PUBLIC TRUSTEE LAW
ARRANGEMENT OF SECTIONS
Public Trustee as Custodian Trustee
Public Trustee as Ordinary Trustee
Liability and Fees
PUBLIC TRUSTEE LAW
A Law to provide for the appointment of a Public Trustee and to amend the law relating to the Administration of Trusts.
(20th May, 1965)
(1) There is hereby established the office of Public Trustee.
(2) The Public Trustee—
(a) is a corporation sole under that name, with perpetual succession and an official seal; and
(b) may sue and be sued under that name like any other corporation sole, but an instrument sealed by him shall not, by reason of his using a seal, be rendered liable to a higher stamp duty than if he were an individual.
(1) There may from time to time be appointed a fit person to the office of Public Trustee and the office may be held in conjunction with other offices which the Public Service Commission may approve.
(2) There may also be appointed such persons to be officers of the Public Trustee as are considered necessary for the purposes of this Law.
The person appointed to the office of Public Trustee is entitled to appear in court in person in a proceeding in which the Public Trustee is a party.
(1) Subject to the provisions of this Law and the regulations made there-under, the Public Trustee may, as he thinks fit—
(a) act as an ordinary trustee;
(b) act as a custodian trustee;
(c) be appointed trustee by the court.
(2) Subject to the provisions of this Law and to the regulations made there-under, the Public Trustee—
(a) may act either alone or jointly with another person or body of persons in a capacity to which he is appointed in pursuance of this Law; and
(b) shall have all the powers, duties, and liabilities, and be entitled to the same rights and immunities and be subject to the control and orders of the court as a private trustee, committee or receiver acting in the same capacity.
(3) The Public Trustee may decline, either absolutely or except on the prescribed conditions, to accept a trust but he shall not decline to accept a trust on the ground only of the small value of the trust property.
(4) The Public Trustee shall not accept—
(a) a trust which involves the management or carrying on of a business except in the cases in which he is authorised to do so by regulations made under this Law; nor
(b) a trust under a deed of arrangement for the benefit of creditors; nor
(c) the administration of an estate known or believed by him to be insolvent.
The Public Trustee may accept trusts which are exclusively for religious or charitable purposes.
Public Trustee as Custodian Trustee
(1) Subject to regulations made under this Law, the Public Trustee may, if he consents to act as such, and whether or not the number of trustees has been reduced below the original number, be appointed to be custodian trustee of a trust either—
(a) by order of the court made on the application of a person on whose application the court may order the appointment of a new trustee; or
(b) by the testator, settler, or other creator of a trust; or
(c) by the person having power to appoint new trustees.
(2) Where the Public Trustee is appointed to be custodian trustee of a trust—
(a) the trust property shall be transferred to the custodian trustee as if he were sole trustee, and for that purpose vesting orders may, where necessary, be made by the court;
(b) the management of the trust property and the exercise of a power or discretion exercisable by the trustees under the trust shall remain vested in the trustees other than the custodian trustee (which trustees are hereinafter referred to as the managing trustees);
(c) as between the custodian trustee and the managing trustees and subject and without prejudice to the rights of other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust property, but the managing trustees shall have free access thereto and be entitled to take copies thereof or extracts there-from;
(d) the custodian trustee shall concur in and perform all acts necessary to enable the managing trustees to exercise their powers of management or other power or discretion vested in them (including the power to pay money or securities into court), unless the matter in which he is requested to concur is a breach of trust, or involves personal liability upon him in respect of calls or otherwise, but, unless he so concurs, the custodian trustee shall not be liable for an act or default on the part of the managing trustees or any of them;
(e) all sums payable to or out of the income or capital of the trust property shall be paid to or by the custodian trustee; but the custodian trustee may allow the dividends and other income derived from the trust property to be paid to the managing trustees or to such person as they may direct, or into such bank to the credit of such person as they may direct, and in such a case, shall be exonerated from seeing to the application of those moneys and shall not be answerable for the loss or misapplication of them;
(f) the powers of appointing new trustees, when exercisable by the trustees, shall be exercisable by the managing trustees alone, but the custodian trustee shall have the same power of applying to the court for the appointment of a new trustee as other trustees;
(g) In determining the number of trustees for the purposes of this Law the custodian trustee shall not be reckoned as a trustee.
(2) The custodian trustee, if he acts in good faith, shall not be liable—
(a) for accepting as correct and acting upon the faith of a written statement by the managing trustees, as to a birth, death, marriage, or other matter of pedigree or relationship, or other matter of fact, upon which the title to the trust property or a party thereof may depend; nor
(b) for acting upon a legal advice obtained by the managing trustees independently of the custodian trustee;
(c) the court may, on the application of either the custodian trustee, or any of the managing trustees, or of a beneficiary, and on proof to their satisfaction that it is the general wish of the beneficiaries, or that on other grounds it is expedient, to terminate the custodian trusteeship, make an order for that purpose, and the court may thereupon make such vesting orders and give such directions as in the circumstances may seem to the court to be necessary or expedient.
