Equity, limitations in the common law and how they limited proper

administration of justice

Background
In ordinary English equity refers to fairness and impartiality1. Bakibinga D.J, also offers a
meaning of equity to refer to right doing, good faith, honest and ethical dealings in
transactions or relationships between individuals. Put another way, equity refers to
whatever is just and right in all human relationships and tractions.2

Historical development of equity

In the twelfth century the Royal court was largely itinerant3.The itinerancy of Henry I, for
instance, took him as far afield as Carlisle, Norwich, Southampton and Normandy, all
within the years 1119-23, whilst still allowing time to campaign for war in Wales.
Effective Government required that the king and his Courtiers travel the length and breadth
of realm collecting taxes, dispensing justice and generally asserting royal authority. By
early fourteenth century the king’s common law was well established and where it caused
injustice to individual cases, with consequent embarrassment to king’s conscience, the task
of providing a just remedy fell to the chancellor. In the 16th century, common law suits
were at this time subject to technical and inflexible forms of action, with the result that a
just cause might fail due to the lack of formality. Throughout the sixteenth century
increasing numbers of petitions were brought to remedy the harshness of common law.
Chancery’s ad hoc dispensation of justice prompted the accusation that equity was
undermining the certainty of the law.

In the Seventeenth century, the competition between chancery and common law courts
came to a head in the early seventeenth century with the Earl of Oxford’s case (1615)4,
the belief facts of the case are that Chief Justice Coke had indicted a defendant in a common
law action who had deigned to apply to Lord chancellor Ellesmere for an injunction against
common law judgments on the grounds of fraud. Lord Ellesmere’s response was to reason
that such an injunction did not offend the common law courts at all, that it was effective
merely in personam against the person who had been successful in the common law court.

The office of the chancellor is to correct men’s consciences for fraud, breaches of trust,
wrongs and oppressions of what nature so ever they be, and to soften and mollify the
extremity of law5.In the end, the dispute between the Chief Justice and the Lord Chancellor
was referred, in 1615, to King James I. The king resolved the dispute in favour of Lord

1
Catherine Soanes; Oxford English Min Dictionary ( seventh Edition, 2008)
2
Bakibinga B.J; Equity and Trusts, LawAfrica (2011)
3
It rarely stayed in one place for very long time.
4
(1615) 1 Rep Ch 1
5
Per Lord Ellesmere L.C
Ellesmere, on the advice of his Attorney General, Sir Francis Bacon6.From this case it was
there by established that where equity and common law conflict, equity shall prevail.
From this time, equity rules became supreme over the common law rules in the English
legal system. Therefore, the seventeenth century was of imperative for the supreme
position of equity. In the eighteenth century equity matured through the careful
chancellorship of , amongst others, Heneage Finch, Lord Nottingham, who has rightly been
called the father of modern equity7.During the eighteenth century equity developed in
a manner harmonious with common law, rather than in competition with it. Chancery
appears to have been a beneficiary of the so-called “Enlightment” philosophy which
emerged in this century.

Somewhat a victim of its own success, by the early nineteenth century the court of
chancery had become hopelessly busy, despite the appointment in 1972 of the chief
chancery master, the Master of Rolls, to sit as s second judge. In 1813 a vice-chancellor
was appointed. There were now three judges presiding in chancery, where once there had
been the chancellor alone. Yet the first vice-chancellor, upon being asked whether the three
judges could cope, is said to have replied “No; not three angles”.

Rigors that existed in common law

The court of chancery Act 1850 and the court of chancery procedure Act 1852 were
attempts to wrestle with procedural problems in the court of chancery. But the great step
towards expediting the procedure of chancery, Selborne introduced the Judicature Act 1873
into parliament.Ironically, it was due to administrative delays that the statute did not in fact
came into force until 1875, when it was re-enacted with amendments were now refer
collectively to Judicature Acts 1873-18758. By these enactments the supreme court of
Judicature was established with concurrent jurisdiction to administer the rules of equity
and common law.
Twentieth Century.
It is of vital importance to realize that the Judicature Acts did not do away with the
distinction between law and equity; equity and law still have their distinct functions.True,
equity is primarily concerned with equitable doctrines, remedies and institutions having
their origin in the old court of chancery, but now days we should expect to find the equity
function flourishing in every court and every court of law.

