COURSE: LAW OF EQUITY AND TRUST

COURSE CODE: PBL 403

LECTURER- IN- CHARGE: DR (MRS) OLUBUKOLA OLABOOPO

GROUP MEMBER: BALOGUN OLAWUNMI ALIMAT – FUO/20/0412

ADESOYE DAVID ADEBOLA – FUO/21/0083

ASIMIYU FATIMA ABIDEMI – FUO/20/0311

MATTI EMMANUEL OLUWAPELUMI –FUO/20/0330

RELATIONSHIP BETWEEN COMMON LAW AND EQUITY

In England, the system of government they operated was common law. They
derive this common law from previous court decisions (this implies that rulings in
a current case depends on the rulings made in previous cases and affect the law to
be applied in future case.) and the custom of the people of England. The ways of
the common law was very harsh and the Court of Exchequer was the court they
took whatever dispute they have, it was one of the principal courts of common law,
along with the Court of King’s Bench, court of common pleas. These courts
collectively played a significant role in administering and developing common law
system in England. Petitions sent to the king seeking for the king’s extraordinary
justice as regard the rigidity of the common law courts were referred to the
chancellor and the council. This led to the creation of the chancery court. The
chancellor in exercising his power was guided by the ideas of conscience. The
chancery court focused on fairness and equity, considering individual
circumstances and providing remedies beyond what common law could offer. It
was clear that the common law would not entertain jurisdiction or grant relief
where a cause of action did not fit into any of the writs already in use even if such
a denial of jurisdiction would lead to an intolerable hardship and injustice. For
example, written instruments, contracts and the likes had to stand or fail as written.
Common law courts do not permit any alteration of their terms even if there was
clear evidence that the agreed intention of the parties was not accurately expressed
by the written instrument. A common law judge once said “You may perhaps be
relieved in equity, but in a court of law, it has always been my opinion that such
defence is unavailing when once it is shown that the party knew perfectly well the
nature of the deed which he was executing. In the circumstances, the chancery’s
flexible jurisdiction both in substance and procedure attracted litigants whose
rights to redress were either not recognized art common law or that redress
provided at common law was inadequate or incapable of enforcement because of
the poor machinery of common law courts regarding enforcements of their
judgments. Thus, equity was able to expand at the expense of common law and
over time, equity became an integral part of the legal system.

Common law provides the foundation for equity, without common law there
will not be a case for equity to address (thus, there will be no equity). In other
words, had the common law been able to adapt common law rules to meet social
needs and expectation of the people, court of equity would not have emerged.
Thus, equity is regarded as correction of law in situations where the common law
appears to be defective, often determining cases according to good conscience.
According to Petit, who gave a vivid account of the relationship between common
law and equity, he stated that the jurisdiction the of court of equity (chancery) was
based on moral principles designed to remove injustice incapable of being dealt
with In the common law court and that equity was essentially a supplementary
jurisdiction of the common law.

The relationship between common law and equity is intertwined. In other

words they work together to ensure that justice is served in the legal system.
Common law and equity work together when common law principles alone may
not provide a fair outcome. However they can differ in their approach and
remedies.

One of the major differences between common law is that equity provides a
remedy where common law provides none or provides a more suitable remedy than
common law. Common law usually award monetary damages in certain cases, but
equity can decree that someone should do an act or to refrain from acting in
situations where the aggrieved party does not want monetary damages(injunction).
Other remedies available at equity include specific performance, rescission,
rectification and restitution. For instance, someone who steals a computer might be
ordered by common law court to repay the value of the computer to the aggrieved
party, which would be just but may not be fair. A court of equity on the other hand
could order the computer to be returned to the owner as a more equitable solution
to the situation. In Earl of Oxford case, the plaintiff assignee of a lease had build a
house on the parcel of land, the subject matter of the assignment , and had planted
trees in the garden. The defendant forcefully ejected him. The plaintiff sued the
defendant in the common law court for wrongful ejectment. The court gave
judgment for the defendant. The plaintiff then brought action in the court of
chancery, praying that the court to grant a common injunction restraining the
defendant from ejecting him from the house he had built on the leased land. The
court of chancery granted the injunction.
 Another difference between common law and equity is the method of
enforcing judgment. At common law, judgments obtained were enforced by writ of
execution by which the plaintiff was forcibly put into possession of the property to
which he was entitled under the judgment. This method is inadequate and
ineffective as the successful party soon discovers that the possession which he
obtained forcefully could not be sustained for long. The methods developed by
Equity in enforcing judgments include writ of sequestration, order of attachment or
committal to prison.

