UCU LIBRARY

ACC age.

EQUITY AND TRUSTS

REVISED EDITION

David J. Bakibinga
LL.B. (Hons),Dip L.P, M.A., Ph.D.,Advocateand Solicitorofthe
High Court of Uganda
Professorof CommercialLaw
Makerere University

co

cd

lawAfr7ca
Published by:
LawAfrica Publishing (U) Ltd.
Office Suite, No. 2
Plot IOAJinja Road (Opposite NEMA House)
20. Box 6198
Kampala,Uganda
Phone: +256 41 255808
Fax: +256 41 347743
LawAfrica Publishing (K) Ltd.
Top Plaza, 3rdFloor
Kindaruma Road, (Off Ngong Road)
P.O.Box 4260-00100 GPO
Nairobi, Kenya
Wireless: +254 20 249 5067
cell: +254 708 898 189
Fax: +254 20 249 5067
LawAfrica Publishing (T) Ltd.
Dar Free Market Building, 1stFloor
Ali HassanMwinyi Road
P.O. Box 38564
Dar-es-Salaam, Tanzania
Phone: +255 22 2120804/5
Fax: +255 22 2120811
Email: sales@lawafrica.com
Website: www.lawafrica.com
O David J. Bakibinga, LawAfrica; 2011, Revised Edition 2019

ISBN 9966-1532-7-2

lawAfrfica
Copyright subsistsin this work. No part of this work may be reproduced or transmittedin any form or
means, or stored in a retrieval system of any nature without the prior publisher's written permission.Any
unauthorized reproduction of this work will constitute a copyright infringement and render the doer liable
under both criminal and civil law.
Applicationfor permissionfor use of copyright material including permission to reproduceextractsin
other published works shall be made to the publishers.Full acknowledgement Ofthe author, publisherand
source must be given.
Whilst every effort has been made to ensure that the information published in this work is accurate,the
author, the editors, publishers and printers take no responsibility for any loss or damage sufferedby any
person as a result of reliance upon the information contained herein.
 CHAPTER 1

OVERVIEW OF EQUITY IN UGANDA

A. INTRODUCTION
The past decade and a half in Uganda has witnessedboth concern
and interest in, as well as efforts to realise social equity among
Uganda. This is evident in programmes earmarked by both the
Government and Non-Government Organisations(NGOs) which
are aimed at empowering women with a view to redressingtheir
inequitable treatment; achieving universalprimary education whose
objective is to enable a large part of the population to attain literacy
and thereby enable it to participate in the developmentprocessboth
for their benefit and that of the nation; bringing legal servicesin the
form of legal aid to persons least able to affordthem; cateringfor
persons with disabilities and reforming the legaljustice systemwith
a view to realising speedy and equitablejustice.
Underlying all these strategiesis the notion or idea of equity.
Yet this notion of equity appearsnot to be well understoodboth
among ordinary citizens and legal professionalpersonsin the course
of discharging their duties.
This chapter considers the concept of equity, its historical
development and its relationship with the common law and
customary law.

B. DEFINITION OF EQUITY
UCU LIBRARY

1. MEANING
ORDINARY ACC
of equity refersto right doing,
The ordinary or popular meaning
or relationships
good faith, honest and ethical dealings in transactionswhatever isjust
refers to
between individuals. Put another way, equity The ordinary
and transactions.
and right in all human relationships and is linked to
morality
conception of equity is, therefore, based on
 D.J. Bakibinga
2 Equity and Trusts

what is normally exhorted in churches, mosques and other religious

establishments.It is also captured by Objective XI of the National
Objectivesand Directive Principles of State Policy contained in the
Constitution of Uganda, 1995 which enjoins Government to take
steps to realisebalanced development of the diverse areas of Uganda
and to pursue affirmativeaction in relation to the least developed
areas.
The main shortcoming of the ordinary conception of equity is
that it is fluid and moralistic and incapable of enforcement by the
courts. Even within the constitutional context, the Objectivesand
Directive Principles of State Policy are not justiciable. Objective one
of those objectives stressesthat the objectives are mere guidelines to
implementing persons and bodies in enforcing relevant laws.

2. JURISTIC CONCEPT

It may,therefore,be asked what sort of equity is enforceableby the

courts or is justiciable?In other words what is the legal meaning of
equity?
Equity possessesa technicalmeaning which may be divided
into two categorieswhich complementeach other and affectsthe
administrationof law and justice by the judiciary.These are the
generaljuristic sense and the technicaljuridical sense which we
examine here briefly.
a) GeneralJuristic Concept
The first category is called the general juristic sense of equity. By
this is meant that power to meet the moral standardsof justice in
a particular case, by a judicial body possessingthe discretion to
mitigatethe rigid applicationof strict rules, in order to adapt the
judicial relief to the peculiar circumstances of a case (McClintock,
Handbook of the Principlesof Equity (1948).
Put another away,equity in the general juristic sense means
liberal and humane interpretation of law in general so far as that is
possible without actual antagonism to the law itself (Allen Law in
the Making (1964)).
 O.J. Bakibinga Overview of Equity in Uganda 3

