SYLLABUS

GENERAL PRINCIPLES OF EQUITY.

I. Nature & Definition of Equity.

II. Historical Development of Equity.

III. Relationship between Equity and Common Law.

IV. Nature of Equitable Rights & Interests.

V. Maxims of Equity.

VI. Chooses in action: Conversion: Election: Satisfaction.

VII. Remedies in Equity.

VIII. Defences in Equity.

Reading Materials

1. AdamuKyukaUsman(2012)The law and Practice of Equity,

Faith International press,Zaria.
2. John McGhee (2005) Snell’s on Equity,Thomson Sweet &
Maxwell,31stEdn,
3. J.O.Fabunmi(2006)Equity and Trust in Nigeria,
nd
ObafemiAwolowo University Press, 2 Edn.

Intended Learning Objectives

1
To equip the students with the knowledge and skill of how and
when to deploy equitable remedies and reliefs in dispute
resolution: understanding the various topics building are the
building blocks for this objective

1. NATURE & DEFINITION OF EQUITY.

Nature

The search for fairness and justice lead societies to enact laws
and establish institutions to render to every deserving person a
just due. The quest for justice is the foundation of society and
remains an objective in view. Law and justice are expected to
achieve or conform to the notion of fairness and morality; such
that when law strays away from this egalitarian purpose, there is
call for moderation of such laws. Equity has a broad appeal to
everyone and connotes a general sense of natural
justice,adopting a moral code of what is fair and just. This notion
predates all norms and has its root in divine creation. Equity can
be understood in two respects: in the broad general sense and
the narrow and technical sense of equity being a body of
technical principles and rules developed in course of time from
the application of equity in the general sense in courts of law. It is
in this latter sense that the subject of equity is studied.

In some countries the principles of equity are so integrated in the

general law that there is no distinction between them. Countries
in Europe whose legal traditions have been greatly impacted upon
by Roman law have this experience. Common law countries by

2
reason of historical accident have the experience of the distinct
existence of equity and the general law.

Definition.

In AdamuKyukaUsman’s “The Law and Practice of Equity”the

author said of the subject:

Definition of equity depends on the consideration in

view.When defined with reference to its substance and
nature,equity is synonymous with justice and fairness,
so much that whatever is the definition of justice or
fairness can be said to also be the definition of equity.
In this sense equity may be defined as the principle of
moral rightness,conformity to moral rightness in action
or attitude,upholding what is just,especially fair
treatment and due reward in accordance with honour,
standards or law,
When defined in reference to its source, equity is that
branch of the English legal system, which evolved in
the Court of Chancery to address the inadequacies,
hardship and injustice of the common law.
It is thus not possible to understand or define equity solely in
terms of natural justice; its form and history provide a great
opportunity to understanding what it truly is. According to Sir
Nathan Wright in LORD DUDELY AND WARD v. LADY DUDELY1

Equity is no part of the law,but a moral virtue, which

qualifies, moderates, and reform the rigour, hardness
and edge of the law, and is a universal truth; it does
also assist the law where it is defective and weak in the
constitution (which is the life of the law) and defends
the law from crafty evasions, delusions and new
subtilties[sic], invented and contrived to evade and
1
(1705) Pree.Ch.241,244

3
 delude the common law, where such as have
undoubted rights are made remediless; and this is the
office of equity, to support and protect the common law
from shifts and crafty contrivances against the justice
of the law. Equity therefor does not destroy the law, not
create it, but assist it.

Relationship With Common Law.

The contributions of Equity to English law are immense. Equity

was not in contest or competition with common law or statute
law. It complemented common law. Where there were inadequate
remedies, equity waded in to fill the gap. Equity intervened where
the remedy at law was defective. Equity also provided relief on
account of fraud, accident and mistake where the common law
afforded no such relief.

SELF ASSESSMENT

What is the relationship between equity in the general juristic

sense and equity in the technical sense?

2. HISTORICAL DEVELOPMENT OF EQUITY

Common law evolved from accepted practices in England,

Scotland, Northern Ireland and wales, the four nations making up
the United Kingdom. This law was derived from what the people
thought was fair at a given time, in the sense of what was fair to
them. Applied consistently by the courts, they crystallised as rules
of common law to be followed in subsequent cases. The principle

4
of stare decisis (like cases should be decided alike) was the
instrument for the growth and development of common law. In
consimilecasuconsimilidebetesseremedium (in a similar case the
remedy should be similar) the doctrine of judicial precedent
evolved. From the Norman conquest of England to the reign of
Henry III around the 13C, common law flourished and was
administered by the King’s courts of Kings Bench,Common Plea
and the Exchequer.

In ancient societies, the kings were the fountains of justice.

Petitions were sent to the Kings for redress for wrongs done. The
chancellor was the Secretary of the State and it was his duty to
draw and seal the royal Writ issued on behalf of the petitioner.

The practice of judicial precedent very prominent in the cause of

the development of common law led to a rigid position at a time
such that except there was a precedent for a particular cause of
action no writ could issue.

The Chancellor was prohibited by the Statue of Oxford from

issuing any new writ as that was considered as law making which
was the prerogative of the parliament. The Statute of
Westminster allowed a small window to entertain new writs in
exceptional cases but this was not enough to resolve the
dissatisfaction with the common law.The common law court
began to insist on the difference between law, morality and ethics
thus distancing law from equity in the general sense. This hunted
common law as its source of living spring was drying up.Static

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and rigid, common law could not meet the evolving needs of the
time. Even where it provided adequate remedies, oppression
byprivileged feudalists ensured that even the remedies were not
available.

Petitions flooded the king in Council for remedies against the

harshness, defectiveness and inadequacies of Common law.The
King’s Secretary, Chancellor, on behalf of the king,as the keeper
of the King’s conscience, initially attended to the petition on
behalf of the king in council. Subsequently, the chancellor on his
own authority began to receive and address petitions from
aggrieved disputants.The result emboldened the Chancellor to set
up the chancery court to formally receive the petitions sent to the
king for redress.

Dissatisfied with justice obtained at common law, Petitions were

sent to the king for redress. The chancellor on behalf of the king,
guided by conscience or good faith made efforts to address the
harshness, inadequacies and failures of common law on the basis
that equity will not suffer a wrong to be without remedy. In
no time the number of suitors seeking justice before the
chancellor grew. The Common law judges were not happy with
this development.

Soon there was conflict between the Chancellor and the common
law courts. In NEATH v. RYDELY2 and COURTNEY v GLANVIL3
the common law courts lamented the trespass by courts of equity
2
(1614) CroJac,335
3
(1615) CroJac 343.

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into matters within the jurisdiction of the common law courts. This
came to a head in the EARL OF OXFORD’S case4. On reference
to King James 1, the king ruled in favour of the courts of equity.
Thus in the event of a conflict, the rules of equity prevailed. The
Judicature Act, 1873 provided clearly for this. The role of priority
established following the Earl of Oxford’s case is that where strict
adherence to formalities of common law will occasion hardship,
the principles and rules of equity may be preferred. With regards
to rights, interests and estates, common law prevailed as equity
follow the law in that instance.

The chancery courts dealt with matters as presented to them in

accordance with the dictates of their conscience, which
essentially was an appeal to a high sense of morality and fairness.
The early chancellors were ecclesiastics or religious clerics. This
standard of individual conscience introduced some subjective
standard in the manner the courts of equity dispensed justice.
Lord Selden5 sarcastically said of equity:

Equity is a roguish thing. For law we have a measure,

knowing what to trust. Equity is according to the
conscience of him that is chancellor, and as this is
longer or narrower so is equity. It is all one as if we
should make the standard for measurement we call a
foot, the chancellor’s foot; what an uncertain measure
this would be, one Chancellor has a long foot another a

4
(1615)1Ch.R1
5
Bolton M,(1984)Principles of Equity and Trust (Sweet & Maxwell) p54

7
 short foot, a third on indifferent foot; it is the same
thing with the chancellor’s conscience.

In fairness to Lord Selden, conscience varies among individuals

and time or situation as well and uncertainty in law is bad. As
chancellors were drawn from non-clerical order especially
lawyers, equity gradually became systematized and concretised
into principles to be applied by law courts. The works of renown
jurists-Lord Ellesmere(1859-1617), Nottingham(1673-
1682),Hardwicke (1737-1756), Eldon(1801-1827) contributed
immensely to the evolution of technical equity.In GEE v
PRITCHARD6 Lord Eldon had this say:

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.