As per the Earl of Oxford’s case, the Chancery Court’s jurisdiction become more
extensive and attracted a lot of litigants. As a result, the Court became overburdened due
to poor staff, organization and a complex and inefficient procedure in administering
justice9. Second, officials of the Court became corrupt and incompetent and the course of

6
Bacon went on, in fact to succeed Lord Ellesmere.
7
Holdsworth,History of English Law,Vii,p.547
8
The Judicature Acts of 1873-1875 were enacted due to recommendations of the Royal Commission.
9
Keeton; Supra pg 53
justice was, thereby, prevented owing to delays. Inevitably, there were calls for the reform
of the chancery jurisdiction and procedure10. The Reforms called for affected the outdated
and unsatisfactory procedure and organization of the Court in the first place, and secondly,
are of jurisdiction within which the Common law Courts and Chancery Courts operated
was not clearly defined11.

During the reforms, there were a lot of mix-ups and short-comings. Courts started doing
each – others work, for example; firstly, the common law Courts applied rules of equity to
cases brought before them whenever those rules conflicted or differed from common law
rules. This was purposely intended to prevent separate proceedings, one in equity and the
other at common law from being started in respect of the same cause of action. This would
save litigants time and expense12.

Secondly, the Common Law Procedure Acts of 1852, 1854 and 1860 gave the common
law Courts power to exercise certain jurisdiction which were originally reserved for the
Chancery. For instance the Common Law Courts could order discovery of documents
and interrogatories in certain cases. They were also empowered to grant an injunction and
other equitable reliefs. Similarly the Chancery Amendment Act, 1852, gave the Courts of
Chancery power to exercise certain Common Law powers. For instance in an equity suit,
a relevant common Law matter could be decided by the Chancery Court. Before the Act13,
such matters would have been referred to the Common Law Courts. Additionally the Court
of Chancery could also take evidence orally and in open Court as opposed to presenting it
by bill and in written form. Furthermore, Lord Cairn’s Act, 1858, empowered the Court
in case of contract and torts to award damages in addition to or in lieu of injunction, specific
performance or other equitable remedy14.

The aforementioned did not do much in dealing with the mismatch and shortcomings in
the dual system of administration of Justice.

The legal meaning of equity.

Equity has two technical meanings which complement each other and affect the
administration of justice by the judiciary and these are one: the general juristic sense and
two: the technical juridical sense of equity. The first category means that power to meet
the moral standards of justice in a particular case, by a judicial body possessing the
discretion to mitigate the rigid application of strict rules, in order to adopt the judicial relief
to the peculiar circumstances of a case.15 Allen16 put it this way; equity in the general

10
Bakibinga; Supra pg 18
11
Keeton, supra pg 54
12
Bakibinga B.J Supra pg 19
13
Chancery Amendment act, 1852
14
Bakibinga B.J Ibid pg 20
15
McClinto CK; Handbook of the Principles of Equity (1948)
16
Allen; Law in the making (1964)
juristic sense means liberal and humane interpretation of law in general so far as that is
possible without actual antagonism to the law itself.

Historical development of the doctrine of Equity in Uganda’s Legal System

It was before the enactment of the Judicature Act, 1873 – 1875, that Britain practiced dual
administration of law and equity which does not exist in the Uganda Legal System. By the
Uganda Order in Council, 1902 and 1911, which received English Law into Uganda Law
and equity were to be administered concurrently and where there was conflict or variance
between rules of equity and rules of the common law with reference to the same matter.
The rules of Equity would prevail 17a. This provision is now reflected in Section 14(2) and
(4) of the Judicature Act Chapter 13 which governs the law to be applied by the High Court
and Supreme Courts of Judicature and Section 11(1) (3) of the Magistrates’ Courts Act
Cap. 16 which deals with the law to be applied by the Magistrates Courts. Therefore
equity law is applicable in Uganda and it recognized law 31b

