Equity: Common Law Courts
CUEA SCHOOL OF LAW General Principles of Equity I History of equity Introduction of the doctrines of equity into Nigeria The relation between Equity and Common Law Conflicts between Equity and Law Nature of equitable rights I Nature of equitable rights II UNIT 1 CONTENTS 1. 0 2. 0 3. 0 HISTORY OF EQUITY 4. 0 5. 0 6. 0 7. 0 Introduction Objectives Main content 3. 1 Law and equity 3. 2 Conscience 3. 3 Difference and conflict 3. 4 Equity and the common law in the narrow sense Conclusion Summary Tutor-Marked Assignments References / Further Reading 1. 0 INTRODUCTION This is an introductory unit.
It introduces us to the law of equity and how it was developed in the court of Chancery in England. There is a wealth of literature on equity jurisprudence; its origin, development and the part it has played in those countries having the common law as the foundation of their legal systems. From its origin to the present period, equity has been kept under strict and constant surveillance. Its origin and development have been emphasized and its main principles have been amplified all in a determined attempt to ensure that the principles of equity do not fall behind society’s immediate needs and aspirations.
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Equity came to mitigate the rigours of the common law. 2. 0 OBJECTIVES (i) (ii) (iii) Trace the origin of equity; Explain the notions of conscience; and Differentiate Equity from the common law. By the end of this unit you should be able to: 3. 0 3. 1 MAIN CONTENT Law and equity 4 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, the question ‘what is equity? ’ does not create any difficulty.
It 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. According to Jegede, for obvious reasons, no municipal legal system, however highly developed can take cognizance of or regulate all acts that may be inconsistent with this broad conception of equity. Moreover, the demands of the term equity in this sense are not capable of enforcement, for they do not create or produce any legal obligation.
Yet the use of the term equity in this sense is not peculiar to the unlearned in the science of law. However, the lawyer takes a different and more cautious view of the term ‘equity’ when it is used in a limited but legal sense and clothed with the cloak of juristic significance. Juristic Sense of Equity The juristic sense of the term ‘equity’ may be subdivided into two, one complementary to the other and both affecting the administration of law and justice by recognized judicial tribunals.
In the first place, there is the general juristic sense of the term ‘equity’. Here ‘equity’ means the power to meet the moral standards of justice in a particular case by a tribunal having discretion to mitigate the rigidity of the application of strict rules of law so as to adapt the relief 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. In the second place, there is the technical sense of the term ‘equity’.
Equity in this sense means a special and peculiar department of the English legal system which was created, developed and administered in the Court of Chancery. This may be a satisfactory definition of English equity before the Judicature Act of 1875 which provides for the administration of law and equity by the same tribunal. According to Maitland, in his book “Equity (Brunyate Ed. ) 1949,” prior to 1875, ‘Equity is that body of rules which is administered only by those courts which are known as Courts of Equity. But after 1875, it is no longer satisfactory to define equity in terms of a court, that is, the Court of Chancery as distinct from the other superior courts. The Judicature Act of 1875 has amalgamated all the superior courts into a Supreme Court of Judicature administering both the rules of equity and the rules of common law. Thus, ‘Equity now is 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. The extent to which the same definition may be applied to the technical rules of equity received into the Nigerian Legal System will be discussed later. 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, viz – the Common Pleas, the Queen’s Bench and the Exchequer of Pleas. 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 according to royal propaganda, that law applied to all 5 subjects and the whole realm. Only an historical explanation can be offered for why there were three such common law courts with substantially overlapping jurisdictions. They could and often did give different answers to the same questions and there was no reliable method of ironing out those differences. But 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.
This was not by way of appeal. The common law judgment was not formally set aside or reversed; the Chancery, while leaving it intact, simply issued an order which was inconsistent with that of the common law judges. The constitutional position was that this second order prevailed, leaving the common law answer as an overshadowed solution to the problem. These Chancery orders had come to be 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. This body of law 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. Only incidentally to these was it to develop a law of private wrongs.
