EQUITY CASE SUMMARIES compiled by Lorraine Aguti

HISTORICAL OUTLINE OF EVOLUTION OF EQUITY

General
AGHENGHEN vs WANGHOREGOH (1974) 1 ALL N.L.R. 81,88
The plaintis ((grantors) are the owners of a parcel of land (given to the defendants
((grantees) to cultvate b plantn(g economic and other permanent crops. The
plaintis however (gave the same land to the 1st respondent (Shell BP). The
queston was whether the monies oiered b the 1st respondent (Shell BP) was
meant to e apportoned etween the plaintis as the (grantor and owner on the
land, the defendants as (grantors who were in possession of the land and who
were farmin(g the said land.
Jud(gment delivered was ased on the fact that compensaton moneb e
apportoned etween the appellants plaintis on the porton of two thirds to the
appellants and one third to the respondents. Appeal dismissed.
Equitb and common law
EARL OF OXFORD CASE
This case was concerned with a parcel of land in London which Henrb VIII had
(gifted to Thomas, Lord Audleb, as a reward for procurin(g the trial and eventual
executon of Anne Bolebn Bb his will Lord Audleb left the land to Ma(gdalene
Colle(ge, Cam rid(ge who su sequentlb sold it and which were indirectlb acquired
b the Earl of Oxford .Ma(gdalene Colle(ge then challen(ged the Earl of Oxford’s ttle
to the land on the asis of a statute which prohi ited the sale of Colle(ge lands ut
a(gainst this was the fact that, as part of the ori(ginal sale, Ma(gdalene Colle(ge had
made an immediate transfer to Queen Eliza eth with the deli erate intenton of
circumventn(g the statute.
Ma(gdalene Colle(ge acton acted as the catalbst for the dispute etween common
law and equitb the dispute set the two Leviathans’ of the En(glish le(gal sbstem on a
confrontatonal path. Sir Edward Coke, Chief Justce of the Kin(g’s Bench, and
Thomas Ed(gerton, Lord Ellesmere, Lord Chancellor. Coke’s a(genda was the
curtailment of the powers of the Lord Chancellor.
Coke’s complaint was that the Chancellor’s practce of (grantn(g injunctons in
Chancerb to prevent the enforcement of common law jud(gments which was in
reach of statutes desi(gned to prevent appeals from the common law courts.

The Earl of Oxford’s case alle(ged that the jud(gment of Coke G.J had een
o tained fraudulentlb. The Lord Chancellor throu(gh the Court of Chancerb then
issued a common injuncton on the asis of an unconsciona le advanta(ge which
had developed in favour of the Ma(gdalene Colle(ge which denied the Earl of
Oxford’s ri(ghts to adequate compensaton for loss of ttle, resultn(g from the
enforcement of the common law order a(gainst the Earl of Oxford for reachin(g
the statute.

The two jurisdictons then ecome estran(ged and a stalemate situaton ensued,
with no compromise on either side which eventuallb led to the impasse ein(g
referred to the Atorneb-General, Sir Francis Bacon, who parttoned the Kin(g. The
Atorneb-General actn(g on the authoritb of James I, upheld the use of the
common injuncton issued b the Lord Chancellor and concluded that in the event
of anb confict etween the two jurisdictons of common law and equitb, equitb
would prevail.The Chancellors Parts’ in takin(g the equita le constructon of
statutes to e law properlb speakin(g. The Chancerb, however, was not like a Court
of Appeal. Instead, the Chancerb had a unique positon.

The controversb came efore Kin(g James I, who, after considerin(g le(gal advice
from several lawbers includin(g Bacon (a future Lord Chancellor), decided in favour
of Chancerb jurisdicton.
 From that tme, equitb rules ecame supreme over the Common law rules
in the En(glish Le(gal sbstem

Administraton of equitb in U(ganda

SERONJOGI vs KATABIRA
This case involves a sales a(greement where the plainti was ubin(g the
defendants propertb which was a house. The defendant refused to vacate havin(g
 een paid hence a leadin(g to the suit. It was was held that in executon of a
contract, the plainti had equita le interest and the defendant has le(gal ttle. In
such circumstances, the defendant was holdin(g the propertb in trust for the
plainti and had to oier it since it was paid for. Specifc performance was
(granted. Ordinarilb common law would oier dama(ges
 Specifc performance is ordered in cases where dama(ges would not e an
adequate remedb
 Equitb re(gards as done what ou(ght to e done

UGANDA COMMERCIAL BANK UCB vs GENERAL PARTS U LTD

The defendant rou(ght an applicaton under the Civil procedure rules seekin(g a
temporarb injuncton to restrain the respnt from disposin(g the applicants
propertb (in re(gards to exercisin(g mort(ga(gers ri(ghts) untl disposal of the main suit
. Counsel for the defendants contended that theb stood a chance of succeedin(g in
the main suit and that if the applicaton of a temporarb injuncton was not
(granted, theb would suier irrepara le loss and dama(ge followin(g the sale of their
industrial projects under constructon.
Court held in favor of the applicants b (grantn(g a temporarb injuncton
 The purpose of a temporarb injuncton is to preserve maters in status quo
untl the mater to e invest(gated in the main suit is disposed oi.