Equity therefore is law18, In the sense that its part of Uganda’s law with reference to the
Magistrates Court Act19which provides that, in every civil cause or matter before a
Magistrates Court, law and equity shall be administered concurrently. However in
underlying the application of equity are certain maxims or principles which guide the
Courts. These maxims not only help to explain the essence of equity but indicate situations
in which equitable rules would or would not be applied as well as the relationship between
law and equity20. As such they act as rather general guidelines to a court reaching a
decision21 These maxims include; Equity assists the vigilant and not the indolent, Equity
looks at substance rather than form, Equity looks at that as done which ought to be done,
where equities are equal, the first in time prevails. Delay defeats equities, Equity acts in
personam, Equality is equity, he who seeks equity must do equity, Equity follows the law,
Equity won’t suffer a wrong without a remedy, equity imputes an intention to fulfil an
obligation, equity won’t allow a trust to trail for a want of a trustee, equity won’t allow a
statute to be used as a cloak for fraud, equity won’t complete an imperfect gift, equity won’t
aid a volunteer, equity will take jurisdiction to avoid a multiplicity of suits, equity delights
to do justice and not by halves, equity doesn’t require an idle gesture, equity abhors
forfeiture. It should be noted that not all the maxims are applicable to Uganda’s legal
system, however there are those which are applicable as discussed below;

Equity acts in personam

In “personam”, that is against the defendant personally for example beneficial interests
are a right in personam because like all equitable rights it was done or enforced in
personam for a trustee to observe a trust. One of the most useful modern applications of

17 (a) (b)
East African Law Review 47, 5660 (1969)
18
Section 11 (i) CAP 16
19
DJD Bakibinga, “Equity and trust in Uganda pg 18
20
Snell’s principles of equity 29th EDITION 1990 pg 27
21
SNELL’S Principles of Equity
equity’s in personam jurisdiction has been in relation to international freezing injunction
( formerly known as Mareva Injunctions: originated from the Case of Mareva Compania
Naviera SA-V – International Bulkarriers SA (1975) Lloyd’s Rep 509, (1980)1 ALL ER
2). This form of injunction is designed to prevent a defendant from dissipating assets in
order to defeat a judgment of Court.
Where one acquires an equitable interest then it’s enforceable against the vendor thus in
the case of Katarikawe V William Katwiremu (deceased) and Oneziforo Bakampata.
Where Court held that where the purchaser acquires an equitable interest in the nature of
right in personam its enforceable against the vendor only. This is further illustrated in a
situation where a defendant fails to comply with a decree of specific performance; the Court
may appoint another person to execute the transfer in respect of the disputed property22.
Alternatively, the Courts may make a vesting order23. The effect of this Court’s decision
is to transfer property from one person to another without a formal conveyance. It should
be noted that Courts won’t apply the maxim in situation where a bonafied purchaser for
value of the legal estate without notice of an earlier equitable claim over the subject
property.

Where equities are equal the first in time prevails

(Qui Prior est tempore potior est jure)
This maxim is sometimes paraphrased – the first in time is the first in right – a good
example is in equitable mortgages
The maxim deals with priority where there is a conflict between two competing equitable
interests in property because priority of time gives better equity. In Ndigejjerawa Vs
Kizito and Kubulwamwana’s 24 equitable interests had priority because it was created
earlier than Ndigejjerawa’s interest. Court further stated that the first in time rule only
applies where equities are equal.
It should be noted that in determining priorities between competing equitable interests the
doctrine of notice does not apply. In Uganda’s legal system the general law rules for
determining priorities are substantially different with respect to the land registered under
The Registration of Titles Acts. However there are situations where the Courts do not
apply the maxim for example in situations where there are successive assignments or
mortgages of equitable interest.
Equity looks at that as done which ought to be done
This maxim is illustrated by the principle that an agreement for a lease is as a good as a
lease, this is further illustrated by a provision of the Registration of Titles Act25 whereby
in breach of or non-observance of any of the convent expressed in a lease or implied by
law, the lesser may exercise the right or re-entering the leased property this is because
equity treats an agreement as done since the parties had agreed and one had fulfilled the
obligation than its fair for the other to benefit. The principal is followed in the case of

