Filling the Gaps Between Colonial Legal Heritage and Prevailing Local Customs in Family Relations: the Place of Secret Trust

Date01 February 2016
Published date01 February 2016

Secret trust is an offshoot of the interaction of monogamy and patriarchy.1

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) Journal of the American Academy of Religion (2007) 52−76; P. Horn ‘Where Is Feminism Now?’ 26 Agenda, Women in Local Government (1995) 26, 71–4; see also M. Humm The Dictionary of Feminist Theory, Prentice Hall, Harvester, Wheatsheaf (1995); M. Htun and S. Weldon ‘State Power, Religion, and Women's Rights: A Comparative Analysis of Family Law’ 18 (1) Indiana Journal of Global Legal Studies (2011) 145–65; A. Titkow ‘Do Men Have Their Own Glass Ceiling’ 172 Polish Sociological Review (2010) 391. It is noteworthy though, that Tikow's study found (at least with respect to Poland) that women were their own problem in that men were more likely than women to shift position given certain indices. For some responses to the phenomenon of patriarchy, see for Nigeria, ‘The First National Implementation Plan for NV20: 2020 (2010– 2013)’ (Economic Transformation Blue Print, 1st October Publishing, available at 10; see further Article 3 of the International Covenant on Economic, Social and Cultural Rights (adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 2 January 1976; Convention on the Elimination of all forms of Discrimination against women, adopted by General Assembly resolution 34/180, entered into force 3 September 1981; Can T.S. 1982 No. 31 ratified by Nigeria 1985. Nigeria further signed the optional protocol in 2000 and ratified it in 2004. However, section 12 of the Nigerian Constitution requires further action for these treaties and covenants to become law in Nigeria, which has not been undertaken. Other relevant responses are: Declaration on the Elimination of Violence against Women adopted by General Assembly resolution 48/104 of 20 December 1993 – see, in particular, the preamble; Article 18(3) of the African Charter on Human and Peoples’ Rights ratified by Nigeria as Cap A9 No.2 Laws of the Federation 2004 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

It is a trust by which a settlor vests property in a trustee apparently as a sole owner or as a trustee, for a beneficiary known only to the settlor and the apparent trustee or trustee.2

McCormick v Grogan (1869) 4 L.R. H.L. 82; Blackwell v Blackwell (1929) A. C. 318; L.A. Sheridan English & Irish Secret Trusts’ [1951] 67 L.Q.R. 314, 326; W. Holdsworth ‘Secret Trusts’ (1937) 53 L.Q.R.501; D. Kincaid ‘The tangled web: the relationship between a secret trust and the Will’ Conv. [2000] 420. Both Sheridan and Holdsworth appear to support the basic reasoning upon which the secret trust is recognised, although, the former suggested that any future legislation on Will must take into cognisance the logic of the secret trust while Holdsworth's only quarrel with the trust appears to be in the distinction made as to timing of communication with respect to secret and half secret trust.

English law was introduced to many countries in Africa by a process of octroi and it remains influential in their affairs. While English law and way of life may have impacted on many, it appears that these societies have consciously resisted the dilution of patriarchy.3

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.

It has to be noted that customary laws found ways of cushioning the effect of patriarchy.4

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.

This is well illustrated from the facts of Mojekwu v Mojekwu.5

[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.6

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.7

Adesanya, ibid., at 21, paragraph 9.07.

The prudence and success of this approach is, of course, debatable

An individual's right of privacy, on the other hand, is a concept variously understood and propagated.8

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’.9

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 ‘Kaye v Robertson – a reply’ [1991] 54 M.L.R. 451; M. Waterfield ‘Now You See It, Now You Don't: The Case for A Tort of Infringement of Privacy In New Zealand’ 10 Canterbury L. Rev. 182 [2004]; N. Moreham ‘Privacy In Public Places’ [2006] 65 C.L.J. 606; D. Bedingfield ‘Privacy or Publicity’ [1992] 55 M.L.R 111; B. Markesinis ‘Our Patchy Law of Privacy – Time to do Something About It’ [1990] 53 M.L.R. 892.

Against this interest is the public's interest in shared societal relations and liberty, the latter a necessary element for optimal expression, as a process, of the innate potential of being human

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?10

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.11

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 jurisprudence

The secret developed to enable a settlor keep secret the object of his benefaction. In doing so, the subject matter of the trust is also kept secret, since the ostensible owner and the trustee are not the beneficial owners of the property. Thus, arguably both subject and object are secret except to the inter vivos parties to the trust. The trust was usually deployed by a man to benefit a mistress in English jurisprudence.12

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 the

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