To escape criticisms and invite some objectivity into the measure

of the conscience in doing justice in the courts of chancery, the

6
(1818)2Swans,402,414.

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Chancellors at various times held on to applying the Queen’s
conscience, universal conscience and justice according to law.

The development continued and in 1851, a Court of Appeal in

Chancery was established thereby formalising the structure for
the enforcement of equity. This gradually displaced the pinning of
equity to the general knowledge of fairness and justice. In BATES
v. BARNES7 the court held:

“If the claim being made did exist, it must be shown to

have an ancestry in the practice and precedents of the
court administering equity jurisdiction. It is not
sufficient that because we may think that the justice of
the present case requires it, we should invent such
jurisdiction for the first time”

The systematisation of equity gave rise to the technical rules of

equity as they are today though that exercise threw up the
problem of rigidity as common law. From this point, the growth of
equity has been rather slow.

After sometime the existence of this parallel system began to

work hardship for suitors of justice. The challenges of appropriate
forum and fullness of remedies came to the fore. By the Common
Law Procedure Act, 1854, the common law courts were
empowered to grant some limited equitable remedies like
injunctions. In 1858, by the Chancery Amendment Act, the courts
of chancery were also empowered to grant some common law
7
(1804)AC240

9
remedies like damages. The Judicature Act,1878 attempted to
fuse the administration of these two systems in any cause before
a court. According to Ashburn’s principles of Equity 8 “The two
streams have met and now run in the same channel, but their
waters do not mix”

In Nigeria, following the cession of the Colony of Lagos in 1863,

the Ordinance,No.3,1863 made applicable to Lagos and the
Protectorates English Laws and Statutes in force in England as at
January, 1, 1863. Impliedly, this imported the principles of equity
in force in England as that date. Specifically, the Supreme Court
Ordinance, No.4, 1876 enjoined the application of the English
common law, doctrines of equity and statutes of general
application in force in England as at 24 thJuly 1874. Ordinance
No.17,1906 extended the 1876 law to the whole of southern
protectorate with the merging of Lagos colony. This was extended
in 1914 to cover the entire country with the fusion of the northern
and southern protectorates by the Supreme Court
Ordinance,1914 which,subject to local laws and circumstances,
enjoined the application of common law,doctrines of equity and
statutes of general application in force in England on the 1 st day
of January,1900.

With the creation of States from the regions in 1967, the various
States high court laws have enjoined the application of the rules
of equity in doing justice between litigants. Thelaws contemplate
equity in its broad and general sense.
8
(1993)2nd Edition, p.18

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There have been deliberate efforts over time through law reforms
to incorporate some of the English statutes and principles of
equity in its technical and broad sense into Nigerian legislations.
See for instance the Report of the Review of Pre-1900 English
Statutes in force in Nigeria, Vol11.1987. See also the Law Reform
of the former Western Region 1958 which ended the application
of the English statutes of general application in that region.

SELF ASSESSMENT

Briefly trace the origin of Equity as a body of knowledge

highlighting the various remarkable milestones.

3. RELATIONSHIP BETWEEN EQUITY AND CUSTOMARY LAW.

The reception statutes recognised the existence of native law and

custom and enjoined the courts to apply them except where such
native law and custom was considered repugnant to natural
justice, equity and good conscience. Equity was to moderate the
excesses of native customary law and do justice in any case
where the application of customary law will produce injustice. On
the expression “natural justice equity and good conscience”
Speed CJ in LEWIS v. BANKOLE9 said

“They are high sounding phrases and it would of course

not be difficult to hold that many of the ancient
9
(1908)1 NLR,82,84

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 customs of the barbaric times are repugnant thereto;
but it would not be easy to offer a strict and accurate
definition of the term”

It would appear that the notion of equity contemplated in this

repugnancy test is fairness in the general sense. In EDET v
ESSIEN10Essien married Iyang after performing all the customary
rites. Iyang later deserted the marriage and cohabited with Edet
and had two children. Edet also perform marriage rites over
Iyang. Essien claimed the two children on the ground that under
native law and custom at the time the children were begotten, his
marriage to Iyang was valid and subsisting. The Court held that
the rule of native law and custom that denied the natural father
his children was repugnant to natural justice equity and good
conscience.In Mariam v. SadikuEjo11 a child was born about
fifteen months after the parents last had intercourse but less than
ten months after divorce. The court held of the Igbirra customary
law that would have given the child to the divorced husband thus:

The native law and custom which the respondent asks

the court to enforce would have this girl taken for life
from her natural parents-the appellant and her present
husband and given to a total stranger.We feel that to
make such an order would be contrary to natural
justice, equity and good conscience.

10
(1932)ALL NLR 40.
11
(1962)NRNLR81

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However in AMACHREE v GOODHEAD12, a child born after the
death of his mother’s husband washeld to belong to the dead
husband’s family even though she was impregnated by someone
else. In RE EFFIONG OKON ATA13 a custom which permitted a
former slave owner to administer the personal estate of the slave
after the slave’s death was held to be repugnant to natural justice
equity and good conscience. In OKAGBUE v OKONKWO14, a
woman was married to a man on behalf of his dead brother and
had six children. The court held that the Onitsha native law and
custom which entitled a dead person to marry a living person was
repugnant to natural justice, equity and good conscience.

Similarly, the Court of Appeal held in MOJEKWU v MOJEKWU15

that the oliekpe custom of Nnewi that excluded female children
from inheriting the property of their father was repugnant to
natural justice, equity and good conscience.

It must be noted that the determinant of this test is not what

appears fair by some foreign standards but the standards of the
community where the custom is applicable. In DAWODU v
DANMOLE16, the lower court held that the Yoruba custom of idi-
igi which required the distribution of the estate of a deceased who
died intestate according to the number of his wives and not
children was repugnant to natural justice, equity and good
conscience. In its place the court preferred to apply the
12
(1923)4NLR 101
13
(1930) NLR 10.
14
(1994)9NWLR (Pt.368)301
15
(1997)7NWLR(Pt.512)233
16
(1962)1 ALL NLR702

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customary rule of ori-ojoriwhich ensured distribution was
according to the number of children and not wives. The Federal
Supreme court reversed this decision. On appeal to the Privy
Council, the Court held:

In their lordship opinion, the principles of natural

justice, equity and good conscience applicable in a
country where polygamy is generally accepted should
not in a matter of this be readily equated with those
applicable to a community governed by the rule of
monogamy. Their lordship are satisfied that idi-igi
proved and found to be still in force and effect in Lagos,
ought to be fairly and equitably applied to the estate of
the deceased

In these instances equity in the general sense is applied to

prevent injustice or harsh application of the rules of native law
and custom.

The relationship between equity and customary law has been one
of moderation. Generally it may be said that where a rule of
native law and custom was found to be unfair by the standards of
the community of its application, equity in the general sense of
fairness would intervene to prevent the application of such unfair
rules. Equity had moderating influence on customary law.

SELF ASSESSMENT

Is there any handshake between Equity and customary law?

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 4. NATURE OF EQUITABLE RIGHTS & INTERESTS.

Equitable interests are rights over properties, which fall below the
requirements of common law but nonetheless were recognised
and enforced by Courts of chancery. At common law, certain
formalities are prescribed to create or transfer legal interest in
property. For instance section 1 & 4, Statute of Frauds 1677
requires that land transactions must be in writing. Also section 2
& 3 Real Property Act requires a lease of property to be in the
contractual form of a deed. Non-compliance with these
requirements made the transactions unenforceable at common
law. In equity, these transactions found validity and
enforceability notwithstanding their defects with regards to form.
In Ogunbambi v. Abowab17, the court held that a purchase
receipt coupled with possession of a premises give rise to
equitable interest in the property.

Equitable interests can be those modeled on common law rights

and those invented by equity in the quest for justice. Equitable
interests modeled on common law rights are interest built upon
common law rights. At common law the trustee was the legal
owner of the trust property and the beneficiary had no interest in
the trust property. Equity recognise trust arrangement but makes
the trustee the custodian of thetrust property and the beneficiary
is regarded as the true owner for whose benefit the trustee holds

17
(1951)WACA 22

15
the property. Equitable interests invented by equity are those
which were not created by common law but by equity to do
justice in very peculiar circumstances for instance the
mortgagor’s right of redemption.

