EQUITABLE REMEDIES – A.O.

Ewere (2022/2023 Session)

Introduction

Considering the relationship between equity and common law, it is

safe to posit that the major reason why equity became very popular
was as a result of the numerous remedies that were available at the
chancery court, which were absent at common law. The inability of
common law to provide adequate remedy for successful litigants
largely influenced the need for an alternative system of law during
the medieval period.

The popularity of equity was largely due to the remedies awarded as

a gloss to cushion the effects of the gaps that were prevalent at
common law; topmost of which was that damages was the only
remedy available at common law, no matter the nature, gravity or
seriousness of the breach or wrong perpetrated by the offender. It is
equally true that damages may not always be an adequate
compensation or remedy that can cure defects occasioned by the
injury caused by the offender in every circumstance. Sometimes, it
becomes necessary to order specific performance of obligations in
an actual or constructive contract if justice must be seen to have
been done in the case.

There are circumstances where the court would need to decree an

injunction or make certain deserving orders in order to compel
compliance and ensure that the victor in a given case is restored as
closely as possible to the position he occupied before the
infringement. Such remedies and more were only available in equity
and not at common law where many successful parties in an action
were mere victors without a victory.

However, after the fusion of both systems occasioned by the advent

of the Judicature Act of 1873-75, it is no longer proper to
dichotomize both systems, particularly as it relates to the
administration of legal and equitable principles by the court. The
point must however be made that equity did not come to supplant
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the law, it has only come to support the law, particularly where the
court is faced with novel situations. That is what informs the
maxim which says that equity follows the law. Equity is not in
battle with common law. By and large, both systems are pursuing
the same goal, which is the actualization of justice. The principles
of equity do not exist in vaccuo, rather, they exist as part and
parcel of a legal system which comprises legal and equitable
principles. Eso, JSC aptly captured this point when he said in
Trans Bridge Co. Ltd. v. Survey Int. Ltd. (1986) 4 NWLR (Pt. 37) 576
at 597 that “Equity is not a warlord ….for the purpose of achieving
justice.” Also, as rightly stated by Aderemi, JSC in Amaechi v. INEC
(2008) 5 NWLR (Pt. 1080) 227 at 451:

…the primary duty of the court is to do justice to all

manner of men who are in all matters before it…when the
court sets out to do justice so as to cover new conditions
or situations placed before it, there is always that
temptation, a compelling one, to have recourse to
equitable principles. A court in the exercise of its
equitable jurisdiction must be seen as a court of
conscience. And Judges who dispense justice, in this
court of law and equity must always be ready to address
new problems and even create new doctrines where the
justice of the matter so requires.

Our focus in this class now is to consider a number of remedies

that are available in equity which were basically unknown to
common law prior to the introduction of equity by the Chancery
Division in England and the fusion birthed by the Judicature Act.
Some of the useful remedies that became available to litigants at
the wake of equity include:

1. Rectification
2. Delivery up and cancellation of documents
3. Account
4. Injunctions, which are of various types. E.g:
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 (a) Specific Performance
(b)Interlocutory Injunction
(c) Mandatory Injunction
(d)Perpetual Injunction
(e) Anton Piller Injunction
(f) Mareva Injunction
(g) Ex-parte Injunction, etc.
5. Receivership
6. Restitution,
7. Tracing, etc.

Nevertheless, before we consider the available equitable remedies

one after the other, albeit briefly, it is apposite for us to first and
foremost take a quick look at the general features of equitable
remedies.

