Question

The most difficult question one can ask about equity is: what is equity?
Or
Define equity
Or
What is equity?
ANSWER
Admittedly, defining any term of the law is one of the most-thorny intellectual exercises to
engage in. The term “equity” just like most legal terms, does not lend itself to a single definition
or explanation. The debate on the precise definition of equity is still on-going. Legal luminaries
such as Story, Snell, J.H Baker, Kludze, Pettite, Glandville and Tony Allot have all had their
bites on this debate. However, a dual meaning of ‘equity’ have gained prominence over the
years. These are ‘equity in the broad, dictionary, grammatical or popular sense’ and ‘equity in
the narrow or technical sense’ according to the learned editors of Snell's Principles of Equity,
28th Edition.
Story and Kludze in their renowned books on equity posit that, the broad, popular or non-
technical, dictionary meaning of equity is fairness or what is just, i.e justice according to natural
justice or morality. The Black's Law Dictionary (8th Edition) says equity means fairness or
impartiality.
Snell provides that in its popular sense, equity is practically equivalent to natural justice. He
however noted that, natural justice in its widest sense is not judicially enforceable. The primary
sense in which the term was applied, was to the type of justice which the Lord Chancellor
dispensed to mitigate the rigours of the common law.
Glandville William in his book, Learning The Law, asserts that Equity in the ordinary language
means natural justice. The reason being that, the ideas of natural justice inspired the evolution of
the word through the emergence of the equity system of justice. Section 87 of Cap.4 of the Laws
of the Gold Coast (1951) used the term equity in the broad sense to the effect that, native law
and customs will be enforced if not repugnant to natural justice, equity and good conscience.

