Content of the Presentation

 General Introduction: Concept

and Definition of Equity
 History and Nature of Equity
 Relationship between Equity and
Common Law
 Systematization and
Standardization of Equity
 Contribution of Equity
 Reception of Equity into Uganda
1
 Introduction: Equity
The Concept of Equity:
It must be noted that Equity was never intended to be an independent
system of law. It presupposes the existence of common law, which it
supplemented and modified.
Definition
This depends on the consideration in view:

i.When defined with reference to its substance and nature, Equity is

synonymous with justice and fairness. In this sense, Equity may be defined as
the principle of moral rightness, conformity to moral rightness in action or
attitude, upholding of what is just, especially fair treatment and due reward
in accordance with honour, standards or law.
ii.When defined with reference to its source, Equity is that branch of the
English Legal System, which evolved in the court of Chancery to address the
inadequacies, hardship and injustice of the common law.
2
 Introduction
The Two Senses of Equity: General Juristic Sense and Technical Equity
i.Equity of the General Juristic Sense
This simply means fairness and conscionable conduct in the adjudication of
disputes by courts of law. (Accommodated by the first definition of Equity).
This sense of Equity predates all laws, be they statutes, common law or
customary law – it is conterminous with justice itself. It was the moving
spirit behind the evolution of law. E.g. laws on murder, theft etc.
It is also the power of judicial bodies to administer the law justly taking
into account the special circumstances of the particular case: administering
justice without undue regards to technicalities.
When Lord Denning in Fletcher v. Fletcher approved the divorce of a husband
who deserted his wife, by withdrawing sexual intercourse and joining a religious
community, which believed in spouses withholding intimate consortium from each
other, he was moved to do so by the spirit of equity of the general juristic
3 sense.
 Introduction
 If laws were bodies, equity of the general juristic sense is the spirit.
 The truth of this can be seen in the progressive decay of the common law
when it distanced itself from equity of the general juristic sense.
 See: Article 126 (2) (e) Ugandan Constitution; Stephen Mabosi vs. Uganda
Revenue Authority (1995) Ugandan Supreme Court
ii. Equity of the Technical Sense
 This consist of those technical rules and principles of equity which
evolved from the application of equity of the general juristic sense.
 It is a child, product or offspring of equity of the general juristic sense.
 The maxim Equity will not suffer a wrong to be without a remedy is a
principle of equity of the technical sense, produced by Lord Chancellors’
continuous application of equity of the general juristic sense to cases
before them when common law courts were not prepared to entertain
them.
4
 Introduction
 The practice of Lord Chancellor’s entertaining of cases the
common law courts refused to entertain was summed up by the
above maxim, which crystallized as a rule of technical equity.
 All other principles, rules or maxims of technical equity evolved
from the application of equity of the general juristic sense to
cases taken to Chancery.
 In Uganda, see the following: Section 14 (2) (b) Judicature Act,
Cap 13; Section 11 of the Magistrate’s Courts Act, 1970

5
 History and Nature of Equity

Rationale for the Growth of Equity:

Equity of the general juristic sense lays emphasis on the basic principles
of justice and fair play in the administration of the law.
The aim of the law is to maintain justice and ensure fairness: However,
this is not always the case. Sometimes there can be:
i.Defects in the law
ii.Stringent technical or procedural requirements leading to injustice
iii.Law
tends to be applied uniformly and rigidly, thereby not catering for
exceptional circumstances:
Contemptuous disregard of the common law for human values aided the
expansion of the Chancery jurisdiction and it is this perspective that
explains the development of equity.
Action was commenced in a common law court by writ issued by the Lord
Chancellor in Chancery. A writ summons a defendant to appear before a court
6 to answer a case filed by a plaintiff.
 History and Nature of Equity

