NAME: OYIBO FORTUNE OGHENEMERU

MATRIC NO: 20L01048

LEVEL: 400

COURSE TITLE: EQUITY AND TRUSTS

QUESTION: DISCUSS THE DEFECTS OF THE COMMON LAW THAT LED TO THE EMERGENCE OF
EQUITY.
INTRODUCTION

The Nigerian legal system as we know it today is a product of years of contributory efforts by many individuals,
laws or inherited judicial systems. Of its many contributors there stand two significant judicial systems which
are by all means deemed significant both in the Nigerian legal system and other commonwealth nations. These
two judicial systems are the common law and equity.

WHAT IS COMMON LAW?

The common law system of judicial administration is a system of judicial administration which is based on
judicial precedents i.e. decided cases. In ancient Britain, the judicial and executive powers of the kingdom were
once vested in the King/Queen who was saddled with the responsibility of administering the affairs of the state
and administering justice throughout the realms of England. However, seeing that the monarch did not possess
the omnipresent abilities of God, he thus had to delegate duties to judges who were assigned to the various
districts to administer justice on behalf of the king in the various courts or tribunals which were set up in these
districts. Thus, when a dispute arose between two citizens, these judges would then upon hearing the argument
of both parties and examining the tendered evidence then reach decisions and pass judgement. These
judgements so reached especially by superior courts would then set the tone for how other cases with similar
facts were to be decided thus birthing the legal principle of “stare decisis”. Over time, these judicial decisions
thus became to be widely regarded as law or as it was popularly known “common law” as the decisions reached
seemed to be consistent with one another.
As innovative and consistent as this system of judicial administration seemed it like every other human created
system or phenomenon came with its flaws. These flaws so recognized did bring about untold hardship on
litigants and thus led to the emergence of the other aforementioned judicial system thus known as “equity”.

WHAT IS EQUITY AND WHAT DOES IT MEAN?

The word “equity” has at least two meanings; in a popular or dictionary sense and then in a technical-legal
sense. In a popular sense, it means what is fair and just, or what is moral or ethical.1 Equity in this sense is
practically equivalent to natural justice or morality.2 The popular definition of equity, therefore refers to the
quality of being equal or fair; impartiality; and even-handed dealing.3 It has its derivation from the word
“aequus” meaning even or fair.

On the other hand, the technical or legal meaning of the word “equity” means a special and peculiar department
of the English legal system which was created, developed and administered in the Court of Chancery. 4 Prior to
the year of 1875 equity was seen only as a set of rules which could only be administered by courts known as the
Courts of Equity or the Courts of Chancery. However, after 1875 and the creation of the Judicature Act of 1875,
it no longer became satisfactory to define as a set of rules administered by specific courts. The Judicature Act of
1875 amalgamated all the superior courts into a Supreme Court of Judicature administering both the rules of
equity and common law. Thus, all courts could now administer equity.

Equity as a body of rules and as a system of judicial administration was birthed out of necessity. It was born
from a place of necessity and urgency to remedy and mitigate the hardships posed by the strict interpretation
and enforcement of common law. As earlier mentioned, common law for all the many plaudits it received as a
system of judicial administration and as a body of rules was still wrought with certain deficiencies which
1
Martin, J.E., Hanbury and Martin Modern Equity, 16th ed., (Sweet & Maxwell, London, 2001) 3.
2
Megary, Robert & Baker, P.V., Snell’s Principles of Equity, 27th ed., (Sweet & Maxwell London 1973) 5
3
Adewale T. & Akintola O. : Intro to Equity & Trusts in Nigeria (Princeton & Associates Publishing Co. Ltd, 2016) pg 2
4
M.I. Jegede, Principles of Equity (Ethiope Publishing Corporation, 1981) pg 8
plagued and caused hardship for litigants. Thus, a supplementary system of judicial administration and body of
rules had to be established to combat the deficiencies of common law, thus equity emerged.
As time progressed and the deficiencies of the common law system of judicial administration became all the
more apparent to litigants. The aggrieved litigants who felt that they could not obtain justice or adequate
remedies in the common law courts would then approach the King who by virtue of his prerogative powers
could then grant the reliefs sought. Over time and by the 15th century, the King delegated the responsibility of
hearing and entertaining petitions by aggrieved litigants to the Chancellor who up until that point only exercised
executive powers and was the bearer of the King’s royal seal. Thus, upon assuming his judicial duties, the
decisions so reached by the Chancellor were regarded the judgement of the King.5 Thus, equity at the time was
regarded as justice reached on the “foot of the king’s conscience” as the Chancery Courts simply adopted
common law rules, but administered them in a more humane and considerate manner.