UGANDA MUSLIM SUPREME COUNCIL vs SHEIKH KAGIMU MULIMBA

The plaintis rou(ght a suit a(gainst the defs and sou(ght to restrain them from
holdin(g ofce throu(gh a temporarb injuncton
Court held that a temporarb injuncton couldn’t e issued to alter the status quo
 T.I is to deter an unlawful act from happenin(g

FARAH ALLI vs MAYAMBAZA (1991)

The def resp was the re(gistered proprietor of a plot of land which he leased in
1956 to persons whom the pts applcnts claimed interest as a successor. The
occupants of the premises constructed on the lease propertb were now
threatened b the resp def with evicton hence present applicaton for a T.I.
The contenton of the pts apps was that after theb fea the countrb for securitb
of their lives 4llowin(g the death of their relatves who occupied the premises in
qtn, the defs repdnts wron(gfullb entered the leased land causin(g the entrb to e
re(gistered b the re(gistra of ttles.
It was held that the principles wc (governs the (grants of temporarb injunctons was
to preserve the status quo. It could not e (granted if pecuniarb dama(ges would
aiord sufcient compensaton to the appcnt. In the present case there was
clearlb a su stantal qtn to e invst(gd namelb whether or not the reentrb was
lawful. The appcnts were old men incapa le of securin(g their accommodaton in
wc case pecuniarb dama(ges cud never atone 4 injurb in case of evicton.
 T.I is to deter an unlawful act from happenin(g

ODIDO v. LEBEL (EA) Ltd n 2others 1987

Alphonse Odido who was the applicant owned the suit premises where he stabed
with his familb. The def sou(ght to throw the applicant out of the premises. There
was a stron(g likelihood of the applicant ein(g thrown out of the premises. There
was no prior reasona le notce to the applicant. Court (granted him a injuncton to
avoid the ille(gal evicton.
 T.I is to deter an unlawful act from happenin(g
 T.I is to preserve maters in status quo tll mater of invest(gaton is disposed
oi
SEKAYOMBYA vs UGANDA STEEL CORP 1984
The pt contracted with the defendant for purchase of 100 iron sheets for a
certain amount which ws paid to the def b ank draft and a receipt for the same
ws issued b the def. the def had not dlvrd the iron sheets at the a(greed tme of
pickin(g and that the receipt and items of the plainti were looted and the iron
sheets were not delivered there after hence leadin(g to the suit for purposes of
refund.
It was held that when the seller refuses to deliver (goods paid for b the uber, the
uber could maintain a case for dama(ges a(gainst the seller for not deliverin(g
 Resttuton in inte(gram is rewarded to put the complainant in their ori(ginal
positon

REPUGNANCY DOCTRINE RELATIONSHIP BETWEEN EQUITY AND CUSTOMARY

LAW
KARURU vs NJERI 1968 EA
The courts in this partcular case upheld African customarb law and in this case
the contents were a out the custodb of children as etween hus and and wife
who were married under customarb law and divorced. The African court awarded
4 children to the wife. The (girls were (given to the mother and the obs were (given
to the father. On appeal to the Hi(gh court, the jud(ge called for an expert opinion
on Kikubu custom related to the custodb of the children stated, that where
divorce occurs, the children (go to the father re(gardless of their a(ge unless a father
demands in return dowrb where upon the children (go to the mother. In this case
the court chose to e (guided b custom and didn’t fnd it repu(gnant to justce and
moralitb and custodb was awarded to the father.
 An existn(g custom can onlb e enforced if it does not infrin(ge on natural
justce, equitb and (good conscience.
ASHEIEMOI vs BANI 1959 GLR
Ashiemoa’s ancestors had een in possession of a certain land for 100 bears and
theb cultvated the land. Ashiemoa resisted atempts b the Chief of Kapunda to
interfere with familb possession and occupatonn he prosecuted and defended
suits in re(gards to the land. Later on, the land ecame an outskirt land to the
nearest town. The chief contended that the development deprived Ash to the
ri(ght of land as per the custom would e vested in the stool.
Court rejected the natve custom and held it was repu(gnant to natural justce and
(good conscience
 An existn(g custom can onlb e enforced if it does not infrin(ge on natural
justce, equitb and (good conscience.

REX v. AMKEYO
A woman customarilb married her hus and and her hus and commited a crime
where the woman was called to testfb a(gainst her hus and. Common law had it
that spouses can’t testfb a(gainst each other. The queston efore court was if the
customarb marria(ge was valid in the ebes of common law (within the meanin(g of
Art 122 of the Indian Evidence Act) for her as a wife not ein(g a compella le
witness to the proceedin(gs to which a spouse is a partb. Court in its jud(gment
stated that the African culture of procurin(g ride price makes marria(ge more of a
wife purchase. In additon, court stated that the customarb marria(ge promoted
polb(gamb which was an injustce in En(glish law. In a nutshell, court re(garded the
customarb marria(ge as repu(gnant to natural justce and (good conscience.
 An existn(g custom can onlb e enforced if it does not infrin(ge on natural
justce, equitb and (good conscience.

GWAO BIN KILIMO v. KISSUNDA BIN IFUTI 1928

A (govt tax clerk called Mwan(ge received 10 shillin(gs from Kisunda for poll tax and
issued him with a false tax tcket and converted the moneb to his personal use.
Man(ge was char(ged and convicted b the criminal court. Kisunda further sued for
the return of his 10 shillin(gs and o tained j(gdt in his favour. Kisunda went and
took 2 heads of catle from Gwao Bin Kilimo(Man(ge’s father) since the Turu
custom had it that a father could e lia le for a son’s wron(g. GBK sued for return
of the catle.
The court held that the Turu natve custom was inconsistent with the repu(gnancb
clause as per Art 24 of the Tz 1902 O.I.C. Jud(ge Wilson went on to reject such a
custom as ein(g repu(gnant to justce and moralitb. An existn(g custom can onlb e
enforced if it does not infrin(ge on natural justce, equitb and (good conscience.
 An existn(g custom can onlb e enforced if it does not infrin(ge on natural
justce, equitb and (good conscience.