On the other hand, the narrow, technical meaning of equity has to do with the rules, which were
formerly administered by the court of Chancery, and which were designated to mitigate the
rigours of the common law, together with the more modern developments. They are now fixed
rules of law. From the Chancellorship of Lord Nottingham in 1673, equity transformed from a
jurisdiction based on the conscience of the chancellor into a system constructed around
established rules and principles. This body of principles is also dubbed, the doctrines of equity.
Kludze, the most influential Ghanaian writer on Equity, carefully explains that nevertheless, the
reference to Courts of Chancery gives an indication of the origin of equity. From this assertion, it
may be said that, equity is the body of rules administered in England by the courts of Chancery
on one hand as distinguished from the common law courts on the other hand before the
Judicature Act of 1873 and 1875.
According to Maitland, in his book “Equity (Brunyate Ed.) 1949,” that prior to 1875, ‘Equity is
that body of rules which is administered only by those courts which are known as Courts of
Equity.’ This body of law did not, however, cover the entire area of business which the common
law courts had as their jurisdiction. It was essentially a ‘private law’ jurisdiction, dealing with
matters raised by private individuals, protecting their private interests. There was no involvement
with the common law of crime. The principal focuses of attention were the laws of property and
contract. Only incidentally to these, was it to develop a law of private wrongs. The system of
justice administered by the early Chancery was based on common law rules, though the rules
were administered in a more liberal and more humane manner with a view to achieving the end
of justice. This is borne out of the fact that early petitions were in respect of indubitable legal
wrongs, assaults, batteries, imprisonments, disseisins and a variety of outrages inherent in the
feudal society.
Interestingly, according to Tony Allot, whether 'equity' is used alone or preceded by
'doctrines', the reference is to the body or principles developed by the English Courts of
Chancery as a gloss upon the law. That, this is the sense in which a lawyer uses the term equity.
Article 11(2) of the 1992 Constitution uses the term equity in the narrow sense. Also, section 30-
32 of the Supreme Court Ordinance of 1876 used the term ‘equity’ in the narrow sense. It should
be carefully noted that, equity in the narrow sense came to supplement the common law.
According to Maitland, if the common law did not exist, there could no equity; that the raison
d’etre of equity is to remedy the deficiencies of the common law.
Snell again notes that, to him, no satisfactory definition of equity in the technical sense can be
evolved. To this extent, the debate does not seem to be over anytime soon.
Conclude…….
Question
While equity began life as a conscience of the King (leading to some people suggesting that
it was subjective), it has now become a highly developed body of legal rules generally
known as the doctrines of equity.
Discuss the processes leading to equity today.
ANSWER
To succinctly trace the processes leading to equity today, a critical examination of the history
and development of the English Law is imperative. There are three main phases in the
development of English Law. They are;
The development of the common law and the common law courts
The development of equity and the establishment of the Chancery Court.
The fusion of the common law and equity
To begin with, the Norman conquest of England in 1066 is generally considered to mark the
beginning of the history of English law. The preceding period, under Roman occupation, was
known as the Anglo-Saxon period. During this period, England was not united, hence there was
no central administration and no uniform legal system. The diverse local customary laws of
German origin, supplemented by royal statutes, applied. The local courts were presided over by
bishops and Earls. William the Conqueror (1028-1087) after he gave a crushing defeat to the
Anglo-Saxons in the Battle of Hastings, introduced a strong centralised system of administration
over the whole country. This gave birth to the common law courts. The common law courts
established by the 13th century included the King(Queen)’s Bench (Curia Regis), the Court of
Common Plea and the Exchequer Court.
The royal courts were centralised in Westminster but judges from these went on circuit to hear
local disputes twice a year. This practice led to the reduction of the jurisdiction of the local
courts. During the fifteenth and sixteenth centuries, the practice developed of difficult cases
being adjudicated in Westminster. When the same or similar issues arose again, the earlier
solutions were applied. This led to the development of the system of binding precedents. In this
way, the system of stare decisis (standing by previous decisions) developed. As the judges
progressively developed a system of rules applicable to similar cases, a common law or a
universal legal system enforceable throughout the country emerged.
However, there was a wane in the popularity of the Royal Courts even after the creation of the
Curia Regis(King-in-Council). This lead to the development of the equity and the establishment
of the Chancery Court.
The development of equity and the establishment of the Chancery Court is the next phase to be
considered. Before a deep dive into this phase, it should be noted that the Chancellor headed a
unit of the Curia Regis. The wane in the popularity of the Royal courts were as a result of a
plethora of challenges with the justice delivery system of England at the time. These challenges
included but not limited to the rigidity of the writ system and the expensive nature of writs, the
inadequacy of remedies, the problem of defences available and corruption as well as the fact that
