Definition: The Oxford Advanced Learner’s Dictionary defines equity as “fairness, right judgment; principles of justice outside common law or statute law, used to correct laws when these would apply unfairly in special circumstances…” But to a lawyer, equity may also mean the technical equity that was evolved by the Court of Chancery to remedy some of the defects of the Common Law. Origin: As said above, the need for equity arose because of the rigidity and harshness that attended the common law. According to Aristotle, “When the law speaks universally, then, and a case arises on it which is not covered by the general statement, then it is right, where the legislator fails us and has er¬red by over-simplicity, to correct the omission… i.e. to say what the legislator himself would have said had he been present, and would have put into his law if he had known. And this is the nature of equity, a correction of the law where it is defective due to its universality”.1 But the description of the origin of equity by Lord Denning would serve us better here, or rather help to throw more light on what Aristotle said. While tracing the origin of the rigidity of law and the need for equity, Denn¬ing said; “People (ancient England) who deal in property do not want to buy law suits or inherit them. They want to know exactly what will happen if they use such and such words, and exactly how to provide for such con¬tingency. In this branch of law, words are the masters who must be obeyed. It was the same with the old real property law of the common lawyers”. He went on to say: “Rights or wrongs did not enter into it, nor the redress of grievances. Only words and rules and the logical deductions from them. In those days land was the most important kind of property; and the common lawyers were so absorbed in land problems that they approached other problems with the same frame of mind. They looked for certainty and gave justice a second place. In their hands the law of con¬tracts and torts tended to become as technical and rigid as the law of pro¬perty. In order to have a cause of ac¬tion, the plaintiff had to fit his com¬plaint into one of the established forms of action, or else he had no remedy.”2 This was the position of things in England that necessitated the call for greater justice. But since the judges were all common lawyers by training, they could only say “We admit that a wrong has been done but cannot give you a remedy.” New days brought new wrongs or wrongs of new kinds. The law was failing to fulfill its basic func¬tion. It was failing to do justice. The need for equity arose. People petition¬ed the king as the “fountain of justice.” The king assigned the duty to his Chancellor who was an ecclesiastic. The Chancellor developed his own court. Initially the rules were loose, but the process of systemization begun by Lord Nottingham was continued by subsequent Chancellors especially Lord Hardwick (1737-56) and Lord Eldon (1801-27). What followed was rigidity. As it was put by A.S. Diamond, “Gradually, the rules of equity themselves came to suffer the fate of the rules of law and became stereotyped.’’3 Now, the extension of the jurisdiction of the Chancellor aggravated the inconvenience which flowed from the system of distinct courts of common law on the one hand and equity on the other. Marquis of Waterford v. Knight4 and the Earl of Oxford’s Case5 are illustrative of these inconve¬niences. The need for a uniform system of administration of justice became urgent. In 1873 and 1875, the Judicature Acts were passed, and to this epoch-making Acts we will now turn. The Judicature Acts: The Judicature Acts were passed to rectify this anomalous situation. By section 24, the old separate courts of Kings Bench, Exchequer, Common Pleas, Chancery, Probate, the Divorce Court and the Court of Admiralty were abolished. In their place was created a Supreme Court of Judicature with a High Court divid¬ed into the Queens Bench Division, the Chancery Division and the Probate, Divorce and Admiralty Division and each division was vested with both legal and equitable jurisdiction, had the unfettered power to administer equity and common law. The old system under which only a court of common law could administer only com¬mon law and the chancery court could only dispense equitable remedies were abolished. Any point of law or equity could be raised and adjudicated upon in any division. However, certain sub¬ject matters were for the sake of ad¬ministrative convenience assigned to the divisions. It is therefore said that the fusion of administration was only partial. For the avoidance of doubt as to the supremacy of equity, in all instances of conflict, as a residual measure, section 25(11) of the Judicature Acts provided that where the rules of common law and equity were in conflict, the latter shall prevail. But it should be noted that the statute did not fuse the prin¬ciples of equity with those of common law. What it did was to fuse the ad¬ministration of these rules and in cases of conflict, to have a common rule which, according to section 25(11), must be the equitable rule. Effects of the Acts: It is only on matters of principle that the equitable rule prevails. The acts did not abolish the distinction between legal and equitable rights or remedies. A legal estate remains a legal estate and an equitable interest is still an equitable interest. This position is usually examplified with the following:6 The Court of Appeal decided in Walsh v. Lonsdale7 that “an agree¬ment for a lease