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. This is borne out of the fact that early petitions were in respect of indubitable legal wrongs, assaults, batteries, imprisonments, disseisins and a variety of outrages inherent in the feudal society.
These wrongs were cognisable in the common law courts, but 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. 3. 2 Conscience Jurisdiction 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 an individual discretionary justice in contrast to the inflexible monoliths of the common law. Whether this was perceived by all litigants in Chancery (or even common law) may be doubted. Much of the jurisprudence of the court has been concerned with working out the detailed administrative implications of having taken an earlier moral stance. Many of these decisions, like much administration, have little reference to individuated notions of right and wrong. But the tradition is fundamentally well based and it is impossible to read Equity cases of any 6 eriod without being aware of it. Pre-17th century Chancery jurisdiction was vague and elastic. As noted earlier, 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, 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. The early history of the jurisdiction 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.
There was also dissatisfaction with common law remedies. Despite having taken the inspired decision to enforce rights of property in land by actually delivering it up by force, if need be, to its owner, it enforced other rights, including property in chattels, as well as all contract and tort claims by a money judgment. Finally, common law pleading had become both overly complex and also a monument to single mindedness in its stubborn refusal to allow more than one issue to be tried at a time. Reform of these defects by statute was not seen to be an answer.
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. According to Jeffrey Hackney in his book “Understanding Equity and Trusts”, p. 17-18, these petitions came to be heard by the King’s greatest officer of state, the Chancellor. By the early 16th century, he was giving decisions in his own name and had established a jurisdiction over freehold land.
It soon became a trademark of Chancery thinking to emphasize ‘good faith’ and to appeal to notions of ‘conscience’. The avoidance of unconscionability may be the central informing idea. These notions of conscience which do not figure prominently in the articulation of common law rules are familiar in the canon law. It is possible that the ecclesiastical background of early Chancellors accounts for this emphasis. He explained that, Step by step they set about plugging the loopholes left by the common law’s shortcomings. 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 developed into the branch of law known to us by the archaic name of the assignment of choses in action (‘things protected only by litigation’). Most dramatically of all, they invented the ‘use’, later to be reborn as the modern trust.
By this device, they would order that property held on a common law title by Y, as his own, should rather be administered by Y only for the benefit of X, the beneficiary of the use. 7 This would often be in consequence of a voluntary undertaking by Y, but sometimes it would not. Of greater significance still is that even if there were a voluntary undertaking, it need not have been to X herself, but to a third party, often a relative of X, who had conveyed the property to Y. Uses were not contract. In this way, Chancellors supported, supplemented and corrected the common law.
The principles of conscience are, however, vague and uncertain and unless they are guided within well-defined limits, they may soon lead to a system of justice based solely upon individual and autocratic discretion. 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. SELF ASSESSMENT EXERCISE 1 What do you understand by the term ‘equity’? 3. 3 Difference and conflict According to Jeffrey Hackney (op. cit. ), pp. 8-19, 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. The contrast with the regular court system was enhanced by the absence of a jury and by the Chancellor’s practice of not 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 socalled ‘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. This will be considered in detail in Unit 3 of this Module. 3. 4 Equity and the common law in the narrow sense There are two usages of ‘common law’: the wider usage, meaning the whole of the royal law, includes Equity; the narrower usage, focusing on the contrast, excludes it. If there was resentment about the divergence after 1616, it did not surface.