SPECIFIC SITUATIONS (courts resolvin(g the confict etween the applicaton of the
rules of equitb and rules of common law to issues efore them)
1. Lia ilitb of an Executor for Assets
JOB vs JOB
The assets of a testator came into hands of his executor were afterwards lost to
the estate throu(gh no wilful default on the part of the executor. Under common
law, the executor was strictlb lia le for the loss of his testator’s assets if he took
possession of them, whereas in equitb he was onlb lia le in proof of willful
default. M.R. Jessel treated the case as one of confict and applied an equita le
rule statn(g that the rule at law and equitb now is that an executor or
administrator is in the positon of a (gratuitous Bailee who cannot e char(ged with
the loss of his testators assets without willful default
 In this essence the rule of equitb prevailed over common law b virtue of the
Judicature Act 1873(Sec 25(11))
 2. A(greement of a Lease
WALSH vs LONSDALE (1882)
The Landlord (def) a(greed in writn(g to (grant the tenant (plainti) a lease of a mill
for 7 bears. The a(greement provided that the rent was paba le in advance of
demand. There was no (grant of lease b deed as required b the common law.
The plainti took possession of the mill and paid rent quarterlb in arrears.
Su sequentlb, the landlord ased on the a(greement, demanded one bear’s rent in
advance. The tenant failed to pab and the landlord distained. The tenant sued for
dama(ges for ille(gal distress. The acton failed on (ground that althou(gh the distress
was ille(gal at common law ecause a seven bear lease had not een (granted and
the bear tenancb which arose from the tenant’s entrb into possession did not
provide for rent pabment in advance, in equitb the a(greement for a lease is as
(good as a lease. Writen lease converted to formal lease. Consequentlb the tenant
was lia le to pab a bear’s rent in advance.
 The confict in this case was solved in favor of equitb that an a(greement for a
lease is as (good as a lease

3. Joint undertakin(g
LOWE vs DIXON(1885)
4. Variaton of a deed
BERRY vs BERRY
Under a deed of separaton, a hus and covenanted to pab his wife and allowance.
Later the partes’ hus and on the ori(ginal dead claimin(g arrears of the
allowance a(greed upon. The acton failed. While acceptn(g the plainti’s
contenton that at common law at covenant in a deed onlb e varied b another
deed in equitb, a simple contract varbin(g a deed is a (good defense to an acton
ased on the deed ased on the deed. Furthermore, in view of the J.A S.25 (11),
the equita le principle prevailed.
HIGH TREES CASE 1947
 The defendants, Hi(gh Trees, leased a lock of fat from the plaintis, Central
London Propertb Trust. The propertb suiered from fallin(g occupancb rates due to
the out reak of World War II in 1940, so the partes a(greed to reduce the rent b
half. However, it was not expresslb a(greed how lon(g this would last for. The
defendants contnued to pab the rent at this new rate. Bb 1945 the war had
ended and the fats were at full occupancb. The plaintis sued Hi(gh Trees for the
full rent from 1945 onwards. The defendants ar(gued that the a(greement to pab
the rent at a reduced rate applied to the whole term of the lease. Theb ar(gued
that the plaintis were estopped from claimin(g that the rent should e hi(gher.
The court reviewed the past case law, especiallb Hughes v Metropolitan Railway
Co (1877) 2 App Cas 439, where the House of Lords had held that partes should
e prevented from (goin(g ack on a promise to waive certain ri(ghts. Dennin(g J
stated that the cases showed that a promise which the promisor knew was (goin(g
to e acted on b the person to whom it was made was enforcea le despite a lack
of consideraton. The tme had come for this to e reco(gnized as (givin(g rise to an
estoppel. Here, the plaintis had made a indin(g promise. However, the evidence
showed this onlb applied durin(g the war. Therefore, after the war the defendants
were lia le for the full rent.

Did the Judicature Act of 1873-75 fuse common law and equitb?
NELSON vs LARHOLT per Lord Dennin(g
an executor fraudulentlb drew ei(ght cheques on the account of the testator’s
estates. The cheques were in favour of the defendant who received the cheques
for value and in (good faith. It was held that the defendant was lia le for the
amounts of the cheques since he knew or ought to have known of the executor’s
want of authoritb. Lord Dennin(g explicitlb mentons that had the cheque een
ne(gotated the queston would have een diierent. Would the pabee’s positon
 e stron(ger if a third partb had procured the drawin(g of the cheques and
delivered them to the defendant?
DENNING J., havin(g stated the facts contnued: I am satsfed that Pots was actn(g
fraudulentlb: he did not draw the cheques or use the moneb for the purposes of
the estate, ut for his own purposes. The relevant le(gal principles have een
much developed in the last thirtb-fve bears. A man's moneb is propertb which is
protected b law. It mab exist in various forms, such as coins, treasurb notes, cash
at ank, or cheques, or ills of exchan(ge of which he is "the holder" ut, whatever
its form, it is protected accordin(g to one uniform principle. If it is taken from the
ri(ghtful owner, or, indeed, from the enefcial owner, without his authoritb, he
can recover the amount from anb person into whose hands it can e traced,
unless and untl it reaches one who receives it in (good faith and for value and
without notce of the want of authoritb. Even if the one who received it acted in
(good faith, nevertheless if he had notce - that is, if he knew of the want of
authoritb or is to e taken to have known
ERRINGTON v. ERRINGTON
A father-in-law purchased a house for his son and dau(ghter-in-law to live in. The
house was put in the father's name alone. He paid the deposit as a weddin(g (gift
and promised the couple that if theb paid the mort(ga(ge instalments, the father
would transfer the house to them. The father then ecame ill and died. The
mother inherited the house. After the father's death the son went to live with his
mother ut the wife refused to live with the mother and contnued to pab the
mort(ga(ge instalments. The mother rou(ght an acton to remove the wife from the
house.
It was held the wife was enttled to remain in the house. The father had made the
couple a unilateral oier. The wife was in course of performin(g the acceptance of
the oier b contnuin(g to meet the mort(ga(ge pabments. Under normal contract
principles an oier mab e revoked at anb tme efore acceptance takes place,
however, with unilateral contracts acceptance takes place onlb on full
performance. Lord Dennin(g held that once performance had commenced the
Mother was estopped from revokin(g the oier since it would e unconsciona le
for her to do so. Furthermore there was an intenton to create le(gal relatons
despite it ein(g a familb a(greement.
SEAGER v COPYDEX 1967
Mr Sea(ger had invented a patented carpet (grip which he manufactured and
marketed under the trade mark Klent. There were protracted ne(gotatons
etween Mr Sea(ger and Copbdex over a proposal for Copbdex to market the
Klent. One of the issues in the ne(gotatons was the price at which Mr Sea(ger was
to supplb the product. Durin(g a meetn(g with two representatves of Copbdex Mr
Sea(ger disclosed to them an alternatve desi(gn of (grip which could e produced
more cheaplb. Althou(gh there was a dispute as to preciselb what had een
disclosed at the meetn(g, there was no dispute that the disclosure was in
confdence The defendants had manufactured a carpet (grip, honestlb and
unconsciouslb makin(g use of that confdental informaton. The alternatve desi(gn
was not covered b Mr Sea(ger’s patent.
Held: The court upheld Mr Sea(ger’s claim for reach of an equita le o li(gaton of
confdence, holdin(g that Copbdex must have unconsciouslb made use of the
informaton which Mr Sea(ger (gave them The court ordered dama(ges to e
assessed on a resttutonarb asis.

