UGANDA CHRISTIAN UNIVERSITY
FACULTY OF LAW
NAME: AINE BERNICE
REGISTRATION NO.: S09B11/003
COURSE: BACHELOR OF LAWS
COURSE UNIT: EQUITY AND TRUSTS
YEAR: TWO
SEMESTER: ONE
LECTURER: ANGOM DORCUS
TUTOR: MUGASHA MARK
QUESTION: “Equity Jurisdiction may be divided into three
categories namely; exclusive Jurisdiction (the creation of new rights), Concurrent
Jurisdiction (creation of new remedies), and Auxiliary Jurisdiction (creation of new
procedure).” Examine the above statement with the aid of relevant authorities.
The ordinary definition of Equity known to the common man is it is equality
or Justice.
It can also be defined as a mechanism of bringing fairness where the law is
unable to afford justice.
Robert Pearce and John Stevens their book1 said about Equity that;
“Equity describes a particular body of law, consisting of rights
and remedies, which evolved historically through the courts of
Chancery.”
Aristotle2 defines equity as a better sort of justice, which corrects legal justice where
the latter errs through being expressed in a universal form and not taking account
of particular cases.
Equity is meant to mitigate the harshness of common law. As such, it
corresponds more to judicial discretion which modifies the administration of
the law than to the hostile system which claims to displace or take the place
of the law. Therefore, an equitable man is he who does not push the law to
its extremes but, having equity on his side, makes allowances.
The real beginning of equity is to be found in the custom of handing over to
the praetor, for adjudication, the complaints which were addressed to the
king, praying for remedies beyond the reach of common law. Over and above
the authority delegated to the ordinary councils or courts, a reserve of
judicial power was believed to reside in the king, which was brought into play
as of grace by the suitors who could not obtain relief from any inferior
tribunal. The petitions were referred to the chancellor, who was the head of
the judicial system.
1
The Law of Trusts and Equitable Obligations (Butterworths Lexis Nexis, 1998) at 3:
2
Black’s law dictionary defines Equity Jurisdiction as;
“...the power to hear certain civil actions according to the
procedure of the court of chancery and to resolve them
according to equitable rules.”
Equitable jurisdiction of the court was first established in the reign of King
Edward III. When a case of prerogative was brought before the chancellor in
the reign of Edward III, he was required to grant such remedy as should be
consonant to honesty, conscience and equityAs the question suggests,
equity has three jurisdictions being; exclusive, concurrent and auxiliary.
Exclusive jurisdiction is a court’s power to adjudicate a chose in action in
exclusion of other courts. If one court invades the province of another which
belongs exclusively to it, it acts without power. Equity has exclusive
jurisdiction where it recognises rights which are not recognised by common
law. These are mainly two namely; Trusts and Penalties and Forfeitures.
Trusts, according to Bakibinga3, are the largest manifestations of equity. It is
a relation where someone, a trustee, holds property for someone else, a
beneficiary. They are classified into two; Express Trusts and Implied trusts.
Equity has concurrent jurisdiction in cases where the law recognised the
right but did not give relief, or did not give relief without circuity of action or
3
some similar inconvenience.4 This is why in concurrent jurisdiction, there is
creation of new remedies.
A remedy is a relief available from a court by which the violation of a legal
right is prevented or a legal wrong is redressed5 these may include;
Injunctions, Specific Performance, recission, rectification and Order for an
Account.
An Injunction is an order by a court to a party to the effect that he/she shall
do or refrain from doing something. The court can grant injunctions as
permitted by the Common Law Procedure Act. In Uganda, the Judicature
Act6allows the High Court power to grant an injunction to restrain any person
from doing any act as specified by the High Court7 the remedy is
discretionary but must be awarded according to sufficient legal reasoning or
on settled legal principles. The right must be in plaintiff and the plaintiff is
required to come to the court with clean hands. If an injunction is breached
by anyone, they will be liable for contempt of court and may be imprisoned
or fined... injunctions are classified into; Mandatory, which requires the
defendant to embark on an act which they would have otherwise not have
embarked on; Prohibitory, which forbids the continuation of a wrongful act;
Interlocutory, granted temporarily on interlocutory application; Perpetual,
granted after an action has been heard; Quia timet, meant to restrain a
threatened activity where, as yet, plaintiff’s rights are not infringed. It is
therefore meant to protect the applicant from that feared future; Interim,
usually granted during a trial preserving the status quo until the suit is finally
disposed by merely showing that there is a prima facie case and the
likelihood of great loss being suffered.
4
Classic Encyclopedia
5
West’s Encyclopedia of American Law
6
The Judicature Act, Cap13, Section 38(1)
7
The Judicature Act Section 38 (1)
Specific Performance is another equitable remedy. It is an order of court
compelling the defendant to do what he or she has promised to do. As in
injunction, Specific Performance is discretionary and is given to the plaintiff
when the available common law remedies are inadequate or non-existent.
Again like in Injunction, although the remedy is discretionary, it is exercised
in accordance with settled principles. Also, because equity does not act in
vain, the court will only issue specific performance if it is ensured that they
can be observed. This can be seen in Jones v. Lipman8 where the
defendant entered into a contract to sell some land to the plaintiff but then
tried to avoid specific performance by selling the land to the company
controlled by him. The court held that the defendant was still in the position
to complete the contract given that the property was held by a company
controlled by him. Specific performance is enforceable in contracts
concerning; sale or purchase of land or the grant of a lease, co-operative
insurance society ltd v. Argyll stores ltd ; unique personal property like rare chattels,
stones, thorn v commissioners of public works it is not enforceable in contracts; made
for no consideration as equity will not aid a volunteer, Jeffery v. Jeffery
contracts tainted with immorality, Cartwright v. Cartwright or contracts that
are arbitrary, bremer Vulcan v S india shipping corp; that are likely to
dissolve as equity does nothing in vain; contracts involving the loan and
payment of money; and contracts involving constant supervision.
Another equitable remedy, Recission, is the setting aside of a contract
because of some fundamental flaw in it, treating it as if it never happened. It
is available in fraudulent misrepresentation, innocent misrepresentation,
non-disclosure in contracts, constructive fraud and fundamental mistake.
Rescission is limited in cases where parties cannot be restored to their
previous situations, where an innocent third party can has acquired rights for
value under the contract and has given consideration and where the contract
has been affirmed either expressly or impliedly.
8
(1962) 1 WLR 832
In rectification, where a written document does not accurately express an
agreement between two parties as a result of their common mistake, equity
has the power to rectify the writing. Rectification is granted where a prior
completed agreement exists, parties continued unchanged up to the
execution of the instrument, evidence is clear that the mistakes are common
to both parties, fault to be cured is literal and there is no appropriate
remedy. It will be refused where the mistake is merely unilateral
An Order of an account is an order given by a court to investigate the sums
due from one party to another. The court may give this order where there
are mutual accounts and the accounts are unusually complicated.
