THE JUDICATURE ACTS

Introduction
The 16th century witnessed the conflict between equity and law and the settlement of the
conflict in the Earl of Oxford’s case. The court of chancery and common law still had
separated and distinct jurisdiction. This was a great disadvantage to litigants who to
institute two separate actions in both courts to enforce a right, which involved partly
common law and partly equitable remedies. The need for reform became apparent.
Procedural Reform in the 19th Century
The expansion and elaboration of the Chancellor’s jurisdiction during the 17 th, 18th and 19th
centuries cost greater hardship a s a result of the two separate systems of court, namely
Common Law and Equity. Because common law courts had no power to order specific
performance and only very limited power of granting injunctions while the court of chancery
could not award damages, litigants were driven from one court to the other.
The use of common injunction by the court of chancery to frustrate judgement obtained in
the common law courts generated bitter hostility between the two courts. Several royal
commissions were set up and they suggested changes intended to lead to the ultimate
union of he two jurisdictions. The first step towards that direction was to give each system
of court some of the powers of the other. Thus, various statutes were enacted effecting
changes as follows:
(i) By the Common Law Procedure Act 1834, the Common Law Courts were
empowered to compel discovery of documents in all cases in which a court of
equity could do so and at the same time, the Act gave the court limited power to
grant injunctions and to allow equitable defences to be pleaded.
(ii) By the Chancery Amendment Act 1852, the court of chancery was enabled to
decide all questions of common law without seeking the aid of common law
courts.
(iii) By the Chancery Amendment Act 1858, the court of chancery was also given
limited power to award damages.
These procedural improvements did not totally cure the defect in the two system. The
Chancery still retained the power to use injunction to stay proceedings at law. The issue
became more complicated with the emergence of limited liability companies. Directors
were regarded as agents and trustees. As agents, they could only be sued in common
law courts; as trustees, they could only be sued in the court of chancery. This
unsatisfactory situation led to the appointment of the Royal Commission on Judicature
in 1867
The Judicature Acts 1873-1875
The Acts which came into force on November 1, 1875 effected the following reforms:
(a) The Reform of the System of Courts
 The old courts (Queen’s Bench, Common Pleas, Exchequer, Court of Chancery,
Admiralty, Probate, Divorce and the London Court of Bankruptcy) were
amalgamated into the Supreme Court of Judicature which was divided into two
parts, High Court of Justice and the Court of Appeal, each division having both legal
and equitable jurisdiction.

(b) The Settlement of Conflict between Law and Equity

Legal and equitable rights remained distinct after 1873 as the Judicature Act did not
alter them. However, section 25 attempted to remove certain cases of conflict
between equity and law, which had existed before the Act. The first ten (10)
subsections of the section deals with particular conflicts while the eleventh section
contained a general provision.

S.25(1) Deals with the order of priority of payment of debts of a person dying
insolvent.
S.25(2) Deals with the period of limitation applicable to claims against express
Trustee.
S,25(3) Deals with the extent of liability for waste committed by the owners of
limited interests in land.
S,25(4) Deals with merger.
S.25(5) Deals with the right of a mortgagor to bring an action for possession
against
a third person without joining the mortgagee.
S.25(6) Deals with Assignment of Choses in Action.
S.25(7) Provides that stipulations in a contract, as to time or otherwise, which
according to rules of equity are not deemed to be or to have become of
the essence of the contract, are also construed and have the effect at law
in accordance with the same rules.
S.25(8) empowers any Division of the High Court to grant mandamus or an
injunction or appoint a receiver by interlocutory order.
S.25(9) Deals with damages arising from collision between two ships; where the
two ships are at fault, the rules in force in the Court of Admiralty so far as
such rules have been at variance with the rules in force in the Court of
Common Law, shall prevail.
S25(10) Provides that the equitable rules relating to the custody and education of
infants should prevail.
S.25(11) Makes provisions for situation not specifically provided for or mentioned
in the preceding subsections that where there is a conflict between the rules of
equity and the rules of common law with reference to the same matter, the rules of
equity shall prevail.
Effects of the Judicature Acts
The effect of the Judicature Act is best shown by the case of Walsh v. Lonsdale. 1
Whether developments in the century following the Judicature Acts have had the effect of
fusing, not only the jurisdictions but law and equity themselves is a disputed question. There
are various views by judges and legal scholars on the full effect of the Judicature Act on the
relationship between law and equity. The question is as to whether the Act had fused the
administration of the rules of law and equity. Jegede and Kodilinye took the position that
the Act fused only the administration of law and equity while the distinction between the
two strands of jurisprudence remains. 2 The provisions of the Act, especially in section 25(11)
extends concurrent jurisdiction to cases in law and equity but does not blur the distinction
between the two systems.
In the same way, Megarry3 and Baker stated that the two streams (law and equity) have met
and run in the same channel but their waters do not mix. On the issue, Ashburner 4 spoke
metaphorically thus “the two streams of jurisdiction though they run in the same channel,
run side by side and do not mingle their waters.” What these learned authors are saying in
effect is that the fact of unification of administration of law and equity has not blurred the
distinction between the two systems. Thus, the rule of equity remained distinct from those
of law even though both systems are administered in the same court.
Apart from the case of Walsh v. Lonsdale considered above, the effects of the Judicature
Acts can also be seen on the following specific heads:
Effect of a Written Lease5;
Concealed Fraud;
Variation Deed6;
Executer’s Liability of Assets;7
Joint Undertaking.8

1
(1882) 21 Ch.D 9
2
See Jegede M.I, Principles of Equity, pp37-38; Kodilinye G, An Introduction to Equity in Nigeria, p.8
3
Megarry, R & Baker P.V, Snell’s Principles of Equity (27 th ed), pp12-13
4
Ashburner W, Principles of Equity (2nd ed) p.18
5
Savage v. Sarrough (1937) 13 NLR 141; Ibeziako v. Chinekwe (1971) 11 ECSLR 71
6
Berry v. Berry (1929) 2 K.B 316
7
Job v, Job (1877) 6 Ch.D 562
8
Lowe & Sons v. Dixon & Sons (1885) 16 QBD 455