Handout 1

EQUITY
Definition
The word ‘equity’ literally means fairness. Equity is defined in the Oxford Advanced Learner’s
dictionary 6th edition as “a system of natural justice allowing a fair judgment in a situation where the
existing laws are not satisfactory”. To a layman, equity simply means right doing, good faith, honest
and ethical dealings in transactions and relationships. Conception of the term ‘equity’ in this sense is
usually classified as equity in its most popular sense, which is of no juristic significance. Equity used
in this sense is not capable of enforcement, it does not create or produce any legal obligation.
Juristic/ technical Sense of Equity
The juristic sense of the term ‘equity’ generally means either
a) the power to meet the moral standards of justice in a particular case by a court having discretion
to mitigate the rigidity of the application of strict rules of law so as to adapt the relief or remedy
suitable to the circumstances of the particular case or a liberal and humane interpretation of law
in general, so far as that is possible without actual antagonism to the law itself. Or
b) It refers to a special and peculiar department of the English legal system which was created,
developed and administered in the Court of Chancery before the Judicature Act of 1875 i.e ,
‘Equity is that body of rules which is administered only by those courts which are known as
Courts of Equity or court of chancery.’

The Judicature Act of 1875 amalgamated all the superior courts into a Supreme Court of Judicature
administering both the rules of equity and the rules of common law. Thus, after the judicature act of
1975 ‘Equity then refers s that body of rules administered by our English courts of justice which, were
it not for the operation of the Judicature Acts, would be administered only by those courts which would
be known as Courts of Equity.’

At the beginning of the nineteenth century, the court structure in England and Wales was in a mess. The
population was subject to the jurisdiction of a dual system of superior courts. On the one side were the
three ‘common law’ courts, that is – the court of Common Pleas, the Queen’s Bench and the
Exchequer of Pleas and On the other hand was the Court of Chancery. The three common law courts
had grown up under the authority of the English kings during the Middle Ages. They were known as
courts of ‘common’ law because common t law applied to all subjects and the whole realm.

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There were common law courts with substantially overlapping jurisdictions which often gave different
answers to the similar issues yet there was no reliable method of ironing out those differences. Hence
rules based on judgments given in these common law courts and even the judgments themselves were
in some cases being denied or added to in the Chancery but not by way of appeal. So the common
law judgment was not formally set aside or reversed by the Chancery thus leaving such judgement
intact but simply issued an order which was inconsistent with that of the common law judgement. The
constitutional position was that this second order by chancery prevailed leaving the common law
answer as an overshadowed solution to the problem. These Chancery orders were made by applying a
body of doctrine and principles invented initially by the Chancellor and later by his subordinate the
Master of the Rolls. These rules, principles and doctrines of the Court of Chancery, bearing this
complex relationship with the doctrines of the common law, were to be known as Equity.

Equity did not, however cover the entire area of business which the common law courts had taken as
their jurisdiction. It was essentially a ‘private law’ jurisdiction, dealing with matters raised by private
individuals, protecting their private interests. There was no involvement with the common law of crime.
The principal focuses of attention were the laws of property and contract. however incidentally se the
law of private wrongs developed too.
Equity was not the only jurisdiction exercised in the Chancery, but it was the one which was to leave
the greatest impression on the development of the legal system. The system of justice administered by
the early Chancery was based on common law rules, though the rules were administered in a more
liberal and more humane manner with a view to achieving the end of justice.

These wrongs were presented before the Chancery in form of petitions because of the inflexible
position of the common law courts in respect of writs; and because of certain ills of the society which
made it difficult for commoners and people of poor means to obtain justice from the common law
courts.
Jurisdiction
Conscience

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The jurisdiction of the Chancery in granting reliefs to the various petitions was based on reason,
conscience and justice in the administration of law. Chancery had a reputation as a court administering
individual discretionary justice in contrast to the inflexible writs of the common law.