Another difference between common law and Equity is the concept of Trust.
At common law, the trustee was the absolute owner of the trust property and could
deal with it as he liked. The rights of the beneficiaries were not recognized. The
non-recognition of the right of beneficiaries at law was morally wrong. At equity,
the trustee was compelled to hold the property for the benefit of the beneficiaries.
The beneficiaries can enforce their rights not only against the trustee but also
against the third party into whose hands the trust property has come unless he is a
bonafide purchaser.

Another key difference is that equity acts in personam (i.e. it focuses on

individual rights), while common law focuses on in rem (dealing with property
rights). Equity was essentially a ‘private law’ jurisdiction, dealing with matters
raised by private individuals, protecting their private interests.

The conflict between common law and equity arose from their different
approach to legal remedies and principles, which created confusion and
inconsistencies in the legal system. In light of the above the royal commission
recommended a complete fusion of the administration of justice. The Acts which
fused the administration of common law and equity finally and conclusively are
the judicature Act of 1873 and 1875. The decision of the king was Incorporated
into the Judicature Act of 1875. Section 25 provides that whenever there is conflict
between the rules of equity and the rules of common law with reference to the
same matter, the rules of equity shall prevail. Thus the Act unified the common
law court and equity under one system. This helped to enhance the administration
of
 CONFLICT BETWEEN EQUITY AND CUSTOMARY LAW

Despite the introduction of English law including Equity into Nigeria, the
native laws and customs of the people were not abolished. Rather, Ordinance
introducing such English law into Nigeria expressly made provisions to the effect
that these British established courts in Nigeria should observe and enforce the
observance of the people’s native laws and customs as contained in the provisions
of section 18 of Ordinance No. 4 of 1876. Subsequent local legislations since then
have continued to retain those provisions.

Customary law is defined as the custom and usage traditionally observed among
the indigenous African peoples and which form part of the culture of those
peoples. It has been described as mirror of accepted usage. It is also referred to as
the way of life which has from time immemorial obtained the force of law. Every
high court in the country is urged to observe and enforce the native laws and
customs of the people in the area of its jurisdiction. However, there are three tests
to be fulfilled before the court can observe and enforce the observance of any
native law and custom. They include:

1. The native law and custom must not be repugnant to natural justice, equity
and good conscience.
2. The native law and custom must not be incompatible either directly or by
implication with any law for the time being in force.
3. The native law and custom must not be inconsistent with public policy.

In relation with equity, the repugnancy test will be considered

1. REPUGNANCY DOCTRINE AND CUSTOMARY LAW

The early chancery court introduced equity and developed the technical rules of
equity. However, the exercise of the early chancery jurisdiction was based on
equity, natural justice and good conscience. Consequently, the British introduced
the doctrine to their dependent territories and particularly those territories where
the English common law, doctrines of equity had to be administered side by side
with local laws and customs. Thus, the repugnancy tests become part of our system
through various local enactments. The operation of the doctrine has been
considered in many cases. In Eshugbayi Eleko vs. Government of Nigeria, the
Privy Council held customary law is either good or bad and court cannot itself
transform a barbarous custom into a milder one. If customary law still stands in its
barbarous character, it must be rejected as repugnant to natural justice, equity,
good conscience.

