General Principles of Equity I
History of equity Introduction of the doctrines of equity into Nigeria The relation between Equity and Common Law Conflicts between Equity and Law Nature of equitable rights I Nature of equitable rights II
CONTENTS 1.0 2.0 3.0
HISTORY OF EQUITY
4.0 5.0 6.0 7.0
Introduction Objectives Main content 3.1 Law and equity 3.2 Conscience 3.3 Difference and conflict 3.4 Equity and the common law in the narrow sense Conclusion Summary Tutor-Marked Assignments References / Further Reading
This is an introductory unit. It introduces us to the law of equity and how it was developed in the court of Chancery in England. There is a wealth of literature on equity jurisprudence; its origin, development and the part it has played in those countries having the common law as the foundation of their legal systems. From its origin to the present period, equity has been kept under strict and constant surveillance. Its origin and development have been emphasized and its main principles have been amplified all in a determined attempt to ensure that the principles of equity do not fall behind society’s immediate needs and aspirations. Equity came to mitigate the rigours of the common law.
(i) (ii) (iii) Trace the origin of equity; Explain the notions of conscience; and Differentiate Equity from the common law.
By the end of this unit you should be able to:
MAIN CONTENT Law and equity
The word ‘equity’ literally means fairness. Equity is defined in the Oxford Advanced Learner’s dictionary 6th edition as “a system of natural justice allowing a fair judgment in a situation where the existing laws are not satisfactory”. To a layman, the question ‘what is equity?’ does not create any difficulty. It simply means right doing, good faith, honest and ethical dealings in transactions and relationships. Conception of the term ‘equity’ in this sense is usually classified as equity in its most popular sense, which is of no juristic significance. According to Jegede, for obvious reasons, no municipal legal system, however highly developed can take cognizance of or regulate all acts that may be inconsistent with this broad conception of equity. Moreover, the demands of the term equity in this sense are not capable of enforcement, for they do not create or produce any legal obligation. Yet the use of the term equity in this sense is not peculiar to the unlearned in the science of law. However, the lawyer takes a different and more cautious view of the term ‘equity’ when it is used in a limited but legal sense and clothed with the cloak of juristic significance. Juristic Sense of Equity The juristic sense of the term ‘equity’ may be subdivided into two, one complementary to the other and both affecting the administration of law and justice by recognized judicial tribunals. In the first place, there is the general juristic sense of the term ‘equity’. Here ‘equity’ means the power to meet the moral standards of justice in a particular case by a tribunal having discretion to mitigate the rigidity of the application of strict rules of law so as to adapt the relief to the circumstances of the particular case or a liberal and humane interpretation of law in general, so far as that is possible without actual antagonism to the law itself. In the second place, there is the technical sense of the term ‘equity’. Equity in this sense means a special and peculiar department of the English legal system which was created, developed and administered in the Court of Chancery. This may be a satisfactory definition of English equity before the Judicature Act of 1875 which provides for the administration of law and equity by the same tribunal. According to Maitland, in his book “Equity (Brunyate Ed.) 1949,” prior to 1875, ‘Equity is that body of rules which is administered only by those courts which are known as Courts of...