 At the beginning of its development, common law courts guided by the

equity of the general juristic sense accepted new writs issued by the
Lord Chancellor to cover new causes of action over which no judicial
precedent existed.
 New writs allowed new causes of action to be heard and decisions on
these new causes of action generated new judicial precedents.
 When the system was working like this, the common law courts had no
problem hearing any new case for which there was no precedent because
a new writ could always be issued to cover a new case.
 The problem of the common law began when it stopped accepting new
writs. Two reasons were responsible for this:
i. Parliament objected to the issuance of new writs on the ground that
such act amounted to lawmaking – the sole prerogative of Parliament
under the principle of separation of powers. Common law courts agreed
with the Parliament.
7
 History and Nature of Equity
ii. The common law courts began to make a rigid distinction between law, morality
and ethics. According to the courts, issues of morality and ethics had no place
in law
 By this, the common law courts were gradually cutting themselves off from
the equity of the general juristic sense. Like the proverbial river that forgets
its source, the common law courts would later dry up since they forgot their
source. This made Charles Caleb Colton to say that “law and equity are two
things God has joined together, but which man has put asunder.”
 By the attitude of the common law courts, whatever cause of action that was
without an already issued writ and without judicial precedent was not a legal
matter the courts should entertain. It was like everything that could happen
had already happened.
 Thus, if a man had suffered an injury, it was not competent to him to bring
before the court of law the facts of the case, leaving it to the court to say
whether the case was one deserving redress; but he had first to determine
within what class of wrong his case fell, and then apply for the appropriate
8 writ.
 History and Nature of Equity

 The evil effects of this system of procedure were mainly two.

 First: Even where the facts were such as to bring the case of wrong
within some/one of the classes already recognized as remedial at
common law, the injured suitor was exposed to the risk of selecting an
improper writ, and failing in his action on that account. This, indeed, was
a fertile source of injustice in common law proceedings. See Sharrod v.
London and North-Western Railway Company (1849) 4 Exch 580
 Second: Even after selecting his form of action, the plaintiff might fail,
not from having made an erroneous selection, but because the wrong
done was of a class not referable to any hitherto known class of remedy.
In this case there was an absolute denial of justice.
 The common law ceased to be a tree and turn into a wood: Arbor dum
crescit; lignum dum crescere nequit – it is a tree while it is growing,
wood when it cannot grow.
 Frequently a man might abstain from suing altogether, feeling it to be
9 hopeless to select a form of action suitable to his grievance.
 History and Nature of Equity

 The system was, in fact, incapable of expansion, or of adaptation to the

growing wants of society.
 Because of the emphasis on forms, the merit of a case was relegated to a
subsidiary or secondary position.
 Similarly, even where the common law was adequate during the feudal
days of the 13th century, a plaintiff was unable to obtain a remedy in the
common law courts owing to the powerful influence of the defendant
which could turn the case against the plaintiff.
 Lord Denning in this regard said, the common law was not standing on the
side of the common man; rather it often pitched itself against the
legitimate interest of the common man. Similarly, Justice Pollock opined
that, our lady the common law has developed blemishes which marred her
beauty.
 The duty to remove these blemishes fell on Chancery and the blemishes
of our lady the common law necessitated the re-emergence of equity of
10 the general juristic sense to provide the much needed justice.
 History and Nature of Equity
 The re-emergence of equity, therefore was a reaction of the
inadequacies of the common law and equity is essentially about meeting
the deficiencies or inadequacies of the common law, which made it to
fall short of the principle of Lex semper dabit remedium – The law will
always provide a remedy.
 In England, the King or Queen was the fountain of justice from whom
justice, like a river, flowed to the subjects. It was therefore on the
King’s behalf that the common law courts were administering justice.
 When the common law courts began to fail in dispensing justice,
litigants began to make recourse to the King-in-Council usually by way of
petition or appeal for relief. The agent having failed, recourse was
properly had to the principal.
 The King-in-Council in correcting the injustice of the common law
applied equity of the general juristic sense using his conscience as a
11 guide – conscience being the everlasting chamber of justice.
 History and Nature of Equity