(3) The provisions of this section may apply in like manner to the Public Trustee as to a banking or insurance company or other body corporate entitled by regulations made under this Law to act as custodian trustee, with power for such a company or body corporate to charge and retain or pay out of the trust property fees not exceeding the fees chargeable by the Public Trustee as custodian trustee.
Public Trustee as Ordinary Trustee
(1) The Public Trustee may by that name or other sufficient description be appointed—
(a) to be trustee of a will or settlement or other instrument creating a trust; or
(b) to perform a trust or duty belonging to a class which he is authorised by regulations made under this Law to accept, and may be so appointed;
(c) whether the will or settlement or instrument creating the trust or duty was made or came into operation before or after the commencement of this Law; and
(d) either as an original or as a new trustee, or as an additional trustee, in the same cases and in the same manner and by the same persons or court, as if he were a private trustee, with this addition that, though the trustees originally appointed were two or more, the Public Trustee may be appointed sole trustee.
(2) Where the Public Trustee has been appointed a trustee of a trust, a co-trustee may retire from the trust notwithstanding that there are not more than two trustees; but the Public Trustee shall not be so appointed either as a new or additional trustee where the will, settlement, or other instrument creating the trust or duty contains a direction to the contrary, unless the court otherwise orders.
(3) Subject to subsection (5), notice of a proposed appointment of the Public Trustee either as a new or additional trustee shall where practicable be given in the prescribed manner to all persons beneficially interested who are resident in Nigeria and whose addresses are known to the persons proposing to make the appointment or, if the beneficiaries are infants, to their guardians.
(4) If a person to whom such a notice has been given within twenty-one days from the receipt of the notice applies to the court, the court may, if having regard to the interest of all the beneficiaries it considers it expedient to do so, make an order prohibiting the appointment being made.
(5) A failure to give a notice under this section shall not invalidate an appointment made under this section.
(1) Whether or not the Public Trustee is appointed a committee or receiver of a lunatic, he may apply to the court to direct a settlement of the property of a lunatic under this section.
(2) Upon that application, the court may direct a settlement to be made of the property of a lunatic or a part of or an interest in it, on such terms and subject to such powers and provisions as the court may deem expedient, and in particular may give those directions—
(a) where the property has been acquired under settlement, a will or an intestacy, or represents property so acquired; or
(i) by reason of a change in the law of intestacy or of a change in circumstances since the execution by the lunatic of a testamentary disposition, or of an absence of information at the time of that execution; or
(ii) on account of the former management of the property or the expenditure of money in improving or maintaining the property; or
(iii) for any other special reason, the court is satisfied that a person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the lunatic or under a testamentary disposition executed by him.
(3) The court may direct the committee or receiver of the lunatic or a trustee for him—
(a) to execute a vesting instrument, conveyance or other instrument; and
(b) to do any other act or thing which may be required for giving effect to the settlement, in the name and on behalf of the lunatic and, for that purpose, may—
(c) make a vesting order; or
(d) appoint a person to convey, and a settlement approved by the court shall be as effectual and binding on all persons interested as if it had been made by the lunatic while in full capacity.
(4) This section—
(a) applies whether or not the lunatic has executed a testamentary disposition and notwithstanding that it is not known whether he has executed such a disposition or not; but
(b) does not apply when he is an infant.
(5) A person who under an enactment for the time being in force relating to the administration of property has a spes successionis (whether under a testamentary disposition which is known to exist or in the event of the intestacy of the lunatic) or an interest in the property of the lunatic or in a part of it, as well as the committee or receiver and any other person, may request the Public Trustee to apply to the court under this section and, if the Public Trustee neglects or refuses to do so, such a person may himself apply to the court under this section, but notice of his application shall be served on the Public Trustee who may appear on the hearing of the application.
(6) Where the devolution of the property of the lunatic would be subject to native law and custom and would not pass under an enactment for the time being in force relating to the administration of property, a person who would have a spes successionis according to native law and custom shall have the same right as a person who would have a spes successionis under subsection (5).