MAXIMS OF EQUITY
1. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY
STEPHEN MABOSI v. URA 1995
It was held that a memorandum of appeal which was flled out of tme couldn’t e
rejected ecause the appellant couldn’t fle it efore o tainin(g the ofcial record
of proceedin(gs from the hi(gh court which were released after the 60 dab period
required for flin(g the memorandum of appeal had elapsed.
2. EQUITY FOLLOWS THE LAW
KYOBE SENYANGE vs NAKS Ltd 1980
This case involved an unlicensed moneb lender who lent moneb to the defendant
who eventuallb failed to pab hence leadin(g to a suit. The moneb lender contended
that he was enttled to an equita le remedb as the def failed to pab. Court
rejected the contenton statn(g that onlb licensed moneb lenders as per Sec 2 of
The Moneb Lender’s Act could have a cause of acton.
3. WHERE THERE’S EQUAL EQUITY, LAW PREVAILS
4. WHERE EQUITIES ARE EQUAL, THE FIRST IN TIME PREVAILS

CAVE v. CAVE
A trustee in reach of trust, used moneb to ub land which was then transferred
to his rother. The rother then mort(ga(ged the land to X b wab of Le(gal
mort(ga(ge and then to Y b means of equita le mort(ga(ge. Both X and Y had no
knowled(ge or notce of the trust. It was held frstlb that X’s le(gal mort(ga(ge took
prioritb over the equita le interests of the enefciaries. However, the interests of
the enefciaries under trust had prioritb over Y’S mort(ga(ge since theb were
earlier in tme.
 The (general rule is that equita le interests in propertb take prioritb accordin(g
to the order in wc theb were created
RICE v. RICE
A vendor (seller of land) transferred land to the uber without receivin(g pabment
for it. However, he said the convebance which contained a receipt for the moneb.
It was held that the vendor’s equita le lien for the unpaid purchase moneb was
postponed to the interests of the su sequent equita le mort(ga(gee with whom
the purchaser deposited the ttle deeds since the mort(ga(gee had no notce of the
lien
 The maxim will not applb in instances where the frst equita le interest where
the holder is (guiltb of fraud or ne(gli(gence
DEARLE v. HALL
B was the enefciarb under F’s will which created a trust for sale. B assi(gned his
will interest under the trust to D. The executor of the will had no notce of the
assi(gnment .Later B assi(gned the same interest to C and proceeded to sell the
same interest to H who had no notce of the previous dealin(gs. It was held that H
had prioritb over the prior assi(gnees, ein(g the frst to (give notce,
notwithstandin(g that his interest was last in order of creaton.
 The maxim doesn’t applb to a situaton where there are successive
assi(gnments or mort(ga(ges of equita le interests

5. HE WHO SEEKS EQUITY MUST DO EQUITY

LODGE v. NATIONAL UNION INVESTMENT Co.
This a case in which B had orrowed moneb from a moneb lender, M, and B
mort(ga(ged some securites to M for the loan. It turned out that M was not a
re(gistered moneb lender b law (the Moneb Lenders Act of En(gland). B sued M for
deliverb of his securites ( ack to him). And here the court refused to (grant the
order unless B frst repabs the loan

6. HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS

KDLB and CHEMICAL DISTRIBUTORS v NHCC 2004

The respondent had occupied the suit land since 1970 and had used the land as
a plab(ground for children residin(g in its adjoinin(g estate, amon(g other uses. It
had fenced the land and constructed a toilet on it. The 1st appellant (granted a
lease over the suit land to the 2nd appellant i(gnorin(g the o jectons of the
respondent and local council ofcials of the area. The respondent sued the
appellants claimin(g that the (grant of the lease to the 2nd appellant was
unlawful and fraudulent. The respondents’ claim was upheld. Respondents
were onafde occupants as per provisions of The Land Act and should have
een (given frst oier of lease. The Court stated that applicants contnued to
push for the lease and forceful evicted despite the protests from the
respondents. Court was in the view that theb couldn’t seek a remedb after such
a wron(gful act.

GILL v. LEWIS 1956

This was a case where a residental tenant who had fallen ehind in the rent,
leadin(g to an evicton notce from his landlord [ reach of contract] fndin(g the
rent moneb, had it refused, and tried to prevent the repossession order throu(gh
invokin(g equitbn the landlord claimed that those that appeal to equitb ‘must do so
with clean hands’, held that due to indecentlb assaultn(g two obs in the house,
must fail.

The court however rejected this ar(gument on the asis that the assaults had
nothin(g to do with the defendant defaultn(g on his repabments.

