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Module II: Maxims of Equity

Maxims of equity are short or concise statements of substance used to denote the general
principles upon which the court of equity exercises its jurisdiction. They are proverbial sayings
relating to general truths, fundamental principles, or rules of conduct, the reasonableness of
which are self-evident. Although sometimes inaccurate and subject to exceptions, they are
commonly used to justify particular decisions and express some of the basic principles that have
guided the development of equity. Basically, equity was introduced to modify the harsh aspects
of the common law and each case was determined in accordance with its peculiar facts.
Subsequently, special areas in equity became developed and embodied in convenient
“statements of law” and termed “maxims”.
Maxims are wide and varied and cut across one another in their application. However, two
of the above maxims, that is, “equity will not suffer a wrong to be without a remedy” and “equity
acts in personam” are the primary foundation of equity. All other maxims are consistent with
them and are used to extend their application by the courts. The former explains the whole
purpose of equity, and the latter highlights the personal nature of equitable reliefs. Put together,
it means that equity looks at the circumstances of the individuals in each case and fashions a
remedy that is directed at the person of the defendant who must act accordingly, to provide the
plaintiff with the specified relief. Therefore, unless a statute expands the powers of a court of
equity, it can make decrees that concern property only indirectly, phrasing them as decrees
against persons rather than the property that is ordinarily within the jurisdiction of the law. For
convenience, maxims of equity are usually classified into twelve major maxims dealt with below.

1. Equity will not suffer a Wrong to

be without a Remedy
The Latin equivalent of this maxim is ubi jus ibi remedium. It is one of two that form the whole
foundation of equity, and it means that legally enforceable rights, which are not enforced at law
due to some technical defects or otherwise, cannot be left unredressed by a court of equity. In
summary, the maxim means that:
❖ equity will not allow a person with a good claim to be denied the right to sue simply because
of some systemic disabilities;
❖ party that has been wronged has a stronger hand, and in turn, has the capacity to ask for a
legal remedy. In equity, this form of remedy is usually one of specific performance or an
injunction, which are superior remedies to those administered at law, such as damages. The
principle was fundamental to the decision in the American case of Marbury v. Madison1
wherein it was necessary to establish that the plaintiff had a right to his commission in the
first place in order for the court to make its more wide-ranging decision;2

1 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 [1803].

2 Ashby v. White (1703) 92 ER 126 (where the House of Lords upheld the right of electors to have a
remedy at common law for denial of their votes); Bivens v. Six Unknown Named Agents, 403 U.S.
388 [1971] (a case in which the US Supreme Court ruled that an implied cause of action existed for
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❖ the courts must provide a remedy whenever a plaintiff has established a right. The Nigerian
Supreme Court relied on this maxim when it held in the case of Saleh v. Monguno,3 that the
court should grant a remedy to a plaintiff who proves that a defendant has wronged him;
❖ in some specific circumstances where the common law fails to give a remedy, equity fills the
vacuum. In Ewhrudje v. Warri Government Council,4 the court stated that the primary
function of a court is to do justice between the parties to a dispute and not to do abstract
justice. Justice can only be done if the substance of the matter is examined, as reliance on
technicalities leads to injustice and the court has inherent power to make such order as
would do justice between the parties in a particular case. Therefore, it is the duty of the court
to provide a remedy for a plaintiff even if none had been prescribed in the statute book, for
where there is a right there is a remedy; and
❖ through this maxim, the court fully utilises the reliefs given by equity in all three jurisdictions
– exclusive, concurrent and auxiliary.

2. Equity Follows the Law

This maxim implies that equity will not grant a remedy that is contrary to law, unless there is a
good reason to depart from the law. It usually follows the rules of common law to the point
where a strict application of the law will result in injustice. Thus, the rules of equity are not
applied primarily to oppose, but to either assist the law, advance a remedy or prevent the abuse
of law.5 Equity follows the law almost in all things and does not depart from it unless the law
disregards some important rights. It has never denied the existence of the common law as the
law of the land and thus recognises legal estates, rights, interests and titles. It only interferes
where the common law is defective or unjust. For example, equity can never deny what the
common law recognises as a legal fee simple. It can only prevent a legal owner from making an
unconscionable use of the legal rights. The essence of this maxim is as follows:
❖ Equity presupposes that the common law is superior in the sense that without the law,
equity would have no foundational basis. According to Muntaka-Coomassie, JCA, in
Mudiaga-Erhueh v. INEC:6
❖

Equity follows the law: where therefore there is a conflict between

the law and equity, the law prevails. Equity should not be treated
as a tyrannous phenomenon threatening the existence of the law;
both exist jointly for the purpose of achieving justice according to
law. Equity does not exist in vacuum or supposedly to roam about
pouring water on the fire of the law. It is not a warlord, determined
to do battle with the law, but it is part of a legal system which has
been mixed with the law and the admixture is for the purpose of
achieving justice. Thus, where jurisdiction has not been conferred

an individual whose 4th Amendment freedom from unreasonable search and seizures had been
violated by federal agents).
3 [2006] 15 NWLR (Pt.1001) 26, 59 – 61.
4 [2005] 7 NWLR (Pt.924) 33.
5 Cowper v. Cowper (1734) 24 ER 930.
6 [2003] 5 NWLR (Pt.812) 70, 91–92.

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by statute, a court cannot exercise its equitable power to confer

same on itself.7

❖ Where a statutory or common law rule exists and directly governs a case with all its
circumstances, a court of equity will not depart from it, but follow it. For example, equity
recognises and upholds legal ownership of property – including trust property, and thus,
does not enforce the trust against a bona-fide purchaser for value without notice. However,
equity makes sure it sticks the trustee with the responsibility to exercise the legal ownership
of the property in favour of the beneficiary.8 Even the creation of an equitable trust in favour
of a stranger to a contract does not violate the maxim. According to the court in Hart v. TSKJ
(Nig.) Ltd9 this is because equity would not allow the law to be used as a vehicle for fraud,
and in appropriate cases, equity may intervene in a contract, to impose a trust in favour of a
stranger to a contract in order to prevent the law from being used as an engine to defraud,
the doctrine of privity of contract notwithstanding.
❖ The following examples demonstrate the application of the maxim.

(a) Legal Estates, Rights and Interests

Both common law and equity recognise and enforce corresponding rights, interests and
estates in land (in fee simple or fee tail) except that equity goes a bit further by recognising
future or other equitable interests not recognised in law. However, equity does not
recognise joint tenancies, but tenancies-in-common because of the jus accrescendi rule.
Note also that under the Land Use Act, 1978,10 all interests in land in Nigeria are at
best, leases and the various reception laws make received English law applicable
subject to local statutes and circumstances. Thus, in the case of Isichei v. Allagoa,11 the
court said it would refuse to order specific performance even if there was a contract to
renew a lease, in the absence of the Governor's consent to the transaction as required
under the provisions of the Land Use Act, 1978, because equity follows the law.