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; 8 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. Equally effectively, decisions were often attributed to the demands of Equity as if it were some creature with a will of its own, some personified virtue, some Marianne, pulling the strings of the judicial marionettes. Marianne is an image of a woman personifying the French republic, e. . on French coins, usually depicted in a light flowing robe and wearing the Phrygian cap of liberty. (Marionette is a puppet operated by means of strings attached to its hands, legs, head, and body). 4. 0 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 estricted the development of new issues and defences. Equity, therefore, came to relieve the rigours of the common law. 5. 0 SUMMARY This unit has introduced you briefly to the law of equity. You should now be able to: trace the origin of equity; explain the notions of conscience; and differentiate Equity from the common law. 6. 0 TUTOR-MARKED ASSIGNMENT How is the conflict between common law and equity resolved? 7. 0 REFERENCES / FURTHER READING Oxford Advanced Learner’s Dictionary, 6th edition Hackney Jeffrey, (1987) Understanding Equity and Trusts; London: Fontana press Jegede M. I. (2007rep. Principles of Equity; Ibadan: Unique Design/Prints 9 UNIT 2 CONTENTS 1. 0 2. 0 3. 0 INTRODUCTION OF THE DOCTRINES OF EQUITY INTO NIGERIA 4. 0 5. 0 6. 0 7. 0 Introduction Objectives Main content 3. 1 Ordinances 3. 2 Customary law and equity 3. 2. 1 Repugnancy doctrine and customary law Conclusion Summary Tutor-Marked Assignments References / Further Reading 1. 0 INTRODUCTION In the previous unit, we traced the origin of equity, explained the notions of conscience and differentiated equity from common law in the narrow sense. In this unit, we will consider how the doctrines of equity were introduced into Nigeria.
The modern technical rules and doctrines of equity which originated from the early English Chancery were formally received into the Nigerian legal system through various statutory enactments. These technical rules and doctrines of equity are the outcome of many ancient and modern English judicial decisions, established and ascertainable in the same manner as the common law rules. It seems to follow that any technical rule of equity in force in Nigeria must have its foundation or its ‘ancestry’ in an English case law. This is the focus of this unit. 2. 0 OBJECTIVES i) Explain how the doctrines of equity were introduced into Nigeria; and (ii) Explain the repugnancy doctrine. By the end of this unit you should be able to: 3. 0 3. 1 MAIN CONTENT Ordinances English law and doctrines of Equity were introduced into Nigeria by means of local legislation. The first of such legislations was Ordinance No. 3 of 1863. Ordinance No. 3 of 1863 This enactment broadly introduced English law into the territory of Lagos without any further analysis. In the absence of any information or record as to the interpretation of the laws so ntroduced, it is reasonable to assume that the introduced laws had been those administered in the practice of the English courts. As such, any reference to the laws of England will, by necessary implication be interpreted to include not only the rules of common law but also the rules of eq10 uity as developed respectively in the English common law courts and the English Chancery Courts. Section 1 of this Ordinance No. 3 of 1863 introduced all laws and statutes, which were in force in England on the 1st day of January, 1863, and made them part of the laws of the Colony of Lagos.
The only limitation was that such laws and statutes must not be inconsistent with any Ordinance in force in the Colony; and that they must be applied in the administration of justice so far as local circumstances would permit. Ordinance No. 4 of 1876 Section 14 of this Ordinance introduced more clearly, the English common law, the doctrines of equity and statutes of general application which were in force in England on the 24th day of July, 1874, to be in force within the jurisdiction of the courts in the Colony of Lagos.
Because of the inclusion of the phrase, ‘doctrines of equity,’ in this Ordinance, it is tempting to argue that this Ordinance is the forerunner of the introduction into Nigeria of the doctrines of equity. Therefore, it can be reasonably asserted that the technical principles of equity as developed by successive Chancellors in England were incorporated into the laws of the Colony of Lagos for the first time only in 1876. Section 17 of this Ordinance made the application of Imperial Laws subject to local circumstances and to any existing or future Ordinance of the colonial legislature.