22
(1959) E.A pp . 540
23
Civil procedure Act Cap 65 sec. 53, Civil Procedure Rules Order 19, rules 13
24
Trustees Act Cap. 142 Sec. 40
25
Section 130 Cap 230
Serunjogi Vs Katabira,26. in this case by a memorandum of agreement it was dully
signed by both parties. The defendant was ordered to deliver up vacant possession of the
premises. This maxim can also be seen in a situation where a contract to create a mortgage
was treated as a promise by the debtor to executive a legal mortgage when called upon to
do so such an agreement created an equitable mortgage as illustrated in Barclays bank Vs
Gulu Milliers27 where Court held that under a doctrine of equity a deposit of title deeds by
way of security whether or not accompanied by a remedies incidental to a legal mortgage.
Creation of an equitable mortgage by deposit of a certificate of title is provided for under
the Registration of Title’s Act
Delay defeats equities/ Doctrine of laches
The essence of the doctrine is that an equitable relief won’t be given if the applicant has
unduly delayed in bringing the action unlike adverse possession, the doctrine can only be
used as a defense against an action and not as a basis for establishment of a cause of action
thus where the land owner knows that his rights are being violated and he chooses to sit
idly, he is taken to have delayed in the violation and will be stopped from arguing
otherwise, in Climatong Vs Olinga28 the applicant for a period of thirty years occupied and
cultivated the respondents land although the latter was aware of the intrusion, he made no
attempt to stop it or recover the land. High Court held that the applicant had taken too long
to enforce his right. There is no fixed time for the doctrine to operate its up to the Court to
decide whether or not in the circumstances of a particular case it considers that delay to
ring an action was unreasonable.
However the Courts won’t apply the doctrine in situations which are governed by Statutes
of Limitations for example under the Limitation Act29, provides that no person shall make
an action to recover land after the expiration of twelve years from the date the cause of
action accrued to him, where fraud is alleged there is no Limitation period30. There are
three basic defenses to the invocation of the doctrine of laches, where by Courts won’t
permit delay so as to bar a claim and they include disability or infancy of the plaintiff, fraud
on the part of the defendant, ignorance of the facts on which the claim is based31

Equality is equity
This maxim applies in three broad circumstances that is, the presumption of tenancy in
common severance of joint tenancies and the principle of equal divisions. In Uganda’s
legal system there is a presumption of tenancy in common since the basic rule is that equity
operates against joint tenancies hence a right of survivorship. In relation to Uganda’s
Succession Act32, equity operates against the right of survivorship and presumes a tenancy
in common because they share of the deceased tenant passes to those who are entitled to
his property under his will or under the rules of intestacy. This is further illustrated by the

26
(1988-90) HCB pg 148
27
(1959)E.A pg 540
28
(1985) H.C.B pg 86
29
Section 6,19,21 Cap 70
30
Ibid Section 20(1)
31
Ibid section 3,22,26
32
CAP 139 ( Amendment) Decree no 22. 1972
Partnership Act33which states that where there is no basis for distributing property between
two or more claimants the Court may apply this maxim to divide the property equally for
example where a parent has died leaving many children, the presumption inequity is that
they should all share equally in the property.