(7) Subject to making due provision for the maintenance of the lunatic in accordance with his station in life, whether out of the capital or income of the property settled or other property or partly in one way and partly in another, and to providing, by means of a power of appointment or revocation or otherwise, for the possibility of the lunatic recovering full capacity, the court may, in making an order under this section, have regard to—
(a) the manner in which the property has been settled or dealt with on former occasions;
(b) in the case of land or a house built on it, the claims of relatives, employees or dependants to the use or occupation of the land or house, and the expediency of settling personal estate or devolve with the land or house;
(c) the maintenance or education of any illegitimate children of the lunatic and the maintenance of their mother or mothers;
(d) the maintenance of a wife married according to native law and custom who would not have a spes succesionis under subsections (5) and (6), or the maintenance of the parents or natural parents of the lunatic;
(e) the continuation or provision of any pensions, and the application of a part of the income for charitable purposes;
(f) the provisions of a testamentary disposition of the lunatic;
(g) the expediency of providing for—
(i) annual or capital charges and powers to create them;
(ii) discretionary trusts, trusts for effecting or maintaining policies of insurance, powers of appointment, sinking funds for making good loss by fire (in lieu of, or in addition to, insurance) or for other purpose;
(iii) the extension of statutory powers of investment, management or otherwise;
(iv) the manner in which costs are to be raised and paid, whether out of the settled property or otherwise;
(v) other matters or things which, having regard to the nature of the settlement or the property to be settled, and the management, development, and enjoyment of that settlement or property, and the persons who are to take, either successively or otherwise, the court may consider material.
(8) At any time before the death of the lunatic the court may, as respects property remaining subject to the trusts of a settlement made under this section, on being satisfied that a material fact was not disclosed to the court when the settlement was made, or on account of a substantial change in the circumstances, by order vary the settlement in such manner as it thinks fit, and give consequential directions.
(9) The Chief Judge may make rules for giving effect to the provisions of this section, and in particular—
(a) for compelling information to be furnished respecting, and the production of, testamentary dispositions, and the lodgment thereof in court, or respecting a person who might receive a benefit under a settlement directed by the court under this section; or
(b) for prescribing what notices, if any, of the proceedings are to be served, and for dispensing with the notices; and
(c) where necessary, for making representation orders.
(10) In this section “testamentary disposition” means an instrument executed by the lunatic while of full testamentary capacity, which, if unrevoked might, on his death, be proved as a will or codicil; and the court may act on such evidence as to the existence or absence of a testamentary disposition as it thinks fit.
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.
(1) If in pursuance of a regulation under this Law the Public Trustee is authorised to accept by that name probates of wills or letters of administration, the court may grant probate of a will or letters of administration to the Public Trustee by that name.
(2) For the purpose of subsection (1) the court shall consider the Public Trustee as in law entitled equally with other persons or class of person to obtain the grant of letters of administration, save that—
(a) the consent or citation of the Public Trustee shall not be required for the grant of letters of administration to another person; and
(b) as between the Public Trustee and the widower, widow, or next of kin of the deceased, the widower, widow, or next of kin shall be preferred, unless for good cause shown to the contrary.
(1) An executor who has obtained probate, or an administrator who has obtained letters of administration and notwithstanding that he has acted in the administration of the deceased’s estate, may with the sanction of the court and after such notice to the person beneficially interested as the court directs, transfer the estate to the Public Trustee for administration either solely or jointly with the continuing executors or administrators, if any.
(2) The order of the court sanctioning the transfer shall, subject to this Law, give to the Public Trustee all the powers of that executor or administrator.
(3) The executor and administrator shall not in any way be liable in respect of an act or default in reference to that estate subsequent to the date of the order, other than the act or default of himself or of persons other than himself, for whose conduct he is in law responsible.
The court may, on the application of a person beneficially interested, appoint the Public Trustee, if sufficient cause is shown, in place of all or an existing executor or administrator or of a guardian of infants, or committee or receiver of a person incapable of managing his own affairs.
The order of the court granting probate or letters of administration to the Public Trustee sanctioning the transfer of an estate to the Public Trustee or the appointment of the Public Trustee as executor of an estate shall, subject to this Law, give to the Public Trustee all the powers of the Administrator-General under the Administrator-General Law, except that where at the time of the transfer to, or appointment of, the Public Trustee, the estate is fully administered and only the residue is transferred, the Public Trustee shall not be entitled to the remuneration allowed to the Administrator-General when administering estates.
In any case where the Public Trustee may be appointed by the court under subsection (1) of section 6 or subsection (1) of section 8 of this Law, when the persons beneficially interested are minors or otherwise incapacitated from managing their own affairs, the Public Trustee may himself apply to be appointed.
Liability and Fees
The revenues of Cross River State of Nigeria shall be liable to make good all sums required to discharge the liability which the Public Trustee, if he were a private trustee, would be personally liable to discharge, except where the liability is one to which neither the Public Trustee nor any of his officers has in any way contributed and which neither he nor any of his officers could by the exercise of reasonable diligence have averted; in that case neither the Public Trustee nor the revenues of the State shall be subject to any liability.
In all cases where the revenues of Cross River State of Nigeria have to be utilised under the provisions of section 17, it shall be lawful for the court, if it appears that the person holding the office of Public Trustee has acted honestly and ought fairly to be excused for the breach of trust or other act or omission by which the liability was incurred and for omitting to obtain the directions of the court in the manner in which to relieve the person either wholly or partly from personal liability for the breach or other act or omission under this Law.
(1) There shall be charged in respect of the duties of the Public Trustee such fees whether by way of percentage or otherwise, as the Commissioner may fix.