Effectively,therefore, equity in the general juristic sense refers

power to administer the law justly taking into
to a judicial body's
the particular case.This conception is
account the special facts of
1995 in Article 126(2)(e) which says:
recognisedby our Constitution
and criminal nature the courts shall,
In adjudicatingcasesof both civil
subjectto the law,apply the following principles (e) substantivejustice
undue regard to technicalities.
shallbe administeredwithout
In applyingArticle 126(2)(e) of the Constitution, the Supreme
v. Uganda Revenue Authority
Court of Uganda in Stephen Mabosi
out of
(1995)held that a Memorandum of Appeal which was filed
not file it
time could not be rejected because the appellant could
the High
beforeobtaining the official record of proceedings from
Court which were releasedafter the 60 day period required for
filingthe Memorandum of Appeal had elapsed.
b) TechnicalJuridical Concept of Equity
The secondcategoryof the technicalmeaning of equity is called
the technicaljuridical sense of equity.By this is meant a special
and peculiar department of the English legal system which was
created,developedand administeredin the Court of Chancery.
Sincethe Judicature Acts of 18731875 ofthe United Kingdom, it is
no longer accurate to define equity in that manner. The Judicature
Acts combined all the superior courts into a Supreme Court of
Judicaturewhich was empoweredto administerboth the rules of
equityand the rules of the common law.An identical position exists
in Ugandawhereby under Section 14(2)(b), (4) of the Judicature
Act,Cap 13 and Section 11 of the Magistrate's Courts Act, 1970 the
courtsadministerthe rules of equity and those of the common law
concurrently.
In view of the developments in Britain since the Judicature Act
and the position existing in Uganda, the most accurate description
of equityin the technicaljuridical sense is that body of rules
administeredby the English Courts, which, were it not for the
JudicatureActs,would be administered only by those courts known
asCourts of Equity.
 D.J. Bakibinga
Equity and Trusts
4

EVOLUTION OF EQUITY
C. HISTORICAL OUTLINE OF THE

EQUITY
1. RATIONALEFOR GROWTH OF
lays emphasis on the basic
The general juristic sense of equity
administration of the law.
principles of justice, and fair play in the
at any point in timeis
This tendency arisesfrom the fact that law
that the aim of the
not perfect or is defective.While it is conceded
achieved in practice.This
law is to maintain justice, this has not been
explainsthe development of equity whose objective was to correct
any injusticecausedby the strict application of the law.
It may be asked why the law has been unable to achieveits
principal aim of maintaining justice. The answer is that every
disputed case presents different problems. Consequently, since law is
a body of rules which apply to certain defined and factual situations
and does not provide for changes or variation presented by peculiar
it is not surprisingthat it works injusticein certain
circumstances,
unanticipatedsituations or cases.In other words, law tends to be
uniformly and rigidly applied,thereby not catering for exceptional
circumstances.It is those exceptional circumstanceswhich equity
l
observed
tries to cater for or accommodate.In this vein, it has been
that the contemptuousdisregardof the common law for human
values aided the expansion of the Chancery Jurisdiction in Britain,
in that the latter gave effect to the accepted elementary principles
of socialjustice.
The role of equity in mitigating the rigidity of the application
of the law has been variously articulated. Thus equity has been
described2as a "kind of justice superior to legaljustice a correction
of law where it is defective owing to its generality". Courts also
appear to have recognised this role of equity. Thus in Nigeria, in the
interest of justice customary law and statute laws have been given

1. Jegede, Principlesof Equity (Ethiopia Publishing Corporation Benin, Nigeria 1980)

p.10
2. Ross, D. Aristotle (Ethics)p.215. See also Lloyd, infra n. 6, pp9192
 O.J. Bakibinga
Overview of Equity in Uganda

a liberal and hutnane Interpretation' Courts have also

their equitable jurisdiction where strict application of the law
would
work injustice. Thus in Apata Iamll of/lk'llk'll V I•rccman()gbcki4,
Stuart,J. stated that under custotnary law an assertion of ownership
of land by strangers who have been pertnitted to settle thereon
is sufficient misconduct to warrant their eviction. However, on
grounds of equity and convemence such a right is rarely exercised.
Furthermore, in Ashogbon V Oduntan5, Graham Paul,J. Indicated
that
where a native custom is invoked in support of a forfeiture of a
right, this court will as a court of equity consider in the particular
circumstancesof each case whether forfeifutureor a suitable penalty
would be the proper course. He added:
I regard this court in its equity jurisdiction as the keeper of the
conscience of native commumties,in regardto the absolute enforcement
of alleged native customs.

2. THE INFLUENCEOF ROMAN LAWON THE GROWTHOF EQUITY

From the time of the early Greek Philosophers,there is the idea of

equity in the general juristic sense as a supplement to law.The Greek
conception of law was later relied upon by Roman Jurists to develop
and widen Roman Law when the Roman Legal systemappeared
to be stagnating.The jurists based their appealfor law reform on
the theory of natural law as a universal law of reason.6 It is notable
that Roman Law was not split up like English law into rules of
common law and rules of equity. Roman law was an integral part of
the Roman Legal System.

3. Robert Koney v. Union Trading co Ltd. (1934) 2 W.A.C.A.188

4.
(195556)W.R.N.L.R73 at p.77
5. (1935) 12 N.L.R.7
6. Kagan, Three Great Systems of Jurisprudence,p. 171. See also Lloyd, Introductionto
Jurisprudence(Stevens, 3rd Ed. 1972) Chap.3
 D.J. Bakibinga
6 Equity and Trusts

While Roman Law contributed little to the development of

English Equity7,it had influence on the early development of English
law and equity.For instance, the Praetor, who administered equity
was similar to the Lord Chancellor and his equitable jurisdiction.
Thus the Praetor'sEdict which merged equity with the general law
is similar and comparable to the manner in which common law and
equity emerged to constitute the dual English System.8
It is also significant that English Chancery is extremely
complex in its texture and owes its origin to materials from several
heterogeneoussources.For instance, the early Chancellors, who
were versed in Canon law contributed greatly to equity, while
Chancery Judges borrowed extensivelyfrom Roman Law without
acknowledging it. 9