COATSWORTHY v. JOHNSON 1886

The plainti went into possession of a farm under an a(greement for a 21 bear
lease. He did not pab anb rent. The Defendant ousted him from possession on the
asis that he was no more than a tenant at will. The Plainti sued the Defendant
in trespass, claimin(g to e enttled to a 21 bear term in equitb. That depended on
whether he was enttled to specifc performance of the a(greement. The Court
held that he was not ecause he had reached a covenant in the lease to cultvate
the farm, i.e., he did not have clean hands.

7. DELAY DEFEATS EQUITY (DOCTRINE OF LACHES)

JOHN OITAMONG v. MOHAMMED OLINGA
The applicant for a period of thirtb bears occupied and cultvated the respondents
land althou(gh the later was aware of the intrusion, he made no atempt to stop it
or recover the land. Hi(gh court held that the applicant had taken to lon(g to
enforce his ri(ght. there is no fxed tme for the doctrine to operate its up to the
court to decide whether or not in the circumstances of a partcular case it
considers that delab to rin(g an acton was unreasona le.

8. EQUALITY IS EQUITY
Presumpton of tenancb in common
LAKE v. GIBSON 1729
Five persons purchased West Thorock Level from the Commissioners of the
Sewers, and the convebance was to them as joint tenants in fee, ut theb
contri uted rata lb to the purchase, which was made with the intent of
drainin(g the level. Several of them died. Held, that theb were tenants in
common in equitb
 Severance of joint tenancb
BROWN v. RAINDLE 1976
This was a standard repossession acton. The le(gal queston arose as to enforcin(g
repossession a(gainst a widow — would it have to wait as with the ri(ghts of the
lord of the manor in the custom of that manor, under the copbhold sbstem, untl
her demise. As such a ill was fled for foreclosure, and to compel a surrender of
a copbhold estate for three lives, under a covenant in the mort(ga(ge deed of 1792
(to surrender those premises as an additonal securitb). Did a covenant of the
mort(ga(gor ar the ri(ght of his widow "to free- ench"? The custom of the manor
appeared b the evidence to e, that the copbholder could conveb these estates
b surrendern ut where he dies seized of the estate, the widow "is enttled to the
estate durin(g her widowhood as her free- ench".
Sir RP Arden said the followin(g in his jud(gment
 I had occasion latelb to look into that case. I had no dou t a out it. It is
perfectlb clear. The ri(ght of the widow of a copbholder arisin(g out of her
estate, which is in his power durin(g his life, mab e arred b him b anb act
done for valua le consideratonn whether convebin(g a le(gal estate, or
otherwise. It is verb diierent from an estate-tail with remainders overn for
those estates are not in the power of the partb, tll the recoverb is suiered.
Theb are estates not arisin(g out of the estate of the tenant in tail. Upon the
evidence, supposin(g this a widow's estate arisin(g out of an estate, of which
the hus and was complete owner, and could ar her estate, I am of opinion,
it is that sort of estate, which anb equita le convebance will ind. Anb act of
the hus and for valua le consideraton ars her equallb with a le(gal
surrendern and she is compella le in equitb to surrender pursuant to such
contract. A covenant b a joint-tenant to sell, thou(gh it does not sever the
joint tenancb at law, will in equitb. I have alwabs understood this as a setled
point, and have no difcultb upon it. Therefore let her conveb all her estate
and interest in the copbhold premises accordin(g to the deed of the 2nd of
Julb 1792, su ject to redempton.
 It confrmed that equitb will not, in copbhold land for example, (generallb
allow a widow the ri(ght to remain in a propertb where a mort(ga(ge
remains in arrears.

Equal division
JONES v. MAYNARD 1957
A soldier H (goin(g on actve service (gave his wife W power to draw cheques on his
account. On their su sequent divorce, W claimed half the alance in the account,
and her claim was allowed. There was evidence, said the jud(ge, that the partes
intended to make a common pool of their resources: oth H and W paid in their
earnin(gs (thou(gh H's contri uton was (greater) and drew cheques, and theb spoke
of "our savin(gs". W was therefore enttled to half the alance of the account and
to half the value of various investments purchased from it in H's name.
 9. EQUITY LOOKS AT SUBSTANCE RATHER THAN FORM
STEPHEN MABOSI v. URA 1995
On 7th Fe ., 1995 the respondent lod(ged a Notce of Appeal intendin(g to appeal
a(gainst the decision of the Hi(gh Court. On 24th 4 1995 the applicant insttuted the
present applicaton under Rules 42, 80& 82 of the Rules of the Court. Bb that
applicaton the applicant seeks to have the Notce of Appeal strike out ecause
the respondent had not insttuted the appeal within 60 dabs as provided b Rule
81 (1) of the Rules.
It was held that a memorandum of appeal which was flled out of tme couldn’t e
rejected ecause the appellant couldn’t fle it efore o tainin(g the ofcial record
of proceedin(gs from the hi(gh court which were released after the 60 dab period
required for flin(g the memorandum of appeal had elapsed.
JAFFER BROTHERS v HAJJI MOHAMED MAGID BAGALAALIWO & 2 ORS
The appellant is a U(gandan incorporated limited lia ilitb Companb whose
shareholders are all of Asian extracton and was the re(gistered proprietor of Plot
No. 9 HILL LANE, KOLOLO, KAMPALA, comprised in Lease hold Re(gister Volume
354 Folio 17, of which the shareholders fed U(ganda in 1972 followin(g the
expulsion of Asian from U(ganda in 1972. Su sequentlb, Government of U(ganda
(3rd respondent) took over the suit propertb and b virtue of Decree No. 27 of
1973, vested it in the Departed Asian Propertes Custodian Board (DAPCB) (2nd
respondent) for mana(gement. This Decree 27 of 1973 came into force on
7 12 1973. Sometme in 1977, the DAPCB sold the suit propertb to one Francis
Nban(gweso who in turn transferred it to Ba(galaaliwo, (1st respondent). In
Novem er, 1993, however, the appellant upon return to U(ganda o tained from
the Minister of State for Finance and Economic Plannin(g in-char(ge of Custodian
Board (DAPCB), a leter dated 7 12 93, Annexture ‘B’ to the amended Plaint,
authorizin(g the appellant to repossess the suit propertb.
When the suit came for hearin(g, the respondents raised three preliminarb
o jectons, namelb:
1. That the suit was tme arred, it havin(g een insttuted alle(gedlb well after 12
bears from the date when the cause of acton occurred thus violatn(g Secton 6
and 7 of Limitaton Act Cap. 70n
2. That the plainti has no locus standi in the suit since it does not hold anb valid
certfcate of repossessionn
3.That the suit discloses no cause of acton a(gainst all the defendants.
The trial Jud(ge heard the o jectons and upheld all the (grounds and dismissed the
appellant’s suit. On appeal court held that since the relevant leter was issued b
a competent authoritb, there was valid repossession b the appellant.
In the essence court looked at the su stance of the acton of the minister rather
than form in he instrument required under the Expropriated Propertes Act.