(b) Doctrine of Mistake in Contracts

Equity follows the common law in rules relating to the doctrine of mistake in the formation
of contracts. Where there is a mistake in writing down the terms of a contract, which would
have given an unjust advantage to a party acquiring legal title to the subject matter of the
contract, equity would order rectification of the document of the contract.12 Courts of equity
do not rectify contracts, but the instruments of record purportedly made pursuant to the
terms of the contract.13
(c) Rule of Primogeniture in Intestacy
In matters of intestacy, legal and equitable interests devolve upon the rule of
primogeniture, that is, inheritance of an estate in fee simple by the first son of a deceased

7 Trans-Bridge Co. Ltd v. Survey International Ltd [1986] 4 NWLR (Pt.37) 576, 578 per Eso, JSC.
8 Green v. Russell [1959] 2 QB 226, 241.
9 [1998] 12 NWLR (Pt.578) 372.
10 Cap. L5 LFN, 2004.
11 [1998] 12 NWLR (Pt.577) 196.
12 Frederick E. Rose (London) Ltd v. William H. Pim Jnr. & Co. Ltd (1953) 2 QB 450.
13 Mackenzie v. Coulson (1869) LR 8 Eq 368, 375.

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intestate to the exclusion of his siblings. Equity follows the law even in this unfair practice,
unless the first son, by any action on his part, induces the element of conscience to the
rule of primogeniture. For example, the condition of intestacy may exist in the first place
because the first son induced or persuaded the father not to make a will by promising to
share the estate with his siblings. While recognising the exclusive right of the first son to
inherit his intestate father’s estate, equity will take cognisance of the fact that he had
mortgaged that right in exchange for the promise to share given to his father – a promise
he must fulfil on grounds of conscience by becoming a trustee of the estate for himself and
for his siblings.14

❖ There are exceptions to the general rule that equity follows the law. These include:

(i) where the law is excessively rigid and technical, and its application would encourage fraud
and injustice. In the case of Gibbs v. Guild,15 the court held that equity would not apply a
statute of limitation by analogy if there was clear fraud, or if to do so would lead to an
inequitable result;
(ii) where an action arises from a base cause using the “ex turpi causa non oritur actio” (an
action does not arise from a base cause) rule, based on the public conscience test;16
(iii) the exclusion of equitable estates and interests from the application of the doctrine of
escheat17in intestacy and the rules relating to contingent remainders18– Adebo v.
Omisola;19 and
(iv) refusing to be bound by the provisions of relevant statutes on the grounds of such
doctrines like concealed fraud, part performance and secret trusts to avoid following the
law.

3. Where the Equities are Equal

the Law Prevails

❖ This maxim and the one immediately following this are founded on the doctrine of priorities
dealing with the priority of competing interests in property. Priority is defined in the case of
Rice v. Rice20 as the right of one party in a case to satisfy his claim in property over and
above other claimants in respect of the same property.
❖ Priority of competing interests or claims over the same property is determined by reliance on
two major factors –
(a) the nature of the interest created i.e., whether it is legal or equitable; and

14 Stickland v. Aldridge (1804) 34 ER 1052.

15 (1882) 9 QBD 59.
16 See also Ayodare & Sons Ltd [2007] 13 NWLR (Pt.1052) 567.
17 The return or reversion to the State or Crown (or Feudal Lord in ancient English history) of land
previously held by a deceased intestate who dies without heirs or legal successors.
18 Contingent remainder is an estate in remainder which is limited to take effect either to a dubious and
uncertain person, a person not yet in being or upon the happening of a dubious or uncertain event, by
which no particular interest in the present passes to the remainder-man, so that the particular estate
may chance to be determined, and the remainder never take effect.
19 [2005] 2 NWLR (Pt.909) 149, 175.
20 (1853) 61 ER 646.

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(b) the time each interest was created, the general rule being “first come first served.”
In either situation, the underlying consideration is the equality of the weight and the merit of
each interest or claim.
❖ Priority applies only where the “equities” (i.e. “merits”) of all the claims are equal, except in
the matter of the nature of the interest or the time of its creation The case that best
illustrates the application of the doctrine of priority to resolve both sets of competing
interests is the case of Cave v. Cave.21
❖ As a general rule, a legal interest in property takes precedence over an equitable interest in
the same property (subject to some exceptions) because equity generally follows the law.
This maxim is thus applied where priority is to be determined with regard to competing legal
interests and equitable interests, where the claims of both parties are equally fair and
meritorious.
❖ Under this maxim, it is the weight of the interest (legal vs. equitable) that counts first before
the time of creation. Therefore, where an equitable interest exists in A and X subsequently
acquires the legal estate in good faith for value and without notice of the existing equitable
interest, the legal interest would override the equitable interest irrespective of the time of
their creation.22 For this maxim to avail a legal estate holder against the holder of an
equitable estate therefore, he must have met three criteria at the point of acquiring the
estate. He must prove that he:
(a) bought a legal estate bona fide, that is, in good faith;
(b) gave valuable consideration for the property; and
(c) had no notice of any prior equities or interests in the property.

4. Where the Equities are Equal the

First in time Prevails
❖ This maxim resolves priority between two or more interests of the same weight and value,
subject to the doctrine of notice. It simply means that whenever the rights created over the
same property are equal in nature, worth or value, the older rights created take
precedence over the later rights.
❖ In this maxim, the general rule is that equitable interests must rank according to their order
of creation, provided that all the equities are equal. Therefore, the date of acquisition of an
equitable interest is of paramount importance. Thus, the dates of creation of various
equitable interests must determine their order of priority. In National Bank v. Keegan,23 the
owner of a house gave his aunt a right of residence, and then subsequently created an
equitable mortgage over the property. The aunt’s equitable interest was held to prevail, as
the two interests were equal, but her interest was the first in time.
❖ There are exceptions to the general rule that the first of equal equities prevails. A holder of
a prior equitable interest for example, cannot have priority over a later one where he had
conducted himself in such a manner as to render it inequitable to allow his interest to

21 (1880) 15 Ch D 639.
22 Edokpolo & Co. Ltd v. Ohenhen [1994] 7 NWLR (Pt.358) 511.
23 [1931] IR 344.

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prevail. In this situation, the equities cannot be said to be equal; therefore, the earlier
equitable interest holder takes after a later or subsequent encumbrancer. Thus, a holder of
a prior interest cannot take priority over later interests in the following circumstances:

(a) The Rule in Dearle v. Hall

The rule in Dearle v. Hall24 concerns cases of successive dealings with an equitable
interest in real or personal property by the process of assignments. Priority in this situation
is determined in the order in which the successive assignees gave notice of the
assignments to the debtor, trustee or other person liable to pay, and not by the order in
which the assignments were created. The facts of the case are as follows.
A testator had directed his executors in his will to sell the residue from his
estate, invest the proceeds and to pay the interest therefrom to the
assignor. The assignor thereafter assigned his interest first to Dearle in
1808, then to Sherring in 1809 and finally sold same to Hall in 1812. At
the time Hall bought, investigations of title carried out by his solicitor did
not reveal any prior interests in the property. Hall then served written
notice of his assignment to the executors of the testator. Subsequently,
the executors also received notices of the earlier assignments made to
Dearle and Sherring. On the question of who should take priority, the
court held that priority is to be determined by the dates that notice of the
existing interests were given to the holders of the legal estate, that is, the
executors and not the dates of the assignments.
The rule is subject to the doctrine of notice and does not extend to future interests.
(b) Acquisition by Fraud
An earlier equitable interest holder cannot take priority over a later holder of a similar
interest if he had acquired the interest by fraud. The fraud introduces the element of
inequality into the equities, and postpones whatever interest was acquired by it.
(c) Negligent Conduct
A holder of an earlier equitable interest cannot take priority over a later equitable interest if
he had been guilty of gross negligence as was the case in Rice v. Rice25 where a vendor of
land negligently signed a conveyance containing a receipt clause for the purchase money
that had not been paid to him. The court held that his equitable lien over the unpaid
purchase price had been postponed to a period later in time than the interest of the
equitable mortgagee with whom the title deeds to the land had been deposited, the
mortgagee having no notice of the earlier lien.26

5. He who Seeks Equity must

do Equity.

