APPLICATION OF SOME EQUITABLE MAXIMS IN NIGERIA

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APPLICATION OF SOME EQUITABLE MAXIMS IN NIGERIA

Abstract:

One of the objectives of law is to achieve or ensure social justice in the society, but law may not necessarily achieve this in every case. Jegede has attributed this inability of law to do justice in every case to the fact that “every case present different problems and law being of rules applicable to certain definate and factual situations, makes no provision for unforeseen cases, nor does it permit any variation in peculiar individual circumstances”1. Developed systems of law have often been assisted by judicial discretion to do justice in particular cases where a strict application of rules of law cause hardship. In England this was what gave rise to the evolution of the principles of equity by the chancery Courts to mitigate the harshness of the common law. The pre-occupation of equity in its formative period was by the chancellors who developed the principles.of equity by their ideas of concerned themselves with working out the details of what has now become English and Nigerian principles of equity. Therefore right from the formative period the principles of equity vary like the chancellor’s foot. 1: Jegede (1981) Principles of Equity, Ethiope Publishing Corporation, Ring Road Benin City. Page 9. The exercise of equitable jurisdiction by the Courts of Chanoery was based on certain general principles. These principles have been embodied into what is know as Maxims of equity. They do not cover the whole ground of equity and each should not be considered in isolation from others, but as an integral part of the whole. They are principally twelve equitable Maxims applicable in Nigeria. But for the purpose of this research work, the application of the following first four below will be discussed in detail, these are: (1) Equity Will not suffer a Wrong to be Without a remedy. (2) Equity Acts in Personam. (3) He Who Comes to Equity Must Come with Clean Hands. (A) Delay defeats Equity or Equity Aids the Vigilant and Not the indolent. The rest of the Maxims are: (5) Equity follows the law. (6) He Who Seeks Equity Must do equity. (7) Equality is equity. (8) Equity looks to the intent rather than to the form. (9) Equity looks on that as done which ought to be done. (10) Equity imputes an intention to fulfil an obligation. (11) Where there is equal equity, the law shall prevail. (12) Where the equities are equal, the first in time shall prevail. Kodilinye has rightly submitted that “they should not be regarded as rigid formulae for the application of equitable rules, but rather as a collection of general principles which can be moulded or adopted to suit the circumstances of the individual case2. Organisational Structure This thesis is divided into Five Chapters. Chapter 1 which is the introductory Chapter briefly examines the various objectives of application of law in the society. This leads to the definition, origin and nature of equitable principles evolved by the chancery Court in England and its inter-relationship with the common law which incorporates the equitable Maxim “Equity will not suffer a wrong to be without a remedy”. These discussions will form the solid foundation for an examination of the historical background of reception of the principles of equity into the Nigerian legal system. The concluding aspect of the Chapter discusses relationship between equity and the repugnancy doctrine as perceived and applied by the Nigerian Courts. Chapter 2 makes an analysis of the Maxim “Equity Acts in Personam”. By this is meant that equity has jurisdiction over the defendant personally. The Maxim has received a lot of judicial expositions from the courts. Therefore attempt will be made to analyse some of these cases in England and other common law countries with the main focus on Nigeria. 2. Kodilinye (1975) Introduction to Equity in Nigeria, London Sweet and Maxwell. Page 12. Chapter 3 is devoted to the Maxim ” He who comes to equity must come With clean hands”. By clean hands is meant that the conduct which is regarded as unclean must be related to the case at hand, as it is not a general depravity, if it is not related to the case in hand it is irrelevant. Chapter 4 discusses the Maxim “Delay defeats equity or Equity Aids the Vigilant and Not the Idolent” (Vigilantibus Non Dormentibus jura subverniant). this means that a person will not be granted an equitable remedy if he has been guilty of undue delay and the other party has altered his position to his detriment. It ends with a brief discussion of application of statutes of limitation. Chapter 5 which is the last chapter of this thesis will be entirely devoted to suggestions for reforms on the application of some equitable principles.

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