3. ORIGINS OF ENGLISHEQUITY

From the time ofthe Norman conquest ofEngland, English Common

Law Courts (King'sBench, Common Pleas and Exchequer)
applied
principles of equity to casesbefore them. For two centuries,
law and
ethics were regarded as one. Consequently, equity
in the general
juristic sense was part of the law.
An important figure in the administration
of justice was the
Lord Chancellorwho, in modern times,
would be the equivalent of
the Prime Minister.One of his
functions was to issue writs which
were necessaryfor starting every
action at common law.Thus if a
liti gant wanted redressfrom
the Royal Court, he/she had
obtainthe correctwrit from firstly to
the Chancery.The writ had to bear
the Royal Seal.The Court's
power in this regard was linked
Royal Prerogativeto dispense to the
justice. Hence the necessity for the
7.
Keriy,A Historical sketch
ofthe
8. EquitableJurisprudence,
p. 189
story, Commentarieson
EquityJurisprudence
and Chancellor" 13 (3rd Ed) p.25. see also
Buckland, "Praetor
TurlaneL. Rev. 163
Law" 29 Luv Q. Rev. 154, (1939); Tudsbery "Equity and the
159 (1913) Common
9.
Maine, AncientLaw (10th Ed.
1920) p.48
10. story, Commentarieson
EquityJurisprudence(1886)
History of English Law (Vol. 1) p.54 vol.l, p.35. see also Holdsworth,
D.J. Bakibinga
Overview of Equity in Uganda 7

The power of the Chancellor to issue and also change writs

enabled hilli to influence the development of the common law
At this point in time, it appeared that a separate equity
jurisdiction was unnecessary since the common law judges with
their ecclesiasticalbackground naturally exerciseda lot of discretion
in their judgments. In this regard,they were not restricted in their
functions by statutes and the case law system.This was possible for
two reasons.First, Parliament had not yet achieved its supreme law
making power. Second, even if the case law system operated, it was
not rigidly followed.
This system of law with its equitableflexibilityand the King's
power to dispensejustice in accordancewith what was fair and just
would have continued. However, this trend of development was
arrested by the conservative nature of common law judges, who
generally, opposed new judicial developments.In particular they
developed a practice of declaring new writs issued by the Lord
Chancellor to be invalid.11
The growing rigidity and inflexibilityin administeringthe
common law by the common law judges was a result of certain
political and judicial developments.First, the growing power of
Parliament was a strong political influence. The view developed that
writs
only parliament could make laws and that the issuance of new
without parliamentary approval infringed its power. Second, the
of cases
judges placed more emphasis on forms.As a result, the merits
was relegated to a subsidiaryor secondary position. Related to this
was that common law courts could only handle caseswhere there 12
were established remedies.Third, the element of legal positivism
became pronounced in Englishjurisprudence in that common law
judges rigidly distinguished between law and ethics. Consequently,
13
the law fell behind society's needs and expectations.

ll. Hodsworth, ibidp.449

12. See Lloyd, supra n.6, Chapter 4
(1908);Ames,"Specialty Contracts
13. Ames "Law and Morals", 22 Harv. Law Rev.97, 102
in Equitable Defences "9 Harvard L. Rev. 49, 54 (1895-96)
 D.J. Bakibinga
8 Equity and Trusts

The backwardjudicial policy of the common law courts received

statutory approvalin the Provisionsof Oxford, 1258, which provided
that the power of the Chancery to issue a new writ was subject to
the consent and approvalof the King and his Council. This resulted
into hardship to the litigants. The Statute of WestministerI, 1285 tried
to rectify the unsatisfactorysituation. It gave power to Chancery to
modify the existingwrits in order to cater for new cases.This Statute
wasfrustratedby the common lawjudges who assumed jurisdiction
to decide on the validity of writs issued by the Chancery. Invariably,
they cancelled any writ which was different from the existing
writs.14Undoubtedly this resulted into more hardship and injustice
for the litigants. First,many injuries could not be redressed
because
they did not fit within the existing writs or forms of action.
Second,
where common law remedies were given, they were
inadequate and,
therefore,did not fulfillthe ends ofjustice. For
instance, if rights were
being violated,the common law could not
prevent their violation
by means of an injunction.
Towardsthe end for the thirteenth
of the law by the common century the administration
law courts was glaringly
deficientand was,therefore,not imperfect and
people.As a result,litigants protective of the basic rights
begun to turn away of the
law courts and to send from the common
their petitions to the
were two main reasons King In Council.There
for this course of
First, the common law action by the litigants.
could not provide
accordancewith justice. the remedy sought in
influence and pervert
Second, the other
the course of party might unduly
justice through
Initially, the petitions corruption. 15
Subsequently,owing to were handled by
their the KinginCoun cil.
to the Lord numerous volume,
Chancellor
in his capacity they were transferred
the King's as the Chief Executive
Administration.This of
marked the beginning
of the Lord

story on Equity
(Randall 3rd Ed.)
15. Maitland, Equity P.24
(Brunyate Ed.
1949) pp45
DO. Bakibnga
Overview of Equity in Uganda 9