the common law courts did not recognise the rights of a beneficial owner of a trust and limited
that of a mortgagor.
During this period of justice delivery crises, the English people decided to petition the king to
grant them appropriate remedies for he was the fountain of Justice and had residual judicial
power as noted by Phillip Pettit, in his book, “Equity and The Law of Trust.” These petitions
were first delegated to the Chancellor and the Council. The procedure became frequent and by
the end of the 14th century, petitions began to be directed to the Lord Chancellor alone. However,
they were addressed, the petitions were in fact dealt with by the Chancellor. Through this, his
office acquired the characteristics of a court.
It is worthy to note that, the cases that were referred to the Chancellor and the Chancery court
fell into two main categories. Firstly, cases where the law was defective and secondly, those,
where the available remedy was inadequate. According to Maitland, the Chancellor was like ‘the
King’s secretary of state for all departments’. He was also referred to as the ‘keeper of the
King’s conscience’.
In 1474, the Chancellor issued his first decree on his own authority and there after his own
decrees were often made. This culminated in to the creation of the Court of Chancery, where the
Chancellor sat as a judge administering an individual discretionary justice in contrast to the
inflexible monoliths of the common law. This system of justice later came to be known as equity.
He acted independently of the King’s council. He decided cases in an ad hoc manner according
to his sense of justice. This is why equity was criticised to be based on the personal views of the
individual Chancellors at the time. This is evident in the Table Talk of John Selden (ed.
Pollock,1927), where he likened equity to a roguish thing and added that, the standard of
measure for equity is as if it is that of a Chancellor’s foot.
To remedy the situation for equity, Lord Nottingham in 1673 transformed equity from
jurisdiction based on the conscience of the Chancellor into a system constructed around
established rules and principles. Because of this effort of his, he is regarded as the ‘father of
equity’ was seen in Kemp v. Kemp (1795) per Arden M.R. By 1818, the rules of equity were as
fixed as those of the common law. This was manifest in the remark of Lord Eldon in Gee v
Pritchard (1818).
The fusion of the common law and equity will be considered lastly. A serous point to make with
respect to the evolution of equity is that the Chancellor did not have any clearly defined
jurisdiction. The early Chancellors dispensed an extraordinary justice to remedy the deficiencies
of the common law, on grounds of conscience and natural justice. Towards the end of the 14th
century, the court of Chancery became separate and distinct from the King and his Council.
Opposition to Chancery’s ‘extra-ordinary’ jurisdictions (because it was neither supported by
statutes nor by the common law of the land) came from both the Parliament and the common law
courts. At that time, parliament had gained its independence from the King and his Council to
become a law-making institution. Jealous of its newly acquired law-making power, Parliament
naturally resented the extra-ordinary jurisdiction exercised by the Chancery in the sense that such
jurisdiction was neither supported by statutes nor by the common law of the land.
On the other hand, common law courts became hostile to the Chancery jurisdiction on the pretext
that the jurisdiction being exercised by the Chancery was unknown to the common law of the
land. However, it is clear that the hostility from the common law courts sprang from the fact that
their jurisdiction was being progressively eroded by the Chancery whose jurisdiction was more
progressive and more realistic. For example, it was at this period that the Chancery devised a
useful means for the enforcement of trusts, the popularity of which over-shadowed the clamour
for the abolition of Chancery jurisdiction.
Opposition from the common law courts became more intensified particularly because of the
Chancery’s power to issue common injunction to restrain the enforcement of judgments obtained
from the common law courts.
The decisive stage came when Coke became the Chief Justice of the King’s Bench. He claimed
for the common law courts the power to issue a writ of prohibition against Chancery jurisdiction
for any interference with the judgments or decisions of the common law courts. On the contrary,
the Chancery firmly maintained that it had long been within its jurisdiction to set aside common
law judgments and to grant a more equitable relief where such judgments were devoid of
conscience or appeared oppressive.
This was the Coke –Ellesmere dilemma. The tension between the two courts was manifest in the
Earl of Oxford’s case in 1615. Conclusively, it was decided in favour of equity. That equity
prevailed whenever there was a conflict between the two courts. There after came the Judicature
Acts of 1873 and 1875. Section 25 of the Judicature Act of 1873 restates that equity should
prevail whenever there is a conflict between the two jurisdictions. In United Scientific v. Burnley
Borough Council, it was stated that there has been a merger of law and equity and thus the
waters have mixed.
In Ghana, the rules of equity have always prevailed in all matters of conflict pursuant to section
18 of the Supreme Court Ordinance of 1876. It should be carefully noted that the doctrines of
equity after the two Judicature Acts, continued to evolve and was not stagnant. This was evident
in the High Trees case, where the doctrine of promissory estoppel could be said to have come to
life. Thus, equity evolves till date. However, for Ghana as at 24 July, 1874, the development of
equity was within the confines of the Ghana legal system.
To conclude, above are the processes leading to equity today.
Question