 As many litigants that went to the King with deserving cases, the King
afforded remedies thus proving right the axiom – Melius est petere
fontem quam sectari rivulos – It is better to go to the fountainhead than
to follow the streams.
 Later when petitions became too many, the King delegated some of the
cases to the Lord Chancellor. The Chancellor as the keeper of the King’s
conscience was expected to apply the King’s conscience on such cases.
 At the time, neither the King and his Council nor his Chancellor and
Chancery were seen by the common law courts as proper courts in the
true sense of the word. Rather their actions were seen as being carried
out merely pursuant to the King’s prerogatives of mercy and his position
as the fountain of justice on whose behalf the common law courts
themselves were administering justice hence no conflict between the
common law and Chancery.
 Thence grew up a practice of applying to the chancellor directly, it was at
12 this point Chancery started functioning as a proper court.
 History and Nature of Equity

 The Lord Chancellor who used to issue writs on behalf of the King for
actions to be commenced in the common law courts no longer needed to
depend on the common law courts for his writs to originate an action. He
could hear the grievances of the litigants himself.
 Such was the origin of Equity Jurisprudence.

Chancery Jurisdiction: Points to note

 The Chancery Court’s power to grant relief was based on the
prerogative and power of the King to administer justice and reliefs were
granted in the name of the King.
 The justice administered by the Chancery Court was based on the
Common Law rules, administered in a more liberal and humane way to
achieve justice.
 The jurisdiction in granting relief was based on reasons, conscience and
justice.
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 Relationship Between Equity and
Common Law

Conflict Between Equity and Common Law

With the development of equity jurisdiction, it was inevitable that there
would either be a working arrangement between the Court of Chancery and
the common law courts or there would be a conflict.
The explicit creation of court of Chancery at the end of 14 th Century
separate from the King-in-Council, there was opposition to its
extraordinary jurisdiction especially from the common law courts, mainly on
two grounds:
lThe jurisdiction of Chancery Court was unknown to the common law of the
land;
lThe Chancery court was eroding or undermining the jurisdiction of the
common law court because of its progressive and realistic nature.
The early court of Chancery was faced with two procedural problems:
lHow to compel a defendant to appear before the court in answer to the
14 plaintiff’s petition without the issue of a royal writ;
 Relationship Between Equity and
Common Law

ii. How to enforce certain equitable decrees against a defendant without

coming into conflict with common law courts. For e.g. conflict between
legal and equitable rights.
 The first problem was easily solved; the Chancellor would issue a subpoena
ordering the person to appear before the court on pain of forfeiting a sum
of money.
 On the second problem, the Chancellor would act in personam by issuing a
“common injunction” restraining the defendant from suing at law to
enforce his legal rights or if he had already obtained a judgment at law,
form exercising those rights. Failure to obey an injunction was punishable
by imprisonment for contempt.
 It was over the use of the common injunction that the inevitable open
confrontation between common law and equity finally occurred.
 Common law judges contended that the jurisdiction exercised by the Lord
Chancellor in Chancery unlike common law courts was neither supported by
15 statute nor the common law of the land.
 Relationship Between Equity and
Common Law

 In the later part of the 16th century, the conflict had reached a decisive
stage. Then Justice Coke was the Chief Judge of the common law courts
and Lord Ellesmere was Lord Chancellor in Chancery.
 These were arrogant, assuming and eccentric men who fiercely asserted
the superiority of their respective courts.
 Chief Justice Coke was not prepared to see the common law flouted, and
in a number of judgments he declared the Chancellor’s imprisonment of
those who disobeyed injunctions to be unlawful.
 He further asserted that the jurisdiction of the Chancellor was contrary
to the Statute of Praemunire 1353 and another of 1402.
 Lord Ellesmere, for his part, vigorously defended the position of the
Chancery, asserting that his court was not interfering with the due
process of law, but was merely acting in personam against the defendant,
directing that on equitable grounds, he should not pursue his remedy at
16 law when such judgments are oppressive or devoid of conscience.
 Relationship Between Equity and
Common Law