24 (1828) 38 ER 475.
25 (1854) 61 ER 646.
26 See also Ayorinde v. Scott (unreported) CCHCJ/2/72, 149; Grierson v. National Provincial Bank of
England [1913] 2 Ch 18.

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❖ This maxim requires a plaintiff who desires an equitable remedy, to be fair and just in his
dealings with the defendant.27 Any plaintiff who wishes to avail himself of an equitable
remedy can only do so on terms that he fulfils his own legal and equitable obligations arising
out of the subject matter of the dispute. Under this principle, a party who has failed to
perform his own obligations under a contract for example, cannot compel the other party to
perform – Okpala v. Okpu28
❖ Some areas in which the operation of this maxim is clearly evident are as follows.
(a) Fraud and Illegality in Contracts
The law is better at giving relief to fraudulent parties in illegal or unenforceable contracts
than equity, because equity will never allow itself to be used as a vehicle for fraud. For
example, any action taken in breach of the clear and unambiguous provisions of a statute is
null and void both at law and in equity. However, where the language of a statute is
ambiguous, interpreting it becomes problematic, as was the case with a statute declaring
some contracts to be “unenforceable” thereby leaving an ambiguity regarding the question
of whether the contract is valid, but unenforceable, or whether the contract is illegal because
it is unenforceable. In either case, the contract remains unenforceable at law for want of
jurisdiction, thereby giving an advantage to a fraudulent party who relies on the illegality of
the contract to claim benefits from the contract without honouring his own obligations in it. In
the case of Kasumu v. Baba-Egbe29 dealing with illegal loan, both the West African Court of
Appeal and the English Privy Council held that once a transaction is declared to be
“unenforceable” by a statute, the courts have no jurisdiction to entertain the action at all, the
validity or otherwise of the transaction notwithstanding.
Equity follows the law in these kinds of contract, provided that the fraudulent party
confines himself to asking for reliefs at law. However, equity, on the ground of conscience,
will depart from the law when such a party asks for equitable reliefs. In Lodge v. National
Union Investment Co. Ltd,30 the English court held that a borrower, who had borrowed
money from an unregistered moneylender in contravention of the Moneylenders Act, 1900 of
England, must repay the loan if he wanted to recover the securities he had deposited with
the moneylender. In that case, the plaintiff wanted to rely on the illegality of the contract to
avoid repayment of the loan, and recover the title deeds he had deposited with the lender as
security for the loan. If the plaintiff had restricted himself to the legal relief of a declaration
that the contract was void for illegality,31 without making the mistake of asking for an
equitable relief (the return of the securities given for the loan), he would have gotten away
with the fraud. While conceding that the contract was void for illegality, the court of equity
held that on the ground of conscience, the plaintiff must repay the loan to be entitled to the
securities deposited for it.

27 SCC (Nig.) Ltd v. Our Line Ltd [1996] 4 NWLR (Pt.444) 551; Allied Bank (Nig.) Plc v. Bravo North
African Ltd [1996] 3 NWLR (Pt.439) 710.
28 [2003] 5 NWLR (Pt.812) 183, 215.
29 [1956] AC 539; [1956] 3 WLR 575; [1956] 3 All ER 266.
30 [1907] 1 Ch 300.
31 Chapman v. Michaelson [1909] 1 Ch. 238.

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(b) Doctrine of Election

Election in equity arises where there is a duality of actual or purported gifts in the same
instrument. In this situation, a donor gives his own property to a donee and donates the
donee’s property to a third person. By implication, there is a presumed intention that the gift
to the donee shall take effect only if the donee elects to permit the third party’s gift to also
take effect. According to Chitty, J. in Re Lord Chesham,32 “... the principle on which the
doctrine of election is based is that a man shall not be allowed to approbate and reprobate.”

(c) Equity of Consolidation of Mortgages

This is another example of the right of redemption being allowed in equity only upon
equitable terms. The general rule is that a person who is entitled to the benefit of two or
more mortgages made by the same mortgagor can consolidate the mortgages against the
mortgagor. He may then refuse to allow the mortgagor to redeem one or more of the
mortgages without redeeming the others particularly where there has been any appreciation
or depreciation in the value of the properties mortgaged. This right of the mortgagee to
consolidate is known as the equity of consolidation, available only in cases where the time
allowed in the mortgage deed for the redemption of any mortgage has elapsed.
(d) Equitable Estoppel
Equitable estoppel, which can be promissory or proprietary in nature, is a principle created
by equity to advance the cause of justice by precluding a party from alleging or proving in
legal proceedings that a fact is otherwise than it has appeared to be from the circumstances.
In the case of Olalekan v. Wema Bank Plc33 the court defined estoppel as an admission, or
something which the law treats as equivalent to an admission, of an extremely high and
conclusive nature that the party whom it affects is not permitted to aver against it or offer
evidence to controvert it.34 Thus, where by words or conduct there had been a
representation of existing facts, which was intended to be acted upon by the person to
whom it was made, and was in fact acted upon to his own prejudice, the maker of the
representation will not be allowed to allege in proceedings against the person so acting that
the facts are other than he has represented them to be.35
Therefore, a plaintiff seeking to defeat a defendant’s defence of estoppel, must offer to
reimburse the defendant where, to his knowledge, the defendant had spent money on the
plaintiff’s property believing it to be his. All this maxim simply does is to require the plaintiff to
do equity, not justice.

6. He Who Comes to Equity Must

Come with Clean hands

32 (1886) 31 Ch D 466.
33 [2006] 13 NWLR (Pt.998) 617, 625.
34 See also Ebba v. Ogodo [2000] 10 NWLR (Pt.675) 387.
35 Central London Property Trust Ltd v. High Trees House Ltd [1956] 1 AER 256; Canadian Pacific
Railway v. R [1931] AC 414, 429; Dean v. Bruce [l952] 1 KB 11; Oyede v. Olusesi [2005] 16 NWLR
(Pt.951) 341.

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❖ This maxim means that equity will not permit a party to profit from his own wrong. In other
words, if X asks equity for help about the actions of Z but has himself acted wrongly, then he
does not possess “clean hands” and may not receive the help he seeks. For example, a
landlord who desires his tenant to vacate his rented apartment must not have violated the
tenant’s rights.
❖ Just like preceding maxim, this maxim simply requires a person who seeks from equity a
relief which the strict common law would normally have denied him, is conscience-bound to
disclose all relevant facts, without misrepresenting them, and must show that he has done
nothing either by omission or commission that ought to disentitle him from getting the
relief.36
❖ Under this maxim, a person in search of an equitable relief must show that he has
conducted himself in a fair and proper manner in the transaction between him and the
defendant: where such a party is guilty of misconduct, he cannot have the aid of equity
because “he who has committed inequity ... shall not have equity.”37 Thus, a tenant who
forfeited his tenancy for failure to pay rents could not be granted the equitable relief against
forfeiture on the discovery that he had been using the premises for immoral purposes.38
Note that the requirement of fair and proper conduct on the part of a plaintiff who seeks
equity does not impose on him an obligation to lead a completely blameless life. All that is
required is fair conduct, which is directly connected with the transaction that is the subject
matter of the suit. Thus, the defence of unclean hands only applies if there is a nexus
between the applicant’s wrongful act and the rights he wishes to enforce.
Note also that “proper” or “improper” conduct under reference here means legal and not
moral impropriety. In the cases of Cory v. Gertcken39 and Overton v. Banister,40 the infant
plaintiffs in both cases induced their trustees to release trust funds to them by representing
to the trustees that they were of full age. They then sued the trustees for breach of trust, the
trustees having improperly advanced the money. The Court treated the infant plaintiffs as
adults who had instigated the breach of trust, depriving them of their protection of infancy.

