Filling the Gaps Between Colonial Legal Heritage and Prevailing Local Customs in Family Relations: the Place of Secret Trust
| Date | 01 February 2016 |
| Author | |
| DOI | 10.3366/ajicl.2016.0139 |
| Published date | 01 February 2016 |
| Pages | 45-63 |
Secret trust is an offshoot of the interaction of monogamy and patriarchy.
D. Hayton, ‘Developing the Law of Trusts for the Twenty-first Century’ [1990] L.Q.R. 106. Patriarchy is a socio-historical phenomenon of men as a dominant factor in societal power relations. Men in this sense have been found to have the crucial features of being authoritarian, unemotional and distant. These attributes are taken into their functions in the larger society where they are central to political, moral, filial, property authority and ultimately, a claim to superiority. J. Wall ‘Fatherhood, Childism, and the Creation of Society’ 75 (1)
A. Atsenuwa ‘Constitutionalism and Legal Feminism: Stepping Stones or Impediments on the Long Road to freedom for Nigerian Women?’, Maiden Professor Jadesola Akande Memorial Lecture, Lagos, 2011 Nigerian Institute of Advanced Legal Studies, 6−7; A. Atsenuwa, ‘Gender and Law’, Legal Research and Development Centre Lagos, 2009, 1.
Monogamy and patriarchy find rigid expressions in family and private property. This is because monogamy envisages equality and ‘one at a time intimacy’ and, therefore, succession to private property is always closed. Patriarchy, on the other hand, being authoritarian in nature cannot be sustained in a monogamous culture. Patriarchy's main attribute is inequality of male and female genders, that is, male superiority and the subjugation of women. Patriarchy would thus find better expressions in cultures of polygyny.
[1997] 7 (part 512) NWLR 283, 304–5.
In Nigeria, very few venture in to dispositions by wills because of the risk of fecund disputes and lengthy litigation.
B. Adesanya ‘Marriage, Divorce and Succession: The legal Aspects’ (2009), a paper presented at a Seminar marking the 10th Anniversary of the Diocese of Lagos West (Anglican Communion) at the Archbishop Vinning Memorial Church Cathedral on the 12 June,2009; O. Feyi-Sobanjo ‘Overcoming Legal Challenges to Electronic Will Creation’ (2010) 1 (8) ITECB 2.
In order to overturn the will of a deceased patriarch he would usually have be alleged to have been unduly influenced or of unsound mind. As Adesanya notes, men of substantial estates now prefer to make gifts of their property in their lifetime to avoid this outcome.Adesanya,
An individual's right of privacy, on the other hand, is a concept variously understood and propagated.
For Nigeria, see Freedom of Information Act, 2011; see also section 37 of the Constitution of the Federal Republic of Nigeria Cap C23–9, 30 Laws of the Federation 2004, LexisNexis Butterworth; see further Articles 8 and 12 of the Human Rights Act, 1998 (UK); European Convention on Human Rights, (ECHR) Article 8.
It essentially connotes the right of an individual not to share certain aspects of his existence with others. The object of privacy may relate to his person, his property or individualised notions of what constitutes part of ‘self’.W. Hamilton, ‘Property – According to Locke’ 41 Yale L. J. 864 (1931); S. Warren and L. Brandeis ‘The Right to Privacy’ 4 Harv. L.R 193 (1890); P. Winfield ‘Privacy’ [1931] CLXXXV L.Q.R. 22; L. Henkin ‘Privacy and Autonomy’ 74 Columb. L.R. 1410,1419 [1974]; D. Feldman ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty’ [1994] C.L.P. 41; R. Gavison ‘Privacy and the Limits of the Law’ 89 Yale L.J. 421 [1980]; B. Neill ‘The Protection Of Privacy’ [1962] 25 M.L.R. 893; P. Prescott ‘
Some questions raised against this background are as follows. Is it the case, perhaps, that efficiency makes the secret trust even more relevant and more workable? In intimate relations, is there a threshold for finer lines of discreetness that allows for sleeping dogs to lie? Is there a vital role, perhaps, for the trust in jurisdictions where interaction of colonial legal heritage with prevailing local customs in marriage and family has brought about anomalies, such as the case with Nigeria?
It must be stated here that although Nigerian lawyers find the secret trust fascinating, it is only beginning to gain grounds in Nigeria with many commercial banks establishing trust subsidiaries.
It is in the light of the issues raised, that the secret trust is examined with the objective of establishing a link between it, privacy, private property and family jurisprudence, which gives it a place in jurisdictions where liberty and patriarchy make strange bedfellows.
Liberty often has human rights as a befitting companion. With human rights comes empowerment of women, equality of men and women, human dignity, and various rights that ultimately displace patriarchy. Patriarchy makes an apt bedfellow with autocracy, dictatorship and various institutions where might is not only right but ‘beautiful’!
This article uses the Nigerian marriage family framework as a focal case study. Section II analyses the development of the trust. Section III examines family and marriage in the Nigerian context. Section IV conceptualises secret trust as a right of privacy and, in this sense, makes a case for its continuing relevance in Nigeria's jurisprudenceThe secret developed to enable a
This was subsequently extended to other aspects of the affairs of the individual, such as where a person chooses to delegate the function of distribution of his estate to another, usually a solicitor and sometimes to charities.
It exists in spite of statutory provisions on formalities regarding wills and the transfer of property. This is also the main objection to theTo continue reading
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