General Features of Equitable Remedies

1. More importantly, an equitable remedy will only be granted

where common law remedy of damages is inadequate in the
circumstance.
2. Equitable remedies are discretionary: This simply means that
whether or not any of these remedies will be granted by the
court depends on the discretion of the court which discretion
can be exercised either way. It may or may not be in favour of
the applicant.
3. It depends on the merit of individual case: This means that the
circumstances surrounding each case will determine whether
or not the court will grant the remedy sought by the applicant.
Therefore, no one case can truly serve as a precedent to
another. The reason why the applicant merits the grant of an
equitable remedy by the court must be satisfactorily
established in every case in order to sway the exercise of
discretion by the court in favour of the applicant.
4. The discretion must be exercised judicially and judiciously:
This means that in granting or refusing to grant an equitable
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 remedy, the court must do so in line with recognized or settled
legal rules and equitable principles. All considerations must be
made reasonably and conscientiously in such a way as to
promote justice. The applicant must not only establish a prima
facie case but must in addition show that there is a
reasonably arguable case before the court. In other words,
there must be a substantial question requiring investigation
by the court, not mere academic question. See Gaji v. Payn
(2003) 107 LRCN 873
5. Except in exceptional cases, a person who applies for the grant
of an equitable remedy must have furnished consideration for
the interest claimed. This is because equity does not aid a
volunteer. See Oba Akenzua II v. The Benin Traditional Council;
Yaro v. Arewa Construction Ltd. (2008) 154 LRCN 163

Equitable Remedies

The point has been made before now in this lecturer that as against
the common law, one of the very major reasons why equity excelled
and gained enviable popularity over common law prior to the
enactment of the Judicature Act of 1973, was the availability of
avalanche of effective remedies in equity, which were not available
at common law. Besides specific performance and other kinds of
injunctions that would be treated in our subsequent lectures, other
kinds of equitable remedies which constitute veritable ways of
placating a litigant who has ventilated his right and established a
breach of such right include:

Rectification

The general rule of evidence is that oral evidence is not ordinarily

admissible where it is intended to alter the contents of a written
agreement or the content of a document. See section 128(1) of the
Evidence Act, 2011. However, the equitable remedy of rectification

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creates an exception to this general rule of evidence. The question
is- how does this remedy work?

Rectification as an equitable remedy is available to an applicant

where an instrument or document which is subsequently executed
after the conclusion of an agreement by parties fails to accurately
express the intention of the parties to an agreement. It is a
retrospective discretionary remedy and as such, it is not granted as
a matter of course. Therefore, to invoke this equitable remedy, the
party applying for it must as a matter of necessity prove that the
intention of the parties is at variance with the contents of document
sought to be rectified. See sections 128(2)-129 of the Evidence Act
2011 and the case of Odutola & Anor v. Papersack Nig. Ltd. (2007)
148 LRCN 1341, where the Supreme Court of Nigeria held inter alia
that rectification simply means an order of court allowing a
document or instrument which does not agree with the intention of
the parties to be corrected. In doing this, it must be noted that it is
not a mistake in the contract or agreement itself that the court
rectifies because parties are bound by whatever they have agreed on
whether inadvertently or not, so long as they voluntarily entered
into the agreement. In other words, a party cannot apply for
rectification to correct part of a voluntarily concluded contract when
he subsequently discovered that he inadvertently agreed on some
terms that will eventually work to his own detriment. This is
because equity does not aid the indolent but the vigilant and no
party will be allowed to have a second bite at the cherry or eat his
cake and have it back when he had freely bound himself. This is
because such conduct will promote injustice on the part of the
defendant. The remedy of rectification is not available to improve an
instrument but only to correct it. See Odutola & Anor v. Papersack
Ng. Ltd. (supra) where the Supreme Court held that although an
oral agreement has the legal capacity to reorder or change the
contents of an earlier written agreement in order to satisfy the basic
requirements of an agreement, the party alleging the existence of
such agreement must prove it. See also Osun State Government v.
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Dalami Nige. Ltd. (2007) 148 LRCN 1311; Dalek Nig. Ltd v. Ompadec
(2007) 146 LRCN 869; Oladeji (Nig.) Ltd. v. Nig. Breweries Plc. (2007)
144 LRCN 418.