The general rule is that a legal estate in property is enforceable

against the whole world; a right in rem.Equitableremedies were
thought of as prevailing on the conscience on the party in default
and thus rights in equity were said to be in personam. Over time
equitable interest also became enforceable against the whole
world except a bonafide purchaser for value without notice.
Notice has bearing on the enforcement of equitable interest or
right.

Notice means knowledge of an existing interest in a particular

property. Notice may be actual, constructive or imputed. Notice is
actual where a person by disclosure or observation is aware of
existing interest in a property. Constructive notice is where a
person ought by exercise of diligence to have discovered the
existence of an interest in a property.The practical operation of
constructive notice is consistent with the basis of equitable
jurisdiction which is to prevent parties exercising their legal rights
in an unconscionable manner. See G.B. Ollivant Ltd. v.
Alakija(1950) 13 W.A.C.A. 63 at 67. The rule of equity is that

“where a purchaser has knowledge of any fact,

sufficient to put him on enquiry as to the existence of
some right or title in conflict with that he is about to

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 purchase, he is presumed either to have made the
inquiry, and ascertained the extent of such prior right,
or to have been guilty of a degree of negligence equally
fatal to his claim, to be considered as a bona fide
purchaser. The presumption, however, is a mere
inference of fact, and may be repelled by proof that the
purchaser failed to discover the prior right
notwithstanding the exercise of proper diligence on his
part.” Per Selden J., inWilliamson v. Brown (1857) 15
N.Y. 354, 362. See further Joyce J. in Berwick v. Price
(1905) L.R. 1 Ch. 632.

Imputed notice is where a proxy or an agent of a purchaser

acquires knowledge of an existing interest in the property in the
course of the transaction. The principal is affixed with the agent’s
knowledge.

Where there are two or more competing interests over the same
property, the issue of priority arises. This can happen for instance
where a fraudulent landowner sells the same piece of land at
different times to different persons. The rule Qui est tempore,
portiorest jure(Interest in property is ranked in order of creation)
may be invoked to resolve the challenge. Generally, where two or
more legal interests in a property conflict, the first in time
prevails. In ADU KOFI V. ADJE18, a piece of land was sold at two
authorised auctions to different persons at different times. The

18
(1942)8WACA 198.

17
court held that the person who bought the property at earlier
auction obtained a better title.

Where an equitable interest and legal interest conflict in a

property, the legal interest shall prevail because where the
equities are equal, the law prevails provided the subsequent
interest had no notice of a bonafide purchaser’s interest in the
property. Where the conflict is between two or more equitable
interest in a property, the first in time shall prevail. In Cave v.
Cave19, a trustee purchased land with trust money and conveyed
the land to his brother who granted legal mortgage and equitable
mortgage of the property to two different persons. The court held
that the legal mortgage prevailed over the equitable mortgage
and the beneficiary’s interest in the land (being first in time)
prevailed over the equitable mortgage.

InPilcher v. Rawlins20a father settled an estate in trust for this

children. The surviving trustee(uncle to the beneficiaries)
fraudulently mortgaged the property to another person who had
no notice of the trust or the fraud perpetrated by the trustee. The
children sued claiming equitable proprietary right in the property
and an order of court to re-convey the property to the trust. The
court held that the title of the mortgagee prevailed because he
had no knowledge of the trust and the fraud perpetrated by the
trustee,

19
(1880)15Ch D 639
20
(1871-72) LR 7.Ch.App.259

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There are certain equitable interests which arise principally out of
transactions affecting land and thus very pronounced in real
property law. Estate Contracts; are agreements to sell or lease
land which creates an equitable interest in the land
notwithstanding that the land has not been legally sold or
disposed. Such contracts may be enforced against the whole
world except a bonafide purchaser for value. The court may be
disposed to grant order of specific performance or damages.

Restrictive Covenants occur when the vendor of a land enters into

a contract with the buyer not to use the land sold in a certain
way. Equity permits such covenants to run with the land thereby
binding subsequent purchaser and constituting an exception to
the rule on privity of contract. Mortgagors equity of Redemption
allows a mortgagor to redeem his property after the contractually
redemption date has expired. This was not possible at common
law.

Equitable mortgage can be created in various way for instance

where a mortgagor mortgages his equitable interest in property,
an agreement to create a legal mortgage, where title deeds are
deposited pursuant to contract stipulating the terms of deposit,
where a legal mortgage is created without complying with the
formalities like the requirements under section 22 Land Use Act.

Equitable Charge will arise where under a written agreement a

property is to be regarded as security for a loan. In the case of
equitable lien, a vendor who has conveyed property and has not

19
been fully paid has a lien over the property pending when the
buyer has fully paid.

The right of the bonafide purchaser for value has been

circumscribed by the need for registration. The registration
regime in property law prescribes a registration for all interest
affecting law whether legal or equitable. Where there is no
compliance with this requirement, such interest may lose priority
(as interests shall rank according to the date of registration) and
be unenforceable at law.

SELF ASSESSMENT

Defined the boundaries of the nature of equity.

5. MAXIMS OF EQUITY.

Owing to the circumstance of its historical evolution and constant

need to meet the challenges of society, equity is not a complete
system whose rules have been exhaustively laid out. However
there are certain principles that have provided bases for the
chancery courts to exercise their jurisdiction and for courts to
intervene to provide equity reliefs. These principles are called
maxims of equity. The twelve maxims do not completely
delineate the scope of equity but provide circumstances in which
the courts have intervened and may intervene to grant equitable
reliefs. These maxims overlap each other and some may even be
construed to subsume the others.

1. Equity will not suffer a wrong to be without a remedy.

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The idea underlying this maxim is the essence of the jurisdiction
of the courts of chancery. For equity, no wrong capable of being
redressed should be left without a remedied. The inadequacies of
common law gave birth to equity as a body of law. The wrong
contemplated here must be one known to law and capable of
being remedied. Equity in this instance was vocal in the
enforcement of trust for the benefit of the cestuique trust and
also in the exercise of the auxiliary jurisdiction of the court to
order for disclosure and inspection. The maxim distilled from the
practice of equity entertaining cases of breach of trust, decreeing
specific performance, granting injunction in appropriate cases,
discovery of documents, appointment of receivers etc.

2. Equity follows the law.

The chancery court in applying the principles equity did not

attempt to overrun or replace common law. Where common law
was found inadequate, equity complemented or where the former
was harsh, equity mitigated the rigours of common law. Where
common law completely covers the field, equity had no role to
play. However as held in GRAFv HOPE BUILDING CORPN21 the
followership is not a slavish one. Where there is equitable basis
for intervention, the courts will permit equity to intervene. Equity
respects a man’s legal right unless it would be unconscionable on
his part to take advantage of them. Equity was however not free
to accept or reject the provisions of statute. Equity followed the
law. The chancery and common law courts were bound by the
21
254 NY 1,9 Per Cardoso C.J

21
provisions of the law except for clear case of fraud. In any case
equity is part of the legal system whose objective is the
attainment of justice. In TRANSBRIDGE CO. LTD v. SURVEY
INTERNATIONAL LTD22

Surely equity should not be treated as a tyrannous

phenomenon threatening the law. It does not exist in
vacuo or supposedly to roam about pouring water on
the fire of law. Equity is not a war lord, determined to
do battle with the law. It is part of a legal system which
has been mixed with the law and the mixture is for the
purpose of achieving justice.

3. Where there are equal equities, the law prevails.

This maxim governs the priority of competing interests in

property, one of which is legal and the other equitable. It two
competing interests are equal in the eyes of equity, the interest
that is legal in nature takes priority over the interest that is
equitable. If two person claim entitlement to piece of land and
one has a certificate of occupancy and the other an agreement to
sell to him. Even though the latter bought the land before the
holder of the certificate of occupancy, the holder of the certificate
will enjoy priority over the other unless he had a prior notice of
the other’s interest in the land. This may readily be the case as
between legal mortgage and equitable mortgage.

4. Where the equities are equal, the first in time shall prevail.
22
[1980]4 NWLR (Pt.37) 576

22
The first maxim determines priority between interests of a
different nature i.e. legal versus equitable, while the maxim
under review determines priority between interests of the same
nature i.e. legal versus legal or equitable versus equitable. Where
the competing interests are equitable in nature, the first to be
created or comes into existence prevails over the one that is
latter in time. This is based on the latin maxim Qui prior est
tempore portiorest jure-He who is first in time is stronger in law.