4. C} IANCEPY

It is significant that the power of the Chancery Court to grant reliefs

based on the King's prerogative and power to administer justice
among the citizens. Consequently, reliefs were granted in the name
of the King.
How then did the Chancery exercise itsjurisdiction? In the first
instance, the justice administered by the Chancery Court was based
on common law rules. However, the rules were administered in a
more liberal and humane way in order to achievejustice.
It's notable that many of the early petitionsin the Chancery
Court were respect of assaults,batteries and imprisonments which
wrongs were peculiar to a feudal society.16Although such wrongs
could be handled by the common law courts, they were taken to
the Chancery Court for two reasons.First, as we have already seen,
common law courts were Inflexiblein regard to the use of writs.
Second, In certain respects, It was difficult for commoners and poor
people to obtain Justice from the comrnon law courts.
Second, the Chancery Court's jurisdiction in granting reliefs
to petitions was baqed on reason, conscience and justice in the
admimstrationof the law In this respect,equity in the general
Jurist1Csense was influential in the Chancery Court's administrauon
of the common law rules.
It is sigmficant that the equity of the early Chancery Court was
not a special department of the law. It was exercised in the form of a
discretionary power to modify the cotnrnon law rules.t7
Given the restrictiveapproachof the Common Law Courts in
Insistingon legal actions being crafted within recognised writs and
providing inadequate redress to litigant's grievances, it became clear
particularly in the early sixteenth century that their relevance in the

Story on Equity supra n. 14, p.24; Maitland, ibid pp. S-

UCU LIBRARY
TO&bery, 0.8. p. i 58
ACC NO
 O.J. Bakibinqa
[quity and Trusts

oiJti%tj€c was %injilarlyrestricted, This provided

of equity
for the cxpaji%i01i to fill those evident gaps.l%

5, iN EQUITY ION

Prior to (he seventeenth (cntury, Chancery Juris,dictiontended to

be el;BtlCand vague or unclear and was characteri%edby five factorq.
r•ißt, the petitioners could appeal to the King's "grace, charity and
conscience" and "ince• the early Lord Chancellorq were church
people trained in Canon and Ronjan Law they would reqpondto
these appeals and grant appropriate relief, Second, there was a wide
variety of reliefssought to which the Chancery responded.Third,
reports of equity decisions were few and irregular, thereby affecting
the developnr•nt of the systernof decisionsbawd on precedent.19
Fourth, the early Chan cellors were not bound by previous decision;
especially since no definite rules had been formulated") Fifth, being
non-lawyers the Chancellors exercl.sedequity jurisdiction based on
principles of conscience and natural Justice' i
Gradually,during the mid 17th Century, Chancery Jurjqdiction
lost its flexibility and adopted the common law sy«tenj of precedent.
Three reasons explain this developrnent. First, the principles of
conscience on which Chancery Jurisdiction wasbased were so vague
and uncertain that they could lead to the individual and autocratic
discretion of the particular Chancellor.22Second, sorne cornmon law
judges later presided over Chancery and influenced Its adoption of
the system of precedent.Third, there was an unproved of
law reporting of equity cases.As a result, equitable rules becarnc
fixed and systematizedjust like the common law and decisions of
Chancery depended on precedent.23

18. Ames "Law and Morals", supra n. 13,

19. Maitland, supra, n. 15. p.8
20. Winders"Precedent in Equity" 47 QPev, (1941)
21. Story supra n. 10, pp. 1819
22. Maitland, supra n. 15, p.3; Gee V Pritchard(1818) 2 Swann 402, 4141 where the court
disapprovedof "equity of thit court varying like the Chancellor's foot"; Tudgbety,
supra n.8, p. 158,
23. Blackstone; CommentanegVol.3, 432, 432
 D.J. Bakibinga
Overview of Equity in Uganda 11

It should be stressed that although, in theory, equitable remedies

are discretionary,the discretion must be exercised subject to clearly
ascertainableand established principles. 24

D. CONTENT OF EQUITY

Historicallyin England,equity developed to mitigate the rigidity of

the application of the common law and to provide reliefs or remedies
which the common law could not avail to litigants. Equity became
popularisedby the Court of Chancery which was headed by the
Lord Chancellor and to which many litigants resorted after being
frustratedby the Common Law Courts in terms of rigid procedure
and availability of suitable remedies.
The most apt description of the content of equity in the technical
juridical sense was provided by Story in his book, Equity.According
to Story,equity jurisdiction may be divided into three categories
namely exclusivejurisdiction or the creation of new rights, concurrent
jurisdiction or the creation of new remediesand auxiliary jurisdiction or the
creation of new procedure.

Each of these is examined briefly.

1. EXCLUSIVEJURISDICTION: CREATION OF NEW RIGHTS

The exclusivejurisdiction of equity covers those situations

in
which rights couldbe recognised and enforced at common law
by
the common law courts. Nevertheless,owing to the inflexibility
of
thosecourts and their adherence to the doctrine of precedent,
such
rights were neither recognised nor protected at common law.
The
Chancery Court, however, recognised and protected such rights.
Exclusivejurisdiction could be divided into two categories.
First that aspect which depended on the subject matter as in
the

Keeton, An Introduction to Equity (6th Ed, 1965) p.5

25. (1917) 7 E.A.L.R. 14. See also Harvey Introductionto the Legal System In
East Africa
(1975) pp 518521. The Amkeyo case was followed in MohammedV.R.
[1963] EA. 188,
Harvey supra,pp.521-522
 D.J. Bakibinga
12 Equity and Trusts

case of trustsand second the one which depended on the type of

remedy which was to be administered;examples being equitable
reliefs against penaltiesdisguised as liquidateddamagesfor instance in
hire purchase contracts and the moderation by equity of provisions
in tenancy or lease agreements relating to forfeituresfor breaches of
conditions or covenants.