From the above, it is clear that it is only a mistake in the document

or instrument recording or evidencing the contract that the court
rectifies not a mistake in the agreement. This is to ensure that the
document conforms with the intention of the parties as contained in
their oral agreement reached before it was reduced into writing. In
Welman v. Welman [1880] 15 Ch. D 470, the court stated that
where a contract is in an improper form which is at variance with
the true intention of the parties, then the intention of the parties
will be carried out by adjusting the instrument in a way as to
represent the true intention of the parties. See also The Vessel
“Leona II” v. Integrated Oil and Gas Ltd. (2003) 104 LRCN 148. In
Rose v. Pim [1953] 2 QB 450, the parties agreed to buy and sell
horse-beans and the written agreement indicated horse-beans
whereas the party making the application had erroneously believed
that horse-beans also means feveroles. The court refused to rectify
the document as the document reflected the intention or agreement
of the parties at the point of executing the contract.

The courts have rightly stated that where rectification is ordered, it

is not usually necessary to execute a new instrument. A copy of the
court order allowing the amendment or correction may be endorsed
on or attached to the instrument. See White v. White [1872] L.R. 15
Eq. 247.

Conditions to be satisfied by Applicant

A part applying for an order of rectification must prove the following

elements so that the order can be made in his favour.

1. That there was a complete and enforceable agreement between

the parties prior to the application for rectification.
2. That the agreement sought to be rectified is in writing. That
simply means that the court cannot rectify an oral agreement.
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 3. That the parties’ intention was the same as at the time the
document was executed and the time the application is
sought. In other words, that the parties are ad idem both at
the time of executing the document and the time when
rectification is sought.
4. That the instrument which contains an error vitiates the
mutual agreement of the parties. in other words, it must be
established that the error sought to be corrected is grave
enough to defeat or make nonsense of the mutual intention of
the parties.

Nature of Mistakes that can Warrant an Order of Rectification

The following types of mistakes can warrant the granting of order of

rectification by the court if established:

a. Common Mistake- where parties are mistaking on a

particular issue and the mistake vitiates the common
intention of the parties, rectification will be granted, so long as
the common intention existed up to when the instrument was
executed. See Rose v. Pim (supra), cf Olubowale v. Manliki
[1971] U.I.L.R. 145.
b. Mutual Mistake- provided the mistake is mutual and it is in
respect of the document and not the agreement itself,
rectification will be granted whether or not the mistake is of
law or fact. See In Re Butlins Settlement Trust [1976] Ch. 251;
Oyadiran v. Baggett (1962) LLR. 96.
c. Unilateral Mistake- where the mistake is unilateral, that is
only applicable to one party, the application will not ordinarily
be granted except it is shown by the applicant that the
mistake occurred as a result of fraud or misrepresentation
perpetrated by the other party or that the other party was
aware of the applicant’s mistake or ignorance at the time of
executing the instrument but refused to correct the applicant.
See Roberts & Co. Ltd. v. Leicestershire County Council [1961]
Ch. 555; Riverlate Properties Ltd. v. Paul [1975] Ch. 133. It
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 must be noted that where the mistake is unilateral, the
burden of proof on the applicant is usually very high. The
standard is usually higher than the normal standard of proof
in civil cases which is on preponderance of evidence or balance
of probabilities. See sections 136 & 137 of the Evidence Act
and the case of Re Segelman [1996] Ch. 171.

Documents that can be Rectified

Apart from the Memorandum and Article of Association of a

company which can only be rectified by the special resolution of the
members of the company, usually in a general meeting of the
company, all other documents or instruments, ranging from
documents covering conveyance of land, bills of exchange, leasehold
agreements, marriage settlements, insurance policies and even
Wills (where mistake or fraud is established) are subject to
rectification. See sections 44, 45 & 46 of the Company and Allied
Matters Act (CAMA), Cap C20 LFN 2004 and the case of
Wordingham v. Royal Exchange Trust Co. Ltd. [1992] Ch. 412, where
the court ordered the rectification of a Will to enable it conform with
the intention of the testator. See also Scott v. Scott [1940] Ch. 794
on whether an Article of Association of a company can be rectified.