❖ Equity will always decline relief in cases in which both parties have schemed to circumvent
the law. In the very old case of The Highwaymen (Everet v. Williams)41 a robber filed a claim
for relief in equity to force his partner in crime to account for a sum of money that was a
product of their illegal enterprise. When the real nature of the claim was discovered, the suit
was dismissed with costs, and the lawyers to both parties were held in contempt of court for
daring to bring such an action.
❖ The maxim is meant to punish fraudulent or “base” conduct since no cause of action can
arise from a base cause (ex turpi causa non oritur actio) as demonstrated in the
Highwaymen case. The conduct of a party who seeks an equitable relief therefore must be
fair, conscientious, and just. If he had been unfair or unjust to the other party in his conduct

36 Alalade [Link] Bank of Nigeria Ltd (No. 2) [1997] 8 NWLR (Pt.517) 514.
37 Mofa Ltd v. University of Ibadan [1998] 5 NWLR (Pt.549) 225; Ladipo v. Amineke Investment Co Ltd
[1998] 4 NWLR (Pt.546) 496; Jones v. Lenthal (1669) 22 ER 739.
38 Gill v. Lewis [1956] 2 QB 1, 13 – 17.
39 (1816) 50 ER 250.
40 (1884) 67 ER 479.
41 (1725) 79 ER 1215.

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connected to the equitable relief sought, he would be “like [s]atan preaching the Bible to his
adversaries” and thus would have the doors of equity shut in his face.
❖ There are two major exceptions to the application of this maxim to the conduct of the party
accused of unclean hands:
▪ where such a party relented from executing his unjust plans; and
▪ where it is in the interest of justice, public policy or public moral values to uphold the
transaction in which the offending party dirtied his hands. See Drury v. Hooke42

7. Equity Aids the Vigilant and Not the Indolent

(Delay Defeats Equity)
❖ This maxim demonstrates the premium that equity attaches to time in the dispensation of
equitable reliefs. The maxim means that a party who has an interest in a property or matter,
which interest is affected by the conduct of another person is expected to seek redress
promptly and decisively. This is because any delay in seeking the necessary redress would
defeat his equity as such a delay, technically called “laches” dissuades the court from giving
assistance to the party.43 According to Lord Camden, LC in the case of Smith v. Clay:44
A court of equity has always refused its aid to stale demands,
where a party has slept upon his right and acquiesced for a great
length of time. Nothing can call forth this court into activity but
conscience, good faith and reasonable diligence; where these
things are wanting, the court is passive, and does nothing.
❖ The import of this maxim is that a plaintiff should not sleep over his rights when he sees a
defendant infringe on same.45 In Igbinokpogie v. Ogedegbe,46 the court concluded that a
respondent who took the inordinately long time of 16 years between the time the terms of
settlement over the land in dispute were executed, and when he instituted the present
action, had slept over his rights he was seeking to enforce against an innocent third party
that had acquired a substantial interest in the land for value.
❖ The doctrine of laches and acquiescence is founded on this maxim, and it is applicable only
where there are claims for equitable reliefs. Lord Selborne, LC stated the principles
governing the doctrine of laches in the case of Lindsay Petroleum Co v. Hurd47 when he said
that no remedy should be given where it would be practically unjust to give such remedy
because a party has by his conduct either waived his right to it, or has put the other party in
a situation in which it would not be reasonable to place him if the remedy were afterwards to
be asserted. In Ibeziako v. Abutu,48 the plaintiff who claimed to have been granted a plot of
land in 1942 could not recover it from a later lessee to whom the same land was leased in

42 (1636) 22 ER 900.
43 Fasesin v. Oyerinde [1997] 11 NWLR (Pt.530) 552.
44 (1767) 27 ER 419.
45 Chiekweilo v. Nwali [1998] 8 NWLR (Pt.560) 114: Ola v. Williams [2003] 5 NWLR (Pt.812) 48, 65.
46 [2003] 18 NWLR (Pt.745) 412; Daniel-Kalio v. Daniel-Kalio [2005] 4 NWLR (Pt.915) 305, 326.
47 (1874) LR 5 PC 221, 239.
48 (1954) 3 ENLR 24.

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1949 by a descendant of the earlier grantors of the land, because he failed to take any steps
to enforce his rights until 1954. He was held to be guilty of laches.
❖ In its simplest form, acquiescence means conduct from which it can be inferred that a
person has agreed to a certain state of affairs affecting his rights.49 Acquiescence, therefore
operates by way of estoppel, and such acquiescence is a ground for defeat of the plaintiff’s
subsequent claim.
❖ To successfully rely on this maxim, the plaintiff against whom it is invoked must have been
guilty of such delay as to substantially affect the rights of the defendant invoking it. Such a
plaintiff must have stood by and done nothing even when fully aware that his rights were
being infringed on by the defendant. Where for example, a plaintiff stands by and watches
another person bring an action on the subject matter affecting his vital interest but fails to
intervene, he will lose the right to his equities by his “standing by”.50 See, Ikenta Best v.
Attorney General, Rivers State.51
❖ Some limitations of the maxim include the following.
▪ It operates as a personal disqualification against a current plaintiff: the laches of a
predecessor-in-title does not bind him, unless that predecessor had expressly or
impliedly consented to the facts complained of, and was thus estopped from claiming any
rights thereafter – Nwaokobi v. Nzekwu.52
▪ The maxim is used as a shield and not as a sword: defence against a plaintiff’s claim of
superior interest in circumstances that would be inequitable for the defendant to
surrender his own rights (because of the plaintiff’s express or implied consent by
conduct), and not as a sword for the defendant to acquire rights to which he is not
ordinarily entitled. This is because in the exercise of its equity jurisdiction in such matters,
the court acts on three principles of (i) adverse rights of occupier, (ii) long adverse
possession, and (iii) evidence of estoppel by conduct arising from the plaintiff’s
acquiescence and/or laches as shown in Ajikanle v. Yusuf.53
▪ Does not apply where the plaintiff was wholly ignorant of the facts on which his claim is
based: time begins to run when the claimant becomes aware of his legal rights.
▪ Does not apply in cases of or legal disabilities like infancy and insanity.
❖ There are three categories of cases to which this maxim does not apply: -
(i) cases that are subject to express or implied statutory limitation periods set by relevant
statutes, e.g. section 32 of the Limitation Law54 which sets six-year time limit for cases of
breach of trust, except where a trustee or his agent is guilty of fraud or fraudulent breach
of trust;55

49 Awure v. Iledu [2008] 12 NWLR (Pt.1098) 249, 275; NBCL v. Integrated Gas (Nig.) Ltd [2005] 4
NWLR (Pt.916) 617; Adeniran v. Alao [2001] 18 NWLR (Pt.745) 361; Okereke v. Nwankwo [2003] 9
NWLR (Pt.826) 592.
50 Adebo v. Omisola (2005) 2 NWLR (Pt.909) 149, 175.
51 [2008] 6 NWLR (Pt.1084) 612, 669.
52 [1964] 1 WLR 1019.
53 [2008] 2 NWLR (Pt.1071) 301, 342.
54 Limitation Law, Cap. L84 Laws of Lagos State, 2015.
55 Ojeme v. Ojeme [2000] 13 NWLR (Pt.685) 606.