Chancery jurisdiction originated in the prerogative of the King to dispense extra-ordinary justice on the
grounds of reason and conscience, where the ordinary processes of common law were inadequate or
defective. The suitor or the petitioner humbly prayed in his petition to the Chancellor for the exercise
of the ‘King’s Grace’. The early Chancellor was a church-man, well versed in both the canon and the
Roman law. From his training and background, he was well qualified to deal with appeals to ‘Grace,
Charity and Conscience’; it was an elastic jurisdiction, the limit of which was difficult to define. Pre-
17th century Chancery jurisdiction was vague and elastic

By the end of the Middle Ages in the early 16th century. When the common law courts had in some
areas become inadequate. Outside the law of tort, they had shown an insufficient ability to adapt to
new claims, and the set forms of writs particularly restricted the development of new issues and
defences. There was also dissatisfaction with common law remedies and common law pleading had
become overly complex with common law courts’. single mindedness and stubborn refusal to allow
more than one issue to be tried at a timem disappointed parties petitioned the King to get them out of
the mess into which his common law courts had put them, and to receive the ordinary justice, the fair
and commonsense solution, the equity, which they were otherwise denied.

By the early 16th century, the chancellor, the kings highest stste officer he was giving decisions in his
own name and had established a jurisdiction over freehold land. It soon became a trademark of
Chancery’s thinking to emphasize ‘good faith’ and to appeal to notions of ‘conscience’

Their pleadings were more flexible. They gave orders to parties to do things other than deliver up land
or pay sums of money and so laid the foundation of the modern law of specific performance of contracts
and of injunctions.

They relieved against accidental hardship and certain kinds of oppressive behaviour. They allowed the
creation and transfer of a new kind of intangible property, the right to payment of a debt, which

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developed into the branch of law known as e assignment of choses in action (‘things protected only by
litigation’) and invented the ‘use’, which is the modern trust.
Problems of equity
The principles of conscience are, however, vague and uncertain and unless they are guided within well-
defined limits, they can lead to a system of justice . Pre-17th century Chancery jurisdiction was vague
and elastic The vague and extensive jurisdiction of the early Chancery could not for long resist some
of the inflexible attitude of the common law lawyers, some of whom later presided over the Chancery.
Through their influence and the improved reports of equity cases in the middle 17th century, Chancery
division lost its flexibility and adopted the common law system of precedent.

Henceforth, equitable rules have since become as fixed and systemized as the common law rules.
Instead of abiding by the dictates of conscience and the society’s notions of justice and fair play in the
exercise of its equity jurisdiction, the Chancery, from the Chancellorship of Ellesmere (1595-1617),
began to apply the doctrine of judicial precedent.

Difference and conflict

The Chancellor’s decisions had begun as individual decisions solving individual grievances or simply
dilemmas posed by conscientious trustees wanting to know what to do. There were ‘suits’ in the
Chancery, not actions, and the Chancellor gave ‘decrees’ not judgments. There was no taking oral
evidence. But a combination of repeated circumstance and a desire to treat like cases alike was
ultimately to drive the Chancellor into developing a system of rules: equity was to become Equity.

The early days of this development were not marked by hostility from the common lawyers, but in the
16th century it began to brew. Cardinal Wolsey, one of Henry VIII’s powerful Chancellors, had in the
1520’s caused much resentment by his encroaching and aggressive behaviour. The so called ‘common’
injunctions denying litigants even the right of access to common law courts were also a cause of much
friction. Matters came to a head in the early 17th century when Coke, then Chief Justice of the King’s
Bench, challenged the right of the Chancellor, Ellesmere, to override common law results. Coke’s
appeal to the King in 1616 failed. From that date it has not been questioned that when the rules of
Equity and common law conflict, it is the rules of Equity which shall prevail.

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Equity and the common law in the narrow sense

There are two usages of ‘common law’: the wider usage , it means the whole of the royal law, including
Equity; the narrower usage, focusing on the contrast, excludes it.
Relations between the two systems were on the surface amicable, much aided by the diplomatic
formulations of equitable rules which hid the substance of what was going on: ‘we are not overturning
the common law rules; all we are saying is that while Y may own at common law, X owns in Equity’,
so disguising the fact that X may be happy – Y may not.

