“a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.”
“The National Iranian Oil Company is the legal owner of the mortgaged property and the Pension Funds, Savings and Staff Welfare of Oil Industry is the sole beneficial owner of the Mortgaged Property.”
“It is established, in my judgment, as a general proposition that at common law a person sufficiently ‘signs’ a document if it is signed in his name and with his authority by somebody else; and in such case the agent’s signature is treated as being that of his principal.”
“Those who say that an agent cannot make such a declaration point to the fact that in section 53(l)(a) and (c), there is express provision for the particular formal requirements to be executed by an agent who has been authorised in writing. However, both paragraphs (l)(a) and (l)(c) of section 53 require that something is done in writing, and not merely that it should be evidenced in writing. It is therefore unsurprising that there should be an express requirement that, where an agent is to carry out the transaction, he should have to be authorised in writing. In other words, the reason for the express reference to agency in those paragraphs is to require that authority should be given in writing. Section 53(1)(b) merely requires that any declaration of trust be evidenced in writing. The present writer therefore agrees with the view that an agent can declare a trust of land on behalf of his principal if authorised to do so. That agent is ‘some person who is able to declare such a trust’ within the paragraph.”
“…be assigned granted or surrendered unlesse it be by Deed or Note in Writeing signed by the party soe assigning granting or surrendring the same or their Agents thereunto lawfully authorized by writeing or by act and operation of Law.”
“..all Declarations or Creations of Trusts and Confidences of any Land Tenements or Hereditaments shall be manifested and proved by some Writeing signed by the partie who is by Law enabled to declare such Trust or by his last Will in Writeing or else they shall be utterly void and of none effect.”
“… all Grants and Assignments of any Trust or Confidence shall likewise be in Writeing signed by the partie granting or assigning the same [or] by such last Will or Devise or else shall likewise be utterly void and of none effect.”
“For prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury…”
“[N]o Action shall be brought whereby to charge any Person upon or by reason of any Representation or Assurance made or given concerning or relating to the Character, Conduct, Credit, Ability, Trade, or Dealings of any other Person, to the Intent or Purpose that such other Person may obtain Credit, Money, or Goods upon, unless such Representation or Assurance be made in Writing, signed by the Party to be charged therewith.”
“the subject of section 6 is the charging of a person for an act of fraud, and it may well be—and, without diving very deep for motives, one cannot help seeing that there was an excellent motive for that enactment—that a person should not be proved fraudulent without the matter which is the evidence of his fraud resting on his own signature to a document to be produced,—that it should not rest, as before that time it might have rested, on the conflict of evidence as to oral communications. If you mean to charge a person with a fraudulent act, whereby you have been damnified in respect of the conduct of another, you shall not charge that person unless you can produce his own handwriting for the statement of fraud by which you say you have been misled.”
“None of this, however, appears in the least appropriate to the case of a corporation which is incapable of signing any document at all save by some human agency…”
“In any event, even if 80 years ago or so it was assumed that the signature of a duly authorised officer or employee, acting in the course of his duties in the business of the company, was not the signature of the company, then it must also be recalled that it was not until Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259 in 1867 that it was finally decided by the Court of Exchequer Chamber that the doctrine of vicarious liability extended to the fraudulent act of the agent of the company committed in the course of its business and for its benefit. The law relative to corporate activities has developed considerably over the years and cannot be taken to have stood still all this time. Parliament is continually placing the obligation on corporate bodies to serve notices in writing of one kind or another and, in the case of local authorities, has expressly provided for such documents to be signed by the proper officer:section 234(2) of the Local Government Act 1972 . Since a company, not being a physical entity, can only act in relation to the outside world by its agents, no one nowadays would question that the signature of the duly authorised agent of the company, acting in the course of the company's business, is the signature of the company.”
“(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company. (2) A document is executed by a company by the affixing of its common seal. (3) A company need not have a common seal, however, and the following subsections apply whether it does or not. (4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company. (5) A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed.”
“A company, being an artificial person, can only act through agents and whether it ‘signs’ a document via a single officer or ‘executes’ a document in accordance with section 36A of the 1985 Act it does so through agents. Thus compliance with section 99(5) has to be via an agent of the company in any event. However, whenever a company acts through the agency of an officer authorised to so act on its behalf the company has, in my judgment, personal knowledge of the transaction in which its officers are acting. In doing so the purpose of section 99(5) … will have been fulfilled.”
