Onimisi's_Care,_Volume_3.1_(Admin_Law)-1[1].pdf

Page 1 of 285 Contents. Onimisi's Care !  Contents.  “Get a Drive: Study ‘n’ Smile,” by Hadi Onimisi Tijani.  LAW 3303 – Equity and Trust I.  LAW 3305 – Commercial Law I.  LAW 3309 – Mu’amalat I.  LAW 3301 – Criminal Law I. ...

Page 1 of 285 Contents. Onimisi's Care !  Contents.  “Get a Drive: Study ‘n’ Smile,” by Hadi Onimisi Tijani.  LAW 3303 – Equity and Trust I.  LAW 3305 – Commercial Law I.  LAW 3309 – Mu’amalat I.  LAW 3301 – Criminal Law I.  LAW 3315 – Administrative Law I.  Closing Remark by Onimisi – fluent in silence. This material belongs to ________________________________ from LL.B. ___, Faculty of Law, ___________________________________. If found, return to the pre-mentioned class/faculty/university, or call ________________________. Thanks for your cooperation. Page 2 of 285 Onimisi's Care !  GET A DRIVE: “Study ‘n’ Smile” 👉 How will I face my parents to tell them that I failed? It is said that LL.B. 3 is not only the centre, but the most difficult stage of the LL.B. journey. 👉 My parents have suffered; I must do my best to liberate them. Lecturers and seniors, alike, tell us that it is in LL.B. 3 that the determination of whether or not 👉 My younger ones look up to me; I can’t fail to be a Law student starts. them. It is said that what we did in Level 1 and Level 2 👉 How will my friends react when they hear I qualify not even as preambles to the main context. misused my opportunity? But what happens after LL.B. 3? 👉 Where do I start from if I failed? What if we take this as a challenge? The list is endless... Let me introduce you to the concept of a “drive”. Your drive may not be in the aforementioned, but A drive is simply a motivation to do something. one thing is sure: your drive keeps you going and It is something that gives one an urge or makes you tough to go through when the going inspiration to do something. It makes one stand gets tough. up to any challenge that one may face in the course of any life pursuit. So, every student should have something that gives him/her zeal, strength and motivation to Having a drive is very important in the life of never give up and always try his/her best in students. It is like a fuelling gas that propels one achieving his/her set goals. at all times to achieve one’s goals. The drive tells you always not to give up, that you should stand Let your drive be your strength to take you to up to a challenge and overcome it. The drive tells your destination. you that you have no excuse but to survive even If not for any other thing, if you're a guy, you can if there are a thousand reasons you should give even have a drive like, “what eyes will those girls up. use in seeing me if I fail?” 😉 It is a reminder of the hope of people in you that would be lost; the grieve that people will feel, and Some of us are from homes where we have drives other things that may befall people, if only you do — we have parents who motivate us and caution us always not to disappoint them. not succeed. This will often steer you up; keep you awake, and also help you remain focused. It You won't know what it means to study law until will help you remain careful of the kinds of you witness the way your mum and dad proudly friends you’d keep; the type of life you’d live; the tell people that, “my son/daughter is a Level 3 commitment you’d give to your study and other LAW student in the university.” good things, while on campus. Now, tell me, where would they hide their faces A student may have a drive such as: if it turns out that that their son/daughter whom they always tell people about to be studying law Page 3 of 285 Onimisi's Care ! in the university has dropped out — not because behind your back that, “I have a friend studying of lack of financial support, but because he/she is law”) proud so they won't have to hide their faces not dedicated and committed to studying and in shame? making the results? It's all about getting a drive and working This alone is enough to be a drive to you. diligently towards it. Those who used to not believe in us were some If you're ready to work towards it, I am ready to people from our homes, ranging from neighbours, work with you; I will gladly accommodate you in some friends and all that. A lot of them had said my “Care” and still say, “so, na law dis one too dey read? Make I see how e go take cope na? Dem tell am It's not too late to start. You already got the hints say law na biscuit?” to effective studying from Onimisi's Care, Volume 1; you've already probably tried to build Now, it's not only those from our homes, but even your C.G.P.A. with the “My C.G.P.A.” volume. our lecturers and our seniors dare us and Now, introducing, the bridge volume of challenge us. They tell us Law is not easy and a Onimisi’s Care, “Study ‘n’ Smile”. whole lot of scary talks. The volume is sub-titled “Study ‘n’ Smile” as it Are you ready to take up the challenge? is believed that you've already probably built your C.G.P.A. with the “My C.G.P.A.” version, We’ve already proven them wrong enough till hence, this is the time to “study”, and “smile” this point (consciously or unconsciously). while doing that.. They thought we would not have up to five credits If, however, you believe your C.G.P.A., hasn't in our SSCE, but God is not a man! reached where you want it to reach, then you can work on building your C.G.P.A., all the same, do They thought we would not pass our JAMB, but not forget to “smile” 😊 God no dey shame Him servants. Meanwhile, I am Onimisi, so if you're too tired They thought we wouldn't be given admission to to speak, sit next to me, for I, too, am fluent in study law, but since we no spoil person own, no silence body go spoil our own. Hadi Onimisi Tijani – CEO, Onimisi’s Care! We are currently in Law, and a lot of people already believe we wouldn't graduate. A lot [email protected] already believe we would drop out or be expelled. Are you willing to give them the chance? +2348142489112. How then can you prove them wrong? LAW/17/LLB. How then can you continue making your parents and some of your friends (who make mouth Page 4 of 285 Onimisi's Care !  EQUITY AND TRUST I – LAW 3303. Course’s Facilitator: Dr Aisha Haruna. Course’s Outline:  The Nature and History of Equity.  Early Development — an Introduction to Nigeria.  Relationship between Equity and the Common Law.  Conflict between Equity and Common Law.  The Twelve Equitable Maxims.  Nature of Equitable Rights & Interests.  Priorities of Legal Estates and Equitable Interest.  Assignment of "Choses in Action"  Equitable Doctrines.  Conversion and Re-conversion.  Election.  Satisfaction.  Equitable Defences.  Equitable Remedies. Page 5 of 285 Onimisi's Care ! Lecture 1. — Dr Aisha Haruna. NATURE AND DEFINITION OF EQUITY. The definition of Equity can be viewed in two senses — the juridical sense, and the technical sense. Juristically, Equity means the power to meet the moral standard of justice in a particular case by a court or a tribunal. Technically, Equity is a body of rules that are parts of the English law which were created, developed and administered by the Court of Chancery. This technical definition, however, has some loopholes as it had attached too much importance to the Court of Chancery and the later enactment of the Judicature Act which fused both Common Law and Equity together is not taken into consideration here. Currently, Equity is a body of rules administered by the English courts of justice which were, if not for the operation of the Judicature Act, would have been administered only by those courts which will be known as courts of Equity. Historical Development and Growth of Equity. Development of Equity. Foundation. The general foundation of law and justice as far as the English legal system is concerned was the King. He was the fountain of justice and justice was dispensed at Page 6 of 285 Onimisi's Care ! his behest. This prerogative of justice is what was delegated to and exercised through the courts of the land. The early English courts, stemming from the Norman conquest of Great Britain, applied both principles of law derived from the customs common to the realm of Britain, and Equity (in the general sense) to matters that came before them. There was no reason to split law and Equity as they never existed separately. This was largely because the judges of the era were ecclesiastical and also exercised wide judicial discretion which was often exercised on considerations of fairness and good conscience. Stare decisis was not yet perpetuated and Parliament was only fledgling at the time. At this period, the Chancellor was merely a part of the executive, a member of the King’s council, Secretary of State and Keeper of the Great Seal. In his capacity, the only remotely judicial assignment he undertook was the responsibility to issue writs to persons seeking the King’s justice, both existing and new ones if the circumstance required it. This equitable nature of the early English courts was short lived though and began to cauterize at the end of the 13th century, due to a number of reasons. First, Parliament began to wax stronger and by virtue of the Acts of Parliament, it wrested the power of law-making from the King-in-council. Second, in consequence of its new power, Parliament took away the power of the Chancellor to issue new writs by the Provisions of Oxford (1258) as it perceived that the Chancellor’s power to issue new writs was a form of encroachment on its power. Third, the judges grew inflexible and began to emphasize form over the merits of cases. Thus, causes of action would only be entertained if the grievance fell within any of the existing writs and even when Parliament allowed introduction of new writs once more, the courts had become too hard-nosed, and arrogated to themselves, the jurisdiction to strike down Page 7 of 285 Onimisi's Care ! writs which differed from the existing ones. The Common Law thus fell behind society’s needs and expectations. At this period, the Common Law had grown rigid, unjust and exceedingly harsh. It could not provide for the protection of rights and offered only remedial measures such as damages and recovery of property. It could not prevent the infliction of injuries, upheld form over merit, did not recognize the development of novel legal instruments such as the Trust and thus fell behind the times. Due to the harshness and rigidity of the Common Law, injured litigants would then send petitions to the King-in-council for relief under the prerogative power of the King’s grace. These petitions were actuated by the need for reliefs which the Common Law courts could no longer grant or where the law was defective as well as the fear, in some instances, that a party’s influence would make the prospects of a fair hearing unlikely at the Common Law courts. These petitions were originally handled by the King-in-council but when they became too much to handle, the responsibility was thrust on the Chancellor. In this sense, the foundation of the wide judicial powers of the Chancellor and the Courts of Chancery as well as the attendant conflicts with Common Law was inadvertently laid. The Chancellor handled the petitions in the name of the King and dispensed justice on the basis of conscience, good faith and reason. Being an ecclesiastical as well as scholar of both Canon