CONCLUSION
The early history of the jurisdiction of equity is obscure. The history which leaves traces began at the
end of the Middle Ages in the early 16th century. By that date, it can be said that the common law courts
had in some areas become inadequate. Outside the law of tort, they had shown an insufficient ability to
adapt to new claims, and the set forms of writs particularly restricted the development of new issues
and defences. Equity, therefore, came to relieve the rigours of the common law.
a) What do you understand by the term ‘equity’?
b) How is the conflict between common law and equity resolved?

THE RELATION BETWEEN EQUITY AND COMMON LAW

The rise of the Chancery as a separate court administering different rules was purely accidental. Had
the common law courts been able to adapt common law rules to meet the social needs and expectation
of the people, the Chancellors would have been confined to their traditional administrative duties and
would not have altered the original course of English legal history.
However, by default on the part of the common law courts and a variety of other factor, the Chancellor
and his original administrative functions emerged as a separate court with a separate jurisdiction
administering different rules.

Opposition to the Chancery Jurisdiction 14th Century

Towards the end of the fourteenth century, the court of Chancery became separate and distinct from the
King and his Council. Opposition to Chancery’s ‘extra-ordinary’ jurisdictions because it was neither
supported by statutes nor by the common law of the land came from both the Parliament and the
common law courts.

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At that time, parliament had gained its independence from the King and his Council to become a law-
making institution. Jealous of its newly acquired law-making power, Parliament naturally resented the
extra-ordinary jurisdiction exercised by the Chancery in the sense that such jurisdiction was neither
supported by statutes nor by the common law of the land.

On the other hand, common law courts became hostile to the Chancery jurisdiction on the pretext that
the jurisdiction being exercised by the Chancery was unknown to the common law of the land.
However, it is clear that the hostility from the common law courts sprang from the fact that their
jurisdiction was being progressively eroded by the Chancery whose jurisdiction was more progressive
and more realistic.

At this period that the Chancery devised a useful means for the enforcement of trusts, common law
courts did not take cognisance of the trusts on the pretext that it might be used for fraudulent purposes
and for the evasion of the law of the land.
Coke and Ellesmere – 16th Century
In the latter part of the sixteenth century, there was deep rivalry between the common law courts and
the Chancery . The Chancery as a separate court administering rules of equity had had full developed
and opposition from the common law courts became more intensified particularly because of the
Chancery’s power to issue common injunction to restrain the enforcement of judgments obtained from
the common law courts.

When Coke became the Chief Justice of the King’s Bench. He loathed Chancery jurisdiction and the
jurisdiction of other prerogative courts that stood in opposition to the jurisdiction of the common law
courts. He claimed for the common law courts the power to issue a writ of prohibition against Chancery
jurisdiction for any interference with the judgments or decisions of the common law courts. On the
contrary, the Chancery firmly maintained that it had long been within its jurisdiction to set aside
common law judgments and to grant a more equitable relief where such judgments were devoid of
conscience or appeared oppressive.
The imminent anarchy that would have resulted if the situation were not arrested became real in the
Earl of Oxford’s case (1615) 1 Rep. Ch. 1. The Chancellor, Lord Ellesmere, claimed the power to set

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aside common law judgments on the ground of equity and good conscience. Chief justice Coke of the
common law courts insisted that the Chancery had no right, either by statute or by any other law of the
land, to set aside common law judgments and that he would issue writ of prohibition against Chancery’s
interference with common law judgments. The matter in controversy came before James I, who after
consulting with many other learned lawyers of the period, (including Bacon, who later became Lord
Chancellor), decided in favour of Chancery jurisdiction.

Henceforth, the legal supremacy of equitable rules as administered by the Chancery court over common
law rules became a significant feature of the English legal system.

The common law lawyers did not take kindly to the legal supremacy of the court of Chancery over the
courts of common law and did not hesitate to initiate or support any move for the abolition of the
Chancery court. Twice in the 17th century, the period of the commonwealth and the period immediately
after the revolution of 1688, the common law lawyers made abortive attempts to curtail Chancery
jurisdiction and to revive the conflict hitherto resolved in favour of the Chancery by James I.
Effect of the King’s Decision

The king’s decision in favour of the Chancery made the jurisdiction of the court of chancery became
more extensive and attractive to litigants by its the flexibility and speedy judicial determination of
suits, many suits ovewhelmed the court in the course of time and could not adequately cope with its
business as it as poorly staffed and poorly organisedm its procedure had become complex and
inefficient resulting unnecessary delay in the administration of justice and the he officials of the court
became corrupt and incompetent. The power of the court to issue injunctions became a source of
iniquities. Litigants, with the active assistance of the court made use of the power as delay tactics and
to pervert the course of justice.