2. CONCURRENT JURISDICTION, CREATION OF NEW REMEDIES

The exerciseof concurrentjurisdiction depended on rights which

the common law recognised and enforced.
However, the problem was that in some cases the remedies
given by the Common Law Courts in enforcing those rights were
inadequate.Equity intervened to provide adequate and just remedies
than those availableat common law.In this vein, equity could order
specific
performance
of a contract whose subject matter was unique
or grant an injunction
to restrainthe commissionof a continuing
trespass or other injury. It could also orderfor an account.
However, equitable remedies were conditional upon the breach
being of a legally enforceableright and the remedyat 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.

3. AUXILIARYJURISDICTION, CREATION OF NEW PROCEDURES

Equity's auxiliaryjurisdiction was exercised in order to assist the

defectiveprocedure at common law with a view to common law
courts giving better and effectivejustice. This jurisdiction led to
the developmentof new proceduresincluding the administration
of interrogatories and discoveryof documents now provided for in
Order 10 of the Civil Procedure Rules cap.65;and perpetuation of
testimony.Nevertheless,the exercise of this jurisdiction depended
on legal principles (See Order 10 CPR).
The examinationof the content of equity paves the way for a
discussionof two important aspects affecting the administration of
 D.J. Bakibinga
Overview of Equity in Uganda
13

equity.These are the relationship between equity and customarylaw

on the one hand and the relationship between equity and common
law,on the other.
E. RELATIONSHIP BETWEEN EQUITY AND CUSTOMARY
LAW

In spite of the introduction of English Law into Uganda (see now

Judicature Act S. 14(2)(b)(i); Magistrates' Courts Act, S. 1 1), the courts are
still enjoined to observe or enforce the observanceof any existing
custom which is not repugnant to natural justice, equity and good
conscienceand not incompatible with any written law (Judicature
Act, Section 15; Magistrates' Courts Act , S. 10(1)).
Essentially,an existing custom can only be enforcedif it does
not infringe natural justice, equity and good conscience.
Some writers argue that "natural justice equity and good
conscience" have all one meaning , that is, to achieve socialjustice
in the administration of the law."Consequently,it is necessaryto
look at the result of the applicationof a custom before determinmg
whether it is contrary to naturaljustice equity and good conscience
(Jegede,Principlesof Equity (1980)).In this vein it is contended that
the basic idea behind the introduction of the repugnancydoctrine
is that the Court, in the process of ascertainingand applymg an
alleged rule of customary law,should recognise and apply equity in
its broad sense,that is, giving a humane and liberal interpretation to
any alleged rule of customary law (Jegedeibidp. 6).
The approach here is that the expression"naturaljustice, equity
and good conscience" refers to equity in the generaljuristic sense.
humane
Consequently,a custom should be given a liberal and
writers (Park,
interpretation.To do otherwise as suggestedby some
African customs
Sourcesof Nigerian Law, p. 73) would be to judge
would practically
by standardsof equity developed in Britain.This
should not be
nullify all customs. In other words, Uganda customs
sense.
judged relativeto equity in the technicaljuridical
judging indigenous
A few illustrationsindicate the dilemma of
V.Amkeyo,25the court
customs by British standards of equity. In Rex
 D.J. Bakibinga
Equity and Trusts
14

over by a British judge held that "the so called" marriage

presided not a marriage within the
purchase is
by native custom of wife
of Article 122 of the Indian Evidence Act and that a party
meaning
the protection granted by the Section
to such a union cannot claim
not being a compellable witness to proceedings to which
"[of a wife
spouse is a party]". The indigenous custom was clearly judged
a
marriage unaccompanied
by the British concept of a monogamous
Menna Camera & Anors26
by dowry. Similarly, in KoykoyJatta V , it
justice, equity and good
was held that it is repugnant to natural
circumcision into a
conscienceto import the custom of female
was the custom of the
group that did not practice it, although this
place where the act of circumcision occurred. In OmwoyoMairura
V BosireAnginde27, after deserting her husband with whom she was
married under Roman Catholic rites, the wife subsequentlyhad
eight children by other men. The applicant claimed the children as
his under customary law and sought the return of his wife and the
eight children on the ground that the marriage subsisted.The court
held that in applying natural justice to the relevant customary law
"it would certainlybe contrary to natural justice that the children of
the respondent and his wife should belong to the former husband"
Similarly, in Maurono Onchoke V Kerebi d/o Ondiek1Q8, while
recogmsing the applicant'sclaim to his wife's illegitimate children
under customarylaw,the court nevertheless held that the applicant's
conduct in not pressing his claims for many years, and doing so now
only to realise bride price amounts to an abuse of customary law
and is repugnant to natural justice"
This case appears to have been decided on the premise that delay
defeatsequity and in the circumstancesa restriction on customary
rights, although there is authority to the effect that the doctrine of
delay or laches is alien to customary law.29

26. Gambia Supreme Court Civil Suit No.64/60;J.A.L.35 (1964); Harvey, ibid p.517
27. 6 Courtfor ReviewReports 4 (1958); Harvey, ibid,p.517
28. 6 Court of Review Reports 2 (1958); Harvey, ibid
29. Harvey ibidp.524. See also Lewisv. Bankole (1908) 1 N.L.R.81
 D.J. Bakibinga
Overview of Equity in Uganda
15

