COMMON LAW AND EQUITY

COMMON LAW:

The birth of common law is traceable to the Norman conquest of 1066. prior to the Norman conquest there was no unified system of laws in England. The Normans embarked on a system of centralization, this led to the establishment of the curia Regis (king’s council) which performed both legislative and executive functions. Subsequently, courts were established was the court of exchequer to hear pleas on taxation cases, the court of common pleas was also established to hear civil matters, last to be established was the kings bench which heard matters of civil and criminal cases. The kings bench became the most important because of its association with the king.

Chancellor were sent from the king to the various region for judicial and administrative functions, wherever they went, they settled disputes in the area applying the local customs and laws. After their tour they converged at Westminster to compare the various local customs. The custom which was more accorded with justice was used to settle matter in any locality they went, setting aside the custom of that locality. Overtime, there emerged a collection of uniform rules for the realm which was referred to as the common law of the realm. Common law is therefore judges made law and is found in previous Judicial decisions.

THE DOCTRINE OF EQUITY:

Equity refers to what is fair, just or right. The principles of common law is strict and for a person to get remedy the must obtain a writ to fit his claim, where he cannot obtain a writ to fit his claim he is left with no remedy.

Due to the strictness of common law there emerged equitable decisions to mitigate the harshness of common law rules. Plaintiffs could not get remedy wrote petitions to the king. The king appointed the chancellor to attend to these petitions, the chancellor was determining these matters raised In the petition independent of the Curia Regis, he based his judgement on equity and good conscience, this is the beginning of equitable decisions in England.

There arose conflicts between the King Council and the chancery court, the conflict came to fore in the CASE OF EARL OF OXFORD (1615) 1 Re ch.1, in this case, the plaintiff assignee of a lease land had built a houses and planted trees in the garden on the parcel of land, the subject of assignment. The defendant forcefully ejected him and the plaintiff sued to common law court for wrongful ejection but he court found in favor of the defendant, the action was brought before the court of chancery the chancellor granted an injunction restraining the defendant from ejecting the plaintiff.

The conflict was referred to Lord Bacon who was attorney general who resolved it in favor of the chancery court, that where there is a conflict between the doctrines of equity and common law, the doctrines of equity would prevail. Common law and Equity were continually administered by different courts, hence, a person who wanted an equitable remedy would first apply at the court of common law and then court of equity until the Judicature Act, where the principle of common law and the doctrines of Equity are administered by the same courts.

MAXIMS OF EQUITY

1.       Equity is equality.

2.       Equity does not suffer a wrong without a remedy.

3.       He who seeks equity must do equity.

4.       He who seeks equity must come with clean hands.

5.       Equity aids the vigilant not the indolent.

6.       When two equities are equal, the first in time prevails.

REASONS FOR THE ADOPTION OF EQUITABLE REMEDIES

1.       The writ system used in common could not keep pace with the needs of a fast developing world. There were many matters that couldn’t be fixed into existing writs, and hence the plaintiff is left without remedy.

2.       Common law looks at form rather than content. That is no matter how just the claim of the plaintiff if he brings the matter before the court by the wrong process, his claim would be defeated.

3.       The only remedy available at common law was the award of damages. This remedy was grossly inadequate. Equity introduced new remedies such as; injunction, specific performance; promissory estoppel, indemnity et cetera.

Finally, it should be noted that Equity is not a body of rules on its own, it is merely a gloss on the common law, to mitigate the harshness of the common law, it therefore cannot stand on its own.