(2) Expenses which might be retained or paid out of the trust property if the Public Trustee was a private trustee, shall be so retained or paid and the fees shall be retained or paid in the like manner as and in addition to those expenses.
(3) The fees shall be paid to the Accountant-General for credit of the appropriate fund.
(4) The incidence of the fees and expenses under this section as between capital and income shall be determined by the Public Trustee.
(5) In this section “Commissioner” means the Commissioner for the time being charged with responsibility for administration of estates.
A person aggrieved by an act or omission or direction of the Public Trustee in relation to a trust may apply to the court and the court may make such order in the matter as the court thinks just.
(1) The Public Trustee or an officer of the Public Trustee shall not act under this Law for reward except as provided by this Law.
(2) The Public Trustee may, subject to the regulations made under this Law, employ for the purposes of a trust such legal practitioners, bankers, accountants and brokers, or other persons as he considers necessary.
(3) In determining the persons to be employed in relation to a trust the Public Trustee shall have regard to the interests of the trust, but subject to this, shall, whenever practicable, take into consideration the wishes of the creator of the trust, and of the other trustees, if any, and of the beneficiaries, whether expressed or as implied by the practice of the creator of the trust, or in the previous management of the trust.
(4) A person prescribed may, on behalf of the Pubic Trustee, take an oath, make a declaration, verify an account, give personal attendance at a court or place, and do an act or thing which the Public Trustee is required or authorised to take, make, verify, give or do.
(5) Where a bond or security would be required from a private person upon the grant to him of administration, or upon his appointment to act in a capacity, the Public Trustee, if administration is granted to him or if he is appointed to act in such a capacity, shall not be required to give the bond of security, but shall be subject to the same liabilities and duties as if he has given the bond or security.
(6) The entry of the Public Trustee by that name in the books of a company does not constitute notice of a trust, and a company is not entitled to object to enter the name of the Public Trustee on its books by reason only that the Public Trustee is a corporation, and, in dealings with property, the fact that the person or one of the persons dealt with is the Public Trustee does not of itself constitute notice of a trust.
(1) Subject to regulations under this Law and unless the court otherwise orders, the condition and accounts of a trust shall, on an application being made and a notice thereof being given in the prescribed manner by a trustee or beneficiary, be investigated and audited by such legal practitioner or public accountant as may be agreed on by the applicant and the trustees or, in default of agreement, by the Public Trustee or some person appointed by him.
(2) Except with the leave of the court such an investigation shall not be required within twelve months after a previous similar investigation or audit and a trustee or beneficiary shall not be appointed under this section to make an investigation or audit.
(3) The person making the investigation or audit (hereinafter called the “auditor”)—
(a) shall have a right of access to the books, accounts, and vouchers of the trustees, and to securities and documents of title held by them on account of the trust; and
(b) may require from them such information and explanation as are necessary for the performance of the duties.
(4) Upon the completion of the investigation and audit the auditor shall forward to the applicant and to every trustee a copy of the accounts, together with a report thereon, and a certificate signed by him to the effect—
(a) that the accounts exhibit a true view of the state of the affairs of the trust; and
(b) that he has had the securities of the trust fund investments produced to and verified by him; or
(c) as the case may be, that the accounts are deficient in such respects as are specified in the certificate.
(5) A beneficiary under the trust shall, subject to regulations under this Law, be entitled—
(a) at all reasonable times to inspect and make copies of the accounts, report, and certificate; and
(b) at his own expense, to be furnished with copies thereof or extracts there-from.
(6) The auditor may be removed by order of the court and if he is removed, or resigns, or dies, or becomes incapable of acting before the investigation and audit is completed, a new auditor may be appointed in his place in like manner as the original auditor.
(7) The remuneration of the auditor and the other expenses of the investigation and audit shall—
(a) be such as may be prescribed; and
(b) unless the Public Trustee otherwise directs, be borne by the estate.
(8) In the event of the Public Trustee directing as under subsection (7) he may order that those expenses be borne by the applicant or by the trustee personally or partly by them and partly by the applicant.
(9) If the person having the custody of a document to which the auditor has a right of access under this section—
(a) fails or refuses to allow him to have access thereto; and
(b) in any way obstructs the investigation or audit, the auditor may apply to the court, and thereupon the court shall make such order as it thinks just.
(10) A person who in a statement of accounts, report, or certificate required for the purposes of this section willfully makes a statement that is false in a material particular is guilty of an offence.
Penalty, imprisonment for twelve months or a fine of two hundred naira, or both.
(1) The Executive Council may make regulations for carrying into effect the objects of this Law and, in particular, for all or any of the following purposes—
(a) prescribing the trusts or duties which the Public Trustee is authorised to accept or undertake, and the security, if any, to be given by the Public Trustee and his officers;
(b) the transfer to or from the Public Trustee of any property;
(c) the accounts to be kept and the audit of the accounts;
(d) the establishment and regulation of a branch office;
(e) excluding a trust from the operation of this Law or a part of this Law;
(f) the form and manner in which notices under this Law shall be given.