He who seeks equity must do equity

A person seeking an equitable remedy must him or herself act fairly, thus in case of Bank
of Uganda Vs Hassan Bassajabalaba where Court held that Bassajabalaba failed to act
fairly when he forged a Court order so as to get back his land titles hence an equitable
remedy couldn’t be granted to him. This maxim can be illustrated through the following
arrangements that is, doctrine of election, notice to redeem mortgage, consolidation of
mortgage and illegal loans.
Equity looks at the substance rather than the form
Equity developed with the aim of achieving justice rather than sticking to the forms. This
approach to technicalities has constitutional backing which requires Courts to administer
justice without undue regard to technicalities34. This backing is reflected in Maj General
David Tinyefuza Vs AG Constitutional petition no. 6 of 1996 (paragraph 5, pg 8) and states
“ … This court should readily apply the provision of Art. 126 (2)(e) of the Constitution in
a case like this and administer substantive justice without undue regard to technicalities.”
A similar incident is also reflected in the Case in Court of Appeal for E.A in: Uganda Vs
Commissioner of Prisons, Ex-Porte Matovu ( 1966) E.A 514. In that Case the applicant
was detained under Emergency Legislation. He took out habeas corpus proceedings in the
High Court. At the same time constitutional issues were framed and referred to the
Constitutional Court for determination. Clearly the Writ of habeas corpus was defective.
Nevertheless, the court took the position that as the liberty of the citizen of Uganda was
involved, the application as presented was not objected to and as a considerable importance
was attached to the question of law under reference, the Case out to be heard on merit in
the interest of Justice. Also in the Supreme Court of Uganda, in Stephen Mabosi Vs
Uganda Revenue Authority, held that a memorandum of appeal which was filled out of
time couldn’t be rejected because the appellant couldn’t file it before obtaining the official
record of proceedings from the high Court which were released after the 60 day period
required for filing the memorandum of appeal had elapsed. This maxim is intended to
examine instances where equity has intervened to ensure that the substance is upheld over
formalities and this instance include; time clause, covenants, mortgage, penalties, deeds
and under instruments of passion where Justice Okello, in Jaffer Bros limited Vs Hajji
Bagalaaliwo35, held that since the relevant letter was issued by a competent authority there
was valid repossession by the appellant, in essence Court looked at the substance of the
action of the minister rather than the form of the instrument required under the
Expropriated properties Act.

33
Section 28(1) Cap 86
34
ART 126 (2)(e) 1995 Constitution of Uganda
35
Civil appeal no. 43 1997 (Court of appeal of Uganda)
He who come to equity must come with clean hands
This maxim originated from the old case of Lee V. Haley (1869) 5LR Ch App 155, where
the claimants failed when they sought an injunction to protect their trade as Coal
Merchants. The Court held that they had “unclean hands,” not because of the Coal, but
because they had been dishonestly selling their customers short. As the judge said ( at page
158)): “… if the plaintiffs had Systematically and knowingly carrying on fraudulent
trade and delivering short weight (of Coal), it is beyond all question that this court would
not interfere to protect them in coming on such trade”. It is important to realies that
equity insists on good behavior of those who come to equity seeking remedy. It does not
insist that the successful equitable claimant must continue to use his equitable interest with
profiting after the award; this can be illustrated in case of Williams V Staite ( 1979) Ch
291:
The facts of that case were that the holders of an equitable right to occupy a cottage for life
persistently interfered with the enjoyment by their neighbour of an adjoining cottage. The
neighbour had purchased the legal titles to both cottages from the person against whom the
bad neighbours had established their equitable interest. On account of the harassment that
he had suffered, the legal owner sought to evict his bad neighbours. The judge at the first
instance held that the equitable rights of the bad neighbours should be revoked by reason
of their conduct, and he awarded possession to the claimant.
The defendants successfully appealed. Goff L.J, held that, after the appropriate award has
been made in satisfaction of the equity (based on estoppels), subsequent “ excessive user
or bad behaviour towards the legal owner cannot bring an equality to an end or forfeit
it.” Denning L.J though that “ the equitable award might be revoked in “ some
circumstances,” but held that the remedies available to the legal owner in this case would
be to bring an action at common law for nuisance, trespass and so forth” so the plaintiff
must approach the Court free from any blame on his part because Court wont grant
equitable relief to the plaintiff if there is any evidence of fraud, mistake, misrepresentation
or illegality, thus in Katarikawe Vs Katwiremu where Court held that if a tenant is in breach
of several terms of his agreement with the land owner then Court wont grant relief. Also
when certain transactions are illegal and one seeks to get an equitable relief out of such a
transaction for example under the Employment Act36which provides that wages can only
be paid in local currency and not in kind and any agreement to such will be illegal, null and
void. However for the inequitable conduct to amount to un clean hands, it needs not be
illegal strictly as required by law. Its sufficient if the conduct is un conscionable and
morally reprehensible and need not have been to the other party to the action.