and Roman law, his decisions had little to do with law and much to do with fairness and good conscience. Of course, concepts of “fairness” and “good conscience” vary and the case here was no different. Each Chancellor dispensed what he felt was justice and this led to a commentator stating that the Equity dispensed by each Chancellor varied according to their individual conscience in the same way as the length of their feet. Page 8 of 285 Onimisi's Care ! Chancery provided reliefs hitherto unknown to Common Law such as injunctions, specific performance, rectification, rescission etc. which were preventative. The process of litigation was flexible and there was no unnecessary harping on form or precedent at the expense of the merits. An author posited that the jurisdiction of Equity at this stage was exclusive, concurrent and auxiliary. It was exclusive in the sense that it created new rights that were hitherto unknown at Common Law and protected them. These rights include those of beneficiaries to trusts. Its concurrent jurisdiction existed in the sense that it helped create new remedies such as specific performance, the common injunction inter alia. The auxiliary jurisdiction consisted in assisting the defects in procedure at Common Law by creating new procedures e.g. interrogatory and discovery of documents in possession of the other party. The jurisdiction of Equity was however largely private, not reaching the extent of Common Law and certainly staying out of crime entirely. At the early stage, the Chancellor dispensed justice in the King’s name and was basically an extension of the King-in-council. Thus, there could be no conflict between him and the Common Law courts. However, by the 15th century, when the Chancellor and Chancery began to answer petitions without recourse to the King- in-council, conflict began to creep in. The Main Note. The period immediately after the Norman Conquest saw the birth and early growth of the Common Law. It was one of the greatest achievements of the Norman Kings that under their rule, a system of law, 'Common' to the whole England was consolidated. These laws were administered by the three Common Law courts: — King's or Queen’s Bench Page 9 of 285 Onimisi's Care ! — Court of Common Plea — Court of Exchequer The key figure in the administration of justice was the Lord Chancellor whose function was to issue royal writs which began every action at Common Law. The Common Law rule was to the effect that if a plaintiff had no claim within the scope of the existing writ, he had no course of action in Common Law. By issuing new writs and varying existing ones, the Chancellor was able to influence the development of the Common Law. Nevertheless, this influence was a limited one, since, even if a plaintiff acquired a writ to fit his claim, the writ could be declared invalid by a Common Law judge. By about 1250, the Common Law judges were becoming more conservative in their attitude to new development, and the practice of declaring new writs to be invalid increased, culminating in the Provisions of Oxford 1258, which provided that no new writ was to be issued without the consent of the Council, the King's governing body. These fetters on the growth of the law were loosened somewhat by the Statute of Westminster II, 1285 (also known as the statute of in consimili casu). This statute of in consimili casu gave the clerks in Chancery a limited power to invent new writs. In essence, if there was already a writ in one case, and a case came before the court which was similar to the previous case falling under same law and requiring same remedy which had no writ, the clerks were authorised to provide a writ (similar to the existing writ in an earlier similar case). This position, however, was still highly not satisfactory in the sense that, a plaintiff, even if he did obtain a suitable writ, might be defeated by the power or influence of his opponent. A plaintiff who failed to obtain redress through lack of a remedy or failure to administer it could petition the King in Council, praying that the King might exercise his wide discretionary Page 10 of 285 Onimisi's Care ! power to do justice among his subjects. It was the Chancellor, as the King's chief minister, who dealt with these petitions. Gradually, the Chancellor came to determine matters raised in the petitions independently of the King in Council, so that, by the end of the fifteenth century, petitions were addressed directly to him, the issues were tried in his own court, and decrees were made in his name. This was the beginning of the equitable jurisdiction of the Court of Chancery. The Growth of Equity. There was no binding precedent with respect to petitions. Each case was considered on its merits. Where the application of the Common Law would be harsh or unjust, the Chancellor might according to his ‘conscience’ provide relief in Equity. In essence, the Chancellor decided each case on its merits and according to his 'conscience', and his judgements were founded not on precedent but on his own individual sense of right and wrong. Selden famously noted: “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 Chancellor, and as that is larger or narrower, so is Equity. ’Tis all one as if they should make the standard for measure we call a foot a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’Tis the same in the Chancellor’s conscience." This is a comment about the development of Equity being ad hoc and highly discretionary. The equitable decrees were originally based on 'conscience', which made almost all the early Chancellors to be bishops, concerned more with relieving hardship in individual cases, than with formulating a body of defined rules and principles. Page 11 of 285 Onimisi's Care ! Precedents began to appear and rules were laid down when Chancellors began to be appointed from Lawyers, this process started in the 16th century by the first lawyer to be appointed who was Lord Ellesmere (1595-1617), and was continued by Lord Nottingham, the father of Equity (1673-1682). Under Lord Nottingham's Chancellorship, many of the modern principles of Equity were systemized. There then followed Lord Hardwick (1737-1756), and, finally, Lord Eldon (1801-1827). All these Chancellors were eminent lawyers, and it was natural that under their guidance Equity should have developed from its original formlessness into a system of rules almost as rigid as the Common Law itself. Conflict between Common Law and Equity. The early Court of Chancery was faced with two procedural problems. The first was how to compel a defendant to appear before the court of Chancery and answer to the plaintiff's petition without the issuance of a writ. This was easily solved as the Chancellor resulted to the issuance of a subpoena ordering the person to appear before the Court on pain of forfeiting a sum of money. The second problem was how to enforce certain equitable decrees against a defendant without coming into conflict with the Common Law courts. For instance, if Onimisi had a legal title to a land, but Equity held that Onimisi should hold the land to the use of Namalam, and that Namalam should have possession, the Common Law would not recognise any rights in Namalam, and if Onimisi sued under Common Law, his legal title and right to possession would be upheld. Since the Chancellor could not deny Onimisi's title nor challenge a ruling of Common Law Courts, the only way to uphold Namalam's claim would be to act in personam against Onimisi and prevent him from bringing an action under Common Law. The Page 12 of 285 Onimisi's Care ! Chancellor did this by issuing a “Common Injunction” restraining the defendant (Onimisi in this situation) from suing under Common Law to enforce his legal rights (or to prevent him from exercising the judgement of Common Law if he had already obtained a judgement at Common Law). Failure to obey an injunction issued by the Chancellor 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. Relations between the two systems had always been strained, but, perhaps, because of the respect accrued to the Chancellor (who was the King's Chief Minister), an open clash had been carefully avoided. Matters, however, came to the climax in the Earl of Oxford's Case (1615) during the Chancellorship of Lord Ellesmere. Chief Justice Coke was not prepared to see the Common Law flouted, and in a number of judgements, declared the Chancellor's Imprisonment of those who disobeyed injunctions to be unlawful. Furthermore, Lord Coke asserted that the Chancery had no right, either by statute or by any other law of the land, to set aside Common Law judgments and that he would issue a writ of prohibition against Chancery’s interference with Common Law judgments. Lord Ellesmere, on his part, vigorously defended the position of Chancery, asserting that the Chancery Court was not interfering with the due process of law, but was merely acting in personam against the defendant, directing that on the ground of Equity and good conscience, the defendant should not pursue his remedy at Common Law. The matter in controversy came before King James I, who after consulting with many other learned lawyers of the period, (including Bacon, who later became Lord Chancellor), decided in favour of Chancery jurisdiction. Page 13 of 285 Onimisi's Care !  The 19th Century Reforms. In the early part of the 19th century, two important factors called for reform and simplification of legal procedure. (i) The decadent and the unsatisfactory procedure and organisation of the Court of Chancery; and (ii) The area of jurisdiction within which each of the superior courts, namely; court of Common Law and the court of Chancery was to operate, was not clearly defined. If a litigant required redress both in Equity and at Common Law, distinct actions in each jurisdiction were necessary. Again, there were cases lying on the frontier of both jurisdictions. If an action was brought in one jurisdiction, it might be fought up to the House of Lords, only for parties to discover that the action should have been brought in the other jurisdiction. Thus, litigation became expensive and there was unnecessary delay in the administration of justice. Certainly, such a situation is not a credit to any legal system. This could be said to be the disadvantage of operating separate courts. In essence, Equity occupied a separate jurisdiction to Common Law. Effectively there was one court for Equity and another for the Common Law. If proceedings were commenced in one court, and it was later discovered that they should have been brought in the other, the whole matter would need to start afresh. There was no power to transfer a suit. The same problems occurred with remedies. At Common Law the only remedy available was damages for compensation based on set rules involving proximity and mitigation. It was not possible to receive an account of profits for a breach of a fiduciary duty. Page 14 of 285 Onimisi's Care ! Before the statutory reforms of the second half of the 19 th century, Common Law courts attempted some minor reforms of the conflicting system of procedure with a view to mitigating the attendant hardships. They would apply rules of Equity to cases before them whenever those rules were in conflict or different from Common Law rules. This was to prevent separate proceedings, one in Equity and the other at Common Law, from being brought in respect of the same cause of action and thereby save litigants’ time and unnecessary expense. The bold attempt to combine the administration of both rules into one system of procedure was a step in the right direction. However, not much was achieved by this unification policy of the Common Law courts since the attitude of the Chancery to matters before Common Law courts might not be easily predictable. The 19th century reforms are...  