In Timina Olenja v. Elam Kaya,30it was held that it was not in the
interest of the child to be compelled to leave her mother and siblings
and go to her mother's husband who was not her father, although
under customary law the husband was entitled to legal custody but
not physical custody of the child. He was ordered to pay school
expensesfor the child which would entitle him to claim bride price
when she married.
In R V Luke Marangula 31 the court held a custom of parading
the deceased'scoffin through the town to discoverwho had caused
the death to be "repugnant to justice as we people in England see
it" (emphasis added). However, in Ole Oloso v. Nalulus Ole KidokP2
it was held that the Masai custom that a Moran who wishes to leave
his tribe may not weaken the wealth of his tribe by taking cattle
with him was not in any way repugnant to justice or morality.
The decisions considered above are inconsistent in terms of
the criteria used to judge customs.As has been put by Professor
Harvey. 33
The decisions applying the repugnancy clauses in the main
reflect little empirical investigationof the origins or effects of the
customary norms in question and little detailed discussion of the
processesby which they are assessed.The Judicial style is conclusory;
the standard is self evidence to the particular judge.
Generally, though, decisions have invalidated customs for being
repugnant to naturaljustice, equity and good conscience where there
is lack of fair hearing in terms of evidence adduced, inability to call
witnesses, lack of charge and presiding over a cause in which one has
an interest' 4Additionally, customs which promote slavery,35inequity

30. 10 Court of Review Reports 8(1961); Harvey, ibid, p.517

31. (1949-54) Law Reports of Northern Rhodesia 140; Harvey ibid. P.518
32. (1915) 5 E.A.L.R.210 (High Court of Kenya); Harvey, ibid
33. ibid,p.523. See also Nekam "The Study of Foreign Law in an InterdependentWorld" 57
Northwestern University L. Rev 271, 272 (1962)
34. Kilimo V.l<isundabin Ifuti (1938) IT.L.R.(Rev) 403; Harvey, op.cit.pp.508-11
35. Ku,eku Kodieh V.Ku,amiAfram (1930) 1 W.A.C.A. 12; Harvey, op.citpp.506-08
 D.J. Bakibinga
16 Equity and Trusts

within family relationships or marriage36, witchcraft or sorcery37or

overlook vigilance in pursuing rights 38have been invalidated.
It has been questioned whether repugnancy clauses which
subject customary law to natural justice, equity and good conscience
are desirable in independent African countries. Thus Professor
Harvey states. 39
Since repugnancy clauses served as the vehicles by which the dominant
colonial power condemned and rejected customary African norms, it
would not be surprisingif they had been repealed promptly when new,
independent African governments succeeded to power.

F. RELATION BETWEEN EQUITY AND COMMON LAW

Section 14(4) of the Judicature Act, Cap. 13 and Magistrates' Courts

Act, Section 11 provide that the rules of equity and the rules
of common law shall be administered concurrently;and. where there
is a conflictor variancebetween the rules of equity and the rules of
common law with reference to the same subject the rules of equity
shall prevail.
These provisions which are in essence a reproduction of Section
25(11) of the British Judicature Act 1873 arose from the resolution
of the conflict between the Common Law Courts and the Chancery
Court by King James I in the Earl of Oxford' case(1615) in favour of
the precedence of equitable rules.
A few illustrations will demonstrate how courts have resolved
conflicts between rules of the common law and rules of equity in
their adjudication of disputes.

36. See Cases Considered supra. See also Karuru v. Njeru [1968] E.A.351; Harvey, ibid
pp5156
R V.Luke Marangula supra .31
38. Ashietnoa VBani [1959] G.L.R.130; Harvey, op.cit.12524
39. Harvey,opcitp.524. Such clauseswere repealed in Ghana and Tanzania but retained
in Uganda and Kenya.
 D.J. Bakibinga
Overview of Equity in Uganda
17

However, before we look at those situationsit is apposite

to
reflect on the historical antagonismbetween common law
courts
and the Chancery Court where the conflict was eventually
resolved
in favour of equity.
With the development of equity jurisdiction, it was inevitable
that there would either be a working arrangementbetweenthe
Court of Chancery and the Common Law Courts or that there
would be a conflict between them.
With the explicit creation of the Court of Chanceryat the
end of the fourteenth century separatefrom the KinginCouncil,
opposition to its extraordinary jurisdiction came from both the
Parliament and the Common Law Courts.With respect to the
Parliament, the main reason was that at that time the Parliament
had become separated from the King and his Council in its law
making function. Consequently, Parliamentdid not look kindly to
the extraordinary jurisdiction performed by the Chancery.This was
because this jurisdiction had no support either from statutesor the
common law of the land.With regard to the Common Law Courts,
these Courts opposed the Chanceryjurisdictionon two grounds.
First, that the Chancery jurisdiction was unknown to the Common
Law of the land. Second, that it was eroding or underminingthe
Common Law Courts, jurisdiction because of its progressiveand
realistic nature.

1. THE CONFLICT BETWEEN CHIEF JUSTICE COKE AND LORD

CHANCELLOR ELLESMERE

During the second part of the sixteenth century, the rivalry between
the Common Law Courts and the Chancery became intensive.This
was largely because of the Chancery's power to issue the Common
injunctionto restrain the enforcement of common law courts'
judgments.40

40. Maitland, supra n. 15, pp6-9

 D.J. Bakibinga
18 Equity and Trusts

The decisivestage of the conflict arose when Coke became

Chief Justice of the King's Bench division of the High Court. Coke
was totally opposed to Chancery jurisdiction. He claimed that
the Common Law Courts possessedthe power to issue a writ of
prohibitionagainst Chancery jurisdiction for any interference with
the judgsments or decisions of the common law courts.
The conflict between the Common Law Courts and the
Chancery Court crystallised in the Earl of Oxford'sCase41 In that
case,the then Lord Chancellor,Ellesmerecontended that he had
power to set aside common law judgments on grounds of equity and
good conscience.Chief Justice Coke of the Common Law Courts
insisted that the Chancery had no right either by statute or by any
law of the land, to set aside common law judgments and that he
would issue a writ of prohibition against Chancery interference with
common law judgments. The controversy came before King James
I, who, after considering legal advice from several lawyers including
Bacon (a future Lord Chancellor), decided in favour of Chancery
jurisdiction. From that time, equity rules became supreme over the
common law rules in the English Legal System.