Equity follows the law

According to the Judicature Act37 provides that equity is based on the law. Equity has
adopted some of the rules of common law for example those affecting mistake that is under

36
Cap 219 section 30
37
Supra 2; section 2
mistake common law is rigid or at time harsh that is why equity has attempted to temper
the unfairness in some areas by introducing certain remedies where the common law failed
to grant any, a leading example of an equitable remedy could be granted at common law is
Sole Vs Butcher (1950) 1k.b. 671. CA.E (E) in this case Sole V. Butcher, it was held that
a contract, is liable to be set aside of the parties were under a Common misapprehension
either as to the facts or their relative and respective rights, provided the misapprehension
was fundamental and the party seeking to set it aside was not himself or herself not in fault
The principle that only parties to a contract will be bound by the contract under the law of
contract is observed by a doctrine of equity for example special performance can be granted
where damages will provide adequate remedy, this is because equity follows the law and
is designed to supplement the grant of damages but not to over ride them like in contracts
for sale or lease of land or where chattels sold have a special beauty or interest specific
performance will be decreed.

Equity imputes an intention to fulfill an obligation

The doctrine of performance and satisfaction are based on this maxim because both
doctrines are based on intention, however in our legal system Courts tend to rely more on
the presumptions as to the party’s intensions that is where a person who is under a duty to
do an act, does an act amounting to the performance of the duty, in equity he/she will be
deemed to have executed the duty.

Equity won’t suffer a wrong to be without a remedy

The Latin version of this maxim suggest equity to be the healer of all ills: nullus recedat e
curia cancellariae sine remedio ( nobody leaves the court of Chancery without remedy).

Conclusion
The reality, of course, is that equity does not concern itself with every type of wrong.
Trusts exemplifies this maxim, equity enable the beneficiary through the procedures of the
trust, to enforce obligations where no remedy at common law existed 38. That is the
beneficiary has no right at common law to have the terms of the trust enforced but Uganda’s
legal system never the less requires the trustee to carry out those terms to prevent him or
her to commit what would be in effect wrong against that beneficiary. Specific performance
and injections constitute one of the chief ways in which equity supplements law by granting
auxiliary or additional remedies where the common law remedies where inadequate.

REFERENCES

1) BAKIBINGA D.J, EQUITY & TRUSTS IN UGANDA, PUBLISHED BY LAW

AFRICA PUBLISHING (U) LTD

38
Trustees Act, CAP 164, section 55
2) JILLE MARTIN, MODERN EQUITY 17TH EDITION

3) PATRICK PARKINSON, THE PRINCIPLES OF EQUITY 3RD EDITION

4) MUGAMBWA JOHN.T, PRINCIPLES OF LAND LAW IN UGANDA, FOUNTAIN

PUBLISHERS.

5) BAKIBINGA D.J, LAW OF CONTRACT IN UGANDA, FOUNTAIN PUBLISHERS.

6) SALEEM N.A, ELEMENTS OF LAW SIMPLIFIED, REVISED EDITIONMARCH

2007 PUBLISHED BY ACME PRESS (KENYA) LTD

STATUTES

1) THE CONSTITUTION OF UGANDA 1995

2) THE REGISTRATION OF TITLES ACT CAP 230

3) JUDICATURE ACT CAP 13

4) MAGISTRATES COURTS ACT CAP 16

5) SALE OF GOODS ACT CAP 82

6) THE CONTRACT ACT CAP 75

7) THE LAND ACT

8) THE CIVIL PROCEDURE CODE ACT CAP