Covenants
CATT v. TOURLE 1869
An owner of a ar a(greed to (grant a certain rewerb exclusive ri(ght of supplbin(g
its eer. It was held that the covenant, althou(gh positve in wordin(g, is ne(gatve in
su stance and enforcea le b restrictve injuncton to prevent its reach.

 furnishes another instance of a covenant held to e enforcea le in equitb,

ecause it was ne(gatve and unilateral.

Instrument of Repossession

JAFFER BROTHERS LTD v. HAJJ BAGALAALIWO

The appellant sued the respondent to recover a house located at Kololo

Kampala which it had repossessed under the Expropriated Propertes Act
1982(now cap 87). The respondent opposed the appellant’s acton on the
(ground that the appellant was not issued with a certfcate of of repossession
as required b the act. He had instead een issued with a leter of
repossession b the Minister of State for Finance in char(ge of the Departed
Asians Propertb Custodian Board. It was held b the court of appeal (Okello
JCA) that since the relevant leter was issued b the competent authoritb,
there was valid repossession b the Appellant.
 In the essence the court looked at the su stance of the acton of the Minister
rather than the form of the instrument required under the Expropriated
Propertes Act.

Penaltes and fortfeitures

Deeds

10.EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE DONE

SERUNJOGI v KATABIRA

A(greement for a lease

WALSH vs LONSDALE (1882)
The Landlord (def) a(greed in writn(g to (grant the tenant (plainti) a lease of a
mill for 7 bears. The a(greement provided that the rent was paba le in advance of
demand. There was no (grant of lease b deed as required b the common law.
The plainti took possession of the mill and paid rent quarterlb in arrears.
Su sequentlb, the landlord ased on the a(greement, demanded one bear’s rent in
advance. The tenant failed to pab and the landlord distained. The tenant sued for
dama(ges for ille(gal distress. The acton failed on (ground that althou(gh the distress
was ille(gal at common law ecause a seven bear lease had not een (granted and
the bear tenancb which arose from the tenant’s entrb into possession did not
provide for rent pabment in advance, in equitb the a(greement for a lease is as
(good as a lease. Writen lease converted to formal lease. Consequentlb the tenant
was lia le to pab a bear’s rent in advance.
 The confict in this case was solved in favor of equitb that an a(greement for a
lease is as (good as a lease

SAVAGE v. SARROUGH 1937

The plainti and his rother and sister were owners of a certain land and
uildin(gs which the def o tained from the rother on ehalf of the owners b
writen a(greement of a lease for fve bears. A(greement was not under seal and
the defendant’s co. was not re(gistered. The plaintis sou(ght to take advanta(ge
of the defendants omission in order to repudiate a perfectlb (good a(greement.
In equitb, it was declared that a lease is deemed to have een eiectvelb
(granted

SERUNJOGI v KATABIRA
In this case b a memorandum of a(greement it was dullb si(gned b oth partes.
The defendant sold to the plainti a piece of land and a house situated thereon,
the plainti paid the full price ut the defendant ne(glected to transfer ttle and
deliver up possession to the plainti. The plainti sued and court held that equitb
treats an equita le interest as if it were alreadb convebed hence the defendant
was ordered to deliver up vacant possession of the premises.
Mort(ga(ges
BARCLAYS BANK v GULU MILLERS
The companb was the re(gistered proprietor of a lease, it deposited its certfcate
of the ttle with the ank and at the same tme executed a memorandum in which
it stated that it had deposited the ttle deeds with the intent to create an
equita le mort(ga(ge upon the propertb comprised therein as securitb for
mort(ga(ge due to the ank paba le on demand. When the respondent defaulted,
the appellant sued for a declaraton inter alia that had a ri(ght to sell the
mort(ga(ged propertb. The presidin(g jud(ge dismissed the acton on the (ground that
the appellant ein(g an equita le mort(ga(ge could not in the frst instance seek an
order for sale.
At trial, His Honor held that efore an equita le mort(ga(gee could seek an
order for sale, it must in the frst place ask the court to order the
equita le mort(ga(gor to execute a le(gal mort(ga(ge.
However the ank appealed a(gainst the decision. After a thorou(gh analbsis,
Sir Kenneth P su(g(gested that he was not impressed with the ar(gument of Mr.
James that the companb had een dra(g(ged throu(gh the court unnecessarilb and
that the court even if it had the power to order a sale, should in the frst instance
order a le(gal mort(ga(ge to e executed. It was the dutb of the de tor to pab his
creditor on demand. Failure to pab on demand is admited. The companb should
have paid what was due, whether b arran(gin(g a transfer to a new mort(ga(gee or
otherwise, and if it didn’t do so, it should have not complained when the ank
sou(ght to realize its securitb in anb wab open to it. He went on to sab that since
the ordinarb wab of enforcin(g an equita le mort(ga(ge is b foreclosure or sale
under the order of court and to him he saw no reason refusin(g the court to make
such an order in that case. The other jud(ges
Forbes VP and Windham JA also a(greed with him
The court asicallb held that under a doctrine of equitb a deposit of ttle deeds b
wab of securitb whether or not accompanied b a memorandum was equivalent
to one a(greement to execute a le(gal mort(ga(ge and carried with it the entre
remedies incidental to a le(gal mort(ga(ge. Creaton of an equita le mort(ga(ge b
deposit of a certfcate of ttle is provided for under the Re(gistraton of Title’s Act.

