitted to gain any profit by availing himself of his position, and will be a contrastive trustee of any such profit for the benefit of the persons equitably entitled to the property. On the same principle a trustee has no right to charge for his time and trouble. The rule is stated in the case of Bray v. Ford,[7] where the court stated thus:

“It is an inflexible rule of a court of Equity that a person in a fiduciary position …. Is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict”.

Based on the foregoing holding of the court, the court ruled that the plaintiff is entitled to the declaration asked for. If necessary, an inquiry must be directed, but if the amount can be agreed it may be inserted in the order and order made for the payment of the agreed amount.


The duties of a trustee cannot be over emphasized. A trustee is an agent of trust and as such, guided by certain ethical principles which are more or less the duties stated above. Any act to the contrary is same as putting palm oil in drinkable water. Honesty is the watchword of a trustee, hence the rationale behind the prohibition of duty and interest conflict.  

[1] Hallow v. Lloyd (1886) 39 Ch.D 686 at P. 691.
[2] (1891) 3 Ch. 82 at pp.
[3] [1927] 2 Ch. D at page 9
[4] [1902] 2 Ch. 350.
[5] Underhill on Trusts, 8th Ed., at page 173.
[6] [1908] 1 Ch. 65.
[7] [1896] A.C. 44, 51.

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