Does Equity vary with the length of the Chancellor’s foot?

Answer

Chancellor's foot was a term used to describe the variability of equitable justice. It meant that,
the fairness of a decision depended on the conscience of the Chancellor, who was the judge. In
other words, the Chancellor's foot symbolized the subjectivity of equitable justice and how it can
vary from judge to judge. The phrase was coined by John Selden, a 17th-century jurist, in the
following passage:

‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is
according to the conscience of him that is Chancellor, and as that is larger or narrower, so
is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a
Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long
foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s
conscience.’

John Selden's criticism went to the heart of equity's historic claim to legitimacy, the claim
(originally made by Aristotle) that because law deals with general principles and is universally
applicable, it necessarily will work injustice in some individual cases as per the case of Simonds
v. Simonds. The chancellor's jurisdiction, the argument went, because, by his discretion to see
justice done in individual cases, the chancellor can remedy the imperfect fit between the rules of
law and the facts of the world. "Universality of law requires equity" as was held in Sharp v.
Kosmalski. All of this, Selden asserted, was a cover for the imposition of one person's private
moral perspectives on those brought before him - the conscience of the Chancellor.

Equity Court subsequently begun to apply the same principles in all cases instead of acting
according to their individual conscience. From the Chancellorship of Lord Nottingham in 1673,
equity was transformed from a jurisdiction based on the conscience of the Chancellor into a
system constructed around established rules and principles. Although conscience was still
regarded as the basis of jurisdiction in equity, Lord Notingham arguably debunked the arguments
of John Seldon in the case of Cook v Fountain in the following words:

With such a conscience as is only naturalis et interna (natural and eternal), this Court has
nothing to do; the conscience by which I am to proceed is merely civilis et politica (Civil and
Political), and tied to certain measures; and it is infinitely better for the public that a trust,
security, or agreement, which is wholly secret, should miscarry, than that men should lose their
estates by the mere fancy and imagination of a chancellor.

Following the above, the systematisation of equity had proceeded so far that by 1818 the rules of
equity were as fixed as those of the common law. In consequence, Lord Eldon, Chancellor in the
case Gee v Pritchard said in 1818 that:

The doctrines of this Court ought to be as well settled and made as uniform almost as those of
the common law, laying down fixed principles, but taking care that they are to be applied
according to the circumstances of each case. I cannot agree that the doctrines of this Court are to
be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting
this place, than the recollection that I had done anything to justify the reproach that the equity of
this Court varies like the Chancellor's foot.

Kludze, Modern Principles of Equity, had it that from then on, although equity was based on
discretion, yet the equitable discretion became judicial discretion. For instance, in 1878, Jessel,
M.R, declared that: This Court is not, as I have often said, a Court of conscience but a Court of
Law.

In conclusion,…..

Question

Write short notes on the following cases

a) Bou-Chedid v Yalley
b) Gateway Worship Centre v David Soon Boon Seo
c) Vanderpuye v Nartey

Answer

Bou-Chedid v Yalley

The case discusses mainly two legal points: the ability of an equitable owner in possession to
maintain an action in trespass and claim damages, and the potential for a personal representative
of the deceased to defeat the equitable title by claiming priority due to the legal estate being
vested in him. The facts of the case are as follows:

In 1940, before her marriage, Mrs. T. agreed to sell a plot of land to the plaintiff. The purchase
price was paid in full and Mrs. T. gave the plaintiff a signed receipt which stated “Deed of
conveyance to follow.” The deed was never executed because Mrs. T. died in 1941 shortly after
her marriage to T., the co-defendant, and her estate was the subject of lengthy litigation.
However, on the advice of Mrs. T.’s solicitor, the plaintiff entered into possession of the land. In
1947 T. was granted letters of administration in respect of his wife’s estate, and shortly
afterwards left the country. In 1954 the plaintiff sued one B. for damages for trespass to the land
in dispute and by letter sought the assistance of T. who wrote confirming that his wife had sold
the plaintiff a plot of land. The plaintiff was successful. In 1972, T. authorised the defendants to
commence building operations on the land. The plaintiff sued the defendants and T. for a
declaration of title and damages for trespass. The trial judge disallowed the claim for declaration
of title but awarded the damages claimed. The defendants and T. appealed on the grounds that:
“(a) The learned judge having found that there was no title in the plaintiff ought to have dismisse
d the other reliefs sought by the plaintiff.