“This interpretation of section 36A would result in there being four different categories of document made (to use a general word) by a company: contracts governed by section 36, deeds governed by section 36A and section 36AA, other documents “executed” by a company governed by section 36A, and yet other documents made by a company but not “executed” by a company, to which none of these sections would apply. The fourth category would be those documents which it is not natural to describe as being “executed” by a company. Mr van Tonder was not able to put forward a submission as to what documents would fall into the third and the fourth categories respectively, save that he said a notice under section 13, or correspondingly under section 42, of the 1993 Act would be in the fourth category, not governed by section 36A. That reading of the 1985 Act would give rise to a remarkable degree of confusion and uncertainty, as to which documents fall into which category. Moreover there would be no general rule applicable to the fourth category of documents. I can see no proper basis or justification for differentiating between types of document made by a company (other than contracts and deeds) for this purpose and in this way.”
“…at any rate in the context where some degree of formality is required to make a document valid and effective for some particular legal purpose (and the point can only arise in such a context), it is appropriate and natural to speak of the execution of the document, as a matter of ordinary language. That is so even for a document to be made under hand rather than by deed. In particular, it is so for a document which is to be signed by, as distinct from on behalf of, a legal entity such as a limited company.”
“(1) Under the law of England and Wales or Northern Ireland a document is executed by an overseas company- (a) by the affixing of its common seal, or (b) if it is executed in any manner permitted by the laws of the territory in which the company is incorporated for the execution of documents by such a company. (2) A document which- (a) is signed by a person who, in accordance with the laws of the territory in which an overseas company is incorporated, is acting under the authority (express or implied) of the company, and (b) is expressed (in whatever form of words) to be executed by the company, has the same effect in relation to that company as it would have in relation to a company incorporated in England and Wales or Northern Ireland if executed under the common seal of a company so incorporated.” (a) by the affixing of its common seal, or (b) if it is executed in any manner permitted by the laws of the territory in which the company is incorporated for the execution of documents by such a company. (a) is signed by a person who, in accordance with the laws of the territory in which an overseas company is incorporated, is acting under the authority (express or implied) of the company, and (b) is expressed (in whatever form of words) to be executed by the company, has the same effect in relation to that company as it would have in relation to a company incorporated in England and Wales or Northern Ireland if executed under the common seal of a company so incorporated.”
“Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of any other person (including another corporation), an officer appointed for that purpose by the board of directors, council or other governing body of the corporation by resolution or otherwise, may execute the deed or other instrument in the name of such other person; and where an instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorised.”
“it is fundamental that the creation of a trust involves the creation of new equitable obligations, which are ‘annexed to the trust property’ or ‘engrafted’ or ‘impressed upon it’. The creation of a trust never involves the ‘movement’ of property in the sense of a conveyance of title from one person to another.”
“The 2019 Mortgage Deed was signed by Mr Rahgozar, who was appointed for that purpose by NTT (NIOC’s attorney) to sign the 2019 Mortgage Deed in the name of NIOC, which he did in the presence of a witness (Mr Bayat). On this basis too, the 2019 Mortgage Deed is to be treated as having been signed by NIOC.”
“I do not, however, understand the statements in the textbooks to say that a declaration of trust is valid even if there is no later writing (appropriately signed) which manifests and proves the trust. That would be to ignore the requirement in section 53(1)(b). To be enforced a trust of land must be manifested and proved in writing (appropriately signed).”
“For these reasons I must conclude that the answer to Issue 1 is that at the time of the August Transfer NIOC was the beneficial owner of NIOC House. The trust relied upon by NIOC and the Fund cannot be established. English law has very strict formalities with regard to the proof of a declaration of trust respecting land and requires such a trust to be “manifested and proved by some writing signed by some person who is able to declare such trust”
“It is not required by the Statute, that a trust should be created in writing; and the words of the Statute are very particular in the clause (sect. 7) respecting the declarations of trust. It does not by any means require, that all trusts shall be created only in writing; but that they shall be manifested and proved by writing; plainly meaning, that there should be evidence in writing, proving, that there was such a trust. Therefore unquestionably it is not necessarily to be created by writing: but it must be evidenced by writing; and then the Statute is complied with; and indeed the great danger of parol declarations, against which the Statute was intended to guard, is entirely taken away.”
