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  1. 80/1985 (1986)

3PLR/1985/10 (SC)




(1986) 4 NWLR (Pt. 37) 566





DAHUNSI OLUGBEMI COKER, J.S.C. (Read the Lead Judgment)









ESTATE ADMINISTRATION/PLANNING:- Trust arising out of a Will – Where a Will grants discretion to Executrix of an estate to maintain specified person – Nature of duty created – How discretion is exercised – Where discretion is neglected and duty performed – Whether Court can interfere – Right of beneficiaries under the trust to enforce the trust – Relevant considerations

ELDERS LAW:- Maintenance of aged parents via trust created under a Will – Where Executrix is granted discretion to provide maintenance to aged person – Whether an elderly person has a legal right to claim for adequate maintenance where trust not performed – What needs to be shown to succeed

CHILDREN AND WOMEN LAW: Women and Inheritance/Estate Administration – Widow- Mother-in-law – of deceased person – Responsibilities of Widow appointed sole executrix and trustee of deceased’s husband’s Will to uphold stipulations/trusts created under the will for the benefit of his mother/relatives – Elderly women – Aged mother of deceased person refused maintenance by his wife/widow – Right to enforce same – How treated

PRACTICE AND PROCEDURE – APPEAL:Pleadings – Whether party can raise on appeal an issue not pleaded in the lower court

PRACTICE AND PROCEDURE – PLEADINGS: – Rule that parties are bound by their pleadings and any evidence given at the trial not pleaded go to no issue – Where defence seeks to raise an issue of fact – Need for the material and essential allegations in the statement of claim to be specifically be traversed – Whether it is not sufficient that the Statement of defence contains a general traverse





COKER, J.S.C. (Delivering the Lead Judgment):

This appeal was dismissed on the 11th June 1986 after counsel for both parties had addressed the court after a careful reading of their respective briefs of argument and the record of the proceedings of the two lower Courts, I now give my reasons for the decision.


The parties in the proceedings are members of the same family. The Plaintiff (Respondent before this Court) is the mother of one Victor Ihuese Aguocha. He died on 26th November 1971 leaving a Will dated 26th November 1971 in which defendant, one of his two widows, was appointed sole executrix and trustee of his estate, a large proportion of which consists of houses in Kaduna town.


In his said Will, he made provisions that his aged mother – that is, the plaintiff and some other dependants be maintained by the sole executrix and trustee of the Will. The cause of action before the Kaduna State High Court was that since the death of the testator in December 1971 and, until the time of the filing of the suit in February 1983, the defendant failed to carry out the provision to maintain the plaintiff in any shape or form whatsoever.


She pleaded and gave particulars in the statement of claim of how she spent on the average a total sum of N310.00 per month since the death of her son, the testator. The amount due and payable to her for the period from December 1971 until June 1983 amounted to N42,793.80 and that was what she claimed. In addition, she sought for an order that so long as defendant remained the executrix and trustee of the said Will, she should continue to pay her the maintenance until her death at the rate of N310.00 per month. The defendant’s defense as contained in paragraphs 3, 4 and 5 of the statement of defense reads:-

“3.     The Defendant denies paragraphs 9, 10 and 11 of the Statement of Claim and avers that the will gives by its terms absolute discretion to the Defendant in regard to the maintenance of the Plaintiff.

  1. The Defendant further avers that she has been providing maintenance for the Plaintiff in the following manner:-

(a)     Provision of beverages for the plaintiff.

(b)     Provision of food items such as meat, rice, beans etc. for the Plaintiff.

(c)     Provision of toiletries for the Plaintiff.

(d)     Periodic repairs and renovations of the Plaintiff’s house and building a toilet for the Plaintiff.

(e)     The Defendant pleads that the Plaintiff is not entitled to the amount claimed in paragraphs 11 and 12 or any amount at all as a right under the Will.”


With the pleadings settled, the issue for trial was not whether the sum of N310.00 by the plaintiff claimed by plaintiff monthly was excessive and unreasonable having regard to the resources of the estate. The defence was that on the correct construction of the Will there was no duty imposed to maintain the plaintiff, as the defendant had absolute discretion, whether or not to carry out the wish of the testator. That she had, in addition, absolute discretion regarding the nature, form and quantum of what maintenance to provide.