is as good as a lease.” And because of the fact that before 1873 equity would intervene by gran¬ting an injunction to prevent a landlord from evicting the tenant in breach of this agreement, it was granted. In Berry v. Berry,8 an action brought by a wife to enforce the terms of a deed which was varied was dismissed on the ground that although at law, a contract made by deed could only be varied by another deed, in equity a simple contract varying the terms of a deed was a defence to an ac¬tion brought on the deed, and the equi¬ty rule now prevailed. At law, an executor was liable for loss of any assets of his testator when once they had come into his hands.9 In equity however, the executor was not liable for such assets if they were ac¬cidentally lost without fault on his part10. In Job v. Job11 it was held that since the Judicature Acts, the equitable rule is also the rule at law. The rule of contribution was another area of conflict. However, the decision in Lowe and Sons v. Dixon and Sons12 makes it clear that sureties remain liable to the extent of the full amount. Thus, if one of them become insolvent, the other or others will be liable for his own share. But the Acts did not fuse law and equity; “it was no fussion or anything of the kind; it was the vesting in one tribunal the administration of law and equity in every cause, action or dispute which should come before that tribunal’’13. It was a fussion of ad¬ministration rather than principles. As has been well said, “the two streams have met and now run in the same channel but their waters do not mix.”14 New Equities and the Judicature Acts: After the Judicature Acts, it was clear from the provisions that equity, in its technical sense has come to an end. This is because there now should be common rules, viz; the rules of which comprises the rules of common law and rules of equity. These rules of equity which prevail in cases of conflict then constitute “the rule of law”. No judge, it is submitted should decide any case by proceeding from two directions. He need not state the common law position, and then state the equitable position and finally decide that the rule of equity prevails. Even if he does this, the end result is the “Legal position” presently. If in the course of his judgment a judge says that it is equitable that the decision should be this or that, in the opinion of the present writer, it does not mean “equity” in the sense it was used before the Acts. He must mean “fairness” or “good judgment.” This is so unless he can point at any prece¬dent before the Acts. In Hughes v. Metropolitan Railways,15 the House of Lords (Lords; Cairns, O’Hagani, Selbourne, Blackburn and Gordon) laid down a new equitable principle without reference to any earlier principle in equity. In their speeches, they were talking of “What the Court of Equity would have done” and not “what the court of equity did”. This means that the door of creation of new equities is not closed. Lord Denning, M.R. used the same case to justify his decision in The High Trees Case.16 Hughes case was decided about three years after the Judicature Acts. What more could we get from Chancery Court judges than that. Yes, they are still suffering from the hangover of their position as equity judges. How then can one reconcile the above with what Lord Cotton said in Britain v. Rossitter:17 “These provisions (Judicature Acts) enable the courts to administer both law and equi¬ty, but they do not confer new rights; the different divisions of the High Court may dispose of matters within the jurisdiction of the Chancery and the common law courts; but they can¬not proceed upon novel principles. Could the present plaintiff have ob¬tained any relief in equity before the passing of the Judicature Acts? I think he could not. The doctrine of part per-formance has never been applied to contracts of service, and it ought not now be extended to cases in which the court of chancery never interfered.” And Lord Justice Thesiger said: “We ought to keep within the limits observed by the court of chancery before the passing of the Acts.” Now, is it not clear that the door of the crea¬tion of equity (in its technical sense) is closed? Of course, the door was closed by the Judicature Acts, but the door of “justice” and equity in the loose sense of “fairness” is not closed. This is so unless the courts were saying that all the cases in this world had been decided before 1875 and that the Acts put to an end any further evil and novel acts of men. Now, judges should decide novel cases and arrive at novel decisions and principles which are equitable without reference to the Judicature Acts or to equity in the sense it was used before the Acts. This is clear from the dictum of Lord Diplock in United Scientific Holdings v. Burnley B.C.18 “… if by the rules of equity is meant that body of substantive and adjectival law that, prior to 1875 was administered by the court of chancery but not by courts of common law, to speak of the rules of equity as being part of the law of England in 1977 is about as meaningful as to speak similarly of the Statute of Uses or the Quia Emptores. Historical¬ly all three have in their time played an important part in the development of the corpus juris into what it is today; but to perpetuate a dichotomy between the rules of equity and the rules of common law which it was a major pur¬pose of the Judicature Acts to do away-with, is, in my mind conducive to er¬roneous conclusions as to the way in which the law of England had developed in the