One of the basic principles of equity is the principle of natural justice and some
customs are barbaric, thus repugnancy test constitute the tool through which
Nigerian courts repudiate any customary law that outrages natural sense of justice.
The impact of the repugnancy test on customary law cuts across both substantive
and procedural aspects of Nigeria law.

 Impact of Repugnancy test on substantive law

The Nigerian courts have equally applied the repugnancy test in numerous cases
and this had great impact on the rules of customary law. Many of customary law
rules that did not pass the repugnancy test were either modified or completely
discarded.

a. Paternity issue: The case of Ekpenyong Edet v Young Uyo Essien is an

illustrative case that shows how the repugnancy test had impact on
substantive law. In that case the appellant had paid dowry in respect of the
woman when she was a child. Later, the respondent also paid dowry in
respect of the same woman to the woman’s parents and took her as wife. The
appellant, though not the biological father, claimed custody of the children
of the marriage on the grounds that under customary law, he was the
husband of the wife until the dowry paid by him was refunded. The court
ruled that any customary law rule which has the effect of giving the paternity
of a child to a person other than his natural father is barbaric and should be
rejected as repugnant to natural justice, equity and good conscience.

Similarly, in Mariyama v Sadiku Ejo, the court rejected the rule of igbira
customary law that any child born within ten months of a divorce belongs to the
former husband who may not necessarily be the biological father. Also, in Meriba
v Egwu, the traditional practice in the Igbo land of Nigeria that allowed marriage
between two women to cater for well-to-do female members of the society who
were unable to conceive was declared repugnant by Supreme Court.
b. Succession and Primogeniture Rule: Another impact of repugnancy test is
apparent in the customary rules of succession and administration of estates.
According to professor Kerr, the two basic principles of succession in
customary law are primogeniture of males through males and universal
succession. The rule of primogeniture permits only male issues to inherit the
property of a person who dies intestate. Under the rule, on the death of a
native, his estate devolves on his eldest son, or his eldest son’s eldest amle
descendant. If the eldest son had died leaving no male, the next son or his
eldest male descendant inherits, and so on through the sons respectively. No
female child is permitted to inherit under this customary law rule. Also, a
widow is excluded from the succession. If a man dies without his son, his
property is inherited by his nearest male relative, usually his brother or his
brother’s male descendant. This rule has been in existence from time
immemorial. In the case of Oloko v Giwa, it was held that on the death of
the husband, the room allotted to the wife became part of the deceased’s real
estate and not vested in the wife. The wife is priviledged to use the property
not as a member of the family but with the acknowledgement of her
husband‘s family member if and only if she does not remarry outside her
deceased husband’s family after the death of husband. Also, in Bolaji V
Akapo, it was held that the only person entitled to a grant of letter of
administration under Yoruba native law and custom which would be
applicable under section 27 of High court of Lagos Act, were the plaintiffs,
four of the children of the deceased, but not the wives who are regarded as
part of his estates.

Nigeria customary law follows a patriarchal system which does not allow
women to inherit property. As regards her husband family, the fact that she is
not a blood descendant of her husband’s family deprived her of succession
rights in that family. In Davies V Davies, it was held that a wife was deprived of
inheritance rights in her deceased husband’s estate because in intestacy under
native law and custom, the devolution of property follows blood. Therefore a
wife or widow not being of the same blood with her husband had no claim to
any cause. In Suberu V sumonu, it was held that it is a well settled rule of native
law and custom of the Yoruba people that a wife could not inherit her
 husband’s property since she herself is like a chattel to be inherited by a relative
of her husband.

As regard her father’s place, a woman by culture is never allowed to come

from her husband’s house to inherit her father’s property. In both cases the female
loses, as she cannot inherit in either side, According to Duncan, the position of a
woman throughout their lives is that of a minor child. Before they are married, they
are the children of their father, after their marriage , they are the children of their
husbands, and during widowhood, they are the children of their heirs.
Consequently, Gender discrimination as obtainable under customary law cannot
pass the repugnancy test.