Defences

As an equitable remedy, rectification is not granted as a matter of

course. For this reason, rectification will not be ordered where:

a. A contract is no longer capable of being performed. E.g. where

a bona fide purchaser for value has acquired an interest under
the instrument, rectification will no longer be available. This is
because equity does not act in vain. See Smith v. Jones [1954]
2 All ER 823.
b. Rectification will not be granted where the applicant/plaintiff
is caught by the doctrine of laches and acquiescence. This is
because equity does not aid the indolent but the vigilant. See
Beale v. Kyte [1907] 1 Ch. 564
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 c. Where a contract has been fully performed and nothing is left
to be done or where what is left undone in the contract is
insignificant or is not in respect of the area where rectification
is sought, this remedy will not be granted. See Caired v. Moss
[1886] 33 Ch. D 22.

As an equitable remedy, the determination whether or not

rectification will be granted depends on the merit of individual case.
However, as earlier hinted in this lecture, exercise of such
discretion must be done judicially and judiciously, that is, in line
with recognized legal principles. Remember also that since equity
follows the law, equitable remedies are only granted where the
common law remedy of damages is inadequate. See Cooperative
Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1996] Ch.
286.

Delivery Up and Cancellation of Documents

Under this rubric we shall consider briefly the equitable remedy of

delivery up and cancellation of documents, which is a remedy
designed to avoid fraud and sharp practices by unscrupulous
members of the public. It helps to ensure that unsuspecting
members of the public are not defrauded or shortchanged. To avoid
a situation where people use a spent document to deceive members
of the public to carry out transactions with the perpetrators, the
court can order that such documents be surrendered and/or
destroyed in deserving circumstance.

For instance, where a party has successfully rescinded a

transaction or agreement which is in writing or where a contract
evidenced in writing has been fully performed or executed, or where
the contract comes to an end for valid reasons like frustration or
other acts of God, the court can, following an application by a party
with interest in the transaction, order that such document which
no longer has a legal teeth be produced and destroyed so that
nobody can further rely on it for any reason as if the contract is still

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extant. Note that cancellation here may take various forms like total
destruction, mutilation or any other act that will sufficiently
invalidate the document.

Similarly, it is presently a common phenomenon in this computer

age for documents to be unlawfully replicated or duplicated using
computer knowhow or skills. To this end, there might be a genuine
document in the hand of a person who has the right to be in
custody of such document. At the same time, a similar document
which is latently defective being an imitation of the original may
also be in circulation. Such counterfeit document may even appear
to be very regular on the face of it so that innocent and
unsuspecting members of the public may be deceived by it. To avoid
a situation where fraud is committed against unsuspecting
members of the public with the use of the fake document, the owner
of the original document who knows that a counterfeit copy of the
document is in circulation can initiate an action for the delivery up
and cancellation of the fake version of the document. See Cooper v.
Joel [1859] 27 Beav. 317. In this case the defendant claimed the
benefit of a guarantee under an agreement that was found to have
been obtained by substantial and material misrepresentation. The
court held that the agreement was invalid and as the defect or
invalidity did not appear on the face of it, an order was made for
delivery up and cancellation of the document.

Due to the trite equitable principle that he who comes to equity must
do equity, anyone who seeks the relief of delivery up and
cancellation of document must make sure that his hands are not
soiled or tainted in any way with regard to the document or
transaction that forms the subject calling for the exercise of this
equitable remedy. In Erhunmwunsee v. Omoregbe [1961] WNLR
301, the court refused to order cancellation of a document as
applicant himself had by repeated participation in an illegal
transaction in connection with the document in question
disqualified himself from the enjoyment of the equitable relief

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because he who comes to equity must come with clean hands. See
Fasesin v. Oyerinde (1997) 54 LRCN 2692.