2. EFFECT OF KING JAMES'S DECISION

King James's decision had a twofold effect. First the Chancery

Court's jurisdiction became more extensive and attracted a lot of
litigants.As a result, the Court became overburdened due to poor
staffmg,organisationand a complex and inefficient procedure42in
administeringjustice. Second, officials of the court became corrupt
and incompetent and the course of justice was, thereby, perverted
owing to the delays.Inevitably, there were calls for the reform of the
Chancery jurisdiction and procedure.

41. (1615) | RepCh.1

42. Keeton, supra n.24, p. 53
 O.J. Bakibinga
Overview of Equity in Uganda

RF.F01kM.s

The refortn.s advocated for affected jlC%tlythe 0(11clatcd and

unsatisfactoryprocedure and of (he ajjd
the area of jurisdiction within which the law and
Chancery Courts operated was not clearly

a) Minor Reforms
There were minor atternpts at reform to rectify those shortcoming%.
First,common law courts applied rules of equity to casesbrought
before them whenever those rules conflicted or differed from
common law rules.The aim here was to prevent separate proceedings,
one in equity and the other at common law from being started in
respect of the same cause of action.This would save litigants time
and expense.
Second, the Common Law ProcedureActs of 1852, 1854 and 1860
gave the common law courts power to exercisecertain jurisdiction
which were originally reserved for Chancery. For instance, the
common law courts could order discovery of documents and
interrogatories in certain cases.They were also empowered to grant
an injunction and other equitable reliefs.Sinnilarlythe Chancery
Amendment Act, 1852, gave the Courts of Chancery power to
exercise certain common law powers. For instance, in an equity suit
a relevant common law matter could be decided by the Chancery
Court. Before the Act, such matters would have been referred to the
Common Law Courts. Additionallythe Court of Chancery could
also take evidence orally and in open court as opposed to presenting
it by bill and in written form. Furthermore, Lord Cairn's Act, 1858
empowered the Court in cases of contracts and torts to award
damagesin addition to or in lieu of injunction, specificperformance
or other equitable remedy.
UCU LIBRARY

ACC NO
43. Marquis ofWaterfordV.Kmght (1844) 1 1 C. 1&E653•, 8E.R.1250; see also Keeton, supra
n.24 p.54
 D.J. Bakibinga
20 Equity and Trusts

The above Acts did not achieve very much in dealingwith

the shortcomings in the dual system of administering justice." The
Royal Commission on the Administration of Justice45,therefore,
recommendedthe complete fusion of the administrationof justice
by means of the consolidation of all superior courts of law and
equity into one Supreme Court possessing the jurisdiction of all the
courts so consolidated.

b) Judicature Acts 18731875

The recommendationsof the Royal Commission were enactedas
the JudicatureActs 1873 to 1875.These Acts abolished all the then
existing superior courts and in their place set up a Supreme court of
Judicatureconsistingof the High Court ofJustice and the Court of
Appeal.The High Court ofJustice was to consist of three divisions;
the King's Bench Division, the Chancery Division and Probate,
Divorce and Admiralty Division.
The Judicature Acts effectively abolished the dual administration
ofjustice as between the Common Law Courts and the Chancery
Court. Second,the High Courts of Justice were given power to
administerboth equity and law concurrently or together. Third, all
claims, obligations and defences were recognised and enforced by all
the three divisions of the High Court ofJustice. Fourth, the common
injunction exercisedby the Chancery Court was abolishedsinceit
was no longer necessary.
4. EQUITY IN THE UGANDA LEGAL SYSTEM

The dual administrationof law and equity in England before the

JudicatureActs 18731875of Britain does not exist in the Uganda
system.
By the Uganda Orders In Council, 1902 and 1911, which
received English law into Uganda law and equity were to be

44. Report of the Royal Commission on the

Administration ofJustice, 1867
45. Ibid
D.J. Bakibinga
Overview f quity in Uganda 21

administered concurrently and where there was conflict or variance

between rules of equity and rules of the common law with reference
to the same subject matter, the rules of equity would prevai146.
This provision is now reflected in Section 14(2) and (4) of the
JudicatureAct which governs the law to be appliedby the High
Court and Superior Courts of Judicature and Section 11(1)(3) of
the Magistrates' Courts Act, Cap. 16 which deals with the law to be
applied by the Magistrates' Courts.
It is now apposite to examine how courts have resolved the
conflict between the application of rules of equity and rules of the
common law to issuesbefore them.

a) Liability of An Executor for Assets

Prior to the Judicature Act, 1873 of Britain, the common law rule
was that an executor was liable for the loss of his testator's assets
once he took possession of them. It was immaterial whether the loss
was accidental or arose from willful default.47However, in equity,
an executor could only be liable for the loss of the testator's assets
if there was willful default on his or her part. These conflicting
48
positions at law and equity were considered in Job v.Job
Thus Jessel M.R. (applying Section 25 (11) of the Judicature Act
1873)" stated:
The rule at law and equity now is that an executor or administratoris in
the position of a gratuitous bailee who cannot be charged with the loss
of his testator's assetswithout willful default.
In essence the rule of equity prevailed over the common law
rule by virtue of the Judicature Act 1873.

