DATE: 21 st August 2023.

LAW OF EQUITY AND TRUST I

THE NATURE OF EQUITY

Nature is the totality of a thing, its character and the operational module of a thing. Nature
reflects practice. It is more or less a know-how of a thing – legally, technically or otherwise.
Nature is the gamut of something.

Equity is literally a system of law that has developed in England and essentially deals with the
ideas of fairness and natural justice rather than the strict application of law (common law). In
essence, it is not about the statutory application of the law, however, they are doctrinal
application of the law. The nature of equity is conscience. It is the application of conscience to
law. It is an appeal to conscience to be fair, just and think of justice at every point. Equity is not a
legislative provision. Equity is not common law. It simply reflects the adjudicatory system or
process as it was in England from the 11th century. Equity looks at intent rather than form. It
opposes the adversarial system of law of litigation (common law) which is procedural.

The word equity has two meanings:

1. the popular or general sense and

2. the technical or legal sense.

The Popular or General Sense: The popular or general meaning of equity has to do with
everything stated above, basically, fairness and justice. Equity here is based on morals, ethics
and conduct.

Legal or Technical Sense

When something is legal, it refers to a body of rules; when something is technical, it means they
are laid down and guiding principles, they must be drawn from a source. The legal or technical
meaning refers to all of the body of rules that were operational, in use and in force before the
establishment of the Supreme Court Judicature Act 1873-1875. They were the rules used by the
Court of Chancery headed by the Lord Chancellor to mitigate against the difficult effect of
common law judgments.
Lord Maitland submits and posits that the indeed is the body of rules applied or administered by
the English Courts of Chancery otherwise known as the Court of Equity.

Pettit posits that equity is that part of the law that operated prior to coming into force of the
Supreme Court Judicature Act that was exclusively by the Courts of Chancery as against the
Courts of Common Law.

Equity does not have an exclusive practice of what is fair and just. Common law is not totally
harsh and unfair. There is a need to learn how to draw a balance between common law and
equity because, without common law, there wouldn’t have been equity. Equity is an addition to
common law. Equity is only supplementary to its mitigation against common law and does not
cut common law, its form and force. It does not have an independent existence. The supreme
court judicature act merged common law and equity.

Justice Kayode Eso (as he then was) in Transbridge Co. Ltd. v. Survey Int’l Ltd.1 stated the
following in trying to create a balance between equity and common law:

“Equity was not designed to supplant or displace common law but rather to supplement it.
Equity should not be treated as a tyrannous phenomenon threatening the very existence of the
fabrics of common law. Equity does not operate/exist in a vacuum. Equity is not supposedly
roaming about pouring water on the fire of the law (common law). Equity is not a warlord that
is determined to do battle against common law. It is a part of the legal system that has been
mixed with the common law to strengthen the legal system and the admixture of that mixture is
to achieve justice,”

Every High Court is therefore enjoined/encouraged to practice the observance of every

customary law that is not repugnant to natural justice, equity and good conscience.

Equity is like a mediator to mitigate the harshness of common law and this was brought out
clearly in the case Burrow v Scammel. Equity is more or less a correction in the justice system
the common law operated. And accordingly, Lord Ellesmere in the case of Earl of Oxford where
he describes equity as a correction of men’s conscience for fraud, breaches of trust and wrongs,
etc.

1
(1986) 4 NWLR pt. 37 at 576 – 597 SC.
The Nigerian match of the above case similar is Ejigini v Ezenwa, a 2011 case.