(2) If the regulations require a declaration to be made for a purpose, a person who makes the declaration knowing it to be untrue in a material particular is guilty of an offence:
Penalty, a fine of two hundred naira or imprisonment for twelve months, or both.
(1) This Law shall not have effect—
(a) in relation to a matter in respect of which the Federal Public Trustee has in pursuance of a written law commenced to function at the date of the commencement of this Law and in respect of which he is willing to continue to function; nor
(b) in relation to a matter which it is agreed between the Federal Public Trustee and the Public Trustee appointed under this Law can more conveniently be dealt with by the Federal Public Trustee.
(2) In a case where subsection (1) applies, the Federal Public Trustee shall continue to act in accordance with that written Law.
In this Law—
“court” means the High Court;
“expenses” includes costs and charges;
“letters of administration” means letters of administration of the estate and effects of a deceased person, whether general or with a will annexed, or limited either in time or otherwise;
(a) a person adjudged a lunatic under the provisions of the Lunacy Law; and
(b) a person with regard to whom it is proved to the satisfaction of the court that that person is through mental infirmity arising from disease or age incapable of managing his affairs;
“private trustee” means a trustee other than the Public Trustee;
“trust” includes an executorship or administratorship, guardianship of infants, or the office of the committee or receiver of the estate of a person incapable of managing his own affairs; and
“trustee” shall be construed accordingly;
“trust property” includes all property in the possession or under the control wholly or partly of the Public Trustee by virtue of a trust.
This Law may be cited as the Public Trustee Law.
PUBLIC TRUSTEE LAW
List of Subsidiary Legislation
PUBLIC TRUSTEE (FEES) REGULATIONS
[E.N.L.N. 17 of 1967. Section. 19.]
(20th May, 1965)
These regulations may be cited as the Public Trustee (Fees) Regulations.
In these regulations the expression “small estate” means an estate whose capital value is proved to the satisfaction of the Public Trustee to be less than four hundred naira.
The fees specified in the Schedule shall be paid in respect of the duties of the Public Trustee under the Law.
(A) Acceptance fee, payable at the commencement of administration
[Section 19 (1).]
Minimum Composite Fees
|Existing Will Trusts
or Settlement Trusts
or New settlements
transferred to the
Where the value of the property is ₦200 or less.…….
Where the value of the property exceeds ₦1,000……
Where the value of the property exceeds ₦1,000 but does not exceed ₦3,000……………………………………………..
Rate per cent, on the gross capital value, where the value of the property exceeds ₦3,000 ………………..
(A) Acceptance fee, payable at the commencement of administration—continued
Minimum Composite Fees
|Existing Will Trusts
or Settlement Trusts
or New settlements
transferred to the
|₦ k||₦ k|
|On the first ₦10,000 ……………………………………
On the excess of ₦10,000 up to ₦50,000 ……………
On the excess of ₦50,000 up to ₦100,000 ………….
On the excess of ₦100,000 up to ₦150,000 ………..
On the excess of ₦150,000 …………………………….
(B) Capital fees on withdrawal
Upon the withdrawal of any capital from the trust property a fee of five percent shall be charged upon the capital value of the property withdrawn.
(C) Income Fees
(a) In the case of small estates ………………………. Nil
(b) On other estates ……………………………………. One percent
(a) In the case of small estates ………………………….. Nil
(b) On other estates ………………………………………… Two percent
(D) Management Fees
For every ₦200, and also for every fractional part of ₦200, of the amount
advanced ……………………………………………………………………………. 5.00
For every ₦200, and also for every fractional part of ₦200, of the sale or pur- chase money …………………………………………………………………………. 2.00
For every ₦200, and also for every fractional part of ₦200, of the sale or pur- chase money ……………………………………………………………………………. 5.00
For every ₦200, and also for every fractional part of ₦200, of the sale or purchase money………………………………………………………………………………………. 5.00
For every ₦200, and also for every fractional part of ₦200, of the price of the goodwill…………………………………………………………………………………….. 5.00 For every ₦200, and also for every fractional part of ₦200, of the price of other assets except as in paragraph 3 above ……………………………………………. 5.00
For every ₦200, and also for every fractional part of ₦200, of the amount raised…………………………………………………………………………………….. 5.00
For each visit, subject to a maximum of ₦6 ……………………………………… 1.00
For every ₦200, and also for every fractional part of ₦200, of the total annual rent collected ………………………………………………………………………………………. 10.00
(E) Registration Fee
Upon registering a notice of any dealing with a beneficial interest in trust property …. 0.25
(F) Inquiry Fee
For each reply or statement furnished for the purpose of dealing with a beneficial interest ………………………………………………………………………………………… 0.50
PUBLIC TRUSTEE REGULATIONS
[E.N.L.N. No. 16 of 1967. Section 23.]