The position of the court of Chancery court and its jurisdiction in the English legal system before the
19th century reform was described by Sir Carleton Allen in his book Law in the Making, 7th Ed. (1964)
p.420 thus:
‘While …equity (in the technical sense) has made important contribution to our law, there is another
and a darker side of the picture. The history of the Court of Chancery is one of the least credible in our

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legal records. Existing nominally for the promotion of liberal justice, it was for long corrupt,
obstructive and reactionary, prolonging litigation for the most unworthy motives and obstinately
resisting all efforts at reform.’
19th Century Reforms
In the early part of the 19th century, two important factors called for reform and simplification of legal
procedure.
a) The decadent and the unsatisfactory procedure and organisation of the Court of Chancery;
b) The area of jurisdiction within which each of the superior courts, namely; court of common law
and the court of Chancery was to operate, was not clearly defined. See marquis of Waterford v.
Knight (I 844) 11 C. 1. F. 653; 8 E.R. 1250.

If a litigant required redress both in equity and at common law, distinct actions in each jurisdiction were
necessary. Again, there were cases lying on the frontier of both jurisdictions. If an action was brought
in one jurisdiction, it might be fought up to the House of Lords, only for parties to discover that the
action should have been brought in the other jurisdiction. Thus, litigation became expensive and there
was unnecessary delay in the administration of justice. Certainly, such a situation is not a credit to any
legal system.
Procedural Reforms
Before the statutory reforms of the second half of the 19th century, common law courts attempted some
minor reforms of the conflicting system of procedure with a view to mitigating the attendant hardships.
They would apply rules of equity to cases before them whenever those rules were in conflict or different
from common law rules. This was to prevent separate proceedings, one in equity and the other at
common law, from being brought in respect of the same cause of action and thereby save litigants time
and unnecessary expense. The bold attempt to combine the administration of both rules into one system
of procedure was a step in the right direction. However, not much was achieved by this unification
policy of the common law courts since the attitude of the Chancery to matters before common law
courts might not be easily predictable.

The Common Law Procedure Acts of 1852, 1854 and 1860 empowered common law courts to exercise
certain jurisdictions originally peculiar and exclusive to the Chancery. For example, common law courts
were empowered to compel discovery of documents and interrogatories in certain cases. They had a

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limited power to grant injunction and some other equitable reliefs when such reliefs might have been
granted by the Court of Chancery. On the other hand, the Chancery Amendment Act of 1852
empowered the Courts of Chancery to exercise certain common law powers. Thus in an equity suit, any
relevant common law matters could be decided by the Chancery Courts. Before the Act, such matters
would have been sent to the common law courts. In addition, the Court of Chancery was enabled to
take evidence orally in the open court. . Lord Cairn’s Act, 1858, also empowered the court of Chancery
in cases of contracts or torts to award damages in addition to or in lieu of injunction, specific
performance or any relevant equitable remedy.

The foregoing series of Acts did not go far enough to ameliorate all the evils inherent in the dual system
of administration of justice. This was clearly pointed out in the first report of the Royal Commission
that was appointed in 1867 to inquire into the system of administration of justice and to suggest
necessary reforms. According to the report, the alterations made by this series of acts, have no doubt
introduced considerable improvements into the procedure both of the common law and equity courts;
but after a careful consideration of the subject, and judging now with the advantage of many years’
experience of the practical working of the system actually in force, we are of the opinion that ‘the
transfer or blending off jurisdiction’ attempted to be carried out by recent Acts of Parliament, even if it
had been adopted to the full extent recommended by the Commissioners,is not a sufficient or adequate
remedy for the evils complained of, and would at best have mitigated but not removed the most
prominent of those evils.