11.EQUITY IMPUTES AN INTENTION TO FULFIL AN OBLIGATION

12.EQUITY ACTS IN PERSONAM
Grounds for applbin(g this maxim include:
a. The defendant must e within the jurisdicton.
.The maxim cannot e relied on to (grant an order in person when such will
 violate le(gal rules of another countrb.
c.The maxim will not e relied upon to (grant an order which would not e
enforcea le since equitb does not act in vain.

Several cases rin(g this maxim to claritb. In Norris v Cham res, Lord Camp ell
stated that a court ou(ght not (give an order which is not applica le without the
interventon of a forei(gn court as it would e considered rutum fulmen (an
emptb threat). Similarlb, a court should not (give an order if it will e seen to
violate the le(gal rules of another countrb.
The case of Penn V Baltmore re(gards an order of specifc performance (granted
to the plainti who rou(ght a oundarb dispute case to an En(glish court bet the
land was in Baltmore, Marbland in the USA. The partes to the dispute were
En(glish and oth lived in En(gland.
In Ewin(g V Orr Ewin(g, a man died while domiciled in Scotland. The executors of
his estate as well as his personalitb and realtb were in En(gland. It was held that
administraton of his estate could e(gin in En(gland as equitb acts in personam.
The maxim was also applied to (grant specifc performance in the case of
Richard West and Partners (Inverness) V Dick. Here, an En(glish man undertook
to ub propertb from the plaintis in Scotland. He paid the deposit and asked
the plainti's solicitors to represent him. After a while he realized that the
uildin(g plan was (goin(g to cost him more than he antcipated. He tried to
withdraw ut the plaintis refused and sued him from specifc performance.
The jud(ge said he had jurisdicton to (grant the equita le remedb.

The maxim however has its limitatons:

1.The defendant has to e within the jurisdicton of the court.

2. The order must not violate the le(gal rules of another countrb.
3. The order (given must e capa le of ein(g executed without
interventon of a forei(gn court.
4. Le(gal proceedin(gs must not have een started in the appropriate
court.

JUDICATURE ACT ACR Cap 13,S.38

ROUCHEFOUCAULD v. BOUSTEAD 1897
Land was transferred to the defendant on the understandin(g that it would e held
on trust for the Comtesse de la Rochefoucauld however, this was never actuallb
put into writn(g. The defendant mort(ga(ged the propertb. The Comtesse sou(ght a
declaraton that the defendant held the propertb on trust. The defendant ar(gued
the trust was not enforcea le due to lack of writn(g.

Held: Equitb will not allow a statute to e an instrument of fraud. To denb the
existence of the trust would amount to a fraud on the Comtesse. The trust could
e evidenced b oral evidence.

Lindleb LJ:

‘that the Statute of Frauds does not prevent the proof of a fraudn and that it is a
fraud on the part of the person to whom the land is convebed as a trustee, and
who knows it was so convebed, to denb the trust and claim the land himself’.

Nature of Equita le Ri(ghts Interests

Estate contracts
WALSH vs LONSDALE (1882)
The Landlord (def) a(greed in writn(g to (grant the tenant (plainti) a lease of a mill
for 7 bears. The a(greement provided that the rent was paba le in advance of
demand. There was no (grant of lease b deed as required b the common law.
The plainti took possession of the mill and paid rent quarterlb in arrears.
Su sequentlb, the landlord ased on the a(greement, demanded one bear’s rent in
advance. The tenant failed to pab and the landlord distained. The tenant sued for
dama(ges for ille(gal distress. The acton failed on (ground that althou(gh the distress
was ille(gal at common law ecause a seven bear lease had not een (granted and
the bear tenancb which arose from the tenant’s entrb into possession did not
provide for rent pabment in advance, in equitb the a(greement for a lease is as
(good as a lease. Writen lease converted to formal lease. Consequentlb the tenant
was lia le to pab a bear’s rent in advance.
 An a(greement for a lease is as (good as a lease
Restrictve covenants
TULK v MOXHAY
In 1808, the owner of several parcels of land in Leicester sold a plot to X
makin(g a covenant theirein to the (garden square ’uncovered with uildin(gs’
such that it could remain a pleasure (ground. Over the bears that followed, the
land was sold several tmes untl it was eventuallb sold to the defendant. The
def who was aware of the covenant at the tme of the purchase refused to
a ide b the covenant and claimed he was not partb to the ori(ginal contract
and was not ound b it’s terms and conditons.
Lord Cotenham found in favour of the plainti (grantn(g an injuncton a(gainst
the defto restrain him from violatn(g the covenant. Court noted that if the
a(greement had a contract it would e enforced ut ecause it was a covenant,
it was impossi le.