The Common Law Procedure Acts of 1852, 1854 and 1860 empowered Common Law courts to exercise certain jurisdictions originally peculiar and exclusive to the Chancery. For example, Common Law courts were empowered to compel discovery of documents and interrogatories in certain cases. They had a limited power to grant injunction and some other equitable reliefs when such reliefs might have been granted by the Court of Chancery.  On the other hand, the Chancery Amendment Act of 1852 empowered the Courts of Chancery to exercise certain Common Law powers. Thus in an Equity suit, any relevant Common Law matters could be decided by the Chancery Courts. Before the Act, such matters would have been sent to the Common Law courts. In addition, the Court of Chancery was enabled to take evidence orally in the open court. Originally, evidence in the Chancery was by bill. Page 15 of 285 Onimisi's Care !   Lord Cairn’s Act, 1858, also empowered the court of Chancery in cases of contracts or torts to award damages in addition to or in lieu of injunction, specific performance or any relevant equitable remedy. The foregoing series of Acts did not go far enough to ameliorate all the evils inherent in the dual system of administration of justice. Royal Commission was constituted to see how the conflict between the Common Law and Equity could be resolved once and for all. This is what led to the promulgation of the Judicature Act. The Judicature Act. Between 1873 and 1875 the United Kingdom Parliament enacted several laws regarding the interaction of Equity and the Common Law. The Supreme Court of Judicature Act 1873 (UK) with the long title ‘An Act for the Constitution and of a Supreme Court, and for Other Purposes Relating to the Better Administration of Justice in England; and to Authorize the Transfer to the Appellate Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty’s Privy Council’ 36 & 37 Vict c 66—ss 24–5 provided:  Where there was a conflict or inconsistency between Equity and the Common Law, Equity would prevail.  There would be one court to administer both Common Law and equitable principles. The Judicature Act came with three reforms:  If the rules of Common Law and the rules of Equity are in conflict, the rules of Equity shall prevail. Page 16 of 285 Onimisi's Care !   The three Common Law courts and the Court of Chancery were abolished and replaced with a Supreme Court of Judicature, with a High Court divided into Queen's/King's Bench Division, Chancery Division and Probate, Divorce and Admiralty Division; each division having both legal and equitable jurisdictions.  The common injunction was abolished. Effects of the Act.  The Judicature Act did not abolish the distinction between legal and equitable rights. It is still of great importance whether a right is legal or equitable. Thus, for example, if A acquires a legal interest in a property for value without notice of B's prior equitable interest, A will take free of the equitable interest. But if A acquires merely an equitable interest, he takes subject to the prior equitable interest, even though he had no notice and had given value. It can, thus, be said that the Act has not fused the rules of Common Law and doctrines of Equity together, but only the administration of the two systems.  The provision that, in cases of conflict between a rule of Common Law and Equity, the equitable rule is to prevail, is exemplified in the following cases: Berry v. Berry (1929). By a deed of separation, a husband agreed to pay his wife a certain allowance. Later, the parties entered into a written agreement, not under seal, reducing the allowance. When the wife subsequently sought to enforce the terms of the deed, her action was dismissed on the ground that, although at Common Law, a contract made by deed could only be varied by another deed, in Equity, a simple contract varying the terms Page 17 of 285 Onimisi's Care ! of the deed is a good defence to an action brought on the deed, and, since the Judicature Acts, the equitable rule prevails. Walsh v. Lonsdale (1882). The defendant (landlord) agreed in writing to grant to the plaintiff (tenant) a lease of mill for seven years. The agreement provided that a year's rent was payable in advance if demanded. No grant by deed of the lease (as required by Common Law for the grant of a lease for a term exceeding three years) was ever made. The tenant entered into possession and paid rent quarterly, not in advance. He became in arrears and the landlord demanded one year's rent in advance. When the tenant failed to pay, the landlord distained. The tenant sued for damages for illegal distress. The action failed. The distress would have been illegal at Common Law since no seven-year lease had been granted, and the yearly tenancy which arose because of the entry into possession and payment of rent did not include any provision for payment of rent in advance. In Equity, however, the agreement for a lease was as good as a lease, and the tenant was therefore liable to pay a year's rent in advance. Jurisdiction of Equity. Equity exercises jurisdictions using:  Original (Exclusive) Jurisdiction.  Concurrent Jurisdiction.  Auxiliary Jurisdiction. Original (Exclusive) Jurisdiction: Creation of New Rights. This jurisdiction dealt with rights that Common Law failed to enforce. For instance, the right of a beneficiary under a Trust. Page 18 of 285 Onimisi's Care ! Concurrent Jurisdiction: Creation of New Remedies. The maxim “Equity follows the law” means that Equity supplements the law or is based on the law i.e. under trust although the beneficiaries are regarded as the equitable owners, Equity does not deny the legal title of the trustees. The exercise of this jurisdiction depended on rights recognised by Common Law and enforced. The problem with this was that they were inadequate. Equity was concerned with providing adequate and just remedies such as an order for an account. This remedy was enforced where: a) there was a violation of a legal and equitable right, or b) the remedy provided by Common Law was inadequate. Equity could offer specific performance of a contract whose subject matter was unique or grant an injunction restraining commission of a continuing trespass or other injury. The grant of an injunction by the court is specifically provided for in Section 38 of Judicature Act, Cap 13. Auxiliary Jurisdiction: Creation of New Procedures. The exercise of auxiliary jurisdiction was exercised as a form of remedy to the defective procedures at Common Law. The Chancery became over-burdened as many litigants preferred equitable remedies resulting to delays in addition to area of jurisdiction between Common Law and Equity not clearly defined. The Law Procedures Acts of 1852, 1854 and 1860 gave the Common Law courts the power to apply rules of Equity, and the Chancery courts given power to exercise certain Common Law powers. Since Common Law courts had been given the power to apply rules of Equity, Equity had to create new procedures for Common Law to adequately apply the rules of Equity, such as discovery of documents. Page 19 of 285 Onimisi's Care ! Lecture 2. — Dr. Aisha Haruna. THE EFFECT OF THE JUDICATURE ACT: DID IT FUSE THE TWO LAWS TOGETHER REALLY, OR IT WAS JUST FOR THE PURPOSE OF ADMINISTRATION OF JUSTICE? Many academic scholars and judges expressed divergent opinions as to whether the Judicature Act fused both the rules of Common Law and the principle of Equity to make them as one or it was just an amalgamation of the two rules so that each of them retains its identity but administered in the same Court. Lord Evershed observed that, "When you speak of 'fusion', you may mean one of two things. You may mean that the component parts disappear altogether in the new entity that is created, or you may mean that they have combined for particular purposes or have become subject to some single control, though retaining their separate and original individuality." Some scholars opined that the both rules were totally fused and are no longer distinguished. They further contended that the Act abolished the three Common Law Courts and the Court of Chancery and established the Supreme Court and the High Court having different jurisdiction administering both the rules of Common Law and the principle of Equity. To this effect… In the case of Redgrave v. Hurd, Jessel M.R. held that "The difference between Common Law and Equity has now disappeared by operation of the Judicature Act." Page 20 of 285 Onimisi's Care ! Sir George said, "Common Law damages could be awarded to innocent misrepresentation (a purely equitable action) because the difference between law and Equity no longer exists since the passing of the Judicature Act." President Cooke in Aquaculture Corporation v. New Zealand Green Mussel, stated that, "For all purposes now material, Equity and Common Law are mingled (merged). The practicability of the matter is that in the circumstances of the dealing between the parties, the law imposes a duty of confidence. For its breach, a full range of remedy should be available no matter whether they originate in Common Law, Equity or statute." Lord Diplock in Scientific Holding v. Burnley Borough Council, stated that, "The innate conservatism of English lawyers may have made them slow to recognise that by the Supreme Court of the Judicature Act (1873), the two systems of substantive and adjectival law formerly administered by courts of Common Law and courts of Chancery were fused." Lord Denning, in the case of Nelson v. Larholt, held that "It is no longer appropriate to draw distinction between law and Equity. Principles are now to be stated in the light of their combined effect." He maintained this point also in High Tree's case, and the case of Errington v. Errington. Another set of scholars dissented and opined that the Judicature Act is a creation of common courts for the administration of both rules and not a fusion of both Law and Equity. To this effect… Lord Ashburner observed that, "The two streams of jurisdiction, though they may run in the same channel, run side-by-side, do not mingle their waters". Page 21 of 285 Onimisi's Care ! Lord Caines in Pugh v. Health held that, "The court is now not a court of law or a court of Equity; it is a court of complete jurisdiction, and if there were variance between what before the Judicature Act, a court of law and a court of Equity would have done, the rule of the court of Equity must now prevail." Lord Lindley also observed that, "Reliance was made upon the provisions of the Supreme Court of the Judicature Act and it was contended that the effect of them was to abolish the distinction between Law and Equity. Certainly, that is not the effect of those statutes. Otherwise, they will abolish the distinction between trustee and cestui que trust." Lord Watson stated in the case of Ind, Coope and Co. v. Emmerson (1887), that, "The main object of the Judicature Act was to enable the parties to a suit to obtain in that suit and without the necessity of resorting to another court, all remedies to which they are entitled in respect of any legal or equitable claim or defence properly advanced by them, so as to avoid a multiplicity of legal proceedings … The Act of 1873 deals with the remedies and not with rights of parties/litigants. It was not intended to affect and does not affect the quality of the rights and claims which they bring into court and submit to the judgment of the court, whether as plaintiffs or as defendants.” Page 22 of 285 Onimisi's Care ! Lecture 3. — Dr. Aisha Haruna. RECEPTION OF EQUITY INTO NIGERIA. English law and doctrines of Equity were introduced into Nigeria by means of local legislations. The first of such legislations was Ordinance No. 3 of 1863.  