UNIT 3 THE RELATION BETWEEN EQUITY AND COMMON LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 Opposition to the Chancery Jurisdiction
3.2 Judicature Acts, 1873-1875
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignments
7.0 References / Further Reading
1.0 INTRODUCTION
In the previous unit, we considered how the doctrines of equity were formally received into the Nigerian legal system through various statutory enactments.
The early Chancellors would have flatly denied any intention on their part to set up a separate court in opposition to the courts of law. As we have seen, 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. In this unit, we will look at the relation between equity and common law.
2.0 OBJECTIVES
By the end of this unit, you should be able to:
(i) outline the opposition to the Chancery Jurisdiction;
(ii) explain the Judicature Acts; and
(iii) explain the conflicts between law and equity.
3.0 MAIN CONTENT
3.1 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 (be- cause it was neither supported by statutes nor by the common law of the land) came from both the Parliament and the common law courts. At that time, parliament had gained its independ- ence 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 exer- cised 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 pre- text 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.
For example, it was at this period that the Chancery devised a useful means for the enforcement of trusts, the popularity of which over-shadowed the clamour for the abolition of Chancery ju- risdiction.
It may be remarked here that 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. On the contrary, Chancery’s recognition and enforcement of the trust was in accord with hu- man progress and aspirations at a time the English people were determined to move away from the feudal age and its unpleasant incidents.
Coke and Ellesmere – 16th Century
In the latter part of the sixteenth century, the rivalry between the common law courts and the Chancery had reached a second and was nearing a decisive stage. The existence of the Chancery as a separate court administering rules of equity had become a fait accompli. 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.
The decisive stage came 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 effect of these conflicting positions of the two courts of rival jurisdictions operating within one legal system is not difficult to foresee in the administration of justice. The imminent anar- chy that would have resulted if the situation were not arrested became real in the Earl of Ox- ford’s case (1615) 1 Rep. Ch. 1.
The Chancellor, Lord Ellesmere, claimed the power to set 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 be- came 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 at- tempts to curtail Chancery jurisdiction and to revive the conflict hitherto resolved in favour of the Chancery by James I.
SELF ASSESSMENT EXERCISE 1
Why was there so much opposition to the jurisdiction of the court of Chancery by the courts of common law?
Effect of the King’s Decision
The king’s decision in favour of the Chancery had a two-fold effect on the nature and character of Chancery jurisdiction. In the first place, the jurisdiction of the court became more extensive. Many litigants were attracted by the flexible and speedy judicial policy of the Court of Chan- cery. In course of time, the court was so much hard-pressed that it could not adequately cope with its business. The court was poorly staffed and poorly organised; its procedure had become complex and inefficient. The result was unnecessary delay in the administration of justice.
In the second place, the 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. Various but unsuccessful attempts to reform the Chancery jurisdiction and its procedure were made be- fore the later piecemeal reform of the 19th century. The position of the Chancery court and its jurisdiction in the English legal system before the 19th century reform was neatly 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 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.’
See further Potter’s Historical Introduction to English Law (4th Ed.) pp. 160-165.
19th Century Reforms
In the early part of the 19th century, two important factors called for reform and simplification of legal procedure
(i) The decadent and the unsatisfactory procedure and organisation of the Court of Chan- cery; and
(ii) The area of jurisdiction within which each of the superior courts, namely; court of com- mon 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 jurisdic- tion 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, liti- gation became expensive and there was unnecessary delay in the administration of justice. Cer- tainly, 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 at- tempted 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 pro- ceedings, 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 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 de- cided by the Chancery Courts. Before the Act, such matters would have been sent to the com- mon law courts. In addition, the Court of Chancery was enabled to take evidence orally in the open court. Originally, evidence in the Chancery was by bill. Lord Cairn’s Act, 1858, also em- powered 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 ad- ministration 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.’
3.2 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 of Justice consists of three divisions –
(i) The King’s Bench Division
(ii) The Chancery division; and
(iii) 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:
(i) The administration of the estates of deceased persons
(ii) The dissolution of partnerships or the taking of partnership or other accounts
(iii) The redemption or foreclosure of mortgages
(iv) The raising of portions or other charges on land
(v) The sale and distribution of the proceeds of property subject to any lien or charge
(vi) The execution of trusts, charitable or private
(vii) The rectification or setting aside or cancellation of deeds or other written instruments
(viii) The specific performance of contracts between vendors and purchasers of real es- tates, including contracts for leases
(ix) The partition or sale of real estates
(x) The wardship of infants and care of infants’ estates.
In addition to the above specific cases, Parliament may also from time to time, assign any other causes and matters to the Chancery division. See section 63, Conveyancing Act 1881; section 49 Settled Land Act 1882; and section 2 Guardianship of Infants Act, 1886.
The far-reaching 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 juris- dictions. 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.