5. He who seeks equity must do equity.

Equity normally intervenes to protect a party from the unjust

conduct of another. It is expected therefore that the party who
invitesequity against an unjust action must show himself as being
just in the matter. He must do unto other what he requires them
to do to him. In ALLIED BANK NIGERIA PLC v. BRAVO WEST
AFRICA LTD23the plaintiff used his property as security for a loan
advanced by the bank. The loan was repaid but unknown to them,
the bank through an auctioneer had sold the property to another
person. The plaintiff sued claiming a nullification of the sale
transaction and injunction restraining the bank from dealing with
the property. The court granted the reliefs to the plaintiff.
Dissatisfied the bank appealed. Dismissing the appeal, the Court
of Appeal that the bank having received payment for the loan and
concealed the sale from the respondent had not done equity in
the matter.

23
(1996) 5 nwlr(Pt439),710,731`.

23
This maxim manifests in several instances. In mortgages, once a
date for redemption is stipulated between the mortgagor and the
mortgagee, the mortgagor at common law is obliged to redeem
the mortgaged property or losses his right of redemption. In
equity, the consideration is different; once a mortgage always a
mortgage. The only reason why a mortgagor gave his property to
the mortgagee is for it to serve as security for the loan.
Agreement on the date for redemption is a more formality and
should not operate to deprive the mortgagor of his property.
Accordingly if the mortgagor cannot redeem on the date agreed
upon, equity accommodates him to redeem subsequently once he
gives reasonable notice of his intention to redeem. Not only has
the mortgagor equity of redemption, such equity of redemption
must not be fettered or clogged24.

In the case of illegal loan or mortgages that are statute barred,

under common law or statute, loans transaction that have not
met the strict requirements of either enabling laws or the general
laws are not be enforceable. Equity however requires the claimant
of such positions must be seen to do justice in the circumstance.
In Lodge v. National Union Investment Co25a party borrowed
money from an unlicensed money lender and gave his property as
collateral. Unable to repay the loan,sued asking for an order of
court to compelled the money lender to deliver his property to
him since the transaction was illegal as the money lender was not

24
Noakes&Co Ltd v. Rice(1902)AC24;Biggs v.Holdinott(1898)2Ch,307.
25
(1907)1Ch.300.

24
licensed as required by law. The court held that the order could
not be made while the loan remained unpaid.

In Kasunmu v. Baba Egbe26the court held that a money lender

who failed to keep a book recording of the transaction as required
by section 19 Money Lenders Act could not enforce the
transaction. The plaintiff who borrowed money from such money
lender was entitled to an order of court deliverying such property
to him with any requirement that he must have repaid the loan 27

In Eboni Finance & Tec.Ltd v.Wole-Ojo Tech. Services 28 the

appellant a finance company gave a loan facility to the
respondent to finance the execution of an LPO. Unable to repay
the loan, the respondent contended that the appellant did not
have money lending as its primary object and therefore did not
qualify as a money lender and could therefore not recover the
loan. The court of Appeal held that this would amount to unjust
enrichment on the part of the respondent.

In the case of mortgage transactions that are statute barred,

where the mortgagee is in possession and the debt is unpaid, the
mortgagor cannot in good conscience bring a suit to eject the
mortgagee from the property.

6. He who comes to equity must come with clean hands.

Equity is concern about justice and fairness. The one who

complains about injustice and unfairness done to him for which he
26
(1956)AC539.
27
Text writers have expressed different views on this case. See Kodilinye&A.K.Usman.
28
(1996)7 NWLR,(Pt.461)464

25
seeks redress must show that in his relationship in the transaction
in question that he has done justice and fairness. Thus where the
conduct of a suppliant for equitable relief is not transparent,
clean, free from mischief, indolence or equivocation, the
indulgence he seeks at equity will most likely be refused. This
maxim does not require a party to have lived a blameless life or
be a saint. He only needs to demonstrate that he has been fair
and equitable in the transaction in question. In Craig v. Craig29,
a petitioner sought dissolution of her marriage on the ground of
cruelty and adultery without disclosing that she was also guilty of
adultery. The Court held that she had approached equity with
unclean hands and therefore not entitled to the reliefs sought.

In Government of Lagos State v. Ojukwu 30 the military

government of Lagos state forcefully ejected Ojukwu from his
premises and thereafter sought an injunction to restrain him from
entering into the premises. In refusing the application for
injunction Esho JSC held “ to use force to effect an act,and while
under the marshal of that force,seek the court’s equity is an
attempt to infuse timidity into the court and operate a sabotage
of the cherished rule of law. It must never be.”

7. Delay defeats equity.

It is a general principle of equity that a person will noe granted an

equitable relief if he has been guilty of undue delay in seeking the
enforcement of his right. Delay that can defeat a person’s right in
29
(1942)16NLR,254.
30
(1986)1NWLR(Pt.18)621

26
this situation is called laches and acquiescence. In Nsiegbe
v.Mgbemema31 the court held that acquiescence means conduct
from which it can be inferred that a person has agreed to certain
state of affairs affecting his legal right. Thus a person is guilty of
acquiescence when he abstains from interfering when his legal
rights are violated. He is guilty of laches when he takes no steps
to enforce his violated rights. While acquiescence operate to
create estoppel,laches operate to create a waiver.

Laches and acquiescence operate where it would be unjust to

give a remedy either because the plaintiff had by his conduct
done that which it might fairly be regarded as a waiver of his right
or where by his conduct and neglect, he has put the defendant in
a situation it would not be reasonable to place him if his right
were afterward to be asserted. The principles governing laches
and acquiescence were graphically articulated in the case of
Ramsden v. Dyson32. According to lord Cranworth

If a stranger begins to build on my land supposing it to

be his own and I perceiving his mistake, abstain from
setting him right and leaving him to persevere in his
error, a court of equity would not allow me afterward to
assert my title to the land on which he had expended
money on the supposition that the land was his own. It
considers that when I saw the mistake into which hehad
fallen, it my duty to be active and to state my adverse

31
(1996)1 NWLR(Pt.462),607,623
32
(1892)LR.HL.140,141.

27
 title,and that it would be dishonest inme to remain
willfully passive on such an occasion, in order
afterwards to profit by the mistake which I might have
prevented. It should be observed that to raise such an
equity, two things are required. First, that the person
expending the money supposed himself to be building
on his own land. Secondly that the real owner at the
time of the expenditure knew that the land belong to
him but not the person expending the money in the
belief that he is the owner. For if a stranger built on my
land knowing it to be mine, there is no principle of
equity which would prevent my claiming the land with
the benefit of all the expenditure made on it, there
would be nothing in my conduct, active or passive to
make it inequitable in me to assert my legal right.

Laches and acquiescence can only be used in defence to an

action and not as a basis for a claim.

8. Equality is Equity.

Equity favours equal and fair treatment of claimants. Unless there

reasons to the contrary clearly expressed, people who are entitled
to properties at equity are to get equal division

This manifests clearly in the presumption of tenancy-in-common

where a property is jointly held. At common law a survivor of a
jointly held property takes all the property to the exclusion of the
heir of the deceased joint holder. Considering the unfairness of

28
this doctrine, equity presumes tenancy on common in place of
joint tenancy. Also under the doctrine of satisfaction, equity leans
against double portion.

9. Equity Looks to the Intent Rather than the Form.

If for any genuine cause the form prescribed by common law is

not complied with, equity may look beyond the inadvertence to
ascertain the intention of the parties in considering the
transaction. Equity looks at the intention of the parties rather
than to the form they had reduced such intention into for animus
hominisest anima scripti (the intention of thye person is the soul
of the instrument). It is for this reason that equity is lenient with
arrangements that may be outside the time frame or form
prescribed by common law in so far as the intention of the parties
are catered for.

10. Equity looks on that as done which ought to be done.

Where there is a specifically enforceable obligation, equity

regards the parties as already in the position they would be in in
after the performance of the obligation. Is for this reason that in
equity specifically enforceable contract for a lease creates an
equitable lease; a specifically enforceable contract for the sale of
land transfers the equitable interest in the land to the purchaser,
the vendor holding the legal title in constructive trust until
completion.

11. Equity Imputes an Intention to Fulfill an Obligation.

29
Where a person is oblige to do some act and he does some other
act which could be regarded as performance of it, then it will be
so regarded in equity. If for instance, a debtor leaves a legacy to
his creditor of an amount as big as the debt, it is presumed that
the legacy is in repayment of the debt such that unless the
presumption is rebutted, the legatee cannot take the legacy and
sue to recover the debt from the estate of the debtor.

