APPLICATION OF SOME EQUITABLE MAXIMS IN NIGERIA
APPLICATION OF SOME EQUITABLE MAXIMS IN NIGERIA
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Date
1992-07
Authors
ATUM, DAVID ITYAVZUA
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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.
Description
A thesis submitted to the Postgraduate School, Ahmadu Bello
University, Zaria, in partial fulfillment of the requirements
for the degree of Master of Laws (LL.M.).
Department of Private Law
Faculty of Law
Ahmadu Bello University
Zaria.
Keywords
APPLICATION,, EQUITABLE,, MAXIMS,, NIGERIA