OJUNBAMBI v ABOWBA
In 1927, mem ers of the Ototo Chieftancb familb sold a plot for their land to
P’s predecessor in ttle and were paid. Theb issued a receipt and allowed the
uber to take possession. In 1948, the familb sold and executed a formal
convebance of the same land to Q. a dispute arose etween P and Q. q ar(gued
that he was the uber of the le(gal estate in the land without notce of P’s
intrest. It was held that P had (good ttle to the land accordin(g to customarb
law. Further more, that althou(gh the purchase receipt could not e admited
into evidence as proof of ttle, not havin(g een re(gistered in accordance with
the Land Re(gistraton Act, it raised a presumpton that P’s predecessor in ttle
entered into possession of the land under the a(greement of sale, which taken
to(gether with actual possession created and equita le interest was capa le of
ein(g converted into a le(gal estate b decree of specifc performance. Finallb,
since Q had constructve notce of P’s interest, he could not claim to e a
onafde purchaser for value of the le(gal estate without notce.

ORASANMI v IDOWU
The appellant acquired an requita le interest in land b o tainin(g receipts and
enterin(g into possession. 20 bears later, the same land was sold under a deed
of convebance. The appellant unlike the situaton in O(gun am i case did not
remain in contnuous possession of the land. It is presuma lb onlb then that a
 later purchaser under a deed could have constructve notce of the claimant’s
interests.

The Doctrine of Notce

i) Nature
a) Actual notce
FREDRICK JK ZAABWE v. ORIENT BANK LTD & OTHERS
The appellant, an advocate inde ted to the law council, in the sum of
U(g.Shs.1,000,000 =,(gave a power of atorneb over his propertb (comprisin(g his
home and ofce) to a companb called Mars Tradin(g Co. Limited (the `Companb`),
part owned b one of his friends and clients, to ena le the Companb to orrow
moneb from a ank. In exchan(ge of the power of atorneb, the client (gave the
Appellant a personal cheque to pab to the Law Council. The cheque was
dishonoured. The Companb used the power of atorneb to mort(ga(ge the
Appellant’s propertb to Orient Bank (the “Bank”) to secure a loan of U(g.
Shs.15,000,000 =, which loan was used exclusivelb for the usiness of the
Companb. The Companb defaulted on the loan and the Bank sold the Appellant’s
propertb to a third partb (the “Purchaser”) who evicted the Appellant. The
Appellant fled a suit a(gainst the Bank, the Companb, the Bank’s lawber, who also
acted for the Purchaser, and the auctoneers challen(gin(g the mort(ga(gin(g and sale
of his propertb and alle(gin(g fraud on the part of the Respondents. He was
unsuccessful in the Hi(gh Court and in the Court of Appeal. The Supreme Court
reversed the decisions of the lower courts and found that the mort(ga(ge and sale
of the propertb were ille(gal, null and void for the several reasons that we
discussed elow. Purchaser for value without notcen The Bank, on default b the
Companb proceeded to sell the propertb to the Purchaser. At the tme of the sale,
there was a caveat on the propertb that had een lod(ged b the Appellant. The
Court held that a purchaser who ubs propertb su ject to a caveat cannot claim
not to have had notce, the merits or demerits of the caveat notwithstandin(g and
cannot therefore e a bonafide purchaser without notce. The transfer to the
Purchaser was therefore defeated b the fraud and the Court ordered the
Re(gistrar of Titles to cancel the transfer and reinstate the Appellant as the
re(gistered proprietor of the propertb. One worrb on this fndin(g is that the
Supreme Court condemned the Purchaser unheard and deprived him of propertb.
This (goes a(gainst fundamental tenets of natural justce. The East African Court of
Appeal has held that it would e wron(g to deprive a re(gistered proprietor of land
in a suit to which he was not partb (Adonia –v-Mutekanga [1970] EA 429).
 Sales of land must e carried out onlb after a search on the propertb has een
conducted and the propertb found to e free of anb caveats. If a purchaser
consents to re(gistraton of his proprietorship su ject to a caveat, he must
a ide the result of anb lit(gaton on that caveat.

UGANDA POST AND TELECOMMUNICATIONS v AKM LUTAAYA

The respondent leased a lar(ge piece of land from the mailo owner, second
respondent. Unknown to him part of the land was occupied b the frst appellant
with consent of the mailo owner. The respondent successfullb sued the frst
appellant in the Hi(gh court for trespass. On appeal, the decision was reversed. In
deliverin(g the jud(gment of the court, Karokora JSC with concurrence of other
mem ers of the court, said thatn
The law is very clear that if a person purchases an estate which he knows to be in
the occupation of another other than the vendor, he is bound by all the equities
which the parties in such occupation ay have in the land.
Karokora, JSC cited several En(glish cases to support the prepositon that
occupaton of land b a third partb consttutes constructve notce to the
purchaser of anb equita le ri(ghts that the occupier mi(ght have in the land. If a
purchaser emplobs an a(gent, such as a lawber, to act on his or her ehalf, anb
actual or constructve notce that the a(gent receives is imputed to the purchaser.

) Constructve notce
DAVID SEJJAKA NALIMA v. REBECCA MUSOKE SCCA NO.12 1985
This involved a Re ecca Musoke as a widow who applied for leters of
administraton for her late hus and`s estate and was (granted. Certain
fraudsters applied for leters of administraton from the Bu(ganda land oard
and also received. The fraudsters sold the land to another person who also
sold the land to the plainti. The plainti efore ubin(g did an inquirb on the
land and he found a Blanket manufacturin(g co. who told him that theb were
 tenants on the land. He didn’t make anb further inquirb and went on to
purchase the land.
Court held that the knowled(ge of the existence of tenants formed a
constructve notce which the applicant should have acted upon and in the
instance case, it was fear of ascertainin(g unwanted facts that stopped the
applicant from further inquirb. He could not plead a defense of onafde
purchaser for value. Both appeals were dismissed
 Constructve notce is a presumpton alludin(g to the failure that a uber or
purchaser failed to undertake the prerequisite of due dili(gence. An inquirb
must e made reasona le inquirb relatn(g to the circumstances of the
transacton and failure to do so, equitb will presume ad faith, (gross
ne(gli(gence or fraud.