12. Equity acts in Personam.

Expressed aequitasagit in personam, early chancellors maintained

that unlike common law which proceeded upon set and fixed
principles, equity proceeded upon the conscience of litigants and
so are equitable reliefs. The aim of chancery jurisdiction was not
to override common law but to ensure that common law rights
were exercised conscionably. On property matters, the maxim
initially meant that the court of chancery will only act against the
person of the defendant by committing him to prison if he fails to
obey an equitable order but itself not affect the transfer the
property. By latter development, equity in few cases such as
order of sequestration and tracing makes order that affect third
parties in what may appear to be an order in rem.

SELF ASSESSMENT.

State the functions of each of the twelve apostles of equity

30
 6. CHOOSES IN ACTION: CONVERSION: ELECTION:
SATISFACTION.

Chose.

An asset may be real or personalty. A property that is fixed and

immovable is said to be a real property while chattels that are
movable and not fixed are referred to as personalty chattel.
Personalty chattels may be tangible and capable of being
physically possessed(i.e books,clothings, car etc) or intangible
which may not be subject to physical possession but vest in
law(intellectual property, fundamental right, bill of
exchange,debt). While the former is referred to as choses in
possession, the latter is called choses in action. While choses in
possession has corporeal characteristics, choses in action are less
corporeal.

A chose in action may be legal or equitable. Where it has met all

the requirements of common law and can be enforceable by an
action in law, it is said to be a legal chose in action. Where its
enforceability is dependent on the leniency of equity, such is an
equitable chose in action.

Assignment is a transfer of a right. Where A is indebted to B for a

sum of money, B's right to recover the money from A is a chose in
action. If B assigns the right to C, B becomes the assignor while C
becomes the assignee of the right which C can enforce against A.
Such assignment need

31
not be with the consent of A, who is liable to discharge the liability
to C, the assignee. The question of consent brings out the
fundamental distinction between assignment and novation. A
valid assignment of a debt may be made between the assignor
and the assignee without the consent or even knowledge of the
debtor, but in the case of novation, consent of the debtor is a
sinequa non to its validity, that is, all the parties concerned must
give their consent, since the effect ofnovation which is a tripartite
agreement, is to rescind the original agreement between two
parties and replace it by a new contract. Thus a new creditor may
be substituted for the original creditor or a new debtor for the
original debtor. In all cases the original contract will cease to
exist.
As a property, transfer of choses in action was generally frowned
upon on the consideration that the rights were strictly personal.
As an exception, choses in action could only be assigned in law in
limited circumstances only and in a recovery action by the
assignee, the assignor must be joined as a party because the
assignee could not bring the suit in his own name. Thus
assignment became the means by which choses in action became
transferrable at law. Equity however created more instances of
the right to transfer without necessarily making the assignor a
party to the action and enabled the assignee institute the case in
his own name.

At common law, no debt or other chose in action could be validly

assigned, unless the debtor or the person to discharge the liability

32
assented to the assignment. One of the reasons for the rule
against assignment at common law was that assignment 'would
be the occasion of multiplying of contentious and suits of great
oppression of the people ... and the subversion of the due and
equal execution of justice. 'See Lampet's Case (1613) 10 Co. Rep.
46(b) at 48(a); 77 E.R. 994. Another ground for non-recognition
and non-enforcement of assignment was to avoid the risk of
maintenance and champerty. Thus, at common law a debt
presently due and payable was looked upon as a strictly personal
obligation, and an assignment of it was regarded as a mere
assignment of a right to bring an action at law against the debtor.
Hence, the assignment was looked upon as open to the objection
of maintenance. Farewell, L.J. in Defriesv. Milne33 expressed the
risk of maintenance and blackmail in assignment. He said 'It
would be exceedingly bad policy to allow a person to sell rights of
action for tort which he did not care to run the risk of enforcing
himself; as for example to allow a liquidator to put such rights up
for auction and sell them to someone who might buy for a small
sum of money the chance of recovering a larger sum or possibly
of blackmailing.' The personal nature and character of the
obligation upon which the right assigned depends and the fear of
the debtor's imprisonment was another reason for the inclination
of the common law not to recognise or enforce assignment.
Common law emphasised the possibility of each of the two parties
to the obligation having reposed confidence in the personal
character of the other and as such might not have envisaged
33
(1913) 1 Ch. 98 at 110-111,

33
dealings in respect of the obligation with any other party. Thus a
debtor usually reposed some confidence in his creditor, believing
that the creditor would normally refrain from proceeding to
extremities; this accounted for the common law view of a debt as
a personal relation. 'In general Common Law uncompromisingly
viewed any attempted assignment as an intrusion by a third party
into a quarrel between two others.'
From the early times courts of equity have always permitted and
enforced assignments of all kinds of choses in action. Thus in
Rodickv. Gandell(1852) 1 De G.M. & G. 763 at 777, Lord Truro
said
'An agreement between a debtor and a creditor that the
debt owing shall be paid out of a specific fund coming
to the debtor, or an order given by a debtor to his
creditor upon a person owing money or holding funds
belonging to the giver of the order, directing such
person to pay such funds to the creditor, will create a
valid equitable charge upon such fund; in other words,
will operate as an equitable assignment of the debts or
fund to which the order refers. '
The reason for the equity’s flexibility towards recognition and
enforcement of assignment of choses in action can be seen in the
observation of Cozens-Hardy, L.J. in Fitzroy v. Cave34
'At common law a debt was looked upon as a strictly
personal obligation, and an assignment of it was
regarded as a mere assignment of a right to bring an
action at law against the debtor. Hence the assignment
was looked upon as open to the objection of
maintenance.... But the Courts of Equity took a different
view. They admitted the title of an assignee of a debt,
regarding it as a piece of property, an asset capable of
34
(1905) 2 K.B. 364 at 372.

34
 being dealt with like any other asset, and treating the
necessity of an action at law to get it in as a mere
incident '.
For a valid equitable assignment of chose in action, there must be
a clear discernible intention to assign the chose. If this
requirement is satisfied, no particular form for the assignment is
prescribed. The particular chose to be assigned must be
identified. The fact of the assignment of the chose must be
communicated to the assignee for the latter to take the benefit of
it. There must evidence of exchange of consideration since equity
does not aid a volunteer.

Where an assignment has been made it is important to give

notice of the assignment to the parson under obligation to pay
the debt. This will prevent payment to a wrong person. The rule in
Dearle v. Hall35is that priority of assignment is not determined
according to the order the assignments were made but the order
in which successive assignees gave notice of their assignments to
the person under obligation to pay. The first to give notice enjoys
priority in the discharge of the debt due from the party under
obligation to pay. In Laibru& Co v. B&C. E Contractors36a
business man formed a company and transferred certain of his
properties to the company including a debt owed him by B & C. E
contractors. The Company did not give notice of the assignment
of the debt to B&C.E contractors. The Court held that the
assignment was converted to an equitable assignment.

35
(1828)3 Russ, 1.
36
(1980)2ALL NLR 148

35
The notice given need not be formal. Salary, alimony and
contracts of personal nature are not assignable. Assignments
savouring of champerty are also not countenanced.

Conversion

Conversion in equity is the fiction that in certain circumstances, in

the hand of the current holder money can be turned to landed
property and land property can be turned into money. The
essence of this conversion is to ensure that fairness and justice is
done to a claimant of such money or landed property such that
the current form of the property notwithstanding. Reconversion
occurs where there is reversal of the conversion.

The equitable doctrine of conversion rests on the maxim that

equity regards as done what ought to be done. The doctrine
becomes relevant wherever there is an obligation arising under a
will, trust, contract or court order, to sell or purchase land. In
equity, even though the obligation has not been carried out, the
existence of such obligation is sufficient to fix the rights of the
parties and to determine the nature and character of such rights
as they would have been if the obligation had in fact been
performed.
Bowen, L.J. inAtt. Gen. v. Hubbuck37. once said: 'It is an
established principle in equity that when money is directed or
agreed to be turned into land, or land agreed or directed to be
turned into money, equity will treat that which is agreed to be or

37
(1884) 13 Q.B.D. 275, 289

36
which ought to be done as done already, and impresses upon the
property that species of character for the purpose of devolution
and title into which it is bound ultimately to be converted.'

