QUESTION;

‘EQUITY JURISDICTION MAY BE DIVIDED INTO THREE CATEGORIES NAMELY

EXCLUSIVE JURISDICTION (CREATION OF NEW RIGHTS), CONCURRENT
JURISDICTION (CREATION OF NEW REMEDIES) AND AUXILIARY
JURISDICTION (CREATION OF NEW PROCEDURES)’’

EXAMINE THE ABOVE STATEMENT WITH THE AID OF RELEVANT

AUTHORITIES.

In ordinary language, equity can be defined as a Natural Justice or doing good to others.
However, it also has technical meaning that can be explained as
the general juristic sense, which denotes the judicial bodies’ powers to administer law justly
taking into account the special facts of the particular case.

Under Article 126(2)(c);1 its provided that substantial justice shall be administered without
undue regard to any technicalities. This Article proved its effect in the case of Steven Mabosi Vs
Uganda revenue authority,2 where a memorandum of appeal filed after the lapse of the 60 days
period was held to be a admissible since the delay in filling it had been caused by unavoidable
circumstances.

The law of equity came at the same time with the reception of English common law into
Uganda’s legal scene. This was through the orders in council of 1902. Provisions for Equitable
use of the law are now evident in S.14(2)(b) of the judicature Act 3 which is to the effect that
subject to the constitution and this, Act the jurisdiction of the high court should be exercised
subject to written law does not extend or apply in conformity with the common law and doctrines
of Equity.

CHARACTERISTICS OF COURTS OF EQUITY

1
Constitution of the republic of Uganda
2
[1995] SCU Unreported
3
Laws of Uganda volume ,Red volumes.
 Equitable rules of law are characterized by an ethical quality/quantity of fairness, such that
unconscionable conducts of a party is prevented. The principles are of a more flexible nature
than those applied at common law for example development of law in respect to companies and
intellectual property are peppered with instances where equitable principles transcend common
law rules by regulating the conduct of directors/ shareholders, agents and judiciaries.

The ethical quality of rules of equity is frequently recited by reference to equitable maxims. It
remains that courts will apply rules of law which being equitable rules, are more flexible than
those at common laws.

Prior to fusion, courts of equity had 3 separate jurisdictions;

A) Exclusive Juridisction, This the one in which common law did not exist. Show (threatened)
infringement of an equitable right (e.g. breach of trust). They are exercised when rights in
question are recognized in equity only.’ This better explains the maxim of Equity will not suffer
a wrong to be without a remedy’ for example instances of unfair trade competitions, contracts
for personal services inter alia. It excludes common law Notion of a trust is an exclusively
equitable concept. Common law does not know any thing called a trust so when equity enforces
a trust, it is exercising its exclusive jurisdiction. Whenever there is breach of statutory duty and
equity intervenes it is exercising its’ exclusive jurisdiction, the concept of judiciary duty is an
entirely equitable concept and common law does not apply.

A court of equity will remove legal impediments to the fair decision of a question depending at
law. It prevents a party from improperly setting up, at a trial, some title/Claim, which would be
inequitable. It will compel him to discover, on his own oath, facts which he knows are know are
material to the right of other parties, but which a court of law cannot compel the party to
discover. It will perpetuate the testimony of witness to rights and titles which are in danger of
being lost before the can be tried. It will provide for the safety of property in dispute pending
litigation. It will counteract and control, or set aside, fraudulent judgment.

Excusive jurisdiction is also extensively exercised in granting special relief beyond the reach of
the common law. It will grant injunctions to prevent waste, or irreparable injury, to secure a
settled right, to stop, taxations litigations, or to compel the restitution of title deeds; it will
appoint receivers of property, where it is in danger of misapplication it will compel surrender of
securities improperly obtained; It will prohibit a party from leaving the country. In Catt v
Tourle4,It was held that ‘In equity, an injunction could be granted to enforce that covenant by
preventing the pub owner from obtaining surplus of beer from other places’.

It will grant relief in cases of lost deeds or securities because of the lost rule that he who seeks
equity must due equity e.g. if a person makes an application the equitable remedy in an
injunction and they have already engaged in fraudulent transaction, court will deny the remedy
sought. This same principle can apply to doctrine of elections. A person who takes a benefit
under an instrument must accept or reject that instrument as a whole; he must elect between
probation and reprobation.

Lord Caims in Codrington V Codrington stated that “Where a deed or will professes to make a
general deposition of property for the benefit under the instrument without at the same time
conforming to all its provisions and renouncing every night inconsistent with them.”