 Impact of Repugnancy test on procedural law

Repugnancy doctrine plays a vital in reducing the harsh rules of procedure in

customary law. In adjudication, courts are required to abide by the fundamental
principles of natural justice namely, nemo judex in causa sua (meaning no one
shall be a judge in his own cause) and audi alterem partem (meaning no one shall
be condemned unheard).

Originally, customary law does not recognize the modern concept of division or
separation of powers. Native or customary courts are mostly constituted by
traditional chiefs and elders in the community. However, they are the law givers,
the interprete and the executors of the law at the same time. Having this as the
background, it was not strange to have the same persons acting in different
capacity which modern concept of justice does not agree with. Also, it was not
strange under customary law system to have the accuser participating in the trial of
the person (s) accused. Modern concept of presumption of innocence, burden of
proof and proof beyond reasonable doubt are equally not well grounded in
customary administration of justice. Thus, most of the trials before the native
courts were ultimately found violating most of these modern requirements of fair
trial. In Modibo V Adamawa Native Authority, the court allowed the appeal of the
appellant who was sentenced to terms of imprisonment by a court presided over by
the Lamido of Adamawa (a traditional chief) for an offence of writing an offensive
letter and personal attack on the Lamido. The court rejected the plea of necessity
and held that since the dispute was on a personal attack on the Lamido himself, as
such; the principle that no man can be a judge in his own cause must be
maintained.

Similarly, in Jalo Guri& anor V Hadeija Native Authority, a procedural rule

under customary law/ Muslim maliki law prevented or denied an accused person,
in a case of highway robbery the right to question witness or defend himself or
make any attempt to exonerate himself was struck down and declared repugnant to
natural justice, equity and good conscience.

Another area of positive influence of repugnancy test is on the abolition of

jungle justice and trial by ordeal. Whenever there was doubt during trial,
customary law allowed the use of trial by ordeal to resolve issues or to ascertain
the truth. The use of ordeal had its root in the belief in the supernatural force to
secure a confession whenever a traditional court encountered difficulty. Under the
system, parties are subject to some form of ordeal and whoever survives the ordeal
is regarded innocent. Different types of ordeal exist and they vary from one
community to another. In most communities, parties are made to swear by some
sacred objects. However in serious dispute, appeals may also be made to gods to
rain down misfortune or calamity on the guilty party. All there rules and customary
practices have been eradicated by the repugnancy test.

In light of the above, Nigeria courts will apply customary law only if it passes
the repugnancy test and if it does not offend English sense of justice and fairness.
Once a rule of customary law is declared repugnant, it will be rejected and declared
invalid.

In conclusion, the conflict between equity and customary law revolves around
the tension between the principle of fairness and the strict adherence to established
rules and norms. On one hand, Equity seeks to address the unique circumstances of
each individual, ensuring that they receive fair and just treatment. On the other
hand, customary law relies on the tradition and precedent to maintain order.
Equity is a legal concept that aims to achieve fairness and justice in specific
situations, even if that means going against the law. Customary law, on the other
hand, refers to norms and practices that are established over time through the
repeated behavior of a community or society. So, where these two concepts
conflict, we are essentially asked the question of whether it is more important to
follow the letter of law or spirit of law. To give a concrete example, let’s say there
is a law that states that all property owners must pay a certain amount of taxes each
year. Now, imagine there is a property owner who has fallen on hard time and is
unable to pay their taxes this year. Equity would take into account the individual
circumstances of this person and may allow them to pay a reduced amount or even
no taxes at all. However, the law would require them to pay full amount regardless
of their financial situation. This shows how equity and customary law conflicts. In
the case of Riggs V Palmer, a man named Elmer palmer had killed his grandfather
in order to inherit his estate. Under customary law, Elmer would have been entitled
to inherit the estate, even though he had committed murder. However, the court
held that it would be against equity to allow a murderer inherit an estate to other
relatives. This is another situation where equity clashed with customary law.