All claims, obligations, defenses whether legal or equitable are cognisable in each of the three divisions of the High Court of Justice. See section 24, Judicature Acts 1873 and 1875. In addi- tion, the common injunction by means of which the Chancery Court used to exercise its su- premacy over the court of common law is no longer relevant and was expressly abolished
Section 24(5) of the Judicature Act, 1873 provides that no cause or proceeding at any time pending in the High Court of Justice or before the Court of Appeal shall be restrained by prohi- bition or injunction, but every matter of equity in which an injunction against the prosecution of any cause or proceeding might have been obtained before the passing of this Act may be re- lied on by way of defence thereto. Each of the divisions of the High Court of Justice is also empowered to stay, by injunction, proceedings in any matter or cause before it. The most sig- nificant effect of the Judicature Acts is the consolidation of all the superior courts and the fu- sion of the administration of law and equity.
SELF ASSESSMENT EXERCISE 2
What is the effect of the Judicature Acts, 1873-1875 on the administration of justice?
Equity in the Nigerian Legal System
We have seen in the preceding unit the manner in which the English common law, doctrines of equity and statutes of general application which were in force in England on the 1st of January, 1900 were incorporated into the Nigerian legal system. Note that the dual administration of law and equity, which largely extent paralysed efficient administration of justice in England before the Judicature Acts, was not introduced into the Nigerian legal system.
Though Nigeria adopted the English common law and the doctrines of English Chancery Court, Nigeria antedated England in reforming the machinery to enforce them. The Supreme Court Ordinance No. 11 of 9th April, 1863 established the Supreme Court of Her Majesty’s Settle- ment of Lagos, as a court of jurisdiction to be presided over by a Chief Magistrate or his duly appointed deputy. It was a court of record empowered to exercise the same civil and criminal jurisdiction and competence as Her Majesty’s Court of Queen’s Bench, the common pleas and Exchequer in England. By Ordinance No. 9 of July 1864, the Court of Her Majesty’s Settle- ment of Lagos was also made a court of equity with powers corresponding to that of Lord Chancellor in England.
Section 18 of the Ordinance No. 4 of 1876 also provided in a clearer term that law and equity were to be administered concurrently so as to avoid any multiplicity of legal proceedings; and in cases of conflict or variance between the rules of equity and the rules of common law with reference to the same subject matter, the rules of equity should prevail. In this way, the Nige- rian legal system was saved from the unhealthy rivalry between equity and common law which characterised the English legal system for centuries.
Notwithstanding Nigeria’s later political and constitutional developments, the regional High Courts (now State High Courts) are obliged to administer law and equity concurrently. See Law of England (Applicable) Law; sec. 3 (cap. 60) 1959 of (Western Nigeria); High Court Law, No. 27 of 1955, sec. 14 of (Eastern Nigeria) now applicable in all the Eastern States; High Court Law No. 8 of 1955, sections. 29-31 of (Northern Nigeria) now applicable to all the Northern States. See also Supreme Court Ordinance sec. 18, (1943) Laws of Nigeria.
Under the Nigerian Constitution, the Supreme Court has original jurisdiction in certain matters. With respect to the exercise of this original jurisdiction, the Federal Supreme Court Act, 1960 provides that the Supreme Court shall administer law and equity concurrently and in the same manner as they are administered by Her Majesty’s High Court of Justice in England. Section 16(b) of the Act is similar in substance to section 24(5) of the Judicature Act 1873. It provide that in every cause or matter pending before it, the Supreme Court shall grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim prop- erly brought forward by them in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. Section 16(c) of the Act provides that in all matters in which there was formerly or is in any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of eq- uity shall prevail.
The above provision extends concurrent power to cases in law and equity but does not blur the distinction between the principles of law and the rules of equity. While law and equity are to be administered concurrently, the distinction between equity and common law is given firm rec- ognition, hence the provision for the settlements of conflict that might have been existing in the past or that may arise in the future between common law and equity. It is in this context and that of the relevant provisions of the Judicature Acts 1873-1875 (the Act is a statute of general application and therefore in force in Nigeria) that the settlement of conflicts between law and equity will be examined.
4.0 CONCLUSION
Opposition to Chancery’s jurisdictions came from both the Parliament and the common law courts. The recommendations of the Royal Commission were substantially enacted as the Judi- cature Acts, 1873-1875. The Acts abolished all the existing superior courts and in their place created a Supreme Court of Judicature. Though Nigeria adopted the English common law and the doctrines of English Chancery Court, Nigeria antedated England in reforming the machin- ery to enforce them.
5.0 SUMMARY
In this unit, we have considered the opposition to the jurisdiction of chancery and the enact- ment of the Judicature Act. You should now be able to outline the opposition to the Chancery Jurisdiction; and explain the Judicature Acts.
6.0 TUTOR-MARKED ASSIGNMENT
Outline the opposition to the Chancery Jurisdiction.
7.0 REFERENCES / FURTHER READING
Hackney J., (1987) Understanding Equity and Trusts; London: Fontana press
Jegede M. I. (2007rep.) Principles of Equity; Ibadan: Unique Design/Prints