By Bakampa Brian
Baryaguma
1.
Introduction
Equity has the
ordinary and technical (legal) meaning. Ordinarily, equity means fairness and
right judgment.[1]
Here, equity is understood to mean doing what is good and morally right.
Technically, ‘… equity
may be described as that part of the law which immediately prior to the coming
into force of the Supreme Court of Judicature Acts of 1873 and 1875 was
enforced exclusively in the Court of Chancery….’[2] It denotes the body of rules
formulated and administered by the Court of Chancery, to supplement and/or
correct the rules and procedure of the common law, when these would apply
unfairly. In other words, equity means, ‘… the rules developed to mitigate the
severity of the common law.’[3]
On the other
hand, the common law refers to the set of cogent rules of the law of England
which was formulated, developed and administered by the old common law courts,
based originally on the common customs of the country.[4] Judges took the best laws
applying in a particular locality, and applied them in the whole country,[5]
and in so doing, made those laws common to all. Ultimately, therefore, the
common law was neither a result of legislation, nor was it necessarily local
law. It was the unwritten law developed from old customs of the people that
were employed by judges across the realm in adjudication of disputes,
flourishing on the belief that it was the commonsense of the community, crystallized
and formulated by their forefathers.[6]
2.
Historical
Evolution of Equity
Equity evolved
purely on moral considerations, principally designed to remedy the defects of
the common law on grounds of conscience and natural justice.[7] It
started with popular demand on the King’s Court to intervene in the delivery of
justice, basing on the belief that a residuum of justice still resided in the
Sovereign, owing to the fact that he was the fountain of justice in the country.[8] This
was extraordinary justice sought from the King, by either petitioning him in
person, or through his Council. When petitioned, the King often referred such
requests to the Lord Chancellor, who heard and determined the cases presented,
based on notions of conscience and natural justice. The Chancellor was often called
the ‘Keeper of the King’s Conscience.’[9]
The practice
became habitual and references frequent, addressed to the Chancellor and the
Council. Soon, the petitions were addressed to the Chancellor alone, and by
the 15th century, his office (Chancery) took on the real
characteristics of a court, which led to the birth of the Court of Chancery.[10]
Cases where the law was defective and those where the petitioner couldn’t take
benefit of a remedy available at common law, due to instability in the country,
or where the defendants were so wealthy and powerful that they easily
influenced the presiding judge to decide in their favour, were the commonest.[11] In
adjudication of these new cases, new law was being created, and this is what
later became known as ‘equity.’
At this time,
equity was highly individual, based on personal decisions of the Chancellor.[12]
Most Chancery decisions therefore, depended on the Chancellors’ sole ideas of
right and wrong;[13] and
failure to comply with them amounted to contempt of court, punishable by
imprisonment, on the orders of the Lord Chancellor.[14] In 1873, the Judicature Act was enacted, to fuse equity
and common law, by providing that both common law and equity could be
administered by the same court.[15]
But before this time, equity had had a vigorous separate existence for nearly
500 years.[16]
3.
Relationship of
Equity to Common Law
The relationship
between common law and equity is one of contrast and comparison. To comprehend
this relationship, the scholar has to address his/her mind to the salient
features, points of contention, and similarities characterizing the two
branches of law.
A.
The Positive Relationship
1.
Reliance on
Precedent
Following the
emergence of maxims or doctrines of equity, the Chancery also started relying
on precedent, just like the common law. These maxims turned, ‘… equity into a
system of law almost as fixed and rigid as the rules of the common law.’[17]
Before the doctrines,
equity was what the Chancellor believed was equity. In the middle of the 17th
century, John Selden criticized this state of affairs, noting that equity was a
roguish thing that varied according to the conscience of the individual
Chancellor, in the same way as if the standard measure were a Chancellor’s foot.[18]
Other critics averred that the court of equity was actually not a court of
conscience.[19] Maxims
therefore developed as safety valves to ensure that a settled system of law,
which is consistent and certain, was built in the court of chancery.
2.
Administrative Fusion
of Equity and Common Law
The other
relationship is derived from the 1873 Judicature
Act, which caused administrative fusion of equity and common law, in a bid
to remove the conflict between law and equity. This Act was necessitated
because, as Megaw LJ, observed, ‘… the creation of new rights and remedies is a
matter for Parliament, not the judges.’[20]
Section 24
empowered all judges to recognize and give effect to both legal and equitable
rights, claims, defences, and remedies. This resolved the dilemma where both
common law and equity had different rules relating to the same subject matter,
leading to inconsistent remedies.
Section 25(11)
of the same Act provided that where there was conflict between common law and
equity, the rules of equity shall prevail.
The net effect
of these provisions was said to be that, ‘… the courts of Chancery are no
longer courts of equity. … They are as fixed and immutable as the courts of law
ever were,’[21]
because Section 25(11) put a stop to or severely limited the inventive
faculties of future Chancery judges,[22] since this sub-section
necessarily proceeded upon the view that the rules of equity were then a known
body of established doctrine.
B.
The Negative Relationship
1.
Writs versus Petitions
The first is to
be got from the foundational basis of the two sets of laws. Whereas common law
was based on writs, equity was based on petitions.
A writ was a
document setting out the details of a claim,[23]
issued in the Queen’s or King’s name, and under the seal of the Crown, which either
created legal rights, or were commanding a person to whom it was addressed, to
do or forbear from doing some act; while a petition was a written statement,
addressed to the Crown, setting forth facts on which the petitioner based a
prayer for remedy or relief.
The common law
writ system didn’t separate substance and procedure. For example, ‘Even if a
writ was obtained, the [common law] judges would often spend more time examining
the validity of the writ, than the merits of the claim.’[24]
Equity sought to remedy this by distinguishing the two and coined the maxim
that equity looks to the substance rather
than the form. The rationale was that insisting on the form or
technicalities will defeat the substance or main purpose of the transaction – something
considered to be inequitable.