Ordinance No. 3 of 1863. This enactment broadly introduced English laws into the territory of Lagos without any further analysis. In the absence of any information or record as to the interpretation of the laws so introduced, it is reasonable to assume that the introduced laws had been those administered in the practice of the English courts. As such, any reference to the laws of England will, by necessary implication, be interpreted to include not only the rules of Common Law but also the rules of Equity as developed respectively in the English Common Law courts and the English Chancery Courts. Section 1 of this Ordinance No. 3 of 1863 introduced all laws and statutes, which were in force in England on the 1st day of January, 1863, and made them parts of the laws of the Colony of Lagos. The only limitation was that such laws and statutes must not be inconsistent with any Ordinance in force in the Colony; and that they must be applied in the administration of justice so far as local circumstances would permit.  Ordinance No. 4 of 1876. Section 14 of this Ordinance introduced more clearly, the English Common Law, the doctrines of Equity and statutes of general application which were in force in Page 23 of 285 Onimisi's Care ! England on the 24th day of July, 1874, to be in force within the jurisdiction of the courts in the Colony of Lagos. Section 18 of the same Ordinance also enjoined the British established courts in the Colony to observe the observance of the native laws and customs of the people of the Colony; such laws and customs not being ‘repugnant to natural justice, Equity and good conscience.’  Ordinance No. 17 of 1906. Consequent upon the merger of the Colony of Lagos with the Protectorate of Southern Nigeria on the 1st of January, 1900, this Ordinance No. 17 of 1906 was passed in order to make applicable to the new Protectorate the provisions of Ordinance No. 4 of 1876. Similar steps had earlier been taken in respect of the Protectorate of Northern Nigeria by means of Proclamations.  Ordinance No. 3 of 1908. This Ordinance repealed all existing enactments and re-enacted their provisions with minor alterations. The Ordinance remained in force until it was finally superseded by the Supreme Court Ordinance, 1914, which became applicable to the whole of Nigeria on the amalgamation of Northern and Southern Nigeria on the 1st day of January, 1914.  The Supreme Court Ordinance 1914. One of the objectives of the amalgamation in 1914 was the unification of the legal systems of the two administrations of Northern and Southern Nigeria. This objective was achieved by the promulgation of the Supreme Court Ordinance which replaced all the laws pre-existing in the amalgamated units. The Ordinance introduced into Page 24 of 285 Onimisi's Care ! the country, subject to the usual reservation of their being applied subject to existing local laws and in so far as local circumstances would permit, the rules of the English Common Law, the doctrines of Equity and statutes of general application which were in force in England on the 1st day of January, 1900. In this way, the rules of the English Common Law, the principles of English Equity and Statutes of general application which were in force in England on the 1st day of January, 1900, were introduced into the whole of Nigeria. In 1952, the country adopted a quasi-federal Constitution whereby the country was divided into three regions – Eastern, Northern and Western Regions, with three legislative houses and a central Legislature in Lagos. This was followed up in 1954 with the regionalisation of the judiciary to accord with the new constitutional arrangements which came into operation since 1952. In pursuance of this regionalisation of the judiciary, a Federal Supreme Court, replacing the West African Court of Appeal was set up by the Federal Constitution of 1954. A High Court and Magistrates’ Courts were established in each of the three regions: Eastern, Northern and Western Regions. The Federal Territory of Lagos (separated from the Western Region) was also provided with a High Court and Magistrates’ Courts and thus treated as though it were a region. Provisions were also made in the Supreme Court Act, the High Court Laws and the Magistrates’ Courts Laws of the regions and Lagos incorporating the rules of the English Common Law and the doctrines of Equity among other things, into the respective laws to be administered not only in the Federal Supreme Court, but also in the regional High Courts and the Magistrates’ Court. (In the Northern States, however, when the Magistrates sit in their civil jurisdiction they are designated as ‘District Judges’). Page 25 of 285 Onimisi's Care ! Note that the word ‘Law’ is the designation for a regional legislation, while the word ‘Ordinance’ was still retained for a federal legislation. Since independence, however, all Ordinances enacted by the federal legislature became known as ‘Acts’. Also, when the Mid-Western Region was carved out of the former Western Region and constituted into a separate region in 1963 by the Federal Parliament, Section 2 of the Mid-Western Region (Transitional Provisions) Act, 1963, expressly made all existing laws which were in force in the Western Region immediately before the creation of the new region to be the law in force in the new region until changed by the new Midwestern authority.  Nigeria Divided into 12 States. With effect from the 27th of May, 1967, the country was divided into twelve separate autonomous States by the States (Creation and Transitional Provisions) Decree No. 14. Section 15 of the Decree No. 14 provides that “all existing laws in the region out of which a state under this Decree is created shall have effect, subject to the modifications necessary to bring it into conformity with the provisions of this section”. Section 2(1) of the same Decree as amended by Section 2 of the Constitution (Miscellaneous Provisions) Decree 1967, also provides as follows: “(1) Without prejudice to the provisions of this Decree relating to the existing law, every local authority, court and other public body which immediately before the commencement of the Decree exercised its functions within a state as herein constituted shall continue to exercise those functions in the State.” In 1976, the country was further divided into 19 states by the States (Creation and Transitional Provisions) Decree, 1976, and later into 21, 30 and now 36 states. Thus, Page 26 of 285 Onimisi's Care ! we now have in Nigeria, as against the former five jurisdictions which exercised judicial functions, 37 (including Abuja) separate jurisdictions performing the same functions. Note that for every time a state is carved out of a region, the law establishing the state will extend the laws applicable in the region it is carved from to become applicable in the newly created state, and these laws include the rules of Common Law, doctrines of Equity, and statutes of general application. Relationship between Equity and Customary Law. Despite the introduction of the English laws into Nigeria, the native laws and customs of the people were not abolished. Rather, the Ordinance introducing such English laws into Nigeria expressly made provisions to the effect that these British established courts in Nigeria should observe and enforce the observance of the people’s native laws and customs as contained in the provisions of section 18 of Ordinance No. 4 of 1876. Subsequent local legislations since then have continued to retain those provisions. Now, every High Court in the country is enjoined to observe and enforce the observance of the native laws and customs of the people in the area of its jurisdiction. There are, however, two pre-requisites to be fulfilled before the court can observe and enforce the observance of any native law and custom.  The native law and custom must not be repugnant to natural justice, Equity and good conscience.  Such native law and custom must not be incompatible either directly or by implication with any law for the time being in force. Page 27 of 285 Onimisi's Care ! What does the phrase, ‘repugnant to natural justice, Equity, and good conscience’ mean? Speed C.J, in the case of Lewis v. Bankole, stated that, “I am not sure what the phrases 'natural justice, Equity and good conscience' mean. They are high-standing phrases.” According to Derret, “natural justice, Equity and good conscience mean one and same thing.” According to Alott, “these phrases inter-lap and you cannot distinguish them.” According to Ademola Tokunbo, “all the three phrases, 'natural justice, Equity and good conscience', mean 'fairness.'” Lord Evershed in the case of Abbot v. Sullivan stated that, “the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define.” The majority of Nigerian judges take the approach which attaches a single meaning to the expression, 'natural justice, Equity, and good conscience', and that is 'fairness' or 'justice', in order to avoid uncertainty by splitting the expression into three components. In the case of Eshugbayi Eleko v. Government of Nigeria, the court held that, “customs can either be good or bad — no half way. The court cannot itself transform a barbarous custom into a milder one. If it still stands in its barbarous character, it must be rejected as repugnant to ‘natural justice, Equity and good conscience.’” Page 28 of 285 Onimisi's Care ! Lecture 4. — Dr. Aisha Haruna. NATURE OF EQUITABLE RIGHTS. Equitable interest is a broad term that covers an interest which is established through principles of fairness, rather than a legal assignment of ownership. An example of an equitable interest is the one held by a trust beneficiary. The asset in the trust isn't titled to the beneficiary until it's distributed to the beneficiary. However, the beneficiary may have a claim against a trustee who misuses the asset. Equitable interests are interests developed in order to meet the inadequacies of Common Law. An equitable interest confers the owner a beneficial title. It also confers him the proprietary interest. Equitable interests, by nature, are valid against the whole world, except a bona fide purchaser of a legal estate for value without notice — be it actual notice, constructive notice or imputed notice. Certain Equitable Interests on Property.  Equitable Mortgage.  Equity of Redemption.  Estate Contracts.  Equitable Lien.  Equitable Charge.  Restrictive Covenants. Page 29 of 285 Onimisi's Care !   