It is trite law that parties are bound by their pleadings and any evidence given at the trial not pleaded go to no issue. See Ramonu Atolagbe v. Korede Olayenti Shorum (1985) 4 S.C. 250 p. 265. The principle was also restated in the case that in order to raise an issue of fact by the defence, the material and essential allegations in the statement of claim should specifically be traversed. It is not sufficient that the Statement of defence contains a general traverse.


At the trial, the evidence of the plaintiff was taken at ANAOGWUGWU Village in Imo State on commission by the Principal Registrar of the Kaduna State High Court. Although the parties and their counsel were aware and notified of the place and time of taking her evidence, the defendant and her counsel refused to attend. Consequently, plaintiff was not cross-examined. She testified that since the death of her son she did not receive any form of maintenance from the defendant. She gave evidence in accordance with her pleading of the amount spent monthly and called three witnesses in support of her case. The defendant also testified of the nature of maintenance provided for the plaintiff. She conceded that it was her duty to take care of the Plaintiff as provided in the Will (EXh.2) but said she had been doing what the Will directed. She said she used to give her money, rice, dry meat from here (i.e. Kaduna) fish and yam, whenever she visited her about once every 2 months. She said nothing about the reasonableness of the amount allegedly spent monthly by the plaintiff nor whether the amount claimed was unreasonable or reasonable, or whether the resources available in the estate of the deceased could not bear the brunt of such monthly expenses. The trial Judge found that the defendant failed to perform the trust imposed on her by the Will (Exh.2) and that she failed to provide maintenance for the plaintiff. He held that the discretion given to the defendant by the testator did not mean the “defendant has the discretion to provide or to refuse to provide the plaintiff or any of the beneficiaries’ with maintenance.” The learned Chief Judge held “that absolute discretion is no more than determining the quantum or how much money to expend on this maintenance.” – “But maintenance she was under a duty to provide.”


And he came to the decision that the maintenance of the plaintiff ought not to exceed 15% of the trust income. He, therefore, made an order that the defendant should pay the plaintiff 15% of N39,500.00 which he worked out amounted to N5,925.00 for which he gave judgment. He further ordered that the defendant continue to pay plaintiff the sum of N150.00 per month until the trust comes to an end or until the plaintiff dies whichever came first


The defendant appealed against the decision and the plaintiff gave “notice pursuant to Order 3 Rule 14(1) of the Court of Appeal Rules that the judgment should be varied. The nature of the variation sought was stated as follows:-

“1.     That the learned Court of Appeal shall uphold the judgment of the High Court, and order that the quantum of damages pleaded and proved in Court shall be awarded to the Respondent/Plaintiff in the sum of N46,620.00k.

And the grounds given for the variation were stated as follows:-

“1.     That the learned trial Judge erred in law in seeking a basis for the damages to be awarded in matters that were not pleaded or canvassed in evidence before the trial Court.


(a)     The claim of the Respondent/Plaintiff was that the defendant/appellant had not maintained her under the Trust created by the WILL.

(b)     That as a result, she had been maintaining herself at the rate of N310.80k per month.

(c)     To these, the Appellant/Defendant’s defence, was that she had been maintaining the Respondent/Plaintiff;

(d)     That the value of the estate itself was neither in dispute nor was it pleaded, and in any case, the High Court had found that the evidence given on it was not trustworthy – See page 29, line 15 of the Record of Proceedings;

(e)     In the case of Waheed Childiak v. A.K.I. Laguda (1964) 1 ALL NLR. 160 at page 162, the Supreme Court had held, that “… a misdirection therefore occurs when on the issues of fact, the case for the plaintiff or for the defendant, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the Judge sits without jury, he misdirects himself if he misconceives the issues or summarises the evidence inadequately or makes a mistake of law …”

(f)      As a result of point (a) – (f) above the High Court should have ordered the Quantum of damages pleaded and proved in Court, and not fished for damages from issues that were not pleaded.”