In the light of the above, the Royal Commission recommended a complete fusion of the administration
of justice. This was to be done by a consolidation of ‘all the superior courts of law and equity, together
with the Courts of Probate, Divorce and Admiralty, into one court, to be called ‘Her Majesty’s Supreme
Court,’ in which Court shall be vested all the jurisdiction which is now exercisable by each and all the
courts so consolidated.’

Judicature Acts 1873-1875

The recommendations of the Royal Commission were substantially enacted as the Judicature Acts
1873-1875. The Acts abolished all the existing superior courts and in their place, created a Supreme
Court of Judicature consisting of the High Court of Justice and the Court of Appeal., The High Court

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of Justice consists of three divisions – he King’s Bench Division,The Chancery division; and the
Probate, Divorce and Admiralty Division.
The following causes and matters, hitherto within the exclusive jurisdiction of the Chancery, were
assigned by section 34 of the Judicature Act, 1873, to the Chancery division because of the long and
expert experience of the Chancery in dealing with these matters. These are:
➢ The administration of the estates of deceased persons.
➢ The dissolution of partnerships or the taking of partnership or other accounts ,
➢ The redemption or foreclosure of mortgages .
➢ The raising of portions or other charges on land
➢ The sale and distribution of the proceeds of property subject to any lien or charge
➢ The execution of trusts, charitable or private
➢ The rectification or setting aside or cancellation of deeds or other written instruments
➢ The specific performance of contracts between vendors and purchasers of real estates, including
contracts for leases
➢ The partition or sale of real estates
➢ The wardship of infants and care of infants’ estates.

The effect of the Judicature Acts, 1873-1875 on the administration of justice is that, since 1875
there is no longer dualism of courts exercising separate and conflicting jurisdictions. Instead, there
has been a single system of courts (in three divisions) administering both law and equity. Each
division exercises all jurisdictions which is vested in the High Court of Justice, thus every judge of
the High Court of Justice, sitting in Chancery or King’s Bench, is ordained to administer both equity
and law concurrently.The most significant effect of the Judicature Acts is the consolidation of all
the superior courts and the fusion of the administration of law and equity.

This unity of the equity and common law is illustrated in the case of Walsh v. Lonsdale (1882) 21
Ch.D. 562. By a written agreement, Lonsdale agreed to grant a seven years’ lease of a cotton mill
to Walsh. The rent was to be payable in advance if demanded. Walsh entered and took possession
without any lease having been granted. Walsh, however, for some time, paid the rent in arrear. Later,
Lonsdale, in accordance with the agreement, demanded a year’s rent in advance. Walsh refused to

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meet this demand. Lonsdale thereby distrained. Walsh brought an action claiming damages for
unlawful distress and for an injunction and for specific performance.

Walsh’s claim or damages for unlawful distress was on the ground that he was a yearly tenant at
law, having paid his rent with reference to a year and that ‘to justify a distress there must be a legal
tenancy and rent in arrear. There can be no such thing as an equitable distress. Distress is a legal
remedy, and here the payment of rent is evidence of a legal tenancy with a rent not payable by
anticipation. The provision in the written agreement, as to rent being paid beforehand is not
‘applicable to the tenancy hereby created,’ since the rent is at so much per loom run, and it cannot
be told till the end of the year what is that number of looms run.

In other words, since the rent can be assessed only after ascertaining the number of looms used, the
yearly tenancy created by the act of the parties cannot be with rent payable in areas, nonpayment
of which would justify the legal remedy of distress. On the contrary, Lonsdale contended in his
defence that the provision in the written agreement for the payment of rent in advance was
enforceable since the written lease was one of which equity would decree specific performance, the
effect of which would convert the written lease to a formal lease as if the lease had been granted at
law. Delivering the judgement of the Court of Appeal, Jessel M.R. said: ‘There is an agreement for
a lease under which possession has been given. Now since the Judicature Act the possession is held
under the agreement. There are not two estates as there were formerly, one estate at common law
by reason of the payment of the rent from year to year, and an estate in equity under the agreement.
There s only one court and the equity rules prevail in it. The tenant holds under an agreement for
a lease. He holds, therefore, under the same terms in equity as if a lease had been granted, it being
a case in which both parties admit that relief is capable of being given by specific performance.
That being so, he cannot complain of the exercise by the landlord of the same rights as the landlord
would have had if a lease had been granted. On the other hand, he is protected in the same way as
if a lease had been granted; he cannot be turned out by six months’ notice as a tenant from year to
year. He has a right to say, ‘I have a lease in equity, and you can only reenter if I have committed
such breach of covenant as would if a lease had been granted have entitled you to re-enter
according to the terms of a proper proviso for re-entry. That being so, it appears to me that being