Account

The remedy of account is another example of the avalanche of

remedies that are available in equity to ensure that justice and
satisfaction are guaranteed for a successful party in a suit. To this
end, where a person who stands in a fiduciary position (position of
trust) to another acts on behalf of that other person and money
accrues to the “agent” in the process, the remedy of account can be
invoked to compel a recalcitrant “agent” to give the proceeds to the
rightful owner. Also, where a sum of money belonging to one person
gets into the hands of another through an unlawful means, the
bona fide owner of the money can maintain an action for account
against the usurper, especially where the latter refuses or fails to
surrender the money to the rightful owner after sufficient demand
has been made on him.

Action for account could be between a principal and his agent, a

trustee and beneficiaries of a trust, a mortgagor and mortgagee, an
owner of land and a tortfeasor, etc.

Note that a customer of a bank cannot maintain an action for

account against his banker. This is because a bank does not
ordinarily owe any fiduciary duty to its customers. Such customer,
if aggrieved, could maintain other kinds of action suitable for
banker/customer relationship but certainly not an action for
account. See R v. Okon [1963] 7 ENLR 33.

An action for account will become statute barred if it is not

instituted within 6 years after the course of action accrues. See
section 4 (2) of the Limitation Law of Bendel State or section 3 of
the Limitation Act and the case of Abusomwan v. Aiwerioba (1996)
36 LRCN 499.

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Injunctions

Injunction, in legal parlance, can simply be defined as an order of

court which restrains the commission or continuous commission of
some wrongful acts or omission, or orders a party to do a thing or
perform certain action in the interest of justice. The court has a
very wide discretion in determining whether or not to grant an
injunction, so long as it is convenient, reasonable and just to do so
in the circumstance. However, for an injunction to be granted,

a. The applicant must not only establish a prima facie case but
must in addition show that there is a reasonably arguable
case before the court. In other words, there must be a
substantial question requiring investigation by the court. See
Gaji v. Payn (2003) 107 LRCN 873.
b. The applicant must have sufficient interest (locus standi) in
the right sought to be protected. Locus standi is a threshold
issue that affects the jurisdiction of the court to determine a
matter. It connotes the legal capacity to institute an action in
a court of law. See Adesanyan v. President of Nigeria (1981) 2
NCLR 358, where the appointment of Ovie-Whisky, J. as
Chairman of FEDECO was vehemently opposed by Adesanyan.
It was held that Adesanyan has no locus standi to institute the
action. See also CITEC International Estates Ltd & Ors v.
Josiah Oluwole Francis & Ors. [2021] 5 NWLR (Pt. 1768) 148
c. The right sought to be protected must not be vague or
ambiguous. It must be clearly defined or at least ascertainable
because equity does not act in vain. In Karama v. Aselemi
(1938) 1 WACA 150, the plaintiff who claimed declaration of
title to a piece of land and injunction restraining the
defendants and their privies from further acts of trespass, but
however failed to show the defined boundaries of the parts of
the land claimed. The trial Judge refused to grant his
application.

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 d. Because equity does not act in vain, the court also takes into
consideration the effectiveness of the remedy if granted. Where
the remedy will not secure any benefit it may not be granted.
E.g. where the action sought to be stopped has already been
concluded.
e. Applicant must also show that if the injunction is not granted
he would suffer irreparable loss or damage. A damage or loss
is said to be irreparable where damages cannot solve the
problem that will be occasioned by it. See Akinlose v. A.I.T.
[1961] WNLR 116.
f. The applicant must also show that the balance of convenience
is on his side. In other words, he must show that the injury he
would suffer if the injunction is not granted will be more than
what the defendant will suffer if it is granted. See Akinlose v.
A.I.T. (supra). For this reason, it is necessary for the applicant
to enter an undertaking as to damages - Smith v. Day [1882]
Ch. D 421.
g. In compliance with the principle that he who comes to equity
must come with clean hands, an applicant for injunction must
ensure that he is not himself in default of a contractual term
or anything that soils his reputation in the transaction. See
Best (Nigeria) Ltd. v. Blackwood Hodge (Nigeria) Ltd. & Ors.
(2011) 5 NWLR (Pt.1239) 95, SC judgment).