 Matters came to a head in the Earl of Oxford’s case. Lord Ellesmere in

this case claimed the power to set aside a common law judgment on
grounds of equity and good conscience.
 Chief Justice Coke threatened to issue a writ of prohibition against
Ellesmere’s interference with the judgment of the common law courts.
 The dispute was submitted to King James 1, who after conferring with
the learned lawyers of the day including Francis Bacon who later became
Lord Chancellor, decided in favour of Chancery to the effect that
whenever equity and common law conflict, equity should prevail.
 Instances of equity prevailing over common law include unwritten leases,
variation of deeds, executor’s liability for assets and sureties liability.
These were areas where adherence to strict formalities of the common
law resulted in forfeiture of rights on mere failure to comply with form.
 Equity prevails over the common law only with regard to principles and
17 rules and not with regard to rights, interests or estates.
 Systematization and Standardization of
Equity

Expansion and Development of Equity Jurisdiction: The Systematization

and Standardization of Equity
 Initially the Chancery’s jurisdiction was elastic, vague or unclear and
characterized by the following:
i. Appeal to the King’s (grace, charity and conscience). Lord Chancellors
were ecclesiastic, hence they respond to appeals by granting
appropriate relief;
ii. Variety of reliefs were sought to which the Chancery responded;
iii. Only few decisions of equity were reported and these decisions are
irregular to concretize or develop the rule of precedent;
iv. Even if many decisions were reported, the early chancellors were not
bound by precedents;
v. The chancellors are usually non-lawyers and they exercise jurisdiction
based on the principles of conscience and natural justice.
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 Systematization and Standardization of
Equity

 Justice is the fundamental desire of law. For laws to achieve justice, they
need to be certain. The law should be fixed and should not change in the
middle of a transaction. If certainty is lacking because the law keeps
vacillating, injustice would result.
 This element of certainty is often negated by the equity of the general
juristic sense because it was based on conscience, ethics, morality and
notion of fairness of the individual chancellor applying it and not fixed
and certain rules.
 By its nature, conscience differs from person to person and even in one
person, conscience differs from time to time and from situation to
situation. This is captured by the maxims – La conscience est la plus
changeante des regles – Conscience is the most changing of rules, and
Misera est servitus ubi jus est vagum aut incertum – It is a miserable
slavery where the law is vague or uncertain.
 Equity’s reliance on conscience was summed up by the sarcastic remark of
19 Lord Selden:
 Systematization and Standardization of
Equity
 ”Equity is a roguish thing, for law we have a measure, know what to trust
to, equity is according to the conscience of him that is the chancellor and
that it is large or narrower, so is equity . Tis all one as if they should make
the standard for the measure we call a foot, a chancellors foot, what an
uncertain measure would this be? One chancellor has a long foot, another a
short foot, a third an indifferent, tis the same thing in the chancellor’s
conscience.”
 The ridicule of Chancery’s jurisdiction stung Chancery very severely
leading to concrete efforts to systematize and standardize the
principles and rules of equity.
 Lord Nottingham, believed to be the father of equity, in 1673 firmly
believed that equity should have clearly defined principles and needed
to follow the doctrine of precedent.
 In the mid of 17th Century, the situation changed. Rigidity and
precedent were introduced into Equity Jurisdiction. Three factors are
20 relevant for consideration.
 Systematization and Standardization of
Equity

i. The principles of conscience upon which Chancery Court based its

jurisdiction were vague and uncertain, which could lead to individual and
autocratic discretion of a particular Chancellor;
ii. The introduction of common law judges and their influencing the
adoption of precedent; and
iii. The existence of an improved system of equity cases reporting.
 A combination of the above rendered Equity fixed and systemized.

The Decline of Equity

 The decision in Earl of Oxford’s case culminated into the Chancery court
jurisdiction becoming more intensive and attracted a lot of litigants thus
became overburdened and litigants had to bribed their way to have their
cases heard.
 Courts officials became more corrupt and there was delay of justice.
Chancellor’s court was thus described as a bleak house by Charles
21 Dickens.
 Systematization and Standardization of
Equity