THE DEFIECIENCES OF COMMON LAW AND THE BIRTH OF EQUITY

As earlier mentioned in this paper, common law was wrought with numerous deficiencies which led to the
establishment/creation of equity. We shall thus proceed to examine these deficiencies which led to the
emergence of common law, seeing that such is the essence of this paper.

One of the foremost reasons or deficiencies of common law which led to the birth/emergence of equity was the
rigid nature of common law. The common law system of judicial administration was extremely rigid as the
common law courts were unwilling to go outside the scope of the collection of judicial precedents. Thus, where
a litigant applied for a relief or remedy which was not within its bank of available remedies, then such litigant
would either leave without relief or would be awarded a relief which was inadequate and by no means sufficient
to compensate for the damage or harm already suffered. Equity on the other hand opposes such as one of the
foundational maxims amongst many others which guides the operation of the doctrine of equity is that “where
there is a legal wrong, there must be a remedy” or also put as “equity will not suffer a wrong without
remedy”. At the time, the common law courts paid attention alone to forms than to the merit of each case. 6
Thus, the common law courts were more concerned with the protection and maintenance of systems as opposed
to the administration of justice and as a result many injuries could not be redressed because they could not fit
into the existing forms of action which led to hardship for litigants.

Another deficiency of common law which led to the emergence of equity was the adoption of a positivist
mentality by the judges and the wide abuse of judicial discretionary powers by judges. At the time when
common law was at its peak and at the zenith of its powers, the British Parliament was still finding its feet thus
the courts were to the exception of the King viewed as the major law making body or institution and thus
exercised their judicial discretionary powers in an arbitrary manner seeing that their word/judicial decisions
stood as law and there existed no clear cut system of check and balance. At the time the germ of positivism had
begun to infect English jurisprudence7 and thus judges exercised powers somewhat in the manner of
uncommanded commanders.

Akin to the point highlighted above, one other reason which led the emergence of common law was the corrupt
and perverse nature and practices of the common law judges as the wealthier party in the course of proceedings
might use his position and wealth to influence and pervert the course of justice to the detriment of the
petitioner.8

5
Ibid
6
Ibid pg 14
7
Ibid
8
Maitland, Equity (Brunyate Edn.) 1949 pg 4-5
Furthermore, the common law system was also seen as deficient due to its retrogressive approach to the
administration of justice as the common law courts were incapable of adjusting to the ever progressive needs of
society and citizens and failed to always adjust to the reality of the moment and rather elected to prioritize the
maintenance of ancient systems rather than meeting the present needs of citizens with regards to the
administration of justice, thus defeating one of the essential characteristics of any good law which is that a law
ought to reflect the present needs and realities of any society.

Another problem of common law which necessitated the creation of equity is the delay or slow nature of
common law in the administration of justice. The evolution of common law through judicial decisions can be a
slow process. It may take time for legal principles to develop and adapt to changing circumstances, potentially
leading to delays in addressing new legal issues.9

As earlier stated, the common law courts used a writ system which encapsulated and contained all possible
actions which could be instituted and all available remedies within the writ system. This limited scope of
remedies meant many could not bring forth their actions talk less of being awarded remedies as where a litigant
instituted action for a cause not provided for by the writ system, then his case would either be struck out or he
would be awarded inadequate remedies. The effect of this is that certain types of rights were not adequately
recognized, such as beneficial owners in a Trust.10

CONCLUSION
By and large the common law system had its advantages and rightly so received its due plaudits for filling the
loophole inherent in the English legal system and many other legal systems around the world. Nevertheless, as
time progressed it was wrought with several deficiencies which necessitated the creation of a supplementary
system thus known as equity to mitigate the harsh consequences and realities of the common law system as
discussed above.

9
Pros and Cons of Common Law <https://uollb.com/blog/law/pros-and-cons-of-common-law > Retrieved on 10th of November,2023
10
Essay on the Development of Equity with Common Law by Dr. Charles Imole <https://charlesomole.org/essay-on-the-
development-of-equity-with-common-law/ > Retrieved on 10th of November,2023.
REFERENCES
1. Martin, J.E., Hanbury and Martin Modern Equity, 16th ed., (Sweet & Maxwell, London, 2001)
2. Megary, Robert & Baker, P.V., Snell’s Principles of Equity, 27th ed., (Sweet & Maxwell London 1973)
3. Adewale T. & Akintola O.: Intro to Equity & Trusts in Nigeria (Princeton & Associates Publishing Co.
Ltd, 2016)
4. M.I. Jegede, Principles of Equity (Ethiope Publishing Corporation, 1981)
5. Maitland, Equity (Brunyate Edn.) 1949
6. Pros and Cons of Common Law <https://uollb.com/blog/law/pros-and-cons-of-common-law>
7. Essay on the Development of Equity with Common Law by Dr. Charles Imole
<https://charlesomole.org/essay-on-the-development-of-equity-with-common-law/ >