Also under exclusive jurisdiction, another maxim arises that has to say ‘Equity looks at
substance rather than form’. During common law, a lot of attachment was given to correct
format or use of procedure hence equity developed with the aim of achieving justice rather than
following the strict form. This is subsequent to Article 126 of the Constitution of the republic
of Uganda. Steven Mabosi v Uganda Revenue Authority.5Some of these scenarios are time
clause in contract for sale of land pursuant to Section 11 of the Sale of Goods Act, 6covenant,
mortgages, instrument of repossession.7

CONCURRENT JURISDICTION:- The exercise of this jurisdiction depended on rights which

were recognizable and enforceable at common law. However, there were circumstances where
the remedies given in enforcing such rights were inadequate. Equity therefore was concerned
with providing justice and adequate remedies than those at common law for example specific
performance of a contract, injunction to restrain the commission of a continuing trespass or other

4
(1869) 4 Ch AWP 654
5
Supra
6
It states that stipulation as to time of payment is not deemed to be of essence to the contract of sale.
7
In Hajji Bagalaaliwo C.A No 43 of 1997, it was held that ‘’since the relevant letter was issued by the competent
authority, there was a valid repossession by the appellant.
injury as evidenced in Walters’s v Morgan.8In granting the remedies, you had to show that there
was a break of a legal right and show that the remedy at law is either inadequate/incomplete.

Applying the general principle that equity will only take jurisdiction where there is no relief
possible at law, it follows that, in general, the fields of the jurisdiction of the equity courts and of
common law courts will be district from each other, and that whenever one set of courts have
jurisdiction, the other will not.

In some cases, however, we find concurrent jurisdiction of the two courts. Such concurrent
jurisdiction may arise in different ways.

(A) Equity may take jurisdiction because of the fact that there is no remedy at law, and later a
common law remedy may be given.

(B) Equity may take jurisdiction in cases where there is a common law remedy, which is,
however, not certain, complete and adequate.

(C) In case where jurisdiction is given to equity by statute, over cases where the common law
courts already have jurisdiction.

(D) Where an equity court properly acquires jurisdiction on account of some of some peculiar
equitable principle or remedy involved in the suit, since court may also in the same cases,
grant other relief, which could have been obtained at common law.

However, equitable remedies were conditional upon the break being of a legally enforceable
right and the remedy at law being inadequate. These conditions still apply to the grant of
equitable remedies in Uganda. The grant of an injunction by the court is specifically provided for
in section 38 of the Judicature Act, Cap 13

ANXILLARY JURISDICTION: CREATION OF NEW PROCEDURE

This is the one within which the courts of equity would allow a defendant to give evidence when
a common law court would not allow him to do so, or adding parties to the proceedings to be

8
The defendant agreed to grant the plaintiff a mining lease over land he had just bought .Specific performance was
refused as the plaintiff had produced a draft lease and induced the defendant to sign the agreement in ignorance
of the value of property .The plaintiff had hurried the defendant into signing the lease before he knew the value of
the property.
heard where a common law court would not allow, courts of equity also had power to force what
is now known as disclosure, whereas common law had no power to do so.

Thos jurisdiction depended on development of new procedures;- (A) Interrogatory and (b)
discovery of documents now provided for in order 10 of the Civil Procedure Rules Cap 65 and
perpetration of testimony.

Discovery of documents is when the case if before courts, the other party can request the
opposite party to provide relevant documents it helps to quicken the procedures of courts and
ensure that there are no surprises, which is exercised in equity.

Perpetration of testimony:- Judges were rigid about the time frame but in equity a person would
be allowed enough time to continue digging the truth.

Secret Trusts and Half-Secret Trusts. Under Section 50 of the Succession Act all trusts created
by testamentary disposition must be executed and attested in accordance with the formalities
therein prescribed. The requirement of the formality was intended to prevent fraud and the
general view is that equity will not permit a statute to be used as an instrument of fraud thus
responsible for the growth of equitable principles relating to secret trusts. In Cook v Brooking9, it
was held that ‘since the testator had declared the terms of the trust to Simon in his lifetime, there
was a good secret although the actual method of distribution among the beneficiaries was
uncertain. In Moss v Cooper, it was suggested that mention of the existence of a trust in a will
prevented the operation of the doctrine of secret trust. Further, in Blackwell v Blackwell, it was
further held that secret trust doctrine applied (1)where there was a gift on trust ,(2)where there
was no question of legatee.

Besides, it is suffice to distinguish between equity’s exclusive jurisdiction and auxiliary

jurisdiction.

In exclusive jurisdiction, it dealt with church matters for example marriage, deaths, oath among
others. In modern times, it is matters relating to breach of confidence and trusts where as under
Auxiliary jurisdiction, dealt with supplementing the common law for example equitable remedies

9
2Vern 50 (1688)
in matters of contract, equitable property interests). “Equity is tapping the common law on the
shoulder.”

Therefore, “The evils of this double system of judicature,” says the report of the judicature
commission (1963-1867),” and the confusion and conflict of jurisdiction to which it has led, have
been long known and acknowledged.” A partial attempt to meet the difficulty was made by
several acts of parliament. (Passed after the report of the commission appointed in 1850 and
1851), which enabled courts of law and equity both to exercise certain powers formerly peculiar
to one or other of them. In 1873, the judicature Act consolidated the courts of law and equity,
and ordered that law and equity should be administered concurrently according to rules
contained in 26th section of the Act.