 According to Charles Brown (another critic of Chancery court) “When I

hear of an equity in a case, I am reminded of a blind man in a dark room
looking for a black hat that isn’t there.”
 Equity like common law, had slain justice on the alter of corruption and
adherence to precedent. This call for the reforms of Chancery
jurisdiction and procedure.
Reform of Equity and Common Law
 Reforms included; common law courts applied equity rules to cases
brought before them whenever those rules conflicted with common law
rules.
 Common Law Procedure Acts of 1852, 1854 and 1860 gave the common
law courts power to exercise certain jurisdiction which was originally
reserved for the Chancery (discovery of documents and interrogatories,
injunction).
 The Chancery Amendment Act 1852 gave the courts of chancery power
22 to exercise certain common law powers.
 Systematization and Standardization of
Equity
 Lord Cairn Act 1858 empowered the court in cases of contracts and torts
to award damages in addition to injunctions, specific performance among
others.
 These reforms however did not achieve much in dealing with the
shortcomings of the dual system of administering justice.
 Thus the Royal Commission on Administration of Justice recommended the
fusion of all superior courts of law and equity. This culminated to the
Judicature Acts of 1873-1875 which provided for propound changes to the
administration of Equity in England.
Fusion of Chancery Court and Common Law Courts
 Under the Judicature System, one Supreme Court was established which
replaces the Court of Chancery and Common Law Courts and the
administration of these bodies of law was brought under control of one
court. The Supreme Court consisted of a High Court of Justice and a Court
of Appeal.
 Judicature Acts 1873, 1875, provided that where there was conflict
23 between the rules of equity and common law, equity should prevail.
 Systematization and Standardization of
Equity

 It is crucial to remember that it is only administration of these

principles which is fused not the principles themselves.
Features of Judicature System
 The main features of the Judicature System were that
i. All branches of court have power to administer equitable remedies;
ii. Equitable defences can be pleaded in all branches of the court and
appropriate reliefs given;
iii. All branches of the court must recognize equitable rights, titles and
interests; and the common injunction was also abolished.

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 Contribution of Equity

Contribution of Jurisdiction or Content of Equity in the Development of

Law
This can be divided into three:
i.Exclusive Jurisdiction (New Rights)
ii.Concurrent Jurisdiction (New Remedies), and
iii.Auxiliary Jurisdiction (New Procedures).
Exclusive Jurisdiction (New Right):
This refers to the rights which the Court of Chancery had created and
which the Common Law Court had failed to enforce. For example, trusts,
mortgages, partnerships, administration of estate, bankruptcy, company
law etc.
Concurrent Jurisdiction (New Remedies)
Equity developed a wide range of remedies for the enforcement of

25 rights, both at law and in equity. They are all discretionary. For example:
 Contribution of Equity

i. Specific performance: an order to force the defendant to fulfill his

bargain
ii. Injunction: an order to restrain a party from committing a wrong
iii. Rectification: an order requiring the defendant to modify a document to
reflect the agreement made with the claimant
iv. Account: an order requiring a party who has control of money belonging
to the claimant to report on the way in which the funds have been
spent.
Auxiliary Jurisdiction (New Procedures):
 Procedural rules created by the Court of Chancery were discovery of
documents, testimony on oath, subpoena of witnesses and
interrogatories (now ‘disclosure’; witness summons; request for further
information.

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 Reception of Equity into Uganda

 In Uganda, Equity was received by the 1902 and 191I Orders in Council
which made Equity and Common Law to be applied concurrently, and
where there was conflict between the two with reference to the same
subject matter, the rules of equity would prevail.
 Currently, the above provision was reflected under S. 14 (2) and (4) of
the Judicature Act Cap 13 relating to the laws to be applied by a High
Court and Superior Courts of Judicature as well as S. 11 (1) and (3) of
the Magistrate Court Act, Cap 16 relating to the law to be applied by
the Magistrate Courts.
 It follows that equity is applicable in Uganda thereby giving relevance to
its doctrines in Uganda's legal scene.

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 Home work
Resolution of Conflicts between Common Law and Equity
Read the following Cases before the next class
i.Job v. Job (1877) 6 Ch. D 562
ii.Walsh v. Lonsdale (1882) 21 Ch. D 9
iii.Lowe v. Dixon (1885) 16 QBD 455
iv.Berry v. Berry (1929) 2 KB 316
v.Central London Property Trust Ltd v. High Trees House Ltd (1947) KB 130

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