These regulations may be cited as the Public Trustee Regulations.
In these regulations—
“trust” includes a trust duty or office which the Public Trustee is authorised by the Law or by these Regulations to accept; and the expression “trustee” shall be construed accordingly;
“trust instrument” includes an instrument, Act, Law, Decree, Edict, or order of court, by which a trust is created or declared;
“trust property” includes all property subject to a trust, or comprised in an estate, which is proposed to be administered by the Public Trustee.
(1) The central office of the Public Trustee shall be situated in Calabar.
(2) Branch offices may from time to time be established by the Governor at such places in Cross River State of Nigeria as may be prescribed by notice in the Cross River State of Nigeria Gazette.
There may from time to time be appointed to the branch offices officers of such ranks and designations as the Public Service Commission may decide who shall generally assist the Public Trustee in the performance of his duties and shall have the powers and perform the duties assigned to them by or under these Regulations.
Subject to the Law and to these Regulations, the Public Trustee is authorised—
(a) to accept a trust created or declared by a trust instrument or arising upon an intestacy;
(b) to accept and perform the duties of the office of guardian of an infant beneficiary when those duties and office are incidental to the office of trustee of a trust which he has accepted;
(c) to accept any duty incidental to, and act in, the office of agent or attorney for any person where the execution of a trust is involved in the office;
(d) to accept by the name of Public Trustee probate or letters of administration of any kind and either as principal or as agent of a person;
(e) to accept as custodian trustee a trust created or declared by a trust instrument;
(f) to receive any money or damages paid to him on behalf of, or in trust for, a person in pursuance of an order of court and to apply the same in accordance with any order or directions of the court or a judge there-under;
(g) to receive any sum of money paid to him on behalf of, or in trust for, a community or group of persons, being a sum paid or awarded to that community or group of persons as value or compensation for the acquisition by Government or any person or persons of land or property belonging to that community or group of persons, and to apply that money in accordance with a scheme or trust created or approved by that community or group of persons, but he shall not accept the trust of any instrument made solely by way of security for money.
The Public Trustee may, if he thinks fit—
(a) act as custodian trustee of a trust which involves the management or carrying on of business, but upon the condition that—
(i) he shall not act in the management or carrying on of such business; and
(ii) he shall not hold any property of such a nature as will expose the holder thereof to any liability except under exceptional circumstances and when he is satisfied that he is fully indemnified or secured against loss;
(b) accept as ordinary trustee, under exceptional circumstances, a trust which involves the management or carrying on of business, but upon the conditions that, except with the consent of the Accountant-General, he shall only carry on the business—
(i) for a short time not exceeding eighteen months; and
(ii) with a view to sale, disposition or winding up; and
(iii) if satisfied that the business can be carried on without risk or loss.
(1) A testator may appoint the Public Trustee to be trustee or custodian trustee in a testamentary instrument without previously applying to him for his consent to act as such, but except as provided in paragraph (2), the appointment shall not have effect unless and until his consent to act is obtained in accordance with these Regulations.
(2) Where an appointment under paragraph (1) has been made the Public Trustee may, at any time after the fact of his appointment has come to his knowledge, act as if an application for his consent had been received by him.
(3) No person who is not a testator shall appoint the Public Trustee to be trustee or custodian trustee unless he first obtains the consent of the Public Trustee to act as such before making the appointment.
(4) It shall be the duty of a person who is appointed by a testator to be co-trustee with the Public Trustee, and who does not renounce or disclaim the trust, to give to the Public Trustee notice in writing of his appointment as co-trustee as soon as practicable after the appointment has come to his knowledge.
(1) Upon receiving an application for his consent to act as trustee or as custodian trustee, the Public Trustee may—
(a) require to be produced to him the trust instrument (if any); or
(b) require to be supplied to him—
(i) a copy of that instrument and of any other document affecting the trust;
(ii) any particulars as to the nature and value of any trust property;
(iii) any liabilities attaching to any trust property;
(iv) the holder of any trust property;
(v) the names and places of abode of the beneficiaries and trustees under the trust; or
(vi) such other information relating to the trust as he may consider desirable to obtain in any particular case.
(2) As soon as possible after receiving such application the Public Trustee shall take into consideration upon such evidence as may appear to him sufficient—
(a) the gross capital value of the trust property;
(b) the mode of investment and the condition of the trust property;
(c) the situation, tenure, and character of any land comprised in the trust property;
(d) liabilities, if any, attaching to the trust property or the holder thereof;
(e) the duties incident to the office of trustee of the trust;
(f) the places of abode and circumstances of any beneficiaries; and
(g) all other circumstances of the particular case.
(3) After considering the matters set out in paragraph (2), the Public Trustee shall decide whether to accept or refuse the application, and shall give notice to the applicant of the acceptance or refusal and, in case of an acceptance, shall in writing under his official seal signify his consent to act in the trust.