(b) The learned judge misdirected himself on the law as to the nature and quality of the interest o
f a purchaser before completion of a contract for the sale of land.

(c) The learned judge erred in law in holding that there was a valid contract which was capable o
f specific performance when the contract between the plaintiff and the co-defendant’s
predecessor in title was void for uncertainty.”

Held, dismissing the appeal (Sowah J.A. dissenting): the judgment of the trial court should not be
disturbed because there was a valid contract between the plaintiff and Mrs. T. which was
specifically enforceable and which could have been converted into a legal estate had the plaintiff
sought the assistance of the court.

Per Archer J.A.: Notwithstanding the vicissitudes of the courts in Ghana since they were
established about a century ago, no one will venture to suggest that throughout this period
separate courts have administered the common law and equity in Ghana. It follows that the
plaintiff as an equitable owner in possession can maintain an action in trespass at common law in
any court of law in Ghana.

Per Jiagge J.A. An oral contract for the sale of land coupled with an admission by the vendor in
writing that the full purchase price had been paid and a promise from the vendor, also in writing,
to execute a conveyance in favour of the purchaser, creates a constructive trust and equity
considers the vendor until the conveyance is executed, as holding the legal title for the purchaser.
Consequently the vendor cannot deal with the legal title in a way detrimental to the interests of
the purchaser. The estate that devolved upon the co-defendant after the death of his wife was that
of a legal estate held in constructive trust for the plaintiff. In the interest of justice, the court must
prevent the co-defendant, a constructive trustee, from taking any action that deprives the plaintiff
of possession of the land in dispute.

Per Sowah J.A. dissenting; In this case the answer of the trial judge was quite clear: he was
unable to pronounce the declaration of title sought; the effect is a dismissal of that claim. The
respondent was unable to show that "title to the disputed land is in her" and there has been no
appeal against the learned judge's refusal to grant that declaration. That the learned judge was
right is beyond dispute, but in my view be should have proceeded further to dismiss the whole of
the claim ... The only remedy open to the respondent was a claim for the equitable relief of
specific performance which has not been asked for.
Gateway Worship Centre v David Soon Boon Seo

This case involves an appeal from a judgment of the Court of Appeal in favor of the respondents.
The facts of the case are that:

The appellant, a missionary of Korean nationality, promised to raise funds for a church located in
Tema, Ghana. The appellant produced a video film depicting members of the church living in
abject poverty to solicit sympathy from Korean benefactors. Upon his return from Korea, the
appellant declared that, he had raised funds for the church but did not disclose the amount or
hand over the funds. Part of the funds was used for the purchase of the land at the centre of the
dispute. The pastor of the church and the church trustees sued the appellant for a declaration of
title to a disputed land, recovery of possession, and other reliefs. The Circuit Court granted the
reliefs claimed, except for an order for accounts.

The appellant appealed to the Court of Appeal, which affirmed the decision of the Circuit Court.
The appellant thereafter appealed to the Supreme Court on various grounds, including
jurisdiction and the nature of the trust created. The Supreme Court held that, the Circuit Court
had jurisdiction to entertain the action and that the trust created was a constructive trust. The
court also found that the pastor of the church was not a necessary party to the suit and ordered
his removal as a party.

On the issue of whether or not every court in Ghana is a court of equity and common law. The
court maintained that the position of the law in Ghana is well established that, every court in
Ghana is a court of both common law and equity. And that as far back as 1976, the Court of
Appeal pronounced upon the position of the law on the fusion of jurisdiction in law and equity,
in the case of Bou-Chedid v. Yalley.

Regarding the Appellant counsel’s contention that the 2nd Respondent was, in equity, a
volunteer, the court noted that a volunteer under a trust is a beneficiary who has provided no
valuable consideration in respect of the trust and who is not within the confines of marriage.
Until the property is conveyed to the trustee or the settlor declares himself as a trustee for the
intended cestui que trust, the trust is incompletely constituted. The effect of an incompletely
constituted trust is that, only beneficiaries who have given value (not volunteers) can enforce it.
The position is that equity does not assist a volunteer (that is the 13th Maxim of Equity): Ellison
v. Ellison. However, this position is true only when the trust is incompletely constituted. Where
the trust is completely constituted, it does not matter whether or not the beneficiary is a
volunteer: Re Adlard. The court held that despite the fact that the Church was a volunteer, the
trust was completely constituted and as such it can enforce it even in the absence of valuable
consideration.