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a leasee in equity he cannot complain of the exercise of the right of distress merely because the
actual parchment has not been signed and sealed

In Nelson v. Larholt (1948) 1 KB 339, 343; Denning, J. (as he then was) said: ‘It is no longer
appropriate … to draw a distinction between law and equity. Principles have now to be stated in the
light of their combined effect.’ See similar pronouncement of Denning L.J. in High Trees Case
(1947) KB 130
On the contrary, there is the view that the effect of the Judicature Acts is merely the creation of a
common court for the administration of law and equity and not a fusion of law and equity; and that
where the principles of the two conflicts, the principles of equity prevail. In Pugh v. Heath (1882)
7 App. Cas. 235, 237 (one of the earliest decisions on the effect of the Judicature Acts on the relation
between law and equity) Lord Cairn’s observes: ‘The court is now not a court of law or a court of
equity; it is a court of complete jurisdiction, and if there were a variance between what, before the
Judicature Act, a court of law and a court of equity would have done, the rule of the court of equity
must now prevail.’
The supremacy of equitable rules over common law rules under section 25(11) of the Judicature
Act, is also illustrated by the decision in Lowe v. Dixon (1885) 16 QBD 455. At common law, where
two or more persons jointly undertook to be sureties of a debt, and one of them became insolvent,
the remaining solvent sureties were not bound to pay the share of the liability which the insolvent
surety would have had to pay had he been solvent. On the contrary, the rule in equity is that the
solvent sureties are in addition to their own share of the liability, also liable for the share of the
insolvent co-surety

Before the Judicature Act of 1873, the common law rule was that an executor was liable for
the loss of his testator’s assets when they had come into his hands. Whether the loss was
accidental or as a result of wilful default was immaterial Crosse v. Smith (1806) 7 East.
246. On the contrary, equity took a more lenient view in Job v. Job (1877) 6 Ch.D. 562; an
executor would not be liable for the loss of the testator’s assets, without default in him.
While Referring to the common law position, Jessel M.R. said: “The rule there laid down
is, however, , not the rule now, even at law, for the Judicature Act, 1873, provides by section
25 subsection 11, that where ‘there is any conflict or variance between the rules of equity
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and the rules of common law with reference to the same matter, the rules of equity shall
prevail.” The rule at law as well as in equity now is that, an executor or administrator is in
the position of gratuitous bailee who cannot be charged with the loss of his testator’s assets
without wilful default.
In Berry v. Berry (1929) 2 KB 316. In that case, there was a deed of separation in which the husband
covenanted to pay a monetary allowance to his wife. Later there was another agreement in writing,
but not under seal, by which the parties agreed to vary the terms of the deed regarding the allowance.
The wife brought this action claiming arrears of allowance under the original terms of the deed. The
court accepted the claim of the plaintiff that at common law a covenant in a deed cannot be varied
by a subsequent written agreement not under seal.

It is however preposterous now to suggest that there has been a fusion of the two systems since the
Judicature Acts. The distinction between the equitable ownership of a beneficiary and the legal
ownership of a trustee under a trust is still well recognised. The maxim that ‘where equities are
equal the law prevails’ is of great significance in the determination of priority between a legal and
an equitable interest in the same property.