Perpetual Injunction

As against interim injunction, perpetual injunction is granted to

preserve a settled state of facts. See Amos & Ors v. Okpara & Ors
[2006] 8 NWLR (Pt.983) 642. It is granted after a judicial decision is
given by court when plaintiff has established the existence of his
legal right and the fact that the defendant has infringed or about to
infringe on it is established. It permanently establishes the rights
between the two parties as regards the cause of action. It helps to
avoid multiplicity of action, raise the issue of res judicata and
ensure that there is end to litigation. See Onabanjo v. Efunkpitan

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[1996] 7 NWLR (Pt.463) 796; Afrotec Technical Services Nig. Ltd. v.
MIA & Sons & Sons Ltd. [2000] 5 NWLR (Pt.692) 730.

Interim Injunction

It is usually meant to last for a period of 14 days. It is however

renewable where the court deem it fit to do so. It may be granted
even before trial commences in a case. Though interim injunction is
a preservatory measure meant to last for a short while, it is not the
same thing as interlocutory injunction. Abacha v. Min. of Health
[2006] 7 NWLR (Pt.978) 17.

Interlocutory Injunction

It is a kind of injunction given by the court to maintain the status

quo pending the determination of the substantive suit. It is a
preservatory measure that is taken in the course of the proceedings
before the court has an opportunity to fully weigh evidence on both
sides. It is meant to preserve the subject matter that is the cause of
the dispute. See Enunwa & Anor v. Obianukor [2005] 11 NWLR
(Pt.935) 100. This is to make sure that nothing new is introduced
by any of the parties that may adversely affect the rights of the
parties or affect the outcome of the litigation. It helps to fulfill the
doctrine of lis pendens. See Agba v. B.H.I. Holdings Ltd. [1998] 1
NWLR (Pt.535) 696; Sun Ins. (Nig.) Plc v. LMBS Ltd. & Ors [2005] 12
NWLR (Pt.940) 608

Interlocutory injunction is not a remedy for an act that has been

completed. Ogunro v. Duke [2006] 7 NWLR (Pt.978) 130; Adefarati v.
Gov. of Ondo State [2006] 1 NWLR (Pt.960) 145; Ideozu v. Ochoma
[2006] 4 NWLR (Pt.970) 364. This is so because there will be
nothing to savage once an act has been completed and equity does
not act in vain. See Obeya Memorial Specialist Hospital v. A.G.
Federation [1987] 3 NWLR (Pt.60) 35; Kotoye v. CBN [1989] 1 NWLR
(Pt.98) 419; John Holt Nig. Ltd v. Holt African Workers Union of
Nigeria and Cameron [1963] 1 NLR 379.

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Interlocutory injunction is granted if refusal to grant it will cause
irreparable loss to the applicant. See NEPA v. Arobieke [2006] 7
NWLR (Pt.979) 245.

The balance of convenience must be in favour of the applicant. See

Abbas v. Ajoge [1996] 4 NWLR (Pt.444) 596; Sotuminu v. Ocean
Steamship Nig. Ltd. [1992] 5 NWLR (Pt.239) 1.

There must be a serious question to be tried. In other words, there

must be a substantive suit before the court. It is not granted in
vaccuo - without anything to protect. See Nwankwo v. Ononoeze-
Madu [2005] 4 NWLR (Pt.916) 470. For principles guiding the grant
or refusal of interlocutory injunction see the case of Kotoye v. CBN
[1989] 1 NWLR (Pt.98) 419.

The court can discharge or vary an interlocutory injunction where

the defendant satisfies the court that equity and justice of the case
will be done by so doing. The court can discharge such orders at
any time before judgment. It can be discharged on grounds of

i. Mistake;
ii. consent of parties;
iii. fraud;
iv. change in circumstance, etc. See Sun Ins. (Nig) Ltd v. LMBS
Ltd

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