Vanderpuye v Nartey
An application by the appellant for an order for the interim protection of property pending the
final determination of the case between the parties was dismissed by Griffiths-Randolph J. on the
ground that, the appellant failed to show a reasonably fair or strong prima facie case in support of
his application. A second application by the appellant alleging that, he had discovered material
which entitled him to move the court anew on the same issue was dismissed by Edusei J. on the
ground that the appellant had already brought a similar application unsuccessfully on the same
issue.

The Court of Appeal, on appeal, held that the requirement that an applicant for interlocutory
relief should show a prima facie case is apparently a recent development in the English courts as
a method of disposing of certain types of claim in Chancery. The court observed that the
traditional view for the grant or refusal of interlocutory relief has been, for the court to abstain in
the words of Kindersley V.C. in Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628 at p. 629
from “expressing any opinion upon the merits of the case until the hearing” but to act to
minimise the sum total of irreparable damage to the litigants.

They stated that, the governing principle should be whether on the face of the affidavits, there is
need to preserve the status quo in order to avoid irreparable damage to the applicant and
provided his claim is not frivolous or vexatious.
The question for consideration in that regard, resolves itself into whether on balance, greater
harm would be done by the refusal to grant the application than not. It is not whether a prima
facie case however qualified and with whatever epithet, has been made.

NOTE: the court cited Lord Diplock In American Cyanamid Co. v. Ethicon Ltd. [1975] 1 All
E.R. 504, H.L. at p. 510:
“Your Lordships should in my view take this opportunity of declaring that there is no
such rule. The use of such expressions as ‘a probability’, ‘a prima facie case’, or ‘a
strong prima facie case’ in the context of the exercise of a discretionary power to grant
an interlocutory injunction leads to confusion as to the object sought to be achieved by
this form of temporary relief. The court no doubt must be satisfied that the claim is not
frivolous or vexatious; in other words, that there is a serious question to be tried.”

Remedies

The division between equity and the common law gives rise to the varying remedies available for
breach of contract, or an obligation thereof, under each body of law. The distinction is primarily
historical. Originally, separate courts with exclusive jurisdictions administered the rules of each;
however, with the introduction of the Judicature Acts of 1873 and 1875, the separate application
of equitable and common law remedies came to an end. This paper seeks to discuss some of the
equitable remedies available to a party in Equity.

Equitable remedies are designed to be ancillary to common law remedies; they supplement the
common law and are invoked only where the common law remedy is so inadequate as to warrant
their application. There are four principal remedies available to a party in equity: Specific
performance; Injunctions; Rectification; and Rescission. We may add as a fifth remedy,
Equitable damages under the Lord Cairns' Act which provides for a statutory right to damages.

Specific performance

A decree of specific performance is issued by the court to the defendant, requiring him to carry
out his undertaking exactly according to the terms of the contract. Specific performance is an
equitable remedy and is available only where there is no adequate remedy at common law or
under a statute. Generally, this means that specific performance is available only where the
payment of a sum of money would not be an adequate remedy. Traditionally, specific
performance was available only in cases of contracts for the sale of land and for the lease of land.
This was because land was considered unique in itself and the failure to deliver it could not be
adequately compensated by damages or even by an offer of another piece of land. The case of
Bonsu v. Agyemang -wherein the plaintiff, claiming, inter alia, an order of specific performance
of an agreement reached between him and the defendant in respect of land situated at Achimota,
next to the Accra Motorway Extension - is illustrative in this regard. Date-Bah JSC reasoned
that, the rationale for this approach is that land is considered to be inherently unique and
therefore specific performance is responsive to this attribute of it in ensuring that a purchaser
gets what he contracted for and not an inadequate monetary substitute.
However, in contemporary times, the jurisdiction has been extended to cover unique chattels or
articles of intrinsic value. Pursuant to section 58 of Ghana’s Sale of Goods Act, (Act 137), in
an action for a breach of a contract to deliver specific or ascertained goods, the court may if it
thinks fit, may direct that the contract should be specifically performed.
Quite apart from the above, the granting or withholding of a decree of specific performance is at
the discretion of the court. The discretion is, however, exercised on certain well-established
principles:
1. Specific performance will never be granted where damages or a liquidated demand are
appropriate and adequate: Adderley v Dixon (1824) 3 S & S 607.
2. Specific performance will not be awarded for breach of a contract wanting in mutuality, i.e. a
contract which is not binding on both parties. Thus, where a contract is voidable at the option
of one party, he will not get specific performance against the other. This rule is of particular
importance in connection with minors’ voidable contracts. This is why in Lartey v.
Bannerman wherein, the trial court judge refused to decree specific performance on the
 ground of the absence of mutuality in contracts involving infants. On appeal, the court held
(allowing the appeal) that the sole justification for the rule that, specific performance may not
be granted to an infant was because of the privileged position of the infant such that, the
other party could not obtain the remedy against him. The basis of the rule therefore
disappeared where, the infant came before the court requesting the decree after he had
performed his side of the bargain, because there was nothing that the other party might
possibly ask a court to specifically decree. The court held that, the remedy of specific
performance should be available to the plaintiff to compel the defendant to perform his part
of the contract.