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(ii) cases subject to statutes of limitation by analogy, such as the right of a beneficiary under
a trust to sue any intermeddler or another beneficiary within six years;56
(iii) cases of concealed fraud, so long as the party defrauded remains ignorant of the fraud
without any fault on his part. Where he is completely ignorant of the fraud, time, whether
under statute or under the ordinary rules of laches, can only begin to run against him on
and from the date of the discovery of the fraud. In the case of Arowolo v. Ifabiyi,57 the
court held that it is a principle of equity that no length of time is a bar to a relief in the
case of fraud, in the absence of laches on the part of the person defrauded.

8. Equality is Equity

❖ This maxim means that as a general rule, equity will not play favourites in sharing legal or
equitable benefits among two or more persons that are entitled to the same. A court of
equity may only depart from this general principle under compelling circumstances. If for
example, an accident victim dies leaving three young children, money recovered from a
wrongful death claim may be distributed in proportion to each child’s age. The rationale in
this case is that a younger child will have lost that parent for more years than an older
brother or sister.
❖ The maxim reflects the rule of both the law and equity whereby the distribution of property or
the sharing of losses among persons who have interests therein is done proportionately to
their claims or liabilities respectively. This means in effect that equality does not necessarily
imply equal shares in the literal sense of the word, but equality on the basis of interests and
liabilities in property that Justice Fry in the case of Steel v. Dixon58 referred to as
“proportionate equality.”
❖ The rule in this maxim applies only to parties who are on an equal footing in respect of the
sharing of property. Where two or more persons have an equal right, the property will be
divided equally. Under this maxim, equity will presume joint owners to be tenants-in-
common unless the parties have expressly agreed otherwise. In other words, equity always
presumes tenancies-in-common and leans against joint tenancies and thus favours partition,
if requested, of jointly held property. In the absence of any other defined mode of sharing
property, equity also shares the property equally.
❖ The following are some of the various ways in which this maxim is applied in a court of
equity.
(a) Severance of Joint Tenancy
Equity invokes the doctrine of severance to convert a joint tenancy to a tenancy-in-common
in order to exclude the right of survivorship.59 It is immaterial that the property may be vested
in the parties as joint tenants both in equity and at law. Thus, where a joint tenant alienates
or attempts to alienate his equitable interest in a property settled on their behalf, either by
outright sale or mortgage or an agreement to sell, then he is deemed to have severed his

56 Re Mason [1928] Ch 385.

57 [1995] 8 NWLR (Pt.414) 496.
58 (1881) 17 Ch D 825.
59 Brown v. Raindle (1796) 30 ER 998; (1796) 34 ER 832.

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interest and converted the joint tenancy to a tenancy-in-common.60 Note however that the
agreement capable of converting a joint tenancy to a tenancy-in-common must be one made
for valuable consideration. In Ipaye v. Aribisala61 one of two joint tenants effected an
equitable mortgage of his interest by a deposit of title deeds to the property. The court held
that in the absence of fraud or negligence on the part of the defendant, the defendant was
entitled to keep the deeds since the act of depositing the title deeds was sufficient to sever
the joint tenancy.

(b) Equal Portions for All

This maxim is invoked where there is no other fair and practicable way in which property
could be distributed amongst two or more rival claimants. For instance, the court would
divide a trust property on equal basis among a class of beneficiaries where the trustees fail
or are unable to exercise their trust powers; or where the instrument creating the trust does
not reveal the settlor’s intention for the distribution of the estate among the beneficiaries.
This was the position of the court in the case of Gower v. Mainwaring.62 Other examples
include:
▪ Sharing of an unvested share of trust funds among other unequal shareholders.
▪ Presumption of equal shares in matrimonial home or joint bank account between
husband and wife upon their divorce or separation, without considering the
proportion in which they had contributed. – Jones v. Maynard,63

(c) Equal Satisfaction

Under th In the case of Arowolo v. Ifabiyi,64 the court held that it is a principle of equity that
no length of time is a bar to a relief in the case of fraud, in the absence of laches on the part
of the person defrauded. e doctrine of satisfaction, equity would not uphold the distribution
of an estate, which gives a child twice to the detriment of another child. The rationale for this
is that no father would want to establish or provide for the future of one child and not those
of the others. According to Lindsay, J. in Re Cameron65 a “…portion is … very broadly
speaking, a gift intended to set up a child in life or to make substantial provision for him or
her...”

9. Equity Looks to the Intent Rather

than to the Form
❖ The maxim ‘‘equity looks to the intent rather than to the form’’ means that equity applies a
test of substance to transactions, rather than the form in which it is recorded. This implies
that equity looks at the reality of what is intended by the parties in a transaction rather than
the way in which it is expressed in the documents of record of the transaction.

60 Hawkesly v. May (1956) 1 QB 304.

61 (1930) 10 NLR 10.
62 (1750) 28 ER 57; Doyley v. AG (1735) 22 ER 167.
63 [1951] Ch 572.
64 [1995] 8 NWLR (Pt.414) 496.
65 [1999] Ch 386, 407.

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❖ At common law, the rights of parties generally depend on forms and procedures relating to a
transaction. Failure to observe the correct forms or failure to follow correct procedures often
render a transaction invalid or even lead to loss of a party’s legal rights. In transferring
property for example, common law considers the form a transaction takes to be more
important than the substance of the transaction itself, and thus expects contracting parties to
rigidly observe the terms of the agreement to the letter. Equity on the other hand, makes a
clear distinction between a matter of substance and a matter of form and insists that
substance is more important than the form.
❖ In equity, failure to comply with forms or procedures would not normally invalidate a
transaction or lead to the loss of rights of the parties. Equity, on the ground of conscience,
would look at the intention of the parties and give effect to it despite the deficiency in the
form or the procedure adopted by the parties. – See: National Insurance Corporation of
Nigeria v. Power & Industrial Engineering Co Ltd,66 and Enekwe v. International Merchant
Bank67 where the court opined that the courts have moved beyond the terrain of
technicalities to the domain of doing substantial justice.
❖ Unlike the common law, equity is never moved by mere forms and technicalities and thus
this maxim is often invoked in the following classes of transactions.
(a) Transactions with Time Clauses
At common law, time clauses are of the essence in a contract. Consequently, where a party
to a contract undertakes to do some particular act, the performance of which depends
entirely on him, and the contract is silent as to the time of performance, the law implies an
agreement that it shall be executed within a reasonable time, having regard to all the
circumstances of the case.68 Therefore, if a transaction is not completed on the stipulated
date, a breach of contract is occasioned thereby.
But in equity, time is not of the essence, subject to three exceptions, viz:
▪ where there is express provision in the contract that time is of the essence –
Steedman v. Drinkle;69
▪ where a notice specifying a reasonable time of performance has been served on a
party already guilty of unreasonable delay – Green v. Sevin;70 and
▪ where, by the nature of the contract, time is of the essence; as for example contracts
requiring urgent execution. In Tilley v. Thomas,71 the court refused to order specific
performance of a contract in which the plaintiff failed to deliver possession of the
house he sold to the defendant at the agreed time.
Thus, if a party to a contract for sale of land fails to complete the transaction on the date fixed
for completion, at law he is in breach of his contract, making him liable for damages for delay.
In equity, such a defaulting party may be able to escape liability if he is ready to complete
within a reasonable period thereafter thereby preventing the other party from avoiding

66 [1986] 1 NWLR (Pt.14) 1, 29.

