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religion.404 Trusts for the support of a religious order or community405 such as monastery or a Covent are plainly within this head, though if instead of engaging in good works (example, among the sick and the poor) the order has as it object merely sanctification by prayer and pious contemplation, it will lack the necessary element of demonstrable public benefit and so not be charitable.406 A gift to establish “a Catholic daily newspaper”, has been held not to be charitable, for at best it is no more than partly conducive to religion.407 The saying of masses for the dead,408 the improvement of musical services in a church,409 and a gift simply “for God‟s work”410 have also been charitable. It is seen from the foregoing that in order that a trust for religion to be held charitable, such trust must involve the bringing of religious benefits to the public or some class of it, and must not be merely a case of private religious exercises and devotions, open to some sect; clergy, monks, nuns or others of similar position.
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In the words of Sir Romilly; “this is the residual head of charity; the most difficult.411 The earlier three heads are in their nature charitable. There is no need in those cases to prove that the relief of poverty, or the advancement of education or religion is beneficial. The public element there, as we will see, concerns the extent to which those benefits are made available to the public or a section of the public as opposed to a group of individuals. With this fourth head, however, it must be shown that the selected purposes are beneficial; beneficial, that is in the way, which the law regards as charitable.
But “not every object of the public general utility must necessarily be a charity”.412 The purpose need not be ejusdem generis with those listed in the preamble, but must be charitable in the same sense.413 When new purposes arise; it is not sufficient to show that the purpose is beneficial. It must shown to be beneficial within the spirit and intendment of the preamble, or by analogy within the principles established by the cases.414 In Williams‟ Trustees v I.R.C,415 a trust for promoting the interest of the Welsh Community in London failed, on the ground that the objects of the trust, though beneficial to the community, were not beneficial in the way, which the law regards as charitable.
Similarly, trusts for international cooperation have usually failed, either on the ground that their purposes are not within the spirit and intendment of the Statute,416 or because they are political.417 On the other hand, in Scottish Burial Reform and Cremation
411Morice v The Bishop of Durham[1805] 10Ves.522,531.
412Per Lindley L J in Re Macduff [1896] 2Ch. 451,456 .
413 Re Strakosch[1949] Ch 529.
414 William, Trustees v I.R.C [1947]AC 447,455, also Brisbane C.C. v Att. Gen. for Queensland [1979] AC 411,422.
415 Supra.
416 Re Strakosch supra.
417 McGovern v Att-Gen.[1982] Ch.321.
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Society v Glasgow Corporation,418 a non-profit making cremation society was held charitable by analogy with cases holding burial grounds to be so, though neither facility receives specific mention in the preamble.
The question whether a purpose is beneficial to the community is one that the court must decide in the light of all the evidence available. What the donor thought, or what other people think is not the issue. In a sense, the test is objective.
In National Anti-Vivisection Society v Inland Revenue Commissioners,419 the question for determination was whether the society was entitled to relief from income tax on the ground that its object, which was the total suppression if vivisection, was charitable. The protection of animals from cruelty is a charitable purpose. Vivisection, on the other hand, is a necessary part of medical research and as such, is itself beneficial to the community. The question, as Lord Simonds said,
“Is whether the court, for the purposes of determining whether the object of the society is charitable may disregard the finding of the fact that any assumed public benefit in the direction of the advancement of morals and education was far outweighed by the detriment to medical science and research and consequently to the public health which would result if the society succeeded in achieving its object, and that on balance, the object of the society, so far from being for the public benefit, was gravely injurious thereto. The society says that the court must disregard this fact, arguing that evidence of disadvantages or evils which would or might result from the stopping of vivisection is irrelevant and inadmissible.420 The court undertook to make the value judgment,
“weighing conflicting moral and material utilities”.
On balance, on the evidence available to it, the suppression of vivisection was not beneficial to the public, and the claim failed.
418 [1968]AC138.
419[1948] AC31.
420 Ibid,pp60-61.
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Under this fourth classification of charitable trust, the following have been held to be charitable; the relief of the aged,421 or sick,422 or disabled,423 providing public works and public amenities,424 protecting human life, the environment and property,425 providing for social rehabilitation and welfare,426 protecting or benefitting animals, so long as this benefits, or promotes the moral improvement of the community427 by promoting patriotic purposes.428
2.8.2. Public Benefit
This is the second requirement a charitable trust must satisfy before it can be valid.
A gift can only be charitable, if it is for the public benefit. It is trite that a trust will not be charitable unless it promotes a public benefit. If its object is to benefit certain private individuals and not the public at large, it will not be charitable. An example where this requirement was lacking is the Nigerian case of Iyanda v Ajike,429430 there a testator by his will appointed trustees and provided that they should let one of his houses and use the rents and profits for the maintenance of a family prayer – room in another of the testator‟s houses. This prayer –room was described as a “private Mosque”. It was held
421 Re Dunlop [1984].
422 Re Resch‟s W.T [1969]1AC 514.
423 Re Lewis [1955]Ch 104.
424 Att. Gen v Shrewsbury Corp. [1843] 6 Beav 220; Re Morgan[1955]1WLR738.
425 Re Wokingham Fire Brigade Trusts[1951]Ch 373.
426 Bahamas v Royal Trust Co. [1986]1 WLR 1001 (P.C).
427A gift “for patriotic purposes” is not necessarily charitable and so void. But some particular patriotic purposes are charitable; trusts for helping the defence of the realm.
428 Re Wedgwood [1915] 1 Ch 113,122; “A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and thus to stimulate humane aid generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality and thus elevate the human race”.
429 Re Strathedan[1895] 3Ch. 265; Re Corbyn[1941]Ch 400.
430 [1948]19 NLR 11.
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that, since there was no suggestion that members of the public were to be admitted to the mosque, the trust lacked the essential element of public benefit, and was therefore not charitable.
Baker S.P.J, said, “Religious purposes are charitable only when religious services tend directly or indirectly towards the instruction and edification of the public”.431
From the foregoing, it is seen that every charitable gift, with the exemption of relief of poverty must satisfy the requirement of public benefit before it will be regarded as a charitable trust.
Application of Public Benefit Test to Lord McNaughten’s Four-fold Classification of Charitable Nature.
A. Application of Public Benefit Test to the First classification (Trust for the relief