3. The court will take into account the conduct of the claimant, for he who comes to equity must
come with clean hands: Coatsworth v Johnson (1886) 55 LJQB 220.

4. The action must be brought with reasonable promptness, for delay defeats the equities.
Undue delay sufficient to cause the court to withhold an equitable remedy is known as
laches: Eads v Williams (1854) 4 De G Mac & g 674.

5. Specific performance will not be awarded where, it would cause undue hardship on the
defendant: Patel v Ali [1984] Ch 283.

6. The courts will not order a contract to be specifically performed if the contract is incomplete
or if its terms are uncertain. In the case of Asare v. Antwi: The defendant owned several plots
of land at Adabraka some of which he sold to interested parties. The plaintiff expressed
interest in buying one of these plots provided the price was right. The plot was never
identified. Three years later the plaintiff sued the defendant for specific performance. The
defendant appealed and it was held, allowing the appeal that , there was no effective contract
between the parties which could be specifically enforced.

7. Specific performance will not be awarded for breach of a contract of personal services, e.g.
contracts of employment: De Francesco v Barnum (1890) 45 Ch D 430.

8. Specific performance will not be awarded for breach of an obligation to perform a series of
acts which would need the constant supervision of the court. Thus, building contracts are
specifically enforceable only in certain special circumstances: Co-operative Insurance
Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1.
To conclude with the remarks of the Judicial Committee of the Privy Council in the case of Sang
Lee Investment Co v Wing Kwai Investment Co that, in respect of specific performance, the
court must first consider whether there has been any want of good faith, honesty or righteous
dealings on the part of the applicant, and then consider whether to exercise the discretion to grant
the remedy in all the circumstances of the case, which may include any misconduct on the part of
the defendant.

Maxims of Equity
Equity developed as a body of law separate from the common law to provide fairness and justice
in situations where the strict application of common law rules would result in injustice. Where
the law is deficient, equity steps in to supplement the law. Equity relies on general principles and
maxims, rather than rigid rules, to guide its application in a flexible manner suited to the
individual circumstances of each case. This paper examines the nature and function of several
key equitable maxims and how they operate together to further the overarching goal of doing
what is fair and just in the eyes of equity.
Flexibility and Discretion in Equity
Maxims serve as discretionary guidelines for equitable jurisdiction rather than inviolable rules.
They illustrate equity's capacity for adaptation and consideration of parties' positions and
conduct in achieving substantive justice. Courts have latitude in applying maxims and no single
maxim is absolute on its own. Maxims also interact and sometimes overlap, allowing equitable
principles and remedies to evolve organically with social changes through judicial reasoning
grounded in the facts of each case. While maxims clarify equity's intentions, the court's
overriding concern remains doing what conscience dictates in light of the inequitable effect of
strictly applying common law or statute. Procedure takes the backseat to attaining fairness.
Leading Equitable Maxims (you can list them before explaining them in seriatim)
1. Equity will not suffer a wrong to be without a remedy
Probably the most important of all the maxims. Because it provides the justification for the
intervention of equity. Equity intervened in instances where the common law could not provide
adequate remedies. This is done in order to ensure that all wrongs have their corresponding
remedies. It is a restatement of the legal principle Ubi jus ibi remedium which basically means
“Where there is a right, there is a remedy.” It means no wrong should go unredressed if it is
capable of being remedied by courts. Thus, the wrong must be a legal one, a moral right will not
suffice. In Day v Brownrigg, Plaintiff went to Court seeking to restrain his neighbour from
calling his (the neighbour’s) house a name –Ashford Lodge - same to the Plaintiff’s house name.
Court of Chancery said that he did not have a legal right in the name. That, no legal right was
being infringed so the Court of Chancery cannot help him. It should be noted that, it is not every
‘wrong' but a legal wrong. The maxim has been applied to recognize and give effect to the right
of beneficiaries of trust, and also to develop new procedures such as discovery, subpoenas, etc.
to enhance the dispensation of justice.
2. Equity Follows the Law
Also expressed as Aequitas sequitur legem which means “Equity will not allow a remedy that is
contrary to law.” Edmund Henry Turner Snell asserted that “It is only when there is some
important circumstance disregarded by the common law that Equity intervenes”. Hence, the
modified maxim “Equity follows the law, but not slavishly, nor always.” by Cardozo, CJ in the
case of Graf v Hope building Corp. Maitland added that, “We ought not to think of common
law and Equity as of two rival systems. Equity had come not to destroy the law, but to fulfill it,
to supplement it, to explain it. Every jot and every title of law was to be obeyed, but when all this
had been done yet something might be needful, something that equity would require.” To
elaborate, this is why in restrictive covenants for instance, common law said it was personal to
the individual entering the covenant and that the assignee/sub-lessee were not bound. However,
equity came to the rescue in Tulk v. Moxhay by departing from the common law. Another
instance, is the mortgagor's equitable right of redemption, which enabled a mortgagor to redeem
the mortgaged property at anytime after the contractual time of redemption, provided his is
willing to pay the loan with interest.
3. He Who seeks Equity Must Do Equity
This relates to conduct of person coming to Equity - future conduct. Persons who seek the
intervention of equity will be prevailed upon to deal fairly with the other party. He must be
prepared to do what is right and fair to his opponent. This maxim is most commonly applied in
injunction cases. The Court imposes certain conditions for grant of an injunction. The concept of
illegal loan contracts helps illustrate this maxim better. An illegal loan is unenforceable because
ex turpi causa non oritur actio -a plaintiff will not get remedy where, the cause of action arose
from the plaintiff’s own illegal act. However, where illegal loan secured by a mortgage, an order
for the delivery of the title deed may be refused unless the mortgagor agrees to repay the loan. In
Lodge v. National Union Investment Co. [1907] 1 Ch. 300 B borrows money from L by
mortgaging certain securities to him. L was unregistered money lender. Under Money Lender’s
Act, contract was illegal and void. B sued for return of securities. The court refused, that except
if B repaid monies advanced to him. In cases of election, a party can only either accept what is
being offered together with all the conditions attached, or reject everything: he cannot choose to
accept the benefits but disregard the consequences that came with it. For instance, if A offers to
give his mansion to B in exchange for his car, B cannot receive the mansion and still hold on to
his car.
4. He Who Comes To Equity Must Come With Clean Hands
This refers to previous conduct of the applicant. Requirement of clean hands relates to the
transaction in question; must have an immediate and necessary relation. Claimant seeking
equitable remedy must himself not be guilty of unconscionable conduct. Thus, though equity
disfavours forfeiture, a tenant who defaults in paying rent will not be protected from the right of
re-entry by the Landlord, he does not have clean hands. Equity gave relief against the forfeiture
if the Tenant was willing to pay rent outstanding and had not also breached other terms in the
contract. In D & C Builders Ltd v Rees, the Plaintiffs building company were threatened and
coerced due to financial constrains into accepting a part-payment as full settlement of debts
owed. In action for the remaining balance, D argued that P should hold up to their promise to
forgo the balance on the doctrine of estoppel. Lord Denning refused to apply the doctrine, on
the grounds that, the Rees had taken unfair advantage of the builders' financial difficulties, and
therefore had not come "with clean hands". Equity does not, however, demand that its suitors
should have led blameless lives: Loughran v. Loughran: (1934) 292 US