Due to the writ
system, the common law became rigid and inadaptable (or sluggishly adaptable at
best).[25]
Cubby-hole justice, you could call it.[26]
On the other hand, equity was highly flexible owing to its individual character
– so much so that in 1670, Vaughan C.J maintained that, ‘Equity is a universal
truth and there can be no precedent in it.’[27] Equity permitted wide
discretion, whereas the common law was highly legalistic, emphasizing strict
adherence to law and procedural formalities.
2.
Conflicting
Principles
There is still
subsisting the age-old conflict in principles.[28]
Much as the 1873 Judicature Act is
alleged to have fused common law and equity, the orthodox view is that its
provisions only achieved administrative fusion, but not physical fusion (or
fusion of principles).
Maitland coined
a metaphor that best captures this dichotomy. He said that, ‘… the two streams
of jurisdiction, though they run in the same channel, run side by side, and do
not mingle their waters.’[29] This
contrast manifests in the fact that up to the present day, there are equitable
rights and remedies that are different from those of the common law.
But this was
clear from the very beginning, because in fact, while introducing the Bill leading
to the enactment of the Judicature Act,
the Attorney General said, at the second reading, that, ‘The Bill was not one
for the fusion of law and equity,’ arguing that, ‘The defect of our legal
system was, not that Law and Equity existed, but that if a man went for relief
to a court of Law, and an equitable claim or an equitable defence arose, he
must go to some other Court and begin afresh.[30]
4.
Conclusion
The evolution of
the doctrine of equity is not only captivating, but also puzzling, because it
is by no means obvious that two separate legal systems can concurrently develop
in one jurisdiction, and apply simultaneously therein. For that matter,
therefore, explaining clearly the relationship between equity and common law is
a herculean task (especially as far as the negative relationship is concerned).
Yet this
relationship is the essence of the existence of equity alongside common law,
since they are the inadequacies in one that lead to the emergence, and indeed,
continued existence of the other. The inadequacies are responsible for the
negative relationship.
Notes and References
[1] A. S. Hornby, A. P. Cowie, &
A. C. Gimson, Oxford Advanced Learner’s
Dictionary of Current English (1983), at 294.
[2] Philip Pettit, Equity and the Law of Trusts, 8th
Edn, at 1.
[3] Asif Tufal, ‘Equity,’ at 2.
[4] Osborne, A Concise Law Dictionary, 8th Edn, at 77.
[5] Asif Tufal, supra note 3, at 1.
[6]Osborne, supra note 4.
[7] Philip Pettit, supra note 2, at 4.
[8] Ibid.
[9] Bill Long, ‘The Early History of
Equity,’ says that, ‘The Chancellor … was the King’s Secretary, and he ran the
administrative apparatus of the state.’ Most Chancellors were ecclesiastics, and
well versed in civil and canon law.
[10] Philip Pettit, supra note 2, at 2.
[11] Ibid.
[12] Wilson Chap, Law and Equity and an Introduction to the
Trust, at 7.
[13] Philip Pettit, supra note 2, at 4.
[14] See, Chellaram vs Chellaram [1985] 1 All ER 1043, 1053.
[15] Before the Judicature Act, 1873, there had been piecemeal attempts to amalgamate
common law and equity. In 1854, the Common
Law Procedure Act was enacted, to give common law courts power to award
some equitable remedies. In 1858, the Chancery
Amendment Act was enacted, giving the Lord Chancellor power to award the common
law remedy of damages, in addition to, or in substitution for, an injunction or
a decree of specific performance. So, the Judicature
Act harmonized the position, and formed the Supreme Court of Judicature
(encompassing all courts in England), empowered to administer common law and
equity. Hence, in the case of Pugh vs
Heath (1882), Lord Cairrns said that the court, ‘… is now not a Court of
Law or a Court of Equity, it is a Court of complete jurisdiction.’
[16] Bill Long, supra note 9, at 1.
[17] Philip Pettit, supra note 2, at 4.
[18] Pollock (Ed), Table Talk of John Selden (1927), at 43.
[19] See, Gee vs Pritchard (1818) 2 Swan 402, 414 (per Lord Eldon).
[20] Western Fish Products Ltd vs Penwith District Council [1981] 2 All
ER 204, 218.
[21] Extra-judicial opinion of Lord
Denning, in (1952) 5 CLP 8; and reproduced by Philip Pettit, supra note 2, at 5.
[22] Extra-judicial opinion of Lord
Evershed, quoted in (1953) 6 CLP 11, 12; reproduced by Philip Pettit, ibid.
[23] Asif Tufal, supra note 3, at 1.
[24] Ibid.
[25] Philip Pettit, supra note 2, at 2.
[26] Asif Tufal, supra note 3, gives some defects in the common law system, namely: the
common law courts used juries, which could be easily intimidated, and
corrupted; the common law had only one remedy, damages, which was often
inadequate; and common law courts didn’t recognize trusts.
[27] See, Wilson Chap, supra note 12.
[28] This rivalry reached its peak in
the early 17th century, in the Earl
of Oxford’s Case (1616) 1 Rep. Ch 1, in which the common law court judged
in favor of one party, and the court of equity issued an injunction preventing
that party from enforcing the judgment. When the dispute came to the King, he
asked the Attorney General (AG) to make a ruling on it. The AG determined that when
there is a conflict between common law and equity, then equity prevails.
[29] See, Prof. Ashburner, Principles of Equity, 2nd Edn,
at 18.
[30] See Philip Pettit, supra note 2, at 10.
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