Section 18 of the same Ordinance also enjoined the British established courts in the Colony to observe the observance of the native laws and customs of the people of the Colony; such laws and customs not being ‘repugnant to natural justice, equity and good conscience. ’ This doctrine will be considered later on at the end of this unit. Ordinance No. 17 of 1906 Consequent upon the merger of the Colony of Lagos with the Protectorate of Southern Nigeria on the 1st of January, 1900, this Ordinance No. 17 of 1906 was passed in order to make applicable to the new Protectorate the provisions of Ordinance No. of 1876. Similar steps had earlier been taken in respect of the Protectorate of Northern Nigeria by means of Proclamations. See section 4 of the Protectorate Courts Proclamation, No. 4 of 1900. Ordinance No. 3 of 1908 This Ordinance repealed all existing enactments and re-enacted their provisions with minor alterations. The Ordinance remained in force until it was finally superseded by the Supreme Court Ordinance, 1914, which became applicable to the whole of Nigeria on the amalgamation of Northern and Southern Nigeria on the 1st day of January, 1914.
The Supreme Court Ordinance 1914 One of the objectives of the amalgamation in 1914 was the unification of the legal systems of the two administrations of Northern and Southern Nigeria. This objective was achieved by the promulgation of the Supreme Court Ordinance which replaced all the laws pre-existing in the amalgamated units. The Ordinance introduced into the country, subject to the usual reservation of their being applied subject to existing local laws and in so far as local circumstances would 11 ermit, the rules of the English common law, the doctrines of equity and statutes of general application which were in force in England on the 1st day of January, 1900. In this way, the rules of the English common law, the principles of English Equity and Statutes of general application which were in force in England on the 1st day of January, 1900 were introduced into the whole of Nigeria. In 1952, the country adopted a quasi-federal Constitution whereby the country was divided into three regions – Eastern, Northern and Western Regions, with three legislative houses and a central Legislature in Lagos.
This was followed up in 1954 with the regionalisation of the judiciary to accord with the new constitutional arrangements which came into operation since 1952. In pursuance of this regionalisation of the judiciary, a Federal Supreme Court, replacing the West African Court of Appeal was set up by the Federal Constitution of 1954. A High Court and Magistrates’ Courts were established in each of the three regions of Eastern, Northern and Western Regions.
The Federal Territory of Lagos (separated from the Western Region) was also provided with a High Court and Magistrates’ Courts and thus treated as though it were a region. Provisions were also made in the Supreme Court Act, the High Court Laws and the Magistrates’ Courts Laws of the regions and Lagos incorporating the rules of the English common law and the doctrines of equity among other things, into the respective laws to be administered not only in the Federal Supreme Court, but also in the regional
High Courts and the Magistrates’ Court. (In the Northern States, however, when the Magistrates sit in their civil jurisdiction they are designated as ‘District Judges’. See sections 3-7 of the District Courts’ Law (N. R. No. 15 of 1960). Note that the word ‘Law’ is the designation for a regional legislation, while the word ‘Ordinance’ was still retained for a federal legislation. Since independence, however, all Ordinances enacted by the federal legislature became known as ‘Acts’.
Also, when the Mid-Western Region was carved out of the former Western Region and constituted into a separate region in 1963 by the Federal Parliament, Section 2 of the Mid-Western Region (Transitional Provisions) Act, 1963, expressly made all existing law which were in force in the Western Region immediately before the creation of the new region to be the law in force in the new region until changed by the new Midwestern authority.
The effect of this is the direct absorption of the provisions of section 13 of the High Court Law, 1955 (W. R) and those of section 13(1) of the Magistrates’ Courts Law, 1955 (W. R. ) into the law (that is to say the rules of common law, the doctrines of equity and the statutes of general application which were in force in England on the 1st day of January, 1900) to be administered in the new Mid-Western Region High Court and the Magistrates’ Courts.
Nigeria divided into 12 states With effect from the 27th of May, 1967, the country was divided into twelve separate autonomous States by the States (Creation and Transitional Provisions) Decree No. 14. Three of these new States, the East-Central, the South-Eastern and the Rivers States, were carved out of the former Eastern Nigeria. While six others, the North-Western, the North-Central, Kano, the North-Eastern, the Benue-Plateau and Kwara States were carved out of the former Northern Nigeria.