5. Delay Defeats Equity (Equity aids the vigilant not the indolent)
Expressed in Latin term, “Vigilantus, non dormentibus, jura subvenient”, it means “Equity aids
the vigilant and not the indolent.” If one sleeps on his rights, his rights will be taken away from
him. Delay in equity, is called “laches”. If you delay in exercise of your rights and it will be
unfair to other party, then equity will not allow you to assert your rights:In Allcard v. Skinner
(1887) 36 Ch D 145, the Plaintiff delayed in filing the suit for an unreasonable and inexcusable
length of time from period when Plaintiff knew or should have reasonably known of claim
against the Defendant, and delay operated to the prejudice or injury of the Defendant. Laches is
the equitable equivalent of Statute of Limitations. However, unlike Statute of Limitations, leaves
it up to the Court to determine based on unique facts of case whether Plaintiff has waited too
long to seek relief. Section 6(1) of Limitations Act prescribes that, limitation periods shall not
apply to specific performance, injunction, or any other equitable relief. Unaffected by statutory
periods unless judge feels that justice of the case requires that, they apply statutory period rather
than equitable principle. If the limitation period has expired, the court will presume the action
barred by laches. Burden on Plaintiff to prove no laches. Prior to limitation period, Defendant
bears burden of proving laches.
6. Equality is Equity (Equity Does Delight in Equality)
Equity is of view that equality of treatment is fairest way of doing things. Where there's no clear
indication of what the intention of the parties are, equity will presume that they intended equal
treatment. This is why Equity says joint tenancies are unfair so will presume that, the parties are
holding property as tenants-in-common so that, the right of survivorship does not apply. Thus,
while common law favours joint tenancy, Equity favours tenancy in common. For the statutory
presumption of tenancy in common see Section 40(3) of Act 1036. In Mensah v Mensah [1998-
99] SCGLR 350 , concerning sposal property rights, Bamford-Addo JSC stated that “Equal
sharing was what would amount to a ‘just & equitable’ sharing." Also, in a recent case of
Mensah v Mensah [2012] 1 SCGLR 391 it was held, inter alia, that a wife’s contribution as a
housewife in maintaining the matrimonial home and creating a congenial atmosphere for the
husband to create the economic empire he has built, are enough to earn her an equal share in the
marital properties on the offer for contribution upon the grant of divorce.
 7. Equity Looks To the Intent Rather Than The Form
Equity always makes a distinction between what is substance & what is mere form. Where the
two conflict, equity considers that insistence on the form will defeat the substance. Thus, it will
hold it to be inequitable to insist on the form to defeat substance. However, where formalities are
required by statute, the Court will enforce it against an equitable interest. Yet, equity will not
permit a statute to be used as an instrument of fraud. In equity, an agreement whether negative or
positive is dependent on the substance and not simply on the precise language of the agreement.
Equity looks down on technicalities, hence, will recognize a transaction even if it lacks due
formality: Walsh v Londsdale
8. Equity Looks On That As Done Which Ought To Be Done
Where one party has incurred obligation to do something but is yet to do so, Equity will look on
that as producing the same result, as if that obligation has actually been performed. Though,
there has been no creation of a legal interest, equity will say there has been the creation of an
equitable interest. When individuals are required, by their agreements or by law, to perform
some act of legal significance, equity will regard that act as having been done as it ought to have
been done, even before it has actually happened. In Walsh v. Londsdale (1882) 2 Ch d 9 , the
Defendant, Lonsdale, agreed to grant Walsh, lease of a mill for seven years, with rent to be paid
quarterly with a year’s rent payable in advance if demanded. They did not execute a deed but
Walsh moved in and paid rent quarterly. Londsdale then demanded a year’s rent in advance.
Walsh refused to pay. Walsh argued that under common law rules a lease had to be created by
Deed to be legal. On the basis of this maxim, the parties were treated as having a lease
enforceable in equity from the date of the agreement to grant the lease. Such a lease was held
under the same terms and the court could order specific performance of it. However, for it to
apply the contract must be capable of performance, and backed by consideration.
9. Where equities are equal, the first in time prevails.
10. Where equities are equal, the law prevails.
Where there is equal equity, the law shall prevail & Where the equities are equal, the first in time
shall prevail. (qui prior est tempore potior est jure). Both maxims deal with issues of priorities
which may arise regarding interests in property. E.g. rival conveyances of land/interest in land,
competing assignments of beneficial interests in trust property or priority of mortgages. The 1st
Basic Rule (Law & Equity) is that, competing interests are rank prima facie according to the
order of their creation, I.e an earlier interest prevails over a later one. The 2nd Basic Rule which
is usually for movables, is that priority may be determined by the order in which the notice of
creation is received (a.k.a Rule in Dearle v Hall). However, by operation of subsidiary rules,
subsequent interest may rank 1st to an earlier ranking interest, on the basis of purchaser without
notice; fraud, estoppel & gross negligence; registration; & over-reaching.
Purchaser Without Notice: a bona fide purchaser for valuable consideration without notice of a
prior equitable right is entitled to priority in equity as at law. (Amuzu v Oklikah[ 1997-98] 1
GLR 89 @ 103). The rationale is that the purchaser’s conscience is not in any way affected by
the equitable right of which, he has no notice, for Equity acts on the conscience. A purchaser
means, one who takes an interest in property otherwise than by inheritance. E.g. tenant &
mortgagee. The purchaser must have given a value or consideration for the property which need
not be adequate, for equity does not help the volunteer or squatter. The interest should be legal
interest otherwise the first in time rule would apply. While legal interest take precedence over
equitable interests, equitable interests take precedence over mere equities such as the right to set
aside a transaction for fraud, undue influence & the obtainment of rectification for mistake.
Notice: It will be unconscionable for legal estate to prevail against equitable interest if purchaser
had notice. Equity not available for a purchaser if he argues he believed the equitable interest has
been discharged or destroyed. There are three types of notices. They include, actual notice
(direct, clear and distinct information to a party), constructive notice (as a general rule a
purchaser will be treated as having notice of all that a reasonably prudent purchaser would have
discovered) and imputed notice (notice acquired indirectly through an agent such as solicitor).
11. Equity Imputes an Intention to fulfill an Obligation
Where a person who owes an obligation to another person does something/an act which is not
clear on the face of it, why it was done but is consistent with his/her obligations, equity will say
that person has discharged his/her obligations. In Snowden v Snowden 28 E.R. 1311, there was a
covenant in a marriage settlement to pay money to trustees to be used to buy a piece of land for
the wife. The husband did not pay the money but bought a freehold. Held: the land was subject to
the trusts of the marriage settlement
12. Equity acts in personam
Historically, equitable orders were directed against the person of the defendant at the pain of
imprisonment. Subsequently, equity will permit an order to be attached to the defendant’s
property (in rem). Maxim less significant in contemporary times because with the fusion of
common & Equity jurisdictions, other modes of enforcements are available. Its importance in
contemporary times may include instances such as injunction & specific performance enforced in
personam by contempt.
13. Equity will not aid the volunteer or squatter. A party who does not provide
consideration, or ride-free on others sweat, will not protected in equity. For instance, the
effect of an incompletely constituted trust is that, only beneficiaries who have given value
(not volunteers) can enforce it. The case of David Soone Boon Seo supra is instructive
here. It should be noted that, equity does not assist a volunteer as was evident in Ellison
v. Ellison.
In conclusion, ….