ADEKEYE AND OTHERS V.

AKIN-OLUGBADE (1987) 2 NSCC 865

ANIAGOLU, J.S.C.: I have had a preview of the judgment just delivered by my learned
brother, Oputa. J.S.C.., and I am in full agreement with his reasoning and conclusion.
This is another case of breach of faith, in a partnership business, by one partner against
the other - in this case, a deceased partner whose estate should be credited with his
entitlements from the partnership The facts in this case on appeal may not be as lurid, in
terms of breach of faith, as those in Omisade and Others v. Akande (1987) 2 N.W.L.R.
158 but they belong to the same kindred, being relations, as it were, by blood and
possessing similar characteristics. The particular sting in this case lies in the fact that
one should have thought that the memory of a deceased partner - a partner whose
credit worthiness, while he was alive, was solely responsible for the ability of the
Partnership to raise credits from the Bank with which the Partnership got to what it later
came to be, the metamorphosis which the partnership property had undergone, as
contrived by the Appellants, notwithstanding should have prevailed in pricking the
conscience of the Appellants into doing justice. Equity acts in conscience and that is one
of the severe aspects of justice.
To plead the statute of limitations or the equitable defences of laches, acquiescence,
standing-by or the like, against the beneficiaries of the deceased partner, is not to
understand the real principles of equity or the spirit of implied trusts.
Section 32(4) of the Limitation Law, Cap. 70 Vol. IV, Laws of the Lagos State of Nigeria,
1973 provides that:
(4) No period of limitation fixed by this Law shall apply to an action against a trustee or
any person claiming through him where:
(a) the claim is founded on any fraud or fraudulent breach of trust to which the trustee
was party or privy, or
(b) the claim is to recover trust property or the proceeds thereof still retained by the
trustee and converted to his own use.
Where there is a fraud or fraudulent breach of trust or where, as in the present case, the
claim is to recover trust property converted by the trustee (in this case the Appellants)
to his own use, the Courts will chase the trustee and, as in this case, recover the trust
property, making the fraudulent trustee disgorge any financial gains he may have made
from the conversion, no matter how long it takes to do so; no matter how long he has
succeeded in eluding the beneficiaries and keeping the property or the proceeds thereof
away from them; and no matter what changes and/or variations he has succeeded in
converting the property or the proceeds.