Africa Revisited"Vol.2 Eastern

46. Seidman,"The Reception of English Law In Colonial
Co.Ltd.v.SurveyInternational
Africa Law Review 47, 5660 (1969). See also Transbridge

UCU LIB
Ltd [1986] 4 N.W.L.R.56
47. Crossev. smith (1806) 7 East 246
48. (1877) 6 Ch.D.562
(Uganda)
49. In parimateriawith Judicature Act, Cap. 13, s.14(4) NO
ACC
 C).J, Bakibinga
22 Equity and Trusts

b) Agreement Cora Lease

The expression, /'Con/lict or Variance"in Section 25(11) of the
Judicature Act 187360was considered in the case of WalshV
Lonsdalc51In that case, the landlord (defendant) agreed in
writing to grant the tenant (plaintifl)a lease of a 10illfor seven(7)
years.The agreetnent provided that the rent was payablein advance
on dennand.There was no grant of lease by cleeclas required by
the conntnon law.The plaintiff took possession of the jnill and paid
rent quarterly in arrears. Subsequently, the landlord, based on the
agreement, demanded one year's rent in advance.The tenant failed
to pay and the landlord distrained.The tenant sued for damagesfor
illegal distress.The action failed on the ground that although the
distress was illegal at connnr»n law because a sevenyear lease had not
been granted and the yearly tenancy which arose from the tenant's
entry into possessiondid not provide for rent payment in advance,in
equity the agreement for a lease was as good as a lease. Consequently,
the tenant was liable to pay a year's rent in advance.
It is significant that in this case, the conflict between the common
law and equity as to the nature of the agreement for a lease was
resolved in favour of the equitable principle that an agreement for a
lease is as good as a lease. Such an agreement can be decreed to be
specifically performed by a court exercising its equitable jurisdiction
thereby converting a written lease into a formal lease.52

c) Joint Undertaking
At common law,if two or more people became sureties of a debt and
one of them became bankrupt, the solvent sureties were not liable
for the bankrupt surety'sshare of the liability for the debt. However,
the position at equity is that solvent sureties are liable for the share

50. Ibid
51. (1882) 21 Ch.D.9 see also savage v. Sarrough (1937)
13N.L.R.141; Chidiak v.C0ker
(1954) 14W.A.C.A.506; Ibeziako v. Chineku,e
(1972) 2 E.C.S.L.R.71, 79
52. Ibid
 D.J. Bakibinga
Overview of Equity in Uganda 23

of the insolventsurety in addition to their own share of liability.The

conflicting principles were considered in Lowev. Dixon53where it
was held that the equitable rule superseded the common law one in
line with the Judicature Act.

d) Variation of Deed
In Berryv.Berry54,under a deed of separation, a husband covenanted
to pay his wife an allowance.Later the parties concluded a written
agreement which was not under seal, reducing the allowance.The
wife sued the husband on the original deed claiming arrears of
the allowanceagreed upon. The action failed.While accepting the
plaintiff's contention that at common law a covenant in a deed
could only be varied by another deed55in equity,a simple contract
varyinga deed is a good defence to an action based on the deed56.
Furthermore, in view of the Judicature Act, Section 25(11)57 the
equitable principle prevailed.

e) Fusion of Law and Equity?

The issue arises as to whether the Judicature Acts in regard to the
relationshipbetween law and equity and common law merged to
form one rule. There are two schools of thought on this issue. First,
is the view that there is no significantconflict and consequently
Section 25(11) of the Judicature Act 187358is superfluous or
unnecessary" In this vein, Maitland maintained that the conflict,
if any,between law and equity was simplyjurisdictional and that
equity came not to destroy the law but to fulfillit.

53. (1885) 16 Q.B.D.455, 458

54. [1929] 2 K.B.316
55. West v. Blakeu,ay (1841) 10 177
56. see also High Treescase [1947] K.B.130 and Ajayi v. Briscoe[19641 3 All E.R.556
57. Equivalent toJudicature Act, Cap. 13, s. 14(4) (Uganda)
58. bid
59. Maitland, supra n.15, pp 1618, 153
 D.J. Bakibinga
24 Equity and Trusts

The second school of thought is that60there is a definite conflict

between rules of the common law and those of equity.Hence the
relevance of the conflict resolution clause.61
f) Fusion of Rules or Fusion of Administration
Finally is the controversy as to whether the Judicature Acts 18731875
simply fused rules of or the administration of equity and law.One
view is that the Acts achieved a fusion of both the administrationof
justice and fusion of the common law and equitable rules with the
result that there is now one common rule62. The second opposing
view is that the effect of the Acts was only to create a common court
for the administration of law and equity and not a fusion of law and
equity.Where there is a conflict between the two, those of equity
prevai163.This is supported by the prevailing distinction between the
equitable ownership of a beneficiary and the legal ownership of
a trustee under a trust and the maxim that where the equities are
equal to the law prevails.64

60. Hohefield, "Fundamental Legal Conceptions The Relations Between Equity and
Law" 11 MichiganL.Rev.537 (1913);Justice Stone, Book Review 18 ColumbiaL.
Rev.97 (1918)
61. JudicatureAct 1873, S. 25(11) (UK);Judicature Act, Cap. 13, s. 14(4) (Uganda)
62. Nelson v. Larholt [1948] 1 K.B.339, 443 per Denning J; High TreesCase Supra n.56 per
Denning, L.J; Errington v. Errington [1952] 1 K.B.290
63. Pugh v. Heath (1882) 7 App.Cas.235, 237;
64. Joseph v. Lyons (1883) 15 Q.B.D.280, 286 Lindley L.J.