The former three administrative divisions of Badagry, Epe and Ikeja in the former Western Nigeria were also carved out of the former Western Nigeria and merged with the Federal Territory of Lagos to form the new Lagos State. The other two were the Western and the 12 Mid-Western States. Section 15 of the Decree No. 14 provides that “all existing law in the region out of which a state under this Decree is created shall have effect, subject to the modifications necessary to bring it into conformity with the provisions of this section”.
Section 2(1) of the same Decree as amended by Section 2 of the Constitution (Miscellaneous Provisions) Decree, 1967, also provides as follows: “(1) Without prejudice to the provisions of this Decree relating to the existing law, every local authority, court and other public body which immediately before the commencement of the Decree exercised its functions within a state as herein constituted shall continue to exercise those functions in the State. The combined effect of these provisions in relation to the law to be administered within the jurisdiction of the courts in the new states is two-fold: (i) In relation to the law to be administered within the jurisdiction of the High Courts and the Magistrates’ Courts in the Western and Midwestern States, it is the law as contained in the High Court Laws and the Magistrates’ Courts Law respectively in those two States prior to the creation of new States. ii) In relation to the laws to be administered within the jurisdiction of the High Court and the Magistrates’ Courts in each of the three Eastern and each of the six Northern States, it is the law respectively being administered within the jurisdiction of the High Courts and the Magistrates’ Courts in the former Eastern and former Northern Nigeria. The position of the High Court and the Magistrates’ Courts in Lagos State is somewhat peculiar.
In the case of the nine new states created from the former Eastern and Northern Nigeria, each of the new states was an off-shoot of an existing region and carries with it to the new state, the laws being administered within the jurisdiction of the High Court and the Magistrates’ Courts in its former region of origin, to the High Court and the Magistrates’ Courts of the new State. But in the case of Lagos State, Lagos was already a federal territory being administered by the Federal Government and already had its own High Court and Magistrates’ Courts before the creation of states.
The direct effect of this is that the judicial divisions of the High Court and the Magistrates’ Courts functioning in the three administrative divisions of Badagry, Epe and Ikeja, which were carved out of the former Western Nigeria and merged with the federal territory of Lagos to form Lagos State, carried the law being administered within the jurisdiction of their courts to their new Lagos State. The High Court of Lagos Act and the Magistrates’ Courts Act now applied throughout the State. See section 2 of the Lagos State (Applicable Laws) Edict 1968 (No. 2 of 1968).
The country was further divided into 19 states by the States (Creation and Transitional Provisions) Decree, 1976 and later into 21, 30 and now 36 states. Thus, we now have in Nigeria as against the former five jurisdictions which exercised judicial functions, 37 (including Abuja) separate jurisdictions performing the same functions. SELF ASSESSMENT EXERCISE 1 How were the doctrines of Equity introduced into Nigeria? 13 3. 2 Local Legislation in Nigeria dealing with Conflicts between customary law and equity Despite the introduction of the English law into Nigeria, the native laws and customs of the people were not abolished.
Rather, the Ordinances introducing such English law into Nigeria expressly made provisions to the effect that these British established courts in Nigeria should observe and enforce the observance of the people’s native laws and customs as contained in the provisions of section 18 of Ordinance No. 4 of 1876. Subsequent local legislations since then have continued to retain those provisions. Now, every High Court in the country is enjoined to observe and enforce the observance of the native laws and customs of the people in the area of its jurisdiction.
There are, however, two pre-requisites to be fulfilled before the court can observe and enforce the observance of any native law and custom. 1. The native law and custom must not be repugnant to natural justice, equity and good conscience. 2. Such native law and custom must not be incompatible either directly or by implication with any law for the time being in force. For a detailed study of the second pre-requisite, see Park AEW: The Sources of Nigerian Law (1963) pp. 77-80. The first pre-requisite is our focus here and will now be examined in detail. 3. 2. 1 Origin
Repugnancy doctrine and customary law The origin of the doctrine appears obscure. It has been suggested that the origin of the doctrine has little connection with English Law. Nor would it be correct to say that it is of Roman origin. It has been further suggested that it did not originate from either Aristotle or Cicero. Rather, its origin has been traced to the Roman-canonical law, which had been prevalent in most of the medieval European States. See Derrett, Justice, Equity and Good Conscience (Changing Law in Developing Countries), edited by J. N. D. Anderson, p. 114.
