VICTOR MUNGAI
VICTOR KARIITHI G34/143158/2021
EQUITY FOLLOWS THE LAW
Equity follows the law or (Acquitas Sequitur Legem) means that equity treats the
common law as laying the foundation of all jurisprudence and does not depart
unnecessarily from legal principles.The maxim lays down that equity should
supplement the law and only interferes where the law fails to dispense justice due to
the defects of common law.This is supported by the statements of Walker D.M that
maxims are short ,pithy formulations of broad and general principles of common
sense and justice1.
Equity respects the established rules and precedents of the common law, but also
adapts to changing circumstances and needs of society. Equity follows the law, but
also tempers it with mercy and discretion. Hence it is said that “equity follows the
law, but not slavishly nor always.”
Consequently, the court of Chancery would be bound by common law and statute just
like the other courts. However, departing from the two whenever it was justified to
disregard them. In the case of Kayode Eso JSC noted in Trans Bridge Co Ltd v
Survey international Ltd court held that equity does not exist in vacuum. Equity was
developed to supplement and mitigate rather than override common-law rules.
Thus, ..As per Maitlands View,the relation between the law and equity is not that
between two conflicting systems it is the relation between code and
supplement,between text and gloss2.
In Cowper vs Cowper (1734) it was stated that the discretion of courts is governed by
the rule of law and equity,which are not to oppose but subservient to the other.In
some cases equity follows the law implicitly,in other cases assists common law and
advances a remedy while in other cases it relieves the rigor of it3.
Estates and interest in land which existed at common-law also exist in equity. For
example restrictive covenants- Tulk v Moxhay. Secondly, Just like common-law
interests, an equitable interest can devolve on intestacy.Thirdly, Just like common
1
Mohamed Ramjohn,Unlocking Equity and Trusts,Routledge ,Seventh Edition 2019
2
Wesley Newcomb,Relations Between Equity and Law,Michigan Law Review Association 1913
3
Cowper vs Cowper(1734) 2p WNS 720
VICTOR MUNGAI
VICTOR KARIITHI G34/143158/2021
EQUITY FOLLOWS THE LAW
law, equity acknowledges that legal estate is vested in the trustee but compels him to
act in the interest of the beneficiary
With regard to equitable estates, Lord Hardwicke in Hopkins vs Hopkins observed
that it is the maxim of this court that trust estates which are the creations of equity
shall be governed by the same rules as legal estates in order to preserve the uniform
rules of property4.
Although equity follows the law, it may deviate from following the law where doing
so would amount to injustice. This is done by utilizing doctrines such as; secrecy,
part-performance, estoppel, amongst others to fill the gap in law and prevent injustice.
Equity aims at preventing fraudulent use of the law. In the case of Archibong v Duke,
the plaintiff sued the defendant for specific performance of a contract to sell land. The
defendant had fraudulently obtained a certificate of occupancy from the government
after entering into the contract with the plaintiff. The court held that the defendant
could not rely on his legal title to defeat the plaintiff's equitable interest in the land,
and ordered him to perform the contract. This case shows that equity will not allow a
person to use the law as a cloak for his dishonesty.
To illustrate the equitable doctrine of part performance is the case of Chidiak v Coker.
Decided in the West African Court of Appeal in 1954. In effect, the doctrine connotes
that equity will enforce an oral contract for the sale of land if the buyer has taken
possession and made improvements on the land. The court held that the doctrine
applied in Nigeria and granted specific performance to the buyer who had paid part of
the purchase price and built a house on the land. This is notwithstanding the
requirement of a written contract and signed deed provided for under the statute of
Fraud.
This maxim also has limitations which tend to limit its effectiveness.First equity
courts cannot disregard or repeal,statutory and constitutional requirements.Where a
transaction or a contract is declared void because it is not compliant with an express
4
Hopkins vs Hopkins 1738 174 Miss 643
VICTOR MUNGAI
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EQUITY FOLLOWS THE LAW
statutory or constitutional provision a court of equity cannot interpose to give validity
to such transaction or contract.
Even though the norm has been for the law of equity to work in tandem with common
law there still exists situations where the law of equity has rejected some principles
of common law.For example the doctrines of seisin and escheat were rejected and
instead recognized a wide range of future interest in land.
The other limitation is that where equity acts in analogy.Application of statute by
analogy where a claim isn’t expressly covered by any statutory period but is closely
analogous to a claim that’s expressly covered.Equity will act by analogy and apply the
same period.In Lindsay Petroleum vs Hurd it was the opinion of the court that the rule
of equity is that either no period is applicable or the common law period is applied by
analogy5.
In conclusion, the maxim equity follows the law is illustrative of the fact that common
law cannot work alone since a rigid system of law would not result in equity to all the
parties involved.This is supported by Lord Esmere’s statement that the cause why
there is a chancery is for that man’s action are so diverse and infinite that it is
impossible to make any general law which shall aptly meet with every particular act
and not fail in some circumstances.
5
Lindsay Petroleum Co vs Hurd (1874) LR 5 PC 221,239