Equitable Mortgage. Legal mortgages are created under Common Law, while equitable mortgages are created by Equity. A legal mortgage is said to be created in situations where documents are signed, sealed and delivered — anything short of that will not be valid at Common Law. As for Equity, it looks at the intention of the parties. Hence, Equity created three ways in which an equitable mortgage can be created:  Beneficiary's Interest in the Property: If you have an interest that is equitable in nature, it can be transferred — i.e., the only interest that can be transferred by a beneficiary is an equitable interest. In a trust relationship, Common Law doesn't recognise the interest of the beneficiary, it only recognises the interest of the trustee. In essence, the trustee has a legal interest. Equity gives an equitable interest to the beneficiary. If the beneficiary wants to create a mortgage, the mortgage must be equitable in nature, and not legal. The only person that can create a legal mortgage is someone who has a legal interest (which, in this analysis, is the trustee).  Agreement to Create a Legal Mortgage: The moment you enter into an agreement to create a legal mortgage, you do not have any legal interest yet until the agreement has been signed, sealed, and delivered. In essence, Common Law does not give any significance to the agreement. However, Equity confers interest on you, which is an equitable interest. In an event of breach, that equitable interest can be crystallised into a legal interest. For example, when you enter into an agreement with a bank to create a mortgage, the agreement will be taken as an equitable mortgage (and not a legal mortgage yet, until the agreement has been signed, sealed, and delivered). In Page 30 of 285 Onimisi's Care !  the event there is any problem, you can sue for specific performance in order to transform the equitable mortgage into a legal mortgage.  Deposit of a Title Deed: If you have a property and you deposit a title deed to that property with a bank and you intend to create a mortgage (i.e., giving the property as a security for a loan), that deposit of title deed is short of a legal requirement (as the mortgage has not been signed, sealed and delivered), and as such, it automatically creates an equitable right. Always remember that... If you enter into an agreement as a beneficiary of a trust to create a mortgage, that mortgage cannot be a legal mortgage, rather, an equitable mortgage. Only the trustee can create a legal mortgage.  Equity of Redemption. As we have already noted from the inception that Equity comes in to remedy the inadequacies of Common Law. Under Common Law, when you mortgage your 20 million naira worth house for a loan of 10 million naira, in the event you are unable to pay when the deadline comes, the bank will sell the house. In essence, under Common Law, when the time comes for you to pay and you are unable to pay, you cease to be the owner of the house. Under Common Law, since you're unable to pay, there is no extension of time, and you can't redeem (i.e., get your property back). Equity felt that that is not fair on the mortgagor. That property was intended only to be a security for the loan, not to transfer the ownership to the bank entirely in the first place. So, Equity extends the time within a reasonable time whereby the mortgagor will be able to redeem his property. This extension of time done by Equity is called, "Equity of redemption". This Equity of redemption is there right from the moment you enter into a mortgage agreement, but you will not be able to exercise it Page 31 of 285 Onimisi's Care ! until the day you are to redeem your property but you're unable to pay. In essence, the right arises only when the time to pay for the loan has elapsed (even though it has been there right from the inception).  Equitable Lien. Equitable lien is an equitable interest that a person has when he has sold a property and the purchase money has not been fully paid to the person. The balance the person is to collect back is the 'lien'. In this situation the owner of the property will still have a lien in the property so long as the purchaser is yet to complete payment and so if the buyer sells to another person and that person is aware that the owner still has an equitable interest in the property, the equitable lien of the owner will prevail over that of the second buyer. This right is meant to protect the seller, and it is also not available at Common Law. In Ayorinde v. Scott, a person sold a property and the purchase money has not been given to him in full. Unfortunately, when he was writing the receipt, he wrote that the money had been given to him in full. The court held that he still had an interest in the property, and that interest is called equitable lien, which is an equitable right. Note that the only thing he can do with this interest is to compel the buyer to pay the balance.  Restrictive Covenant. Restrictive covenant is an agreement between the buyer and the seller of a property that restricts the seller from using the property for a specific purpose. It is usually found on the lease of a land. Ordinarily, when you acquire a land, under Common Law, you have the right to use the land to do whatever you wish to use it for as you have acquired all the legal Page 32 of 285 Onimisi's Care ! interests, you have the legal title, it is your land, and you can decide to do anything you wish with it. The person who conveys the land to you has no right on the land again, and he can't tell you what to do and what not to do on the land. However, Equity recognises what is known as a 'restrictive covenant'. Equity recognises that if you have an agreement with the person conveying the land to you that you'll not use the land for restaurant (for example), that agreement is called restrictive covenant and it is an equitable right that is valid against the whole world except a bona fide purchaser for value without notice. In essence, if you end up conveying the land to a third party and the third party has a notice of the covenant you had with the person who conveyed it to you, the equitable interest of that person prevails over the interest of the third party, unless he is not aware of the covenant.  Equitable Charge. A charge is like a mortgage that is not done through the legal way or through any of the three prescribed equitable ways. Remember that legal mortgage must be signed, sealed and delivered, but Equity provides three ways to create an equitable mortgage, as noted above. If, however, a person follows a procedure that does not fall under the legal or equitable way (but still entails giving a property out as a security for a loan); for example, when a person just hands his property to an individual to get money pending when he will pay back without following the legal way or the three equitable ways; Equity still comes in to protect the person, but through what is called an 'Equitable Charge', not an 'Equitable Mortgage'. Equitable charge only comes in a situation where the process undergone in giving out a property for a loan does not conform to the legal requirement and also does not conform to any of the three equitable requirements. It is this charge that will compel the other party to hold him liable to return the property after giving him the money back. Page 33 of 285 Onimisi's Care !   Estate Contract. Estate contracts are agreements for the conveyance of land. If you enter into an agreement to convey a land, Equity immediately moves in to protect you (the purchaser) and that protection that Equity has given to the purchaser is an 'estate contract'. Remember that in a contract for the conveyance of land, by mere entering into an agreement, Common Law does not recognise it and you have no legal interest yet until the agreement is signed, sealed and delivered. Equity, on the other hand, gives the purchaser a right, and if the seller later refuses to convey the land, the purchaser can go to court to use his equitable right to get an order of specific performance to crystallise that equitable interest into a legal interest. Once again, under Common Law, mere agreement to convey a land has no legal implication until there is an actual conveyance, and the contract has been sealed. Lecture 5. — Dr. Aisha Haruna. EQUITABLE MAXIMS. Equitable maxims were the ways Equity operated at the early inception up till the time the Judicature Act was passed. We will examine them, in turn:  Equity will not Suffer a Wrong to be without a Remedy. This maxim is the root of all equitable jurisdictions. It should not be interpreted as meaning that every moral wrong was remedied by Equity. It means that, in certain Page 34 of 285 Onimisi's Care ! circumstances, where the Common Law failed to recognise a right or to provide a remedy for a wrong, Equity would not stand by and see a party suffer an injustice, but would grant a remedy, provided it was suitable for judicial enforcement. The operation of the maxim may be seen in relation to the three types of equitable jurisdiction; original, concurrent and auxiliary. Original jurisdiction - Equitable Rights. At Common Law, the trustee was the absolute owner of the trust property and could deal with it as he pleased; the rights of the beneficiaries were not recognised. Equity, however, conceiving this to be a wrong, compelled the trustee to hold the property for the benefit of the beneficiaries, whose rights Equity enforced not only against the trustee but also against any transferee from him with notice of the trust. Concurrent jurisdiction - Equitable Remedies. At Common Law, the only remedy for a breach of contract was damages. Where this remedy would be insufficient for the plaintiff (e.g. in the case of breach of a contract for the sale of land), Equity would grant specific performance. Thus compelling the defendant to perform the contract. Similarly, where damages would be an insufficient redress for a tort (e.g. nuisance), Equity would grant an injunction to restrain further invasion of the plaintiff’s rights. Auxiliary jurisdiction - Equitable Procedure. The Common Law courts had no power to order recovery of documents in the possession of a party to an action; the Court of Chancery did make such orders, without which many wrongs would have been remediless. Another example of the maxim is equitable execution. At Common Law, a judgment creditor could not levy execution on any property of the judgment debtor in which the latter had only an Page 35 of 285 Onimisi's Care ! equitable interest. Thus, for instance, an Equity of redemption or a beneficial interest in a trust could not be touched at Common Law. The Court of Chancery thus evolved a procedure whereby equitable execution could be levied on the equitable interest. This was done by the appointment of a receiver of the equitable interest, supplemented in appropriate cases by an injunction restraining the judgement debtor from disposing of the interest. Limits to the maxim. The maxim must not be taken too widely. First, there are many wrongs which cannot be remedied in Equity any more than at Common Law. Thus, for instance, ‘unfair’ trade competition which does not come within the definition of any Tort cannot be remedied either at law or in Equity. Secondly, even where Equity does provide a remedy, it may stop short of applying it in certain defined situations. For instance, although specific performance is a general remedy for breach of contract where damages would be inadequate, there are some instances where damages would not be adequate and yet specific performance will not be granted. Thus, contracts for personal services and contracts requiring the constant supervision of the court cannot be specifically enforced. It may thus be said that the application of the maxim is limited to what is realistic, practicable and convenient for the court.  