Satisfaction

Equitable doctrine of satisfaction is said to be founded on the

maxim that equity imputes an intention to fulfill an
obligation.Equity considers that if a father has more than one
child, it is unlikely that he would wish to provide for one child
twice to the detriment of the others hence the sub maxim equity
leans against double portion.
Satisfaction is the gift or donation of a thing with the intention
that it shall be taken either wholly or partly in extinguishment of
some prior claim of the donee. Thus, the doctrine becomes
relevant where X, who had been under a certain obligation to give
something to Z, donates a thing (which is not directly connected
with the discharge of his obligation) to Z; such a donation, subject
to the fulfillment of some other attendant requirements, raises a
presumption that the intention of X in making the donation is to
satisfy or discharge his prior obligation to Z.
Before a presumption of satisfaction can be raised, two basic
requirements must be met: first the donation must have been
made in such circumstances that an intention on the part of the
donor to satisfy an obligation can be presumed since the essence
of the equitable doctrine of satisfaction is to carry into effect the

37
presumed intention of the donor. In Goldsmidv.
Goldsmid38Plumer M.R. said
"wherethere is a question of satisfaction, there must be
a reference to the intention. Satisfaction is a
substitution of one thing for another; and the question
in cases of that kind is whether the substituted thing
was given for the thing proposed."
Second, there must be some prior and existing claim of the
donee; cases of genuine equitable satisfaction presuppose an
existing obligation which the donor is presumed to have intended
to satisfy.

Election

Where a donor by deed or will gives his own property to B and in

the same will or deed purports to give B’s property to C. B will not
be able to claim the whole of the gift to him unless he allows the
gift to C to take effect. He is put to an election of the gift.

The doctrine was developed in the course of the development of

equity. In the case of Noysv. Mordaunt39, it was stated that the
general principle governing election was evolved to prevent a
person claiming under a will from contravening it. Thus no person
can accept and reject the same instrument. 'If a testator gives his
estate to A and gives A's estate to B, Courts of Equity hold it to be
against conscience that A should take the estate bequeathed to

38
(1818) 1 Wils. Ch. 140, 149,
39
(1706) Vern 581 at 583; 23 E.R. 978

38
him, and at the same time refuse to effectuate the implied
condition contained in the will of the testator. The court will not
permit him to take that which cannot be his but by virtue of the
disposition of the will; and at the same time to keep what by the
same will is given or intended to be given to another person. It is
contrary to the established principles of equity that he should
enjoy the benefit while he rejects the condition of the gift.' The
doctrine was originally confined to gifts arising under a will, but it
was later extended togifts under deed.

SELF ASSESSMENT

What are choses in action?

7. REMEDIES IN EQUITY

Equitable remedies include specific performance,

injunction,appointment of a receiver, rectification, rescission,
account, delivery up and cancellation of documents. These
remedies evolved and were applied pursuant to the concurrent
jurisdiction of the chancery and common law courts, The courts
would called in aid these remedies where common law could not
provide remedies or adequate remedies. The grant of these
remedies is entirely at the discretion of the court; a discretion to
be exercised judicially and judiciously.

Specific Performance.

39
Specific performance means that a party who has willingly
entered into a contract with another party, but which contract he
no longer wants to go on with, may at the suit of the other party
be bound over by equity to go on with the contract. Like other
equitable remedies, it is granted at the discretion of the court and
available usually for transactions in land only. In equity once
there is a valid and binding bargain and it would be
unconscionable to allow a party to resign from it, equity will
intervene to direct the party in breach to specifically conclude the
bargain. In Hodges v. Kowing40, the Defendant agreed to sell his
piece of land to the plaintifffor 9,500 pounds. The Defendant
failed to conclude the contract. The Chancery Court held that the
plaintiff was entitled to a decree of specific performance against
the Defendant.

In Hasham v. Zenab41the defendant agreed to sell his land to

the plaintiff but before the period fixed for completion of the
contract, the defendant repudiated the agreement. The defendant
argued that since there was no concluded contract, there was no
cause of action at law. The court rejected this argument holding
that a decree of specific performance will issue if the aggrieved
party shows circumstances justifying the intervention by equity as
in this case.

In Incar(Nig) PLC v. Bolex Enterprises42the appellant sold its

piece of land at PortHarcourt to the Respondent for N4m but
40
(1889)6Ch.459
41
(1960)AC,316
42
(1996)6NWLR(Pt.454)318

40
refused to execute a deed of conveyance of the said property to
the Respondent. Instead it sold the same property to another
person for the sum of N4.2m. The High Court and Court of Appeal
held that the respondent was entitled to an order of specific
performance against the Appellant.

For this order to be made by the court, the parties must have
reached a final, complete and binding agreement as to the terms
of their bargain. The parties must intend to be bound by their
agreement and the necessary legal form complied with. The
remedy of specific performance is available for executory
contracts only not executed contract for which damages at
common law would be adequate remedy. It is available for
transactions on land and when it is practicable and realistic to
issue. It will not be available for a transaction not supported by
consideration. The party seeking the remedy of specific
performance must show that he has furnished consideration.
Furthermore for this remedy the parties must mutually be entitled
to its issue as the case may be and it is not available for contract
terminable at will. Specific performance will not issue in respect of
a contract that requires constant supervision or contract for
personal service. Contract specifically enforceable in part only will
not enjoy the order of specific performance so is illegal or
immortal contracts. In Cartwright v. Cartwright43the court
refused to issue an order of specific performance to enforce an
agreement between a husband and wife for future separation.

43
(1853) 3 De G.M & G.982

41
Injunction.

Injunction is the most important equitable remedy evolved by

equity. According to Karibi-Whyte JSC, in BabatundeAdenuga&
5 Ors v. K Odunewe&Ors44 Injunction is “an equitable order
restraining the person to whom it is directed from doing the
things specified in the order or requiring in exceptional situations
the performance of a specified act” It is broadly defined as an
order of court by which a person is required to do or refrain from
doing a particular act. By this, an injunction may be mandatory or
prohibitory.

Prohibitory injunction restrains the person to whom it is directed

from doing or continuing with a specific act to the detriment or
annoyance of the applicant. It is restrictive. This is prominently in
use.

Closely likened to the mandatory injunction is the quiatimet

injunction. This injunction is granted at the suit of a party who
fears that the respondent would in future commit an unlawful act
against him. It is futuristic and speculative and rarely granted. Its
origin and purpose was articulated by lord Upjohn in Redland
Bricks Ltd v. Morris45

“to prevent the jurisdiction of the court from being

stultified, equity invented thequiatimetaction, that is,
an action for an injunction to prevent an apprehended

44
(2001) 2 NWLR(Pt.696)184,195
45
(1970) AC 652

42
 legal wrong though none has occurred at the present”
There must be an immediate threat and not a mere
apprehension to invoke this remedy.

A mandatory injunction is an order of court directing the person to

whom it is address to do a positive act. It is restorative. In
Abingdon Corporation v. James46 a mandatory injunction was
granted against the defendant to compel him to demolish houses
wrongfully built over waters mains.

With regard to duration, injunction may be interim, interlocutory

or perpetual.There are legal principles that have crystalised from
decided cases upon which the court will grant any of these
injunctions47.

Interim injunction is granted by the court where there is a real

urgency to prevent the subject matter in litigation from
destruction. It is granted at the instance and hearing of the
complainant only and the order made is meant to last for a short
duration until the other party is put on notice and heard on the
matter. The essence of the interim injunction is to preserve the
res. It is normally obtain on an application made to the court
expartesupported by an affidavit showing clearly the urgency in
the matter and the need to grant the order.

Interlocutory injunction is a preservative order made by the court

to preserve the subject matter of the suit until the matter is heard
46

47
Kotoyev.CBN (1989)1NWLR(Pt.98)419: Obeya Memorial Specialists Hospital Ltd v. AG Federation(1987) 3 NWLR,
(Pt.60)325

43
on its merit and the court enters final judgment on the matter. For
the grant of this interlocutory order, all the parties are put on
notice and are heard by the court on the need or otherwise to
grant the order. There are principles upon which the court grants
interlocutory injunction.

Perpetual injunction on the other is a permanent order of the

court in the definition of the parties’ rights in relation to the
subject of the suit. This is granted after the court has fully heard
the case and made a final determination of the suit.