(4) On the appointment of the Public Trustee being completed, the Public Trustee shall where branch offices have been established, determine whether the trust shall be administered from the central office or from a branch office, and shall give directions accordingly, and such direction may at any time be rescinded or varied by him at his discretion.
Administration of Trusts and Estates
There shall be kept at the central office of the Public Trustee such registers and books as may be required for recording or entering the following particulars of any trust or estate which the Public Trustee is administering—
(a) the date of the acceptance of the trust;
(b) particulars of the trust property from time to time;
(c) the names and places of abode of the person or persons entitled to the capital and in receipt of the income of the trust property;
(d) a reference to any notice received of a dealing with a beneficial interest in the trust property and of any exercise of a power relating to the trust or estate;
(e) an entry of any decision or opinion of the court in respect of the trust or estate;
(f) such entries of his decisions and such other particulars as the Public Trustee may think fit, and these particulars shall be recorded or entered accordingly.
The Public Trustee may—
(a) invest or retain invested money belonging to a trust or estate and coming to his hands in any mode of investment expressly or impliedly authorised by the trust instrument or, if there is no trust instrument, by a written law for the investment of trust funds; and
(b) if authorised by the trust instrument or by such written law, retain any investment existing at the date of the commencement of the trust, but he shall not invest, or hold any investment, in such manner as to expose him to liability as the holder thereof, unless he is satisfied that he is fully indemnified or secured against loss.
The Public Trustee shall keep separate accounts for every trust or estate.
(1) Where a deed or other trust instrument requires to be executed by the Public Trustee under his official seal, the seal may be authenticated by the signature of the Public Trustee or of an officer of the Public Trustee duly authorised by the Public Trustee in that behalf under his seal.
(2) A deed or other instrument purporting to be a deed or instrument executed by the Public Trustee and to be sealed with his seal authenticated in the manner provided in this regulation shall be received in evidence and be deemed to be a deed or instrument so executed without further proof unless the contrary is shown.
(1) The income of the trust property may be paid to the person for the time being entitled to receive it either through a bank or direct.
(2) Where authority is given to a corporation or bank to pay any income to any person, the books of that corporation or bank showing the payment of that income in accordance with the authority shall be sufficient discharge to the Public Trustee.
(3) Where authority is given to a person to pay any income to the bank account of the person entitled, the certificate of that bank stating the receipt of that income is a sufficient discharge to the Public Trustee.
(4) Where a person is solely entitled to receive any income, the Public Trustee may, on the request in writing of that person, authorise that person for such period as the Public Trustee may think fit to collect or arrange for the collection of that income, and during the continuance of the authority, the request in writing shall be a sufficient discharge to the Public Trustee in respect of that income.
The Public Trustee may, if the special circumstances of the case appear to him to render it expedient so to do, pay to any other trustee of the trust, or allow that other trustee to receive, the income of the trust property or any part thereof upon that trustee undertaking to apply it in the manner directed by the trust.
Subject to the Law and to these Regulations and to the terms of the trust, the Public Trustee may, in the administration of a trust or estate, take and use professional advice and assistance in regard to legal or other matters, and may act on credible information, though less than legal evidence, as to matters of fact.
The Public Trustee may at any time require a statutory declaration or other sufficient evidence that a person is alive and is the person to whom any money or property is payable or transferable, and may refuse payment or transfer until the declaration or evidence is produced.
Where a person appearing to be beneficially entitled to a sum of money under the trust or to be interested in the trust property—
(a) cannot be found; or
(b) it is not known whether such a person is living or dead, the Public Trustee may apply to the court for directions as to the course to be taken with reference to the person and, until an order of the court is made, shall keep any sum payable to the person, and if it is kept for more than six months shall invest it or deposit it at interest and shall accumulate the dividends or interest thereof.
(1) Upon an application in writing by or with the authority of a person interested in the trust property the Public Trustee shall—
(a) permit the applicant or his legal practitioner or other authorised agent to inspect and take copies of any entry in a register or book relating to the trust or estate and (so far as the interest of the applicant in the trust property is or may be affected thereby) of any account notice or other document in the custody of the Public Trustee;
(b) at the expense of the applicant supply him or his legal practitioner or other agent authorised in writing with a copy of such a entry, account notice, or document, or with an extract there-from;
(c) give to the applicant or his legal practitioner or other agent authorised in writing such information respecting the trust or estate and the trust property as may be reasonably requested in the application and which is within the power of the Public Trustee.
(2) Subject to the provision of subsection (1) the Public Trustee shall observe strict secrecy in respect of a trust or estate which he is administering.
Investigation and Audit of Trust Accounts
An application under subsection (1) of section 20 of the Law shall be made to the Public Trustee and notice of the application shall, unless the Public Trustee otherwise directs, be given by the applicant to every other person being a trustee or beneficiary under the trust.