67 [2006] 19 NWLR (Pt.1013) 146.
68 Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd [2005] 4 NWLR (Pt.916) 649-
650.
69 [1916] 1 AC 275; Nlewedim v. Uduma [1995] 6 NWLR (Pt.402) 383.
70 (1879) 13 Ch D 589.
71 (1867) 3 Ch App 61.

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performance. In Okoro v. Ntui,72 the plaintiff entered into an agreement with the defendant to
purchase land for £700 out of which £100 was to be paid on the date of agreement and the
balance upon execution of a deed of conveyance. After the payment of the £100 deposit and
survey fees the defendant repudiated the contract on the ground that plaintiff had delayed. It
was held that even though time was of the essence at law, equity would order specific
performance if it would do justice to the parties as evident in this case.

(b) Mortgages
Normally, a mortgage deed transfers the mortgagor’s absolute title in the mortgaged property
to the mortgagee who becomes the legal owner of the property pending redemption, and thus
is akin to a sale. In determining the real nature of the transaction, equity looks at its
substance and not the form of the transaction. Accordingly, equity would permit oral evidence
to be given to show the nature of the document, the provisions of Section 132 (1) of the
Evidence Act, 194573 notwithstanding
A mortgage differs from a sale because the transfer of legal title in the property from the
mortgagor to the mortgagee is temporary in nature and subject to a re-transfer of title from
the mortgagee to the mortgagor after payment of the debt for which the property was
transferred as security. The Mortgagee’s title is thus not absolute; it is subject to the
mortgagor’s right of redemption as expressed by the legal maxim, “once a mortgage, always
a mortgage, and nothing but a mortgage.” The mortgagor’s right to redeem is sacrosanct and
cannot be fettered in anyway, including any agreement by the parties to remove the right of
redemption from the mortgagor. According to Lord Davey in Noakes & Co v. Rice,74 “a
mortgage cannot be made irredeemable and a provision to that effect is void.” In Salt v.
Marquess of Northampton,75 the court voided a mortgage contract wherein the mortgagor
died before he could redeem the property, to enable his father to redeem the mortgaged
property.

(c) Equitable Liens & other Rights and Interests

A lien is a form of interest in property acquired as security for the payment of a debt or the
performance of some other obligation. Until the debt or other obligation is discharged, the
security interest holder has a right to retain the property but cannot sell it. The lien may be
legal or equitable. While a legal lien involves the actual possession of the property, an
equitable lien does not involve possession but simply confers a right similar in effect to
an equitable charge, that is, a right to appropriate a particular asset in the event of a debtor’s
default, enforceable by either a power of sale, or power of appointment of a receiver. Unlike a
charge which requires the consent of the chargor, an equitable lien is non-consensual. Thus,
an unpaid vendor of land for example has an equitable lien over the land for the purchase
price, notwithstanding that the purchaser has gone into possession of the property.
There are several other rights and interests to which this maxim applies. These include,
but are not limited to:

72 (1964) 8 ENLR 99.

73 Cap. E14 LFN, 2010 (revised).
74 [1902] AC 24.
75 [1892] AC 1.

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▪ Equitable Assignments
▪ Covenants and Deeds; i.e. restrictive covenants running with land (Tulk v. Moxhay),76
or restrictive covenants on contracts of service (Udeaja v. Rex Jim Lawson).77 In
equity, any agreement contained in a deed, whether under seal or not, must be
supported by consideration for it to be binding, because “equity does not aid a
volunteer.”
▪ Penalties, e.g. contracts made in terrorem – Anglo African Supply Co v. John
Benvie.78
▪ Forfeitures, e.g. a tenant’s right to relief against forfeiture for default in payment of
rents.

10. Equity Regards As Done That Which

Ought to be Done
❖ This maxim means that when individuals are required, either by their agreements or by law
to do some act that has legal implications, equity will regard that act as having been done as
it ought to, even before the act has actually been done. Thus, where a specifically
enforceable obligation exists, equity regards the parties as already in the position which they
would be in, after the performance of the obligation, and will therefore assess the parties’
rights and responsibilities by reference to this position. This is why the maxim is sometimes
rephrased as “equity regards as done what should have been done”.
❖ This maxim forms the basis of the doctrines of conversion and part performance and has its
most common application in the following areas.

(a) Contracts
This maxim is commonly invoked in contracts, whether expressly made by parties, or
implied by law. Equity treats a contract to do a thing in exchange for value as if the thing
were already done as between the parties from the moment the agreement is made. This is
illustrated by the case of Iragunima v. Rivers State Housing & Property Development
Authority.79
Equity also treats transfers of future property as contracts to transfer, provided that the
benefiting parties offer consideration. Once such properties crystallise, that is, come into
existence, equity regards them as full transfers on the principle laid down in the case of
Holroyd v. Marshall.80

(b) Contracts for Sale of Land

76 (1848) 41 ER 1143.
77 (1966)10 ENLR 252.
78 (1937) 13 NLR 158.
79 [2003] 12 NWLR (Pt.834) 427; Osagie v. Oyeyinka [1987] 3 NWLR (Pt.9) 144; Jaffar v. Ladipo [1969]
All NLR 165; Ogundiani v. Araba (1978) 6-7 SC 42; (1978) 11 NSCC 334.
80 (1862) 11 ER 999.

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Contracts for sale of land (estate contracts) involve some risks of loss, especially for the
purchaser. Therefore, when parties enter into a contract for sale of real property, the buyer
is deemed to have obtained an equitable right that becomes a legal right only after the deal
is completed. Due to his equitable interest in the outcome of the transaction, a buyer who
suffers a breach may then be entitled to the equitable remedy of specific performance, or a
reasonable measure of damages if he pursues a legal or substitutionary remedy instead of
an equitable remedy. A specifically enforceable contract for the sale of land transfers the
equitable interest in the land to the purchaser, and the vendor holds the legal title on
constructive trust for a purchaser until completion. This means that the minute an
enforceable contract for sale or land is made, the purchaser becomes the owner of the land
in equity and the vendor becomes a constructive trustee over the land for the purchaser.

(c) Leases [Doctrine in Walsh v. Longsdale]

The doctrine in Walsh v. Longsdale81 is to the effect that a person who enters into
possession of land under an enforceable agreement for a lease without a properly executed
deed of lease will be treated as having been granted the lease, if the conditions are such
that a grant of specific performance can be made. It is often said that an agreement for a
lease is as good as a lease. In Savage v. Sarrough,82 the brother to the plaintiff with whom
he was co-owner of a building granted a lease of 5 years to the defendant under a written
agreement but without a formal deed of lease. On the plaintiff’s claim for recovery, the court
held that equity treats such transactions as an effective grant since for all practical
purposes, the parties were in the same position as if the lease were valid at law.