In Joseph v. Lyons (1884) 15 QBD 280, Cotton L.J. disagreed with the view that the Judicature Acts
1873-1875 abolished the distinction between legal and equitable principles. In the same case,
Lindley L.J. observed as follows: ‘…Reliance was placed upon the provisions of the Supreme Court
of Judicature Acts 1873, 1875 and it was contended that the effect of them was to abolish the
distinction between law and equity. Certainly that is not the effect of those statutes; otherwise they
would abolish the distinction between trustee and cestui que trust.’

Lord Watson argues that ‘The main object of the Judicature Act was to enable the parties to a suit
to obtain in that suit and without the necessity of resorting to another court, all remedies to which
they are entitled in respect of any legal or equita
ble claim or defence properly advanced by them, so as to avoid a multiplicity of legal proceedings
.

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There may be cases where the application of the conflict or variance provision would give rise to
common rules. This is not a sufficient justification for the view that there has been a fusion of law
and equity

The Repugnancy Doctrine In Relation To Customary Law, Customary Law And

Equity
Its traceable to the Roman-canonical law, the doctrine was known to the early common
law judges, with concern being with adjudicating cases in accordance with the common
law and statutes. In many cases, they did not modify and supplement common law and
statutes by the exercise of judicial discretion or judicial equity (equity in the sense of what
is fair and just in the circumstances.

The early Chancery Court introduced equity and developed the technical rules of equity.
However, the exercise of the early Chancery Jurisdiction was premised on equity, natural
justice and good conscience. Consequently, the British introduced the doctrine to their
dependent territories and particularly those territories where the English common law,
doctrines of equity had to be administered side by side with local laws and customs. In this
way, the ‘repugnancy doctrine’ became part of our system through the judicature act sect.

The doctrine is of much importance in the ascertainment and application of our customary
law. Our courts are under a duty to enforce customary law so far as it is not repugnant to
natural justice, equity and good conscience. In some cases, courts are empowered to apply
rules of natural justice, equity and good conscience where the common law, statutes,
doctrines of equity and local laws are inapplicable.
Today the phrase is used to achieve social justice in the administration of law. The practical
application of the doctrine in our system has not evinced any generally agreed test. In Eleko
V Government of Nigeria, it was stated that, ‘the court cannot itself transform a barbarous
custom into a milder one.’ If it still stands in its barbarous character, it must be rejected as
repugnant to ‘natural justice, equity and good conscience.’ However, the test for the
application of the doctrine cannot mean a reference to foreign law; for ‘it is the assent of
the native community that gives a custom its validity, and therefore, barbarous or mild, it
must be shown to be recognised by the native community whose conduct it is supposed to
regulate.’

Perhaps an agreeable test in the application of the doctrine may be found if the purpose,
which the doctrine is meant to serve, is considered. The introduction of the doctrine into our
system is to remind the judges of their obvious duty, which is to accept such customary law

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as will promote, without being inconsistent with the economic, political and social
developments of the community within which the customary law is to operate.

These factors must necessarily be the condition precedent to the ascertainment and
application of any alleged rules of customary law. in many cases, it is almost impossible to
determine whether a rule of customary law is repugnant to natural justice, equity and good
conscience without assessing the result of its operation within the community.

The basic idea behind the introduction of the ‘repugnancy doctrine’ into our system is that
the court, in the process of ascertaining and applying an alleged rule of customary law,
should recognise and apply equity in its broad sense. That is, giving humane and liberal
interpretation to any alleged rule of customary law. It is through the recognition and
application of such broad principles of equity that English judges have been able to develop
the common law to meet the various needs of successive generations of English people.

Thus, in Emmens v. Pottle (1885) 16 Q.B.D. 354 at pp. 357, 358 Lord Esher said: ‘In my
opinion, any proposition the result of which would be to show that the common law of
England is wholly unreasonable and unjust, cannot be part of the common law of England.’
This proposition was cited with approval in the celebrated decision in Donoghue v.
Stevenson (1931) A.C. 562 at pp.608, 609. A decision that revolutionised the English law
of negligence.

Thus, an alleged rule of common law cannot be part of the common law if the result of its
application is wholly unreasonable and unjust. Therefore, it seems to follow that the result
of the application of an alleged rule of customary law would first have to be examined; and
if such an examination of the result reveals unreasonableness and injustice, then the alleged
rule is no part of the common law.

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