“But it is not necessary that the trust should have been declared by such a writing in the first instance; it is sufficient if the trust can be proved by some writing signed by the defendant, and the date of the writing is immaterial. It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it to be so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parol evidence that it was so conveyed upon trust for the claimant…”
“The trust which the plaintiff has established is clearly an express trust within the meaning of that expression as explained in Soar v Ashwell. The trust is one which both plaintiff and defendant intended to create. This is not one in which an equitable obligation arises although there may have been no intention to create a trust.”
“The statute relates to the kind of proof required in this country to enable a plaintiff suing here to establish his case here. It does not relate to lands abroad in any other way than this: it regulates procedure here, not titles to land in other countries.”
“it is well established that section 7 was not a rule of validity but a rule of evidence. As the Court of Appeal itself recognised in Rochefoucauld, it was a rule describing how, if it came to litigation, an allegation that a declaration of trust respecting land must be proved.”
“it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself”
“can the bankrupt be said to have any interest in this mine at the time of his bankruptcy?”
“This deed, therefore, in respect of the moral obligation on the trustee to give effect to his trust, would not in such case have been considered a mere voluntary deed. If, in respect of the moral obligation affecting the trustee, this declaration of trust would have prevailed against the assignees if executed the day before the bankruptcy without any other consideration, I cannot find a principle why it should not prevail against the assignees if executed the day after bankruptcy, especially when it is considered that a trust does not pass by assignment in the bankruptcy.”
“Assuming the bankrupt to have been a trustee for Mr Rowe, there was nothing, I think, to prevent him from making a valid declaration of trust, notwithstanding his bankruptcy. It is true that the property of a trader cannot be assigned by him after his bankruptcy: the property is no longer his; it is vested in his assignees. But property held in trust, is not the property of the bankrupt. It does not pass to his assignees. The only question therefore, as it appears to me, in this case is, whether the declaration contained in the deed was founded upon a previous trust, or was altogether fraudulent. That question, however, has been decided in substance by the jury upon the trial of the issue; for they have found that the name of Wilkinson was used in the original deed as a trustee for Rowe.”
“I accept the submission made on behalf of [the plaintiff] that there is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts.”
“All declarations or creations of trusts or confidences by parol shall be utterly void and of no effect…”
“The statute will be satisfied, if the trust can be manifested and proved by any subsequent acknowledgement by the trustee, as by … his answer in Chancery, or by an affidavit…”
“Where an allegation made by one party in proceedings is admitted by the other party in unqualified terms, that other party must not seek to adduce evidence or raise arguments to the effect that that admission is not binding on him. The court has no jurisdiction to investigate a fact that has been admitted, unless the party making the admission obtains the permission of the court underCPR 14.1 (5) to withdraw the admission and does so.”
“But an oral trust in real property cannot be held wholly void; it is merely unenforceable when, in an action brought to compel performance of its terms, the party to be charged asserts its invalidity. Callaghan, the party obligated, did not refuse to recognize the trust. On the contrary, he carried out its terms. A creditor of the trustor has no right to challenge the voluntary completed performance by a trustee in such a situation.”
“Whatever might be or have been the effect (if any) of the trustees' acknowledgment or declaration that they had so held the shares since the preceding February 18, it clearly follows, in my judgment, that (on the hypothesis that the oral directions on February 18 had no legal effect) the instruments of March 25, 1955, must have effectively established or constituted the relevant trusts.”
“the money is as much yours as mine.”
“It might, however, be thought that this was a borderline case, since it is not easy to pin-point a specific moment of declaration, and one must exclude from one's mind any case built upon the existence of an implied or constructive trust, for this case was put forward at the trial and is now argued by the plaintiff as one of express declaration of trust. It was so pleaded and it is only as such that it may be considered in this court. The question, therefore, is whether, in all the circumstances, the use of those words on numerous occasions as between the deceased and the plaintiff constituted an express declaration of trust. The judge found that they did. For myself, I think that he was right so to find. I therefore would dismiss the appeal.”
“Any words that shew that the donor means, at the time he speaks, to divest himself of all beneficial interest in the property are, in my opinion, sufficient for the purpose of creating the trust.”
“(a) an intention to hold rights for the benefit of another and (b) an intention that by the settlor’s very words or action, the trust relationship should be immediately constituted.”
“The Judge erred in law in finding that CGC is entitled to rely upon s. 53(1)(b) LPA 1925 to prevent NIOC and the Fund from relying upon the fact that, on the Judge’s findings, NIOC had validly declared or there otherwise arose a trust of NIOC House in favour of the Fund; the Fund is not attempting to enforce the trust against NIOC.”