Before the Court below, Mr. Aluko Olokun for the Executrix/Appellant submitted that the statement of claim was for an order that the Appellant shall pay to the respondent the sum of N42,793.80 being the total costs of her maintenance as provided in the Will. But contended that on a proper construction of the Will the defendant was given absolute discretion. Further, learned Counsel submitted that

“Even if the court found that the Appellant has not maintained, the Court has no power to make the order but was bound by the interpretation put on by the appellant. Assuming I am wrong in submitting that Appellant has no duty to maintain the respondent, I submit that the appellant has absolute discretion in determining the quantum of the maintenance of the Plaintiff.”


It was further argued that the order that 15% of the Trust income should be employed for the maintenance of the aged mother was unreasonable and unjust having regard to the number of the other beneficiaries in the Will as against the total income of the estate.


In reply, Dr. Oguntoye for the respondent argued there was difference between a discretionary trust and discretionary power. The expression “her absolute discretion appearing three times in the Will and on each occasion it was in relation to maintenance of the beneficiaries. He submitted that the executrix had a duty to maintain the plaintiff.


The appeal court rejected the contention of the executrix, holding that she had no absolute discretion to appropriate everything to herself if she so desired and nothing to the other beneficiaries. The Court considered the submission of the appellant that the trial court had no business to assess the quantum or manner in which the plaintiff should be maintained or whether it was for the Trustee to determine in her absolute discretion. The appeal court then rejected the argument. It held:-

“There is no doubt that in certain cases which have no bearing with the discretion as to how money should be applied for the maintenance of a beneficiary, the court would order specific performance if a trustee has failed or refuse to exercise a power (See Klug v. Klug (1918) 2 Ch.D 67). But as stated at page 473 of UNDERHILL’S Law of Trusts and Trustees, 12th Edition “in cases where the trustee do have a genuine discretion as to how much income they apply for the benefit of a particular beneficiary, they must make their decision within a reasonable time after the trust income reaches them. In so far as such income is not so applied within a reasonable time their discretion lapses and it passes to those entitled in default the trustee having no power to retain it”. (See Re Allen-Meyrick’s Will Trusts, Mangnall v. Allen-Meyrick, (1966) 1 ALL ER. 740).”


The Court also rejected the argument that the 15% awarded for the maintenance of the plaintiff was excessive.


And in ground 5, learned counsel for the executrix argued that the trial Judge erred in making findings of fact on matters which were not in issue in the pleadings and basing its decisions on them. The question raised in the ground of appeal

“is whether from the state of the pleadings and the admissible evidence adduced before him the trial learned Chief Judge was in a position to make any award.”


The court below dismissed the appeal after examining the pleadings, the evidence and reply of Dr. Oguntoye, in which he drew attention to the uncontradicted evidence of the plaintiff to the effect that she spent N310.00 monthly on the average for her maintenance as pleaded in paragraph 11 of the statement of claim. Defendant did not specifically deny that plaintiff actually spent that amount. There was no averment throughout the statement of defence that the amount was excessive having regard to the trust income.


The appeal of defendant therefore failed. Judgment of the learned trial Chief Judge was varied by raising the amount of award to the Plaintiff/Respondent to N45,000.00 because the basis for his assessment of the N150 was arbitrary, if not speculative, having regard to the issue before him.


The defendant further appealed to this Court. The issues which were formulated by the Appellant in her brief of argument were three, namely:-

(A)     Can the Court of Appeal exercise the discretionary power to award maintenance to the Respondent in the absence of any evidence of the annual income accruable from the trust properties?

(B)     Whether or not the question of damages awarded to the Respondent is not excessive taking into account the other duties imposed on the Appellant by the Will and the interest of other beneficiaries.

(C)     Whether or not the ascertainment of the annual income derivable from the Trust Properties was necessary in order to arrive at equitable maintenance of each of the beneficiaries particularly the Respondent.”


It was contended on behalf of the Appellant that the learned Chief Judge and the Court of Appeal erred in the exercise of their discretion as to the quantum of award, which it was submitted, was excessive, having regard to the evidence at the hearing, particularly when there was evidence and finding that there were other beneficiaries of the trust, coupled with the fact that there was no evidence besides a total income of N39,000.00 throughout the relevant period of the claim. It was further contended that it was wrong for the Court below to have awarded the sum of N310.00 per month simply on the basis that the evidence of the plaintiff was not controverted at the hearing.


