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8 Aug 2024 EQUITY AND TRUST The Maxims of Equity 1 2 Prescription Doctrine A method of acquiring a nonpossessory interest in land through the long, continuous use of the land. International Law: sovereig...

8 Aug 2024 EQUITY AND TRUST The Maxims of Equity 1 2 Prescription Doctrine A method of acquiring a nonpossessory interest in land through the long, continuous use of the land. International Law: sovereignty transfer of land National scale: expropriation, Ancestral history and landmarks Private Property: ease of way 3 1  8 Aug 2024 The Maxims of Equity 1-6/12 1 Equity sees that as done what ought to be done 2 Equity will not suffer a wrong to be without a remedy 3 Equity is equality 4 One who seeks equity must do equity 5 Equity looks to intent rather than form 6 Equity imputes an intent to fulfil an obligation 4 The Maxims of Equity 7-12/12 7 Equity follows the law 8 Where equities are equal, the law will prevail 9 Between equal equities the first in order of time shall prevail 10 Equity will not allow a statute to be used as a cloak for fraud 11 Equity acts in personam or persons 12 He who comes into equity must come with clean hands 5 1 Equity sees that as done what ought to be done Even before it is done equity regards as done what should have been done Layman terms: if the agreement was that you would do something, the court will consider the claim as if you had already done it => equitable conversion 6 2  8 Aug 2024 2 Equity will not suffer a wrong to be without a remedy ubi jus ibi remedium Where there is a right, there is a remedy Limitation a) If there is a breach of a moral right only b) If the right and remedy both were within the jurisdiction of the Common Law Courts c) Where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy 7 3 Equality is Equity This is a fall-back position, when no other division is appropriate. In terms of rights and liabilities, this puts the litigating parties on an equal level. No party gets an advantage over the over party. USED in cases of co-ownership => profit and loss are allocated on the basis of equality CASE: Bafino vs Tiboro PNGLR 168 As no other division of profit had been defined, it was equal. 8 4 One who seeks equity must do equity To receive equitable relief, the petitioning party must be willing to complete all of its own obligations as well => The applicant to a court of equty is just as much subject to the power of the court as the defendant. Limitation i) The demand for an equitable relief must arise from a suit that is pending. ii) This maxim is applicable to a party who seeks an equitable relief. 9 3  8 Aug 2024 5 Equity looks to intent rather than form Equity looks to the spirit not to the letter, it looks to the intention of parties and not to the words 10 6 Equity imputes an intent to fulfil an obligation A person is presumed to do what he is bound to do. Near performance or equal performance 11 7 Equity follows the law equity came not to destroy the law but to fulfill it, to supplement it, to explain it Maitland Equity follows the law and even if by analogy law can be followed, it should be followed. Limitation i) Where a rule of law does not specifically and clearly apply ii) Where even by analogy the rule of law does not apply 12 4  8 Aug 2024 8 Where equities are equal, the law will prevail When two parties want the same thing and the court cannot in good conscience say that one has a better right to the it em than the other, the court will leave it where it is. 13 9 Between equal equities the first in order of time shall prevail When two parties each have a right to possess something, then the one who acquired an interest first should prevail in equity. 14 10 Equity will not allow a statute to be used as a cloak for fraud Useful in absence of statutory formality Actions that would be unconscionable and unfair, though nothing prevents them from going ahead Secret trusts 15 5  8 Aug 2024 11 Equity acts in personam or persons Courts of equity have power over persons – not property Limitation The person must assert a property interest 16 12 He who comes into equity must come with clean hands “he that hath committed an inequity, shall not have equity.” Exception i) If the transaction is a against public policy ii) if the party repents for his conduct before his unjust plans are carried out. General or total conduct of person not to be considered 17 Next time Estoppels = remedy (chapter 8) 18 6  8 Aug 2024 19 7