Equity Follows the Law. Equity never challenged the Common Law as the basis of all the laws of the land. Indeed, Equity could not have existed without the Common Law, since the Chancellor originally merely interfered here and there in order to do justice between the parties where the Common Law failed to provide a remedy. It was only later that Equity developed into a distinct body of rules and principles. Most of these Page 36 of 285 Onimisi's Care ! principles would be meaningless if divorced from the rules of Common Law on to which they are engrafted and supplement. Equity follows the law in so many instances like:  whilst regarding the beneficiaries under a trust as the equitable owners of the property, Equity never denied the legal title of the trustee and, therefore, stops short of enforcing the trust against a bona fide purchase of the legal estate from the trustee without notice of the trust, thereby acknowledging the paramountcy of the legal estate.  Equity adopted the Common Law doctrine of estates. Any estate or interest known at law (e.g. fee simple, fee tail and life interest) can exist as an equitable interest under a trust.  Equitable interests devolve on intestacy in the same way as legal estates, so that the eldest son takes all the land as heir, to the exclusion of his younger brothers and sisters.  Equity follows the Common Law rules governing joint tenancies.  Equity follows the Common Law rules relating to mistake in the formation of contracts (whilst supplementing these by means of equitable remedies). But where Common Law rules were archaic or excessively rigid, Equity refused to follow them. In essence, Equity follows Common Law, but not blindly or slavishly. The meaning of the maxim may be summed-up by saying that Equity has never disturbed Common Law rules, nor claimed to override them. Equity only interferes where there is some important circumstance disregarded by the Common Law and where the lack of a remedy at law will cause injustice to a party. Thus, wherever equitable principles are at variance with legal ones, this is due not to Equity’s denial Page 37 of 285 Onimisi's Care ! of the validity of the legal rule, but rather to Equity’s assertion that a gap exists in the law which it is Equity’s duty to fill.  Where there is Equal Equity, the Law shall Prevail. This maxim governs the position where there are competing interests in property, one of which is a legal interest, the other equitable. Where the claims of both parties are equally fair and meritorious, precedence will be given to the legal interest. The operation of the maxim may be seen in the following hypothetical illustration: Onimisi is the beneficiary of a trust and Class Rep is the trustee. Class Rep, in breach of the trust, sells the trust property to Namalam (who happens to be a bona fide purchaser for value without notice — i.e., Namalam is not aware of the trust). Now, two interests are at stake. Onimisi's (the beneficiary's) interest, and Namalam's interest. While Onimisi's interest is an Equitable Interest, Namalam's interest is a Legal Interest. In this circumstance, Namalam's interest will prevail. This is the principle applied in Cave v. Cave (1880) 15 Ch. D. 639. In this case, a sole trustee in breach of trust used trust money in the purchase of land, and had the land conveyed to his brother. The brother then mortgaged the land to Mr A by way of legal mortgage, and then to Mr B by way of equitable mortgage. Neither A nor B having notice of the trust. It was held that A’s legal mortgage takes priority over the equitable interests of the Beneficiaries.  Where the Equities are Equal, the First in Time Prevails. This maxim concerns priority between two competing equitable interests in property. In essence, unlike the previous maxim, this maxim deals with when there are two interests (which are both equitable). The general rule is that equitable interests rank according to the order of their creation. A well-known example is Page 38 of 285 Onimisi's Care ! Cave v. Cave (supra). The court held in that case that the interests of the beneficiaries had priority over B’s mortgage, since they were earlier in time (remember that A's legal interest already took priority over the equitable interests of B and the beneficiaries as explained in the previous maxim). There are occasions, however, where the equities are not equal. Thus, for instance, where the holder of the prior equitable interest has been guilty of fraud or gross negligence, he will be postponed to a later equitable incumbrancer. In Rice v Rice (1854), a vendor conveyed a land to the purchaser without receiving the purchase money, yet signed a conveyance containing a receipt for the money. The purchaser, in turn, deposited the title deeds of the land to a bank for an equitable mortgage. It was held that the vendor’s equitable lien for the unpaid purchase-money be postponed to a subsequent equitable mortgagee with whom the purchaser had deposited the title deeds, the mortgagee having no notice of the lien. The maxim does not apply where there are successive assignments or mortgages of an equitable interest in pure personalty; as seen in the important case of Dearle v. Hall, where it was held that if the second assignee for value of an equitable interest gave notice of his claim to the trustee after inquiry as to encumbrances, and the first assignee gave no such notice, the second assignee thereby obtained a priority in favour of his Equity, priority is here determined not by the order in which the assignments were created, but by the order in which the successive assignees gave notice of their assignments to the debtor, trustee or other person liable to pay.  He who Seeks Equity must Do Equity. The basis of this maxim is that if the plaintiff seeks an equitable remedy or wishes to obtain any equitable relief, he must be prepared to act fairly towards the defendant. The following examples may be given: Page 39 of 285 Onimisi's Care ! The Doctrine of Election. Where a donor by deed or will gives his own property to E and in the same instrument purports to give E’s property to X, E will not be able to claim the whole of the gift to himself unless he allows the gift to X to take effect. Consolidation of Mortgages. This is the right of a person in whom two or more mortgages are vested to refuse to allow one mortgage to be redeemed unless the other(s) are also redeemed. This may be seen from a hypothetical illustration: Onimisi has made two loans of N2,000 to Class Rep, the first loan being secured by a mortgage of Theatre 1 (worth N3,000). The second by a mortgage of Theatre 2 (also worth N3,000). If the value of Theatre 1 subsequently decreases to N1,000 while Theatre 2 increases to N5,000, it would be unfair to allow Class Rep to redeem Theatre 2 and leave Theatre 1 unredeemed. Equity will thus allow Onimisi to consolidate and will not permit Class Rep to redeem Theatre 2 unless he is prepared to redeem Theatre 1 also. Illegal Loans. Illegal loans usually happen in a situation where someone gives a loan without being registered under the Money Lenders' Act, or where a person gives a loan violating the principles governing money lending. The application of the maxim to illegal loans is exemplified by the case of Lodge v. National Union Investment Co. (1907). X borrowed money from Y, a moneylender, and mortgaged certain securities to him. The contract was illegal and void since the moneylender was not registered under the English Moneylenders Act 1900. When X sued Y to recover the securities, it was held that an order for delivery up would only be made if X were prepared to “do Equity” by repaying the amount of the loan. Page 40 of 285 Onimisi's Care ! In Kasumu v. Baba-Egbe (1956), however, both the West African Court of Appeal and the Privy Council declined to follow Lodge’s case. The facts were that the plaintiff mortgaged leasehold land to the defendant, a licensed moneylender, as security for a loan. The moneylender had kept no book recording the transaction as required by section 19 of the Nigerian Moneylenders Act (Cap. 136, Laws of Nigeria 1948), the agreement was therefore unenforceable under that section. The plaintiff instituted proceedings claiming possession of the property, cancellation of the mortgage, and delivery up of the title deeds. It was held that he could so recover. In essence, the plaintiff was entitled to recover the property without having to repay the loan. Many jurists, while reviewing this case, agreed that it was a bad decision, though.  He who Comes to Equity must Come with Clean Hands. This maxim means that a plaintiff who seeks an equitable remedy or other equitable relief must show that his past conduct in the transaction has been fair, honest and above board. It may be distinguished from the previous maxim in that it refers to behaviour prior to the suit, as opposed to future conduct. Illustrations.  A husband who takes his wife to court for committing adultery must be sure that he, himself, hasn't been guilty of adultery.  A tenant whose lease has been forfeited for non-payment of rent, as decided in Gill v. Lewis (1956), cannot expect equitable relief against forfeiture if he has been using the premises for immoral purposes.  As decided in the case of Coastworth v. Johnson (1886), an equitable tenant under an agreement for a lease cannot expect to obtain a decree of specific Page 41 of 285 Onimisi's Care !  performance of the legal lease if he has been in breach of the covenants to be contained in that lease.  As seen in Overton v. Bannister (1844), where an infant beneficiary, by fraudulently representing himself to be of age, obtained from the trustees a sum of money to which he was not entitled until he came of age, neither he nor his assignees could compel the trustees to pay the sum over again when he attained his majority. It is important to note that the maxim does not refer to any conduct of the plaintiff other than that which is connected with the transaction in question. Brandeis J. in Loughran v. Loughran (1934) observed that, “Equity does not demand that its suitors shall have led blameless lives.”. It was decided in Dering v. Winchelsea (1787), that it is only conduct which has “an immediate and necessary relation to the Equity sued for” that will bar the plaintiff’s claim.  