Mareva injunctionis an injunction granted to restrain a defendant

with money or property within jurisdiction from disposing off the
money or property when the plaintiff has made out a prima facie
case against the defendant and it appears the defendant islikely
to dispose of his property within jurisdiction to frustrate
enforcement of any judgment that may be awarded in favour of
the plaintiff. It is also known as freezing order. It was first
granted48 in the case of MAREVA COMPAGNIA NAVIERA S.A.
v.INTERNATIONAL BULK CARRIERS S.A.49where lord Denning
is reputed to have stated

“If it appears that the debt is due and owing and there
is a danger that the debtor may dispose off his assets
so as to defeat it before judgment, the court has
jurisdiction in a proper case to grant an interlocutory

48
Before 1975 a plaintiff could obtain such restrain order from the court. See Cotton LJ in LISTER & CO V.
Stubbs(1970) 45 ch,1,14.
49
(1975)2 Lloyds Rep.501

44
 injunction so as to prevent him disposing of those
assets”

It may be obtain on exparte or interlocutory application. The

conditions for its grant have been stated in the case of
SOTIMINU v. OCEAN STEAMSHIP (NIG.)LTD50. The applicant
must show51:

i. A justiceablecause of action against the defendant which.

ii. Real and imminent risk of the defendant removing his
assets from jurisdiction and thereby rendering nugatory
any judgment which the plaintiff may obtain.
iii. Full disclosure of all material facts relevant to the
application.
iv. Full particulars of the assets within the jurisdiction.
v. Balance of convenience is on the side of the applicant.
vi. The applicant is prepared to give an undertaking as to
damages.

Mareva injunction is only restraining order and not an attachment

order to meet a judgment of court.

Anton Pillar injunction is an order of court requiring a defendant to

allow certain persons to enter his premises to search for
document and movable articles as are specified in the order and
to permit such documents or articles to be taken away, This is an
order of court granting right to enter and search premises and

50
(1992)5NWLR,(Pt.239) 1
51
See also Durojaiye v Continental Feeders (Nig.) Ltd (2001)14WRN 141

45
seize evidence without prior warning 52. It is granted on exparte
application and in camera to prevent the destruction of credible
evidence especially in the case of intellectual property violations.
The order took its name from the case of ANTON PILLAR K.G. v.
MANUFACTURING PROCESS LTD53. In this case some German
manufacturers of computer frequency converters alleged that the
defendants were in secret communications with other German
manufacturers of the same product and giving them vital
information about the applicant’s business which was damaging
to the applicant’s copyright and business. The court held that the
defendants could be restrained from the alleged breached but
directed that the defendant be put on notice regarding the prayer
to enter the defendant’s premises.

It is not a search warrant as the consent of the defendant must be

sought before the entry into his premises. It is applicable for civil
cause and the courts are very wary about the intrusive character.

Receivership

Under common law, where a plaintiff obtains judgment against

the defendant in a sum of money and the defendant judgment
debtor has no other property on which execution of the judgment
debt could be levied upon save an equitable interest in some
property, the plaintiff judgment creditor could not levy execution
on the said equitable interest because common law did not

52
FERODO LIMITED v. UNIBROS STORES (1980)FSR 489 : OLUWONISHOLA v DEVELOPMENT CO. v GUINEA
INSURANCE CO. LTD(1980-1986)VOL.2 NIGERIAN SHIPPING CASES 275.
53
(1976) Ch.55

46
recognise equitable interest. In equity the remedy of appointment
of a receiver of the equitable interest of the judgment debtor
provided a relief for the judgment creditor where common law
was deficient. Thus where a debtor gives his property as collateral
for a loan but has not perfected the legal requirements for
creating the legal charge, he has merely an equitable charge over
the property and the creditor can seek the appointment of a
receiver to realise his interest in the collateral. Where the receiver
will have powers to manage the property to realise the interest of
the judgment creditor, he is called Receiver/Manager. The court
will appoint a receiver manager to enable persons who possess
rights over property to obtain the benefits of those rights and to
preserve the property pending realization and also to preserve
property from some imminent danger.

Rectification.

Where a written document does not accurately reflect the true

intention of parties to the document owing to common mistake by
the parties, equity will order rectification of the document to
reflect the intendment of the parties. This is because equity looks
to the intent rather than the form. Certain conditions must be
fulfilled before the court can order rectification. i. The parties
must have reached a complete agreement and the terms well
settled and known to them.

ii. The agreed intention of the parties must remain up till the
execution of the document.

47
iii. A common mistake must have led to the instrument failing to
express accurately the agreement reached by the parties.

Where the document is one that can easily be rectified by the

parties, the court will not order a rectification. The court will not
order the rectification of a will since the testator is dead and
cannot have a say on the proceedings for rectification. This
remedy is at the discretion of the court and will effectively relate
back to the date the document was made.

Account.

An order for account is a direction by a court that transactions

undertaken by a person occupying certain position of trust be
investigated to ascertain how well he has managed a property in
his custody or possession. In Abbas v. Ajoge54The plaintiff
sought for an order of account against the defendant, his agent in
respect of a sum of money received by the defendant from sales
of petroleum products at the plaintiff’s filling station in Kaduna
which had not been accounted for by the defendant. The court
granted the order which was affirmed on appeal.

Delivery up and Cancellation of Documents.

This jurisdiction is exercised against void or voidable instruments

whose defects do not appear on the faces of the documents. The
court on ascertaining the defects of such documents may order
that it be delivered up to the court for cancellation to prevent its
likely fraudulent use in the future on innocent third parties. For an
54
(1996)4NWLR(Pt.444) 496

48
order of delivery up to be made, the document must be void
against the entire world. Thus forged instrument of title would
readily be the subject of this equitable remedy.

Rescission

This is an equitable remedy to set aside a contract for reasons

occasioned by the other party. Upon rescinding the contract,
parties are expected to be restored to their positions before the
contract. Properties and or monies that have exchange must be
restored back. The essence of rescission is restitutiointergrum,
that is restored the parties to the position they would have been if
the contract had not been made. At common law, the remedy of
damages seeks to put the party in the position he should have
been if the contract had not been breached. Contract vitiating
elements like misrepresentation, fraud, non-disclosure and lack of
capacity can provide grounds for the exercise of the right of
rescission. The right to this remedy may be lost where by the
affirmation of the person who had the right, lapse of time as
equity does not aid the indolent and where restitutiointergrum is
not possible.

SELF ASSESSMENT

In what instances would particular equitable remedy apply?

8. DEFENCES IN EQUITY.

49
Estoppel.

Where in an action between two parties, one of the parties had,

either by words or conduct, made some representation (in
connection with the transaction that gives rise to the cause of
action) to the other party, the maker of such representation would
be precluded from denying making the representation. The
insistence of the court that such representation shall not be
denied by the maker may be decisive in the determination of, or
fixing the rights of the parties: thus a plaintiff who had made such
representation, may fail in an action in which he would have
otherwise succeeded.Lord Cranworth in West v. Jones55, said
'Where a party has, by words or by conduct, made a
representation to another leading him to believe in the
existence of a particular fact or state of facts, and that
other person has acted on the faith of such
representation, then the party who made the
representation shall not afterwards be heard to say that
the facts were not as he represented them to be.'
The doctrine is common to both law and equity though there is
evidence it had its root in equity.
Before the decision in the High Trees Casein 1947, it was believed
that the application of the doctrine of estoppel was limited to
representation as to existing facts onlyand does not apply to
mere declaration of intention or future conduct. This appears to
change with the decision in the case of Central
LondonProperty Trust Ltd. v. High Trees House Ltd56In that
case, the plaintiff company leased a block of flats to the
55
(1851), 1 Sim. (N.S.) 205; 61 E.R. 79 at 207
56
(1947) K.B. 130 at 134.