However, the idea of the repugnancy doctrine was known to the early common law judges, although they were primarily concerned with adjudicating 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 various local enactments. 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 14 local laws are inapplicable. See for example, section 34(4) High Court Law, No. 8 of 1955 (N. R. ) It has been argued that the phrase ‘natural justice, equity and good conscience’ is capable of being interpreted in two ways. (See Daniels, The Common Law in West Africa, p. 267; Park, A. E. W. , (1963) The Sources of Nigerian Law, p. 69. )The first possible approach is to view the phrase in totality as having only one meaning. The second possible approach s to split the phrase into three and consider each part separately. (See Speed Ag. C. J. in Lewis v. Bankole (1908) 1 N. L. R. 81. ) However, attempt to examine the impossibility implicit in the second approach seems to be a fruitless academic exercise. From all indications, it is clear that the phrase can only mean one thing, in that there is only one common idea, which is expressed in three different phrases. The three phrases had sometimes been used separately but they all originated from a common idea and they have all been used to achieve the same result – social justice in the administration of law.
The practical application of the doctrine in our system has not evinced any generally agreed test. It is therefore futile to examine judicial decisions in which the operation of the doctrine has been considered. One of the most authoritative pronouncements on the application of the doctrine does not seem to have offered any satisfactory solution. See Eshugbayi Eleko v. Government of Nigeria (1931) A. C. 662 at 673. It does not go beyond stating 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. ’ See Eshugbayi Eleko v. Government of Nigeria (supra). 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 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. This brings us to a consideration of Park’s view that: ‘there is no provision in the enactments which authorises the courts to look beyond the rule to the results of its application in specific situations. See The sources of Nigerian law, p. 73. ) This is suggestive of a mechanistic approach to the ascertainment and application of our customary law, particularly where as 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 15 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. . 0 CONCLUSION In conclusion, section 32 subsections (1) to (3) of the Interpretation Act (cap. 123 Laws of the Federation of Nigeria, 2004) provides that: (1) Subject to the provisions of this section and except in so far as other provision is made by any Federal Law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria. 2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law. (3) For the purpose of facilitating the application of the said Imperial laws they shall be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances. Subject to local circumstances and to any local statute, the entire English Common Law and Equity forms part of Nigerian Law.
There is, however, a controversy as to whether the limitation to pre 1900 laws refers only to statutes of general application or whether it applies also to the rules of Common Law and Equity. Clearly, only the pre 1900 English statutes are in force in Nigeria. 5. 0 SUMMARY In this unit, we have discussed how the doctrines of equity were introduced into Nigeria through various ordinances and the controversy generated by the repugnancy doctrine in relation to customary law. In unit 3, we shall treat the relationship between equity and common law. . 0 TUTOR-MARKED ASSIGNMENT Explain what you understand by the repugnancy doctrine and its effects on customary law. 7. 0 REFERENCES / FURTHER READING Hackney J. , (1987) Understanding Equity and Trusts; London: Fontana press 16 Jegede M. I. (2007rep. ) Principles of Equity; Ibadan: Unique Design/Prints Park, A. E. W. , (1963) The Sources of Nigerian Law Volume 8 Laws of the Federation of Nigeria, 2004. UNIT 3 CONTENTS 1. 0 2. 0 3. 0 THE RELATION BETWEEN EQUITY AND COMMON LAW 4. 0 5. 0 6. 0 7. 0 Introduction Objectives Main content 3. Opposition to the Chancery Jurisdiction 3. 2 Judicature Acts, 1873-1875 Conclusion Summary Tutor-Marked Assignments 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) (ii) (iii) . outline the opposition to the Chancery Jurisdiction; explain the Judicature Acts; and explain the conflicts between law and equity. 3. 0 3. 1 MAIN CONTENT Opposition to the Chancery Jurisdiction 14th Century 17 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. 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. 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 jurisdiction.