(1) Upon receiving an application under regulations 18 and 19, the Public Trustee may in his absolute discretion by notice in writing to the applicant require that before a day to be specified in the notice such security, by deposit of a sum of money, as he may deem sufficient shall be given to him by the applicant for the payment of any expenses of the investigation and audit which may be ordered by the Public Trustee to be paid by the applicant personally.
(2) Where such a requirement is made no further proceedings shall be taken on the application until the security has been given, and if it is not given before the day specified in the notice the application shall be disallowed unless the Public Trustee under special circumstances thinks fit to extend the time for giving the security or to dispense with the security.
(3) A sum so deposited shall be kept by the Public Trustee on deposit in his name at a bank until all proceedings in connection with the investigation and audit have been concluded, and thereupon the deposited sum shall be applied in or towards payment of any expenses of the investigation and audit which may be ordered to be paid by the applicant personally and the balance, if any, shall be paid to the applicant.
The Public Trustee may in his discretion on the application of a trustee or beneficiary direct that the investigation and audit shall extend only to a specified period of time or to a specified part of the trust property or shall otherwise be restricted.
If within one month from the date of the application under subsection (1) of section 20 of the Law no legal practitioner or public accountant is appointed by the applicant and the trustees to conduct the investigation and audit, there shall be deemed to be a default of agreement within the meaning of that subsection and the applicant may apply to the Public Trustee accordingly.
The Public Trustee shall determine the remuneration of the auditor and the other expenses of the investigation and audit, but he may refer the costs of any legal practitioner, being part of the expenses, to a taxing officer to be appointed by the court and, in such a case, the amount of the costs when taxed shall be included in the expenses.
(1) Upon the completion of the investigation or audit the auditor shall forward to the Public Trustee—
(a) copies of the report and the certificate of the auditor under section 20 of the Law; and
(b) such copies of accounts and other documents as the Public Trustee may require, and the Public Trustee shall consider all these copies before giving any direction or making any order under subsections (7) and (8) of that section.
(2) The expenses of making and forwarding the copies and the fee of the Public Trustee, within the limits prescribed by or in pursuance of an order relating to the fees of the Public Trustee for the time being in force, shall for the purpose of subsections (7) and (8) of section 20 of the Law be part of the expenses of the investigation and audit.
(1) Before making an order under subsections (7) and (8) of section 20 of the Law, the Public Trustee shall, if any of the parties interested so desires, hear the parties in such manner as he may think fit.
(2) The order shall specify the person by or to whom a sum is to be paid and the amount of the sum; and furthermore—
(a) the order may direct payment of the taxed costs of a legal practitioner employed in connection with the investigation and audit; and
(b) the costs shall be taxed by a taxing officer to be appointed by the court; and
(c) the amount of the costs when taxed shall be paid as if the amount had been specified in the order.
(3) The order may be enforced in the same manner as a judgment or order of the court to the same effect.
The accounts of the Public Trustee shall be audited and the securities held by him from time to time by such person or persons as the Governor may appoint and in accordance with such directions as may be given by the Governor.
An officer of the Public Trustee authorised by him in writing in that behalf may take an oath, make a declaration, or give personal attendance at any court or place.
(1) A notice or application required to be given or made for the purposes of the Law or these regulations to the Public Trustee may be addressed to him by the name of his office to his office at Calabar, or where branch offices have been established, if the notice relates to a trust or estate in the course of administration or proposed to be administered from a branch office, then at that branch office.
(2) A notice or application required to be given or made for the purposes of the Law or these Regulations to a person other than the Public Trustee may be addressed to that person at his last known place of abode or place of business.
(3) The notice or application is duly given or made if it is delivered to the addressee at the place at which it is addressed or sent to him at that address by post.
(4) Where a person who may make an application, or give a consent, or do an act, or be party to a proceeding under these Regulations is an infant, idiot or lunatic, the guardian or, as the case may require, the committee or receiver of the estate of that person, may make the application, or give the consent, or do the act, or be party to the proceeding in place of that person, and shall otherwise represent that person for the purposes of these Regulations.
(a) there is no guardian or committee or receiver of the estate of the infant, idiot, or lunatic; or
(b) a person is of unsound mind, or incapable of managing his affairs but has not been found or adjudged to be a lunatic, it shall be lawful for the court to appoint a guardian of such an infant, idiot, lunatic, or person for the purpose of any proceedings under these Regulations and from time to time to change that guardian.
(1) The Public Trustee may in writing authorise an officer of the Public Trustee appointed under subsection (2) of section 4 of the Law to exercise and perform, either generally or in relation to a particular case and subject to such conditions and restrictions as the Public Trustee may impose, all or any of the powers and duties of the Public Trustee under these Regulations except the power or duty of determining whether a trust or estate shall be administered from the central office or from a branch office.
(2) An authority, condition or restriction given under this regulation may at any time in like manner be withdrawn or varied by the Public Trustee at his discretion.