last 100 years.” From what Lord Diplock said above, it seems that the phrase in Ashburner’s Principles of Equity19 already referred to, cannot be correct. It is submitted that the phrase has become both mischievous and deceptive. It is the innate conservatism of the English lawyers which makes them slow to recognize that the Acts fused law and equity in its substantive and adjectival sense. For example, at the confluence of the Niger and Benue Rivers, it is possible for a short distance to discern the source from which each part of the combined rivers (new river) flow, but there is a point (e.g. Onitsha) at which this ceases to be possible. It is submitted respectfully that the waters of the confluent rivers of law and equity (like River Niger and River Benue at Onitsha) have surely mingled now. Again, statute may restate an equitable doctrine or rule. Once this is done, the origin is forgotten and the statute becomes “law” without reference to any “equity” or Judicature Acts. This is because the Acts did not bring to a halt the development of the law or put to an end the mischief the people connive to make. The use of the word “equity” in the sense in which it was used before the Acts is not apt today. The use of the expression today should convey nothing but an indication of the source to which the current rule of the substantive or adjectival law can be traced. It is clear then that from 1875, there has been only one set of rules which judges can apply in deciding a case. And this does not place a ban on further development of the rules of judicial decision. When a deserving set of facts arise, the judge can decide it equitably without reference to existing rule of law or even equity. When this is done, the new principle need not be called a rule of equity. But if it is so called, as in Hughes case or in High Trees Case, such usage can only mean “fairness” or “equity” in its loose sense. Mere Equities: I wish to consider this head because of the controversy that surrounds its meaning and position in the hierarchy of justiciable rights. Mere equities are not the same as equitable rights (of property) being on¬ly procedural rights which are ancillary to some right of property.20 Thus mere equities include the right to have a transaction set aside for fraud, or un¬due influence, or to have a document rectified for mistake, as by inserting a repairing covenant. They do not run with property and are not assignable. This distinction was thrown into confusion by Denning, L.J. (as he then was) in Bendall v. McWhiter21 where he held that the right of a deserted wife to remain in the matrimonial home was an equity which bound her husband’s trustee in bankruptcy. From what Denning, L.J. said, it was clear that he was referring to mere equities. This deci¬sion was followed in Westminster Bank v. Lee22 which went further to hold that this interest binds any purchaser who took with notice of it. If this is correct, why call it “mere equity?” The “mere,” then, is very misleading. This state of affairs was arrested by Lord Upjohn, (who as a trial judge decided Westminster Bank v. Lee) in National Provincial Bank v. Ainsworth.23 He made it clear that a mere equi¬ty, which includes the rights of a deserted wife is a “personal right and does not attach itself to any specific piece of property…” it cannot run with the land so as to bind a purchaser, with or without notice. The case therefore over-rules all the previous cases on that point including the Nigerian case of Ogedengbe v. Ogedengbe24 which followed Bendall v. McWhiter. CONCLUSION: Equity came to fulfill the law. This means that if the common law was sufficient, equity would not have come in the first place. Now, equity has fulfilled the common law and now is part of the law — “law” in the wide-embracing sense. There is now a mar¬riage of the common law and equity and they have now become one. The judge is given a right to decide a case as if he were a repository of “law” and “equity”, that is, law in the wide embrac¬ing sense: he should be oblivious of events before 1875; he should decide a case according to present day law and justice. Reference to equity in its technical sense can only be for historical purposes only. If any serious reference is made to equity, I think the judge should be taken to mean law or else we assume that he meant equity in the sense of fairness and good judg¬ment. Equity in its technical sense has passed the age of child bearing, (having become part of the law) but that does not mean that law and justice has also reached meno-pause. REFERENCES: 1. Aristotle’s Rhetoric; see E. Banks edition of The Politics pp.369-372. 2 Lord Denning, The Need For a New Equity, (1952)5 Current Legal Problems 3. A.S. Diamond, Primitive Law, (2nd Edi¬tion 1950) p.349. 4. (1844) 11CI. & F 653 5. (1615) 1 Rep. Ch. 1 &App, 6. Snell’s Principles of Equity; (28th Edition by Megarry & Langstan) p. 15-17. 7. (1882) 21 Ch.D.9 8. (1925) 2K.B.316 9. Crosse v. Smith (1806) 7 East 246 10. Jones v. Lewis (1751) W Ves. Sen. 240. 11. (1877) 6Ch.D. 562. 13. (1885)16Q.B.D.455. 13. Per Jessel, M.R., Salt v. Cooper (1880) 6. Ch.D. 544 at p. 549. 14. Ashburner’s Principles of Equity (2nd Edition 1933) p. 18. 15. (1877) 2 App. Cas. 439. 16. (1947) K.B. 130; (1956) 1 All E.R. 256. 17. (1883)1 Q.B.D. 123. 18. (1978) A.C. 904 at 952. 19. (2nd Edition 1933) p. 18. 20. National Provincial Bank v. Ainsworth, (1965) A.C. 1175. 21. (1952)2 Q.B. 466. 22. (1956) Ch.7. 23. (1965) 2 All E.R. 475. 24. (1964) L.L.R. 209. Emeka Atuanya Esq. ]]>