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 human 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 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 aside common law judgments on the ground of equity and good conscience. Chief justice Coke of the common law courts insisted 18 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. 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 Chancery. 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 before 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. 19 (i) The decadent and the unsatisfactory procedure and organisation of the Court of Chancery; and (ii) 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 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.
Originally, evidence in the Chancery was by bill. 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, 20 s 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. 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 estates, 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 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. 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 addition, the common injunction by means of which the Chancery Court used to exercise its supremacy over the court of common law is no longer relevant and was expressly abolished. 21 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 prohibition 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 relied 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 significant effect of the Judicature Acts is the consolidation of all the superior courts and the fusion 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 Settlement 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 Settlement 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. 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 Nigerian 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. 0) 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 provides 22 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 properly 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 equity 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 recognition, 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) hat 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 Judicature 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 machinery to enforce them. 5. 0 SUMMARY In this unit, we have considered the opposition to the jurisdiction of chancery and the enactment 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 23 UNIT 4 CONTENTS 1. 0 2. 0 3. 0 CONFLICTS BETWEEN EQUITY AND LAW 4. 0 5. 0 6. 0 7. 0 Introduction Objectives Main content 3. 1 Effect of the Judicature Acts 1873-1875 3. 2 Fusion 3. 2. 1 Fusion of Rules/Administration Conclusion Summary Tutor-Marked Assignments References / Further Reading 1. 0 INTRODUCTION
In the previous unit, we considered the relation of equity and common law. In this unit, we will further consider the conflict between equity and the common law and the effect of the passage of the Judicature Acts 1873-1875. 2. 0 OBJECTIVES (i) Explain the effect of the Judicature Acts 1873-1875; and (ii) Explain how law was fused with equity. By the end of this unit you should be able to: 3. 0 3. 1 MAIN CONTENT Effect of the Judicature Acts, 1873-1875 Before the Judicature Act of 1873, there had been certain practical cases in which the application of common law rules and the application of rules of equity with reference to the same matter produced conflicting results.
For example, before the Act, the attitude of equity with regard to the effect of stipulations as to the time in contracts could not be reconciled with that of the common law. Similarly, equity rules as to the custody and education of infants were different from relevant common law rules. In addition, equity and common law had long maintained a different attitude to the important question of assignments of choses in action. These and some other particular types of conflict were resolved by section 25, sub-sections 1-10 of the Act. In some cases, rules of equity were made to prevail over those of the common law (subsections 2, 7, 10), in others, common rules (neither those of equity nor common law) were evolved. See subsection 8.
In addition to the settlement of particular conflicts, section 25(11) of the Judicature Act also provides in a general term, for the settlements of conflicts which may arise in the fused administration of common law and equity. Generally in all matters not here-in-before particularly mentioned, in which there is conflict between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail. ’ This provision is very much similar to section 16(c) of the Federal Supreme Court Act and other similar High Court Laws of the various States. 24 The scope of the section has come for judicial consideration in the following cases. i) Liability of an Executor for assets 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. See Crosse v. Smith (1806) 7 East. 246. On the contrary, equity took a more lenient view; an executor would not be liable for the loss of the testator’s assets, without default in him. These two varying positions of common law and equity with reference to the same matter came for consideration in Job v. Job (1877) 6 Ch. D. 562. Referring to the common law position, Jessel M. R. aid: “The rule there laid down is, however, as I have already intimated, 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 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. Though the Master of the Rolls adopted a ‘common rule’, this common rule was in fact a rule of equity which was held to have prevailed over the common law rule because of the Judicature Act of 1873. ii) Agreement for a lease The meaning of ‘conflict or variance’ within section 25(11) of the Judicature Act is also illustrated by the decision in 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 b