(d) Doctrine of Conversion

This maxim forms the basis of the doctrine of conversion whereby property may be
notionally converted from realty to personalty and vice versa. Thus, if a trustee is directed to
convert land (realty) by sale to investment in shares (personalty), equity regards the property
as converted from the minute the trust takes effect. In the same vein, money directed to be
used to purchase land becomes converted from personalty to realty from the moment the
direction becomes effective. The result in any of the given situations is that those entitled to
the different forms of property upon distribution are regarded by equity as immediately
entitled even before actual distribution.83
An example of the application of this maxim under the doctrine of conversion can be
found in the enforcement of the rule in Howe v. Earl of Dartmouth84 which states that in the
absence of a contrary provision in a will, a trustee has a duty to convert residuary personalty
to realty, where such residuary personalty is for the benefit of persons in succession, that is,
persons in a line of succession, whose interest become due only after the death of the first
or next in line to the interest as the case may be. This duty is imperative where the nature of
the property is such that it:

81 (1882) 21 Ch D 9.
82 (1937) 13 NLR 141.
83 Fletcher v. Ashburner (1779) 28 ER 1259.
84 (1802) 32 ER 56.

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• can go to waste; e.g. patents, copyrights, mines, ships etc. that may eventually become
worthless when it comes into a remainderman’s possession; or
• is futuristic or reversionary; i.e. the remainder man cannot take possession until after
the death of the tenant-for-life; or
• is made up of unauthorised securities.
Conversion of the property in this case, ensures that the property remains intact to a large
extent, and that it benefits both the tenant-for-life and the remainderman under the rules of
apportionment.85

(e) Doctrine of Part Performance

Equity invented the doctrine of part-performance to determine the rights of parties to a
contract rather than relying on whether or not the parties have complied with the provisions of
statutes requiring them to fulfil certain conditions,86 especially where such statutes are sought
to be used as instruments to perpetuate fraud. Equity invented the doctrine of part-
performance as a mechanism for avoiding the strict legal requirement of evidence of writing
as proof of contracts touching on land. Thus, equity permits oral evidence of acts of part-
performance on the part of one of the parties in proof of the contract to determine the rights
and obligations of the parties, provided that the acts in question are by nature, unequivocally
referable to such alleged agreements: – Maddison v. Alderson.87

(f) Trusts
The maxim also applies in cases of imperfect trusts made for value. Once a person takes a
step pursuant to an agreement for value, equity perfects the imperfect act. In cases of
imperfect or incompletely constituted trusts, beneficiaries who have given value can enforce
them because equity looks on that as done which has been agreed to be done. Therefore, an
imperfect conveyance for value would be treated as a contract to convey, and the court
would see that it is perfected. This maxim was recently applied in England in the case of
Attorney General for Hong Kong v. Reid,88 where an agent who used his position to collect a
bribe was held to be in breach of his fiduciary duty and in consequence, became a
constructive trustee of the bribe for the benefit of his principal.

❖ Traditionally, a qualification to the operation of this maxim is that it is applicable to only

persons entitled to enforce the contract specifically and not in favour of volunteers. Thus, the
invocation of this maxim is limited to parties to a contract or to persons who have given some
value for the subject-matter of a dispute: – Davis v. Richards and Wallington Industries Ltd.89

11. Equity Imputes an Intention to Fulfil

an Obligation

85 Re Earl of Chesterfield’s Trust (1883) 24 Ch. D 643.

86 Statute of Frauds, 1677, ss. 4, and 9.
87 (1888) 8 AC 467, 479.
88 [1994] AC 324.
89 [1990] 1 WLR 1511; [1991] 2 All ER 563.

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❖ This maxim means that whenever a person who owes an obligation to another person, does
an act which may, or may not, have been intended by him as a fulfilment of such obligation,
equity will presume that it was his intention to fulfil the obligation owed by the act he has
performed. The later conduct is, where possible, interpreted as a fulfilment of the earlier
obligation owed. For example, a testator may owe a creditor a sum of money, and then
decide to bequeath an amount either equal to or greater than the sum owed, to the creditor
in his will. Equity would deem the bequest to be a discharge of the debt by imputing an
intention on the part of the testator/debtor to repay the debt by way of a testamentary gift.
❖ Generally speaking, the near performance of a general obligation will be treated as sufficient
unless the law requires perfect performance, such as in the exercise of an option. Text
writers give an example of a debtor leaving a legacy to his creditor equal or greater than his
obligation. Equity regards such a gift as performance of the obligation so the creditor cannot
claim both the legacy and payment of the debt. Thus, this maxim is applied in the following
situations.

(1) Doctrine of Presumption of Advancement

The doctrine of presumption of advancement is based on the legal duty that a man owes to
provide for his family either as a husband or as a father. At common law, every man has a
legal responsibility to provide necessaries for his wife and children and thus, anything he
does in that regard is presumed to be a fulfilment of that obligation. According to the court in
the case of Tollet v. Tollet,90 “it is the duty of everyman to pay his debts and a husband or a
father to provide for child”. This is the reason why at law, a wife can pledge her husband’s
credit for necessaries, and the creditor can proceed against and recover the debt from the
husband. It has even been held in the case of Morgan v. Chetwynd91 that beyond
necessaries, a wife can pledge the husband’s credit for other “goods and services which are
suitable in kind and sufficient in quantity and necessary in fact according to the position in
life of the husband.”
Based on the foregoing, whenever a father or husband transfers property to, or
purchases property in the name of his wife, or child or any other child to whom he stands in
loco parentis, without such persons furnishing any consideration for the transfer or
purchase, he is presumed to have “advanced” the property for the benefit of the recipient,
rather than a resulting trust in his own favour on account of the lack of consideration offered
by the beneficiary.92

(2) Doctrine of Performance

Performance implies doing an act that one is obligated to do either where the law so requires
it or where one has covenanted to do it. Thus, the doctrine of performance is based on the
premise that “…a person is presumed to do that which he is bound to do; and if he has done

90 (1728) 24 ER 828.
91 (1865) 176 ER 641.
92 Dyer v. Dyer (1788) 30 ER 42; Moate v. Moate (1948) 2 All ER 486.

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anything, that he has done it in pursuance of his obligation.”93 In Sowden v. Sowden,94 a

husband covenanted with the trustee of his marriage settlement that after his marriage, he
would buy property worth thousands of pounds and settle it upon the trust. After the
marriage, he bought the property and conveyed it to himself and then died without bringing
the property into the marriage settlement. The court presumed that he intended to be just
before being generous, and held that the property was subject to the trusts of the marriage
settlement.