Equality is Equity. This maxim is the basis of some of the heads of satisfaction. Equity loves equality. Equity does not want any discrimination. Equity does not want two people to be treated differently. This maxim usually arises where there is no basis for division. For example, if 500 thousand naira is brought to the class and the person who brings it instructs the Class Rep. to share the money amongst the members of the class without giving him any basis of sharing, the Class Rep. must apply this maxim. The only time the Class Rep. will not apply this maxim is when the person who brings the money gives a basis of division, say, "Hello, Class Rep., give 300 thousand naira to the ladies, and give 200 thousand naira to the men.” Page 42 of 285 Onimisi's Care ! The application of this maxim has been applied in many ways:  presumption of tenancy in common;  severance of joint tenancy;  equal division by the court, and  the doctrine of satisfaction. Presumption of Tenancy in Common. First and foremost, "Tenancy in Common" is the equitable equivalence of the Common Law's "Joint Tenancy". “Equity leans against joint tenancies.” Joint tenancy is a Common Law doctrine. Equity dislikes the joint tenancy, for in it, the right of survivorship (the jus accrescendi) operates – i.e. the survivor of two joint tenants is entitled to the whole property, and the estate of the deceased tenant takes nothing. Where there are more than one joint tenants, on the death of one, the whole property vests in the survivors. This process continues until there is only one survivor, who then holds the land as a sole tenant. In a tenancy in common, on the other hand, the share of a deceased tenant passes not to the survivor but to those entitled under the deceased’s will or intestacy, for a tenant in common has a distinct share in the property which is his to dispose of as he wishes. In three instances Equity treats joint tenants at law as tenants in common of the beneficial interest, so that although at law the survivor is entitled to the whole property, in Equity he will be regarded as trustee of the deceased’s share for the benefit of those entitled under the latter’s will or intestacy. These instances are: Page 43 of 285 Onimisi's Care ! (a) Where property is purchased in UNEQUAL shares. Where two persons, X and Y, purchase property, providing the purchase money in unequal shares, and have the property conveyed to them as joint tenants, on the death of X, Y becomes entitled to the whole property at Common Law, but in Equity he becomes a trustee for X’s estate of the share of the property proportionate to the amount advanced by X (Y being of course beneficially entitled to his own share). But where the money is advanced in equal shares, Y is entitled to the whole property both at Common Law and in Equity, for it is presumed that when two persons advance equal amounts, they intend the jus accrescendi to operate. This is the principle applied in the case of Lake v. Gibson (1729). (b) Loan on Mortgage. Where two persons, X and Y, lend money to Z who then mortgages his property to them jointly, it is immaterial whether the amounts lent were equal or unequal; since the transaction is a loan, a tenancy in common will be implied, so that the surviving mortgagee will be a trustee for the estate of the deceased mortgagee of that part of the property which is proportionate to the sum lent by the deceased. In another hypothetical example, A and B are joint tenant of a property (say, land) and they are in need of money, hence, they approach a bank for a loan and mortgage the property. Whether the amount the bank gives them is equal or not, a tenancy in common will be implied, i.e., they are not joint tenants again, but tenants in common. (c) Partnerships. It is presumed that any property acquired by partners in their business is held by them as beneficial tenants in common – jus accrescendi inter mercatores locum non Page 44 of 285 Onimisi's Care ! habet (meaning “the right of survivorship has no place in business”). In essence, any property that the partners purchase for the purpose of the business, either it is equal or not, it will be treated as tenancy in common. Severance of Joint Tenancy. 'Severance' is, here, used to describe the process whereby a joint tenancy is converted into a tenancy in common. If you have a joint tenancy and one of the tenants decides to give out, mortgage, sell, convey, or gift out part of the property, the joint tenancy will be severed to tenancy in common, that is, the right of survivorship will be lost immediately. In Ipaye v. Aribisala (1930), the point in issue was whether a merely equitable mortgage of his interest by a joint tenant sufficed to bring about severance. The facts were that the plaintiff and his brother were joint tenants under a settlement of land. The deed of settlement was kept in the brother’s custody. After the death of the brother it was discovered that he had, without the consent of the plaintiff, deposited the deed with the defendant as security for a loan, thus creating an equitable mortgage of his (the brother’s) interest in the property. The question was, did this operate to sever the joint tenancy? If the answer were in the affirmative, the brother would become a tenant in common and the mortgage to the defendant would be a valid alienation of the brother’s interest, thus entitling the defendant to retain possession of the deed. On the other hand, if there had been no severance, the right of survivorship would have operated to vest the whole property in the plaintiff, both in law and Equity, and the defendant would have no right to possession of the deed. The Divisional Court adopted the latter view, but the decision was reversed by the Full Court which held that the equitable mortgage, just as a Page 45 of 285 Onimisi's Care ! legal one, did bring about a severance, the legal joint tenancy being converted into a tenancy in common in Equity. It made no difference that the mortgage was without the knowledge or consent of the plaintiff, for one joint tenant may validly sever without the concurrence of the other. Accordingly, the defendant was entitled to possession of the deed. Equal Division. Whenever there is no other fair and practicable basis upon which property may be distributed amongst two or more rival claimants, the court will apply the maxim and divide the property equally between them. The Doctrine of Satisfaction. Equity considers that if a father has more than one child, it is unlikely that he would wish to provide for one child twice over to the detriment of the others, hence, the sub-maxim “Equity leans against double portions” founded on the present maxim.  Delay Defeats Equities (Equity Aids the Vigilant and not the Indolent). It is a general principle of Equity that a person will not be granted an equitable remedy if he has been guilty of undue delay in bringing his action. Such delay is known as “laches”. Per Lord Camden LC in Smith v. Clay (1767) stated that, A court of Equity “has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing.” The doctrine of laches does not apply to cases governed by the Statutes of Limitation such as claims to redeem or to foreclose mortgages of land, or a claim by a Page 46 of 285 Onimisi's Care ! beneficiary against a trustee for a non-fraudulent breach of trust. Wherever the Statutes apply, no delay short of the limitation period will bar the claim. Before this maxim is applied, there are certain things to take into consideration as observed by Lord Chancellor Cranworth in Ramsden v. Dyson: "If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. “But it will be observed that to raise such an Equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. “For if a stranger builds on my land, knowing it to be mine, there is no principle of Equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights." In essence, there are three things to take into consideration from the Lord Cranworth's observation above: Page 47 of 285 Onimisi's Care !   The person trespassing on the land must suppose that the land is his own. If he hasn't supposed that the land is his own, this maxim will not apply, that is, the plaintiff can get equitable remedy at any point in time no matter the delay.  There has to be a change of position on the part of the defendant. If the person trespassing (who supposes the property to be his own) has spent substantial sum of money on the land in building it and, maybe, has even completed the building and moved in, then this maxim will apply. The maxim will not apply if he hasn't spent much on the land (i.e., the plaintiff can get a relief in Equity no matter the delay so long as the trespasser has not spent substantial money in developing the land).  If the owner of the land knows that it is his own land, yet doesn't take any step to stop a trespasser (who supposes the property to be his) from the inception, he won't be able to get a remedy after sleeping on his right. It was held in Fagbemi v. Aluko (1968), that “in considering the equitable doctrine of laches, the court does not act only on the delay by the plaintiff, but must also consider (1) acquiescence on the plaintiff’s part and (2) any change of position that has occurred on the defendant’s part.” Thus there will be laches where the plaintiff has so acted as to induce the defendant to alter his position in the reasonable belief that the claim has been abandoned, or where the delay amounts to evidence of an agreement by the plaintiff to abandon his right. In Aganran v. Olushi (1907), a land held by a family under customary law was sold in 1902 to the defendants by certain members of the family whose assent was necessary to the validity of the sale. The sale was therefore voidable by the plaintiff. The plaintiff took no step to set aside the sale until 1905, when he commenced the Page 48 of 285 Onimisi's Care ! present action. The court found (i) that the plaintiff had at one stage agreed, for a consideration, to ratify the sale (though he subsequently resiled from his promise); (ii) that the defendants had at one stage sued as owners of the land to eject trespassers, and the plaintiff knew of this but did not interfere; (iii) that the defendants had erected houses on the land and the plaintiff did nothing to stop them. It was held that all these circumstances, coupled with the three-year delay in bringing the action, amounted to laches, and the plaintiff had lost his right to set aside the sale. Finally, in Ephraim v. Asuquo (1923), the plaintiff sought to have a grant of letters of administration set aside. It was held that as nearly two years had elapsed since the grant, and the administrator had in all probability completed distribution of the estate, there had been laches, and the plaintiff’s claim failed. There are some exceptional instances, however, where this maxim does not apply:  Transactions governed by the Statute of Limitation: This is a Statute that deals with the period a person can take an action to court. If the Statute prescribes, say, 10 years, as the limit to take an action to a court on a particular transaction, so long as it is within that period of 10 years, "delay defeats Equity" will not apply here.  Disability: If the plaintiff was disable when the trespass occurred that he couldn't take an action to court at that time, "delay defeats Equity" will not apply.  Infancy: If the person was an infant when the trespass occurred that he couldn't take an action to the court as at that time, "delay defeats Equity" will also not apply. He can commence an action at the time he becomes a major even if it is after 10 years. Page 49 of 285 Onimisi's Care !   Ignorance: If the plaintiff can establish that he was ignorant during the period of the trespass, then the maxim will not apply.  