He further submitted that what the learned Chief Judge did was to exercise the power or discretion which the appellant failed to exercise. Learned Counsel then submitted that this court has the power to disturb the discretion of the court of trial and of the court below because relevant facts were not taken by the two lower courts into consideration.


I was and still of the view that the arguments on behalf of the appellant are misconceived. The question of exercise of discretion by either of the two courts was irrelevant to their decisions and did not arise. Each of the two courts was conceived with issues arising from the pleadings and matters which the parties submitted for adjudication, properly arising from the pleadings.


The issue at the trial was not that of quantum or what should be the amount reasonable for maintaining the aged mother of the testator nor was the issue raised whether the estate could reasonably bear the burden of paying a sum of N310.00 monthly to the plaintiff having regard to the resources of the estate vis-a-vis the other beneficiaries.


Indeed, Mr. Aluko-Olokun who argued the appeal on behalf of the Appellant in the Court below conceded the point in his submission underground 5. The presiding Justice of appeal recorded him as submitting:-

“The Statement of Claim does not require the Judge to determine the value of the estate or the profit derived therefrom is not in issue. … The Judge is not entitled to determine issues, not in the pleadings.”


And Dr. Oguntoye in his reply agreed with him. He contended that the Appellant did not contest the issue of the quantum for maintenance and Akapata, J.C. A. in the lead judgment agreed with Dr. Oguntoye. He said “That going by the state of the pleadings, the question of sufficiency or otherwise of the revenue accruing from the estate to satisfy the requirements of the respondent was not in the issue.”


I entirely agree with the conclusion reached by the learned justice of appeal. He further said, and I also agree:-

“There is no doubt that the question of the value of the estate or the income accruing therefrom was not directly pleaded and therefore, strictly speaking, was not in issue. It is my view that all that the respondent had to establish were:

(1)     that she was a beneficiary who should be maintained as provided for in Exhibit 2.

(2)     that she was not maintained; and

(3)     the amount she had expended in maintaining herself since the Will Exhibit 2 came into operation.

The amount derivable from the estate was not within the peculiar knowledge of the appellant. If it was sufficient to meet the demands of the respondent in full, having regard to the needs of the other beneficiaries, it was for the appellant to plead the amount derivable from the estate and adduce evidence to substantiate it.

I, therefore, find myself in agreement with the learned counsel for the respondent that, going by the state of pleadings, the question of the sufficiency or otherwise of the revenue accruing from the estate to satisfy the requirements of the respondent was not in issue.”


That being the case, it does not lie in the mouth of the Appellant to come before this Court to contest an issue which all the two parties and the court below agree was not in issue at the trial of the action.


These are the reasons why I dismissed the appeal.


BELLO, J.S.C. (Presiding):

I concurred in dismissing this appeal on the 11th June, 1986 and indicated that I shall give my reasons today.

I have read in advance the reasons for judgment of my learned brother, Coker, J.S.C. in this appeal. I agree entirely.



I have had the advantage of reading in draft the Reasons for Judgment just delivered by my learned brother, Coker, J.S.C. I agree with the reasons and I adopt them as mine. It was for those reasons that I dismissed the appeal on 11th June 1986.


On 11th June, 1986, we dismissed this appeal with N300.00 costs to the respondent and made the order that all the sums of money paid into Court by the appellant should be forthwith released to the respondent. Our reasons for dismissing the appeal were reserved till today. I now give my reasons.

I have read in advance the reasons for judgment read by my learned brother Coker, J.S.C. I agree with the reasons and adopt them as mine, as it was for those reasons that I dismissed the appeal on 11th June, 1986,1 have nothing to add.


I concurred in dismissing this appeal on the 11th June,1986 and indicated that I shall give my reasons today. I have read in advance the reasons for judgment of my learned brother Coker J.S.C. in this appeal. I agree entirely with his reasoning and his conclusion that the appeal be dismissed. I see no merit whatsoever in the contentions of Counsel for the Appellant.

Appeal Dismissed




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