(3) Doctrine of Satisfaction

The doctrine of satisfaction proceeds on the premise that the giving of a thing in
circumstances that suggest an intention to fulfil an existing obligation is a satisfaction of that
obligation. Romilly, MR expresses this doctrine in the case of Lord Chichester v. Coventry,95
as a “…donation of a thing with the intention that it is to be taken either wholly or in part in
extinguishment of some prior claim of the donee”.
Note that this maxim is only applicable to this doctrine where the intention of the donor is
presumed and not situations where such intention is very clear. Again, the doctrine of
satisfaction is not applicable in cases where the sum of money given by a debtor in his will to
his creditor presumably in satisfaction of a debt is less than he owes. This is especially so
where the legacy is given without reference to the debt. However, the doctrine will apply
where what is given is equal to or greater than the amount owed.96

(4) Doctrine of Ademption

Ademption is the failure of a gift of property meant to be distributed according to the
provisions of a testator’s Will, due to the fact that the property either no longer belongs to the
testator at the time of the testator’s death or because the property has been substantially
changed by the time of the testator’s death. It thus implies the revoking of a gift mentioned in
a Will by the testator through acts of destruction, sale or giving away the gift before his or her
death.
There are two types of ademption: ademption by extinction and ademption by satisfaction.
Ademption by extinction occurs when property given in a will is substantially changed or no
longer forms part of the testator’s estate upon death. Ademption by satisfaction on the other
hand, involves a situation where the testator makes an inter vivos gift of all, or a part of the
legacy he or she had intended to give the donee/beneficiary by will. Thus, whenever the subject
of a gift made by a testator while alive is the same as the subject of a legacy made by will, there
is a presumption that the inter vivos gift was made in satisfaction of the testamentary gift,
especially where the relationship between the donor and the donee is familial or a person to
whom the testator stands in loco parentis.

12. Equity Acts in Personam

93 Tubbs v. Broadwood (1831) 39 ER 479.

94 (1785) 28 ER 1311.
95 (1867) LR 2 HL 71.
96 John Talbott v. Duke of Shrewbury (1714) 24 ER 177.

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❖ This maxim is the second of the two maxims that form the foundation of all equitable
jurisdictions, and it is descriptive of equitable procedures or how equity is administered
in law. It derives from the fact that courts of equity exercise jurisdiction over parties to a
dispute personally, rather than against a particular property owned by them. In this way,
the “use” or trust was first recognised in equity. Hitherto, common law recognised the
person holding legal title as being the absolute owner of property. However, equity
considered the fact that title was vested in a legal owner on trust that it be held for the
benefit of the beneficiary. Thus, the person holding legal title in these circumstances is
deemed to be a mere trustee and any conduct on his part which contravenes the trust
leaves him open to a suit for breach of trust.
❖ To act in personam means equity acts upon a person’s conscience. This is as opposed
to acting in rem which is an incident of common law where it acts upon the property that
is the subject-matter of the suit rather than the parties to it. In Earl of Oxford case,97 Lord
Ellesmere noted that equity was not in competition with common law; rather, it acted
upon the conscience of the parties to a suit.
❖ Unlike the decisions of common law that are directed to disputed rights and properties of
persons, decisions and decrees of courts of equity, whether they are positive or
negative, are directed to the conscience of individual parties to obey, upon pain of
sanctions. Thus, common law executes its judgements against the goods or property of
a defendant, whereas equity enforces its own judgements through the person of the
defendant rather than his property. By extension therefore, equitable jurisdiction is
imposed on the property of a defendant who is within the jurisdiction of equity, even
when such property is ordinarily outside the territorial jurisdiction of the court.
❖ The maxim is usually invoked in the following circumstances.

(1) Enforcement of Judgements

This maxim is usually invoked in the enforcement of the judgements of courts and shows
clearly how equity is administered in law through equitable procedures. As against the
common law practice of forcibly putting a plaintiff into possession of the property to which he
was entitled under judgement, equity merely made a decree against the defendant
personally. Where the defendant failed to comply with the decree, the court punished him for
disobedience by either:
▪ the attachment of his property; or
▪ the committal of his person to prison for contempt; or
▪ appointing sequestrates to take possession of the property in dispute or even all of the
defendant’s property, until he obeyed the court orders; or
▪ making vesting orders or appointing another person to execute a transfer on behalf of
the defendant who refused to obey an order of specific performance with respect to
conveyance of property to the plaintiff.
These actions are made possible today as a result of the provisions of statutes, some of
which have also provided generally that where any person neglects or refuses to comply
with an order of court directing him to execute any conveyance, contract or other document

97 (1615) 21 ER 485.

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or to indorse any negotiable instrument, the court may nominate some person to do the act
for him.98

(2) Conferment of Jurisdiction

This maxim is also invoked in the conferment of jurisdiction over property situate outside
jurisdiction. Since equity’s jurisdiction is primarily over the person of the defendant, courts of
equity are able to recognise and enforce trusts, mortgages and contracts relating to land
situate abroad, if the defendant or his property is within the jurisdiction of the court.
According to Lord Cottenham, in the case of Re Courtney, ex parte Pollard99 “... contracts
respecting land in countries not within the jurisdiction of these courts can only be enforced
by proceedings in personam...” Accordingly, in the leading case of Penn v. Lord
Baltimore,100 specific performance was ordered by an English court with respect to an
agreement relating to the boundaries of land in Pennsylvania and Baltimore in the US even
though the parties were in England. The dictum in the Penn case was followed in Nigeria in
the case of Bata Shoe Co v. Melikian101 where the Lagos High Court was held to have
jurisdiction to order specific performance of a contract to sell land situate at Aba, since the
defendant resided in Lagos.
Note that before a court of equity can exercise jurisdiction over property situate
abroad, the court must ensure that:
▪ the defendant is within jurisdiction;
▪ the defendant is capable of being served with the proceedings outside jurisdiction; and
▪ there is some equitable right which the plaintiff could have enforced against him had the
property been within jurisdiction.
In all cases, the equitable jurisdiction exercisable by courts of equity over land situate
outside jurisdiction is not exercisable over questions relating to title to such land, particularly
where the plaintiff has no equity which he could have enforced against the defendant at
home.

(3) Administration of Estates

The maxim has also been invoked in cases relating to administration of estates of deceased
persons. In Ewing v. Orr Ewing (No.1),102 a man died while domiciled in Scotland. Some of
the executors and trustees of his will were in England while the bigger part of his real and
personal estate was in Scotland. It was held that the administration of his estate could begin
in England as equity acts in personam.

❖ In contemporary times, this maxim has limited application since it does not apply in all
cases. The equitable doctrine of tracing highlights this point in that a beneficiary is allowed
to “trace” or follow trust property beyond the person of the defendant, especially where such

98 See United States of America v. Dollfuss [1952] AC 582.

99 (1840) Mont & Ch 239
100 (1750) 27 ER 1132.
101 (1956) 1 FSC 100.
102 (1883) 9 AC 34.

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property has been converted into another form.103 Some of the limitations of the maxim
include the following.
(a) The defendant has to be within the jurisdiction of the court.
(b) The order given must be capable of being executed without the intervention of a foreign
court. The maxim cannot be relied on to grant an order in personam when such an
order will violate the legal rules of another country. In Norris v. Chambres,104 Lord
Campbell stated that a court ought not to give an order which is not applicable without
the intervention of a foreign court, as it would be considered brutum fulmen (an empty
threat).
(c) The maxim cannot be relied upon to grant an order which would not be enforceable
since equity does not act in vain.

103 See Re Diplock [1948] Ch 465: Agip (Africa) v. Jackson [1991] Ch 547; [1991] 3 WLR 116; [1992] 4
All ER 451.
104 (1862) 45 ER 1004.

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