Equity Looks to the Intent rather than to the Form. At Common Law, observance of the correct forms or proceedings in relation to any transaction was all-important. Failure to do so often rendered a transaction invalid or led to a total loss of the legal rights of a party. Conversely, if the due forms were employed in a transaction there was often no possibility of challenging its validity or tempering its rigours. Equity, however, looking to the intent rather than the form of words, considered it unfair for one party to insist on strict observance of form and thereby defeat the substance of a transaction and the true intention of the parties. In essence, Equity observed that in certain circumstance, if a party insists on forms, it might end up defeating the intention of the parties, hence, Equity works with the intention of the parties rather than the form. This may be seen in the following examples: (i) Time Clauses If a party to a contract for the sale of land fails to complete on the date stipulated in the agreement, at Common Law he is in breach of contract, and the other party may repudiate the transaction. But, in Equity, time is generally not of the essence of a contract, and breach of a time clause will not be a ground for repudiation by the other party, provided the party in default is ready and able to complete within a reasonable time. What Equity is after is reasonable time, not the stipulated time. (ii) Mortgages In determining whether a transaction is a mortgage or not, Equity looks at the substance and not merely the form. Thus, e.g. parol evidence is admissible to show Page 50 of 285 Onimisi's Care ! that what appears on its face to be an absolute conveyance was in fact intended to be by way of security only. The maxim is also exemplified by Equity’s attitude to redemption of mortgages. At Common Law, if the mortgagor failed to repay the loan on the date agreed on, he lost forever his right to redeem the property. Equity, however, always considered a mortgage to be a mere security, and regarded the provision for repayment on the day stated in the mortgage covenant to be a mere formality. Equity thus allowed a mortgagor to redeem his property after the redemption date had passed. (iii) Equitable Assignment. For an assignment of a chose in action to be valid at law, it must comply with the provisions of the Judicature Act 1873, Section 25(6), which requires it to be in writing, to be absolute, and notice to be given to the debtor or trustee. But an assignment which is not in the form required by the statute is quite valid in Equity. (iv) Deeds. At Common Law a promise under seal is enforceable even though unsupported by consideration. Equity, however, will normally refuse to grant specific performance of a purely voluntary agreement even though it is made by deed. This is expressed in the sub-maxim, “Equity will not aid a volunteer.”  Equity Looks on that as Done which ought to be Done. This maxim is the basis of the doctrine of conversion and re-conversion. There are things that ought to be done, but they are not done. Equity looks at those things as though they are done already. Page 51 of 285 Onimisi's Care ! Under the doctrine of conversion, if a trustee or other person is under a binding obligation to sell a land and convert it into money, or to invest a sum of money, in the purchase of land, Equity regards that as done which ought to be done and treats the property as being in its converted state from the time when the duty to convert arose. In essence, if you are under an obligation to sell a property, either you have sold it or not, Equity considers the property as being converted to money already. Also, if you're under an obligation to buy a property with a money, either you have bought it or not, Equity considers that you have converted the money to the property already. There are two forms of conversion:  Real/Actual Conversion.  Notional Conversion. Real Conversion comes in a situation where you actually go ahead to sell the property you have been asked to sell, or where you actually go ahead to buy the property you have been asked to buy. In that situation, you have actually converted from property to money, or from money to property (as the case may be). Note that, generally, if you're converting from money to property (i.e., buying), then you are converting from 'personalty' to 'realty'. If, on the other hand, you are converting from property to money (i.e., selling), then you are converting from 'realty' to 'personalty'. But always remember that once the substance (money or property) has been actually converted (to property or money, as the case may be), then what has happened is Real Conversion. Page 52 of 285 Onimisi's Care ! Equity is not concerned, however, about real conversion (since it has been actually converted already). What Equity is concerned about is Notional Conversion. Notional Conversion comes in a situation where the person under the obligation to convert (sell/buy) has not actually converted yet. The moment the trustee falls under the obligation to convert (sell/buy), Equity considers such property/money as being converted already. This form of conversion is known as notional conversion. In an instance where the trustee refuses to convert, the beneficiary can go to Equity to get a remedy of specific performance to crystallise the conversion from notional conversion to actual conversion. This maxim is also applicable in the leasing out of a property (not only selling or buying). When you're under an obligation to lease out a property, Equity looks at it as though it has been leased out already even though you have not actually leased it out. See the cases below for further clarification.  Savage v. Sarrough (1937);  Walsh v. Lonsdale (1882), and  Dr. N.A. Iragumina v. River State Housing Development Authorities (2003). In Savage v. Sarrough (1937), the plaintiff and his brother and sister were owners of certain land and buildings. The defendant obtained from the plaintiff’s brother a written agreement, not under seal, for a lease for five years. The plaintiff claimed recovery of possession of the property. It was held that in Equity the lease, though not under seal, must be deemed to have been effectively granted and that for practical purposes the parties were inter se in the same position as if the lease were valid at law, and that the claim for recovery of possession, therefore, failed. Page 53 of 285 Onimisi's Care ! In Walsh v. Lonsdale (1882), one who enters into possession of land under an agreement for a lease of which the court will grant specific performance, is in the same position (as between himself and the landlord) as if the lease had actually been granted to him. In other words, “an agreement for a lease is as good as a lease.” In Iragunima v. R.S.H.P.D.A. (2003), the 2nd respondent’s vendor applied for a renewal of the lease which was assigned to him by the original lessee. The evidence on record shows that approval was given by the Governor for the renewal of the lease in favour of the 2nd respondent’s vendor for a term of 60 years from 1/1/64 the date the original lease expired. There was also evidence that the 2nd respondent’s vendor was called upon to pay all necessary fees relating to the new lease, that is, arrears of rent from 1964-1973, the preparation, execution and registration of the new lease which he did and obtained receipts which were tendered in evidence. What remained was for the 1st respondent to execute the new lease in favour of the 2nd respondent’s vendor. This was not done. Since the 2nd respondent’s vendor was in possession under the agreement for a new lease for a term of 60 years from 1/1/64, he and the 2nd respondent were, in Equity, in the same position with respect to their respective rights as if a lease had been granted. Consequently, he had at least an equitable interest in the property in dispute. The doctrine of re-conversion comes in a situation where there is an instruction from the trustor to the trustee to convert (buy/sell) money/property to property/money, and the beneficiaries afterwards approach the trustee and ask him/her not to do the conversion, since Equity already regarded the property/money as though it had been converted already (notional conversion), Equity will now consider it as re-converted — i.e., if it is about Land, in Equity, the land has already been converted from land to money the moment the trustor instructs the trustee to do so (either the trustee has actually converted it or not); if the beneficiary Page 54 of 285 Onimisi's Care ! approaches the trustee and tells him/her not to sell the property, then Equity will now consider it that the land which was already converted to money has now been re- converted to land again.  Equity Imputes an Intention to Fulfil an Obligation. This maxim is the basis of most of the heads of satisfaction. When you have an obligation to fulfil and you don't do that obligation, but you do something similar to fulfilling that obligation you have been asked to do, Equity comes in to say that that act which you have done (which is similar to fulfilling the original obligation you are to fulfil) is as though you have fulfilled the original obligation. In essence, Equity is saying you cannot afford to be generous while you have an obligation to fulfil. Hypothetically, let's say Onimisi is obligated to give Napheesah the sum of 20 thousand naira (maybe as a debt, or a trust money). Onimisi refuses to give Napheesah this said 20 thousand naira he is obligated to give to her, but (as a gift), he gives Napheesah the sum of 20 thousand naira or more. Equity imputes and presumes that he has paid the said debt to Napheesah.  Equity Acts "in Personam". This maxim is very important because at the time of the development of the Court of Chancery, it used this maxim to avoid conflict with the Common Law. Equity used this maxim and the other maxim of "Equity follows the law" to avoid conflict with Common Law. While Common Law acted "in rem" (after the property), Equity acted "in personam" (after the person). Equity goes after the person and not after the property. For example, under mortgages, while Common Law goes after the mortgaged property when the person is unable to pay within the bracket of Common Law, Equity goes Page 55 of 285 Onimisi's Care ! after the person and compels him to pay the money through necessary means so that the person will still keep the property. However, during the later development of Equity, Equity discovered that always going after the person would cause some difficulty as some people might still not comply with the order of Equity. Hence, Equity developed new ways and orders which indirectly went against the property rather than the person. These ways include:  Sequestration — a point when someone (a third party) will be appointed by the Court of Equity to take over the property until the defendant obeys the court order (maybe by paying the debt, or something else).  Vesting order — this order vests the property on the plaintiff until the defendant obeys the court order.  Foreclosure order — when someone has been given the opportunity to redeem his property in Equity, and still refuses to comply with the Chancellor's orders, Equity gives a foreclosure order by placing the property on the person's hand for a limited time, after which the person will lose the property if he still doesn't comply. Foreclosure order could