50
defendants at a rent of £2,500 per annum. Later because of the
war conditions, many of the flats remained unoccupied and the
plaintiff thereby agreed in writing to reduce the rent. The
defendants paid the reduced rent up to the end of the war when
the plaintiff claimed his full rent both retrospectively and for the
future. He brought this action claiming rent at the original rate for
the last two quarters of 1945 when the war ended and also to
resume his full right to claim rent at the original rate. (The
defendants could not have sued on the plaintiffs' promise to
reduce the rent because the promise was not supported by
consideration) Denning J. sustained the defence of estoppel as a
bar to the claim for arrears of rent calculated at the original rate.
Although the representation was based on a promise as to the
future,the promisor was held bound on the ground that he
intended to be legally bound because he intended to create a
legal relation which to his knowledge would be acted upon and
was in fact so acted upon. In the course of his judgment, Denning
J, said:
'But what is the position in view of developments in the law
in recent years? The law has not been standing still since
Jorden v. Money. There has been a series of decisions over
the lastfifty years which, although they are said to be cases
of estoppels, but are not really such. They are cases in which
a promise was made which was intended to create legal
relations and which, to the knowledge of the person making
the promise, was going to be acted on by the person to

51
 whom it was made, and which was in fact so acted on. In
such cases the courts have said that the promise must be
honoured.'
This formulation of a new equitable estoppel termed promissory
estoppel or estoppel by waiver has been consistently followed.
Even Denning J. admitted that it wasnot a case of estoppel in the
strict sense though the result of its application is the same as that
of strict estoppel. Indeed, the cases which Denning J. relied upon
for his proposition were decided without reference to estoppel.
In Hughes v. Metropolitan Railway Co.57the lessor gave the
lessee six months' notice to repair and the lessor would be
entitled to an ejectment order if the lessee failed to comply with
the notice. Before the expiry of the notice, the lessor entered into
negotiation with the lessee for the sale of the reversion but the
negotiations subsequently terminated. The lessee did not effect
any repair; and on the expiry of the notice, the lessor brought an
action seeking an ejectment order against the lessee, claiming
that the lease had been forfeited for non-compliance with the
notice to repair. The House of Lords held that the opening of the
negotiations amounted to
a representation of intention by the lessor that he would not
enforce the notice, at least during the currency of the negotiation
and that it was that representation that induced the lessee not to
comply with the notice to repair. The court held that the
representation precluded the lessor from enforcing the notice

57
(1877) 2 App. Cas. 439 at 448.

52
which would start to run only from the termination of the
negotiations.
In Salisbury (Marquess) v. Gilmore58 the defendant was the
tenant of the plaintiff; when his tenancy had twoyears 'to run he
asked his landlord for a renewal which was refused and was
informed by his landlordthat the premises were to be demolished
at the expiration of the term. The defendant left thepremises
unrepaired and the plaintiff brought an action claiming damages
for breach of covenant to
repair. The trial court awarded damages to the plaintiff but the
decision was reversed by the Court of Appeal.
In Offiong v. African Development Corporation Ltd59 the
appellant who was the Secretary of the respondent-company was
indebted to the company in respect of the car given to him by the
company when he took up employment with them. The appellant
resigned his appointment and requested that the company
waived the payment of the balance due on the car. The company
granted the request but later brought an action to recover the
balance claiming, inter alia, that the release was not binding on
the company because the appellant gave no consideration for it.
De Lestang C.J. said
'It is contended that the release is not legally binding
because the appellant gave no consideration for it. In
my view this case falls squarely within the principles
established by Central London Property Trust Ltd. v.

58
(1942) 2 K.B. 38.
59
(1964) 2 All N.L.R. 75 at 79.

53
 High Trees House Ltd., as explained in Combe v.Combe.
That principle is that where a promise is given without
consideration but is intended by the promisor to affect
an existing contract between him and the promisee,
and is intended to be acted upon by the promisee, and
is in fact so acted upon, such a promise may be set up
as a defence by the promisee in an action by the
promisor to enforce the original contract.
In Esin v. Matzen &Timm (Nigeria) Ltd60(1966) 1 All N.L.R. 233
and in Tika-Tore Press Limited v. Abina (1973) 1 All N.L.R. (part II)
244, the Supreme Court respectively considered and
appliedpromissory estoppel as a defence. The doctrine can only
be used as a shield and not as a sword. The doctrine may be set
up as a defence by the promisee in an action by the promisor to
enforce the original right: but it cannot be resorted to institute an
action.
To establish the defence of promissory estoppel the promisee
must have altered his position consequent upon the
representation by the promisor.
On the other hand is the doctrine of proprietary estoppel .Conduct
giving rise to this specie of estoppel may be passive or active.
First inaction may amount to passive acquiescence upon which
this estoppel may be founded. Thus in Ramsden v. Dyson61 Lord
Cranworth L.C. said:

60

61
(l866) L.R. 1 H.L. 129 at 140-141.

54
 'If a stranger begins to build on my land supposing it to
be his own, and I, perceiving his mistake, abstain from
setting him right, and leave him to persevere in his
error, a court of equity will not allow me afterwards to
assert my title to the land in which he had expended
money on the supposition that the land was his own. It
considers that, when I saw the mistake into which he
had fallen, it was my duty to be active and to state my
adverse title, and that it would be dishonest in me to
remain willfully passive on such an occasion in order
afterwards to profit by the mistake which I might have
prevented. But it will be observed that to raise such an
equity, two things are required, first, that the person
expending his money supposes himself to be building
on his own land; and, secondly, that the real owner at
the time of the expenditure knows that the land
belongs to him and not to the person expending the
money in the belief that he is the owner. For if a
stranger builds on my land knowing it to be mine, there
is no principle of equity which would prevent my
claiming the land with the benefit of all the
expenditure, made on it. There would be nothing in my
conduct, active or passive, making it inequitable in me
to assert my legal rights.'
Secondly, conduct encouraging such expenditure may amount to
active acquiescence capable of supporting a claim of proprietary

55
estoppel. It is reasonably clear that the basis of the doctrine is
fraud as manifested in the conduct of the owner of the land for he
has acted in such a way as would make it fraudulent for him to
set up those rights. However, for this defence to be successfully
raised:
(i) There must have been mistaken belief as to his legal right in
the land; he must have genuinely believed though, erroneously,
that he was the owner of the land.
(ii) The person must have acted on the faith of his mistaken belief
and have expended some money or must have done some act
which will be pre-judicial to him if the true owner of the land were
subsequently allowed to set up his right against him;
(iii) the true owner must have known of the existence of his own
right which is inconsistent with the right claimed and exercised by
that other person.
(iv)The plaintiff (true owner) must have encouraged the
defendant in his expenditure of money or in other acts which the
Plaintiff has done either directly or by abstaining from asserting
his legal rights.
The foregoing elements must co-exist in order to establish a plea
of proprietary estoppel.

Proprietary estoppel or equitable estoppel gives rise to a

permanent modification of the rights of the parties and those of
their successors in title. Moreover, proprietary estoppel can be
used either as a shield or as a sword. In other words, it is capable

56
of creating substantive rights upon which a cause of action may
be founded.
Laches & Acqueisance
The doctrines of laches and acquiescence run through the whole
of equitable doctrine. This doctrine emanated from the maxim
'delay defeats equities' or 'equity aids the vigilant'. Simply put,
the litigant who has unreasonably slept over his right may not be
granted equitable relief in respect of this right particularly where
the granting of such relief will result in hardship to the other party
who has acquired the right. The doctrine may be invoked where
the conduct or neglect of the plaintiff indicates to the defendant
a waiver of the plaintiff's rights, which rights have been acquired
by the defendant. Where a party has slept upon his right and
acquiesced for a great length of time. Nothing can call forth this
court into activity but conscience, good faith; and reasonable
diligence; where these are wanting, the court is passive and does
nothing.'.
According to Betuel, J. in Nzekwu v. Nwakobi62, acquiescence is
used in two senses: in one case, it means that a person abstains
from interfering while his legal rights are being violated: in
another sense, it means he takes no steps to enforce his rights
when a violation of his rights, of which he did not know at the
time, is brought to his notice. In the first case, the term
acquiescence forms an integral part of estoppel; in the second
case, the person is said to be guilty of culpable delay, that is,
laches of which acquiescence is an important element. Therefore,
62
(l960) IV E.N.L.R. 59 at 69.

57
acquiescence in the first sense operates by way an implied waiver
resulting from the fact that the owner of the right which has been
violated, has failed to assert it with promptitude.
In T. Taylor &Ors. v. Kingsway &Nigerian Properties63 the
plaintiffs brought this action for recovery of possession of a
property situate in Lagos. The delay in bringing the action was
twenty-five years, during which from time to time, the defendants
had spent vast sums of money on building and improving what
are now known as the Kingsway Stores, in the belief that they had
the fee simple; the plaintiffs knew of that belief as far back as
1938, but they gave no explanation at the trial on why they stood
by during those twenty-five years. The Supreme Court held that
the defence of laches was sufficiently established to defeat the
plaintiffs' claim for recovery of possession.
Bonafide purchaser for value without notice and some of the
equitable maxims like he who comes to equity must come with
clean hands may also be set up as defence in some deserving
cases.

SELF ASSESSMENT

What are defences in Equity and when will they arise?

63
(1965) N.M.L.R. 103 at 105.

58