EQUITY

Paying Regards to Snell Fifteen Edition to Equity, it was clearly stated that equity in a broader
sense is equivalent to natural justice

Snell ibid, noted that under the narrow meaning of equity or better say equity in law, it would be
a mistake that to say that the principles of equity in law are co-extensive to natural justice

Snell also noted that properly define the narrow/technical meaning of equity, recourse must be
made to history.

Is that clear?

One major contrast between the broad sense of equity (which is often associated with natural
justice) and the narrow sense of equity (also called equity in law) is that most of the principles of
natural justice are accompanied with legal sanctions while equity in law was majorly an attempt
to mitigate the substantial unfairness of common law.

A good example of general or broad sense of equity is that of the principles of natural justice
entrenched in Section 36 of the 1999 constitution (as amended), which carries sanctions by the
court if not adhered to.

But the equity in law did not start in such a form. Hence proper recourse must be its origin in
history

Another good example of the difference is evident in our laws that received English law into
Nigerian Jurisdiction via the Interpretation Act which states that all the rules of Common law
and the doctrine of equity and statutes of general application which were in force as at 1900 will
apply in Nigeria - it could be said here that doctrine of equity here refers to the technical
meaning

While the High Court Laws that carries The Repugnancy Doctrine states that all customary law
will be applicable so far as it is not repugnant to natural justice, equity and good conscience.
We can say that equity here is the broad sense of equity which is what is fair.

Before I delve into the historical outline of equity in a bid to properly capture the technical
meaning of equity, it would be necessary to say a few things about the technical meaning of
equity

Equity in Law or technical equity as captured by Snell is that body of rules and principles that
forms as an appendage to the general rules of law, normally called Common law

Snell further noted that technical equity came as a result of the impediment suffered by English
legal system, which also besets other legal systems in the world upon reaching a particular level
of development

So technical equity surfaced due to the expanding economy of English community that
necessitated many claims that could not be covered by the existing Royal writs as that time.

Sir Nathan Wright L.K in Lord Dudley v Lady Dudley stated that Equity is no part of the
law, but a moral virtue which moderates the rigour of Common law and the office of equity is to
protect common law from crafty evasion and contrivance. Equity is not to destroy the law nor
create it but to assist the law

In medieval England, After the Norman Conquest, the Anglo-Saxon courts system were still
retained which comprises majorly as the KING'S COUNCIL commonly referred in other texts as
royal council.

Out of these royal council or King's Court as Fabunmi puts it, sprang out three courts which
were what we know as common law courts namely

The King's Bench

The Court of Common Pleas

The Exchequer Court

Due to the itinerary and transient nature of the King's Council also called King's Court, certain
courts were set up at different locations to administer justice and to reduce the burden of
travelling to meet the King's Court/King's Council for resolution. These courts set up are what
we know as Court of Common Pleas.

While the Court of Exchequer was primarily set up to handle revenue matters.

Inputs about the King's Bench would be made later.

Moving on, these common law courts administered justice throughout England, while the King's
Court has extraordinary judicial and over reaching power over these courts.

It was tradition for the Chancellor initially known as the office of the Chancery, which was an
important member of the King's Council, to issue Royal writs in order for an action to commence
at common law.

Other texts referred to the Chancellor as the King's Prime Minister or Secretary for State. He was
a close member of the King's Council.

So initially before an action could commence at common law courts, writs had to be issued from
the office of Chancery.

However due to the development of English citizenry, certain claims were made that didn't meet
the existing writs, hence the first point of call by the Chancellor in administering justice was the
act of inventing new writs. Although at this point, his power were still of a limited nature.

First, situations where the plaintiff were denied remedy even at common law due to influence of
the Defendants (presumably feudal lord) over the common Law judges, necessitated that people
took their claims to the King's Council for Justice.

Due to the initial job of the Chancellor issuing writs, the King's Council that possesses
extraordinary judicial powers transferred such claims to the Office of the Chancery and there and
then, the Chancellor adjudicated matters based on personal conscience in the name of the King
(an overriding factor of the judgement of common law court).
Second issue, common law were limited with the remedy of damages which were in cases of
contract for the sale of land weren't adequate. Hence people also took their claims to the office of
the Chancery as instructed by the King's Council and thereby new remedies like injunctions,
specific performance and equity of redemption emerged popularly known as equitable remedies

Hence by the close of the fifteen century, the Chancellor had developed wide and discretionary
power in relation to justice

Alright moving on…

These wide and discretionary powers exercised by the Chancellor were based on the ground of
conscience

Hence the popular statement of Seldon

“Equity is a roguish thing, for law we have a measure know what to trust to, however equity is
according to the conscience of him that is Chancellor. It is all one as if they should make the
standard for this measure we call foot to be Chancellor's foot.”

Snell noted that although equity intervened to put right an injustice, however not every injustice
was the subject of the equitable intervention