1.0.

SYNOPSIS
Equity in simple terms means whatever is just or right in mans being with fellow man. Equity also
possesses a technical meaning that may be divided into two categories, that is the general juristic
concept and the technical juridical concept all of which supplement each other and affect the
administration of justicei.
The general juristic sense mainly denotes moral administration of justice by judicial bodies
taking into account special facts of a particular case .i.e. humane and liberal interpretation of the law.
This is incorporated in Art 126(2) (e) of the 1995 Constitution of the Republic of Uganda. ii This was
manifested in the case of Stephen Mabosi V URA iii
In Uganda the Equity was received by the 1902 and 191I Orders in Council which made Equity and
Common Law to be applied concurrently, and where there was conflict between the two with reference
to the same subject matter, the rules of equity would prevail.
The judicature statute cap 13 sec 14(3) gives strength to this principle as follows; the applied law, the
common law and doctrines of equity shall be in force in so far as the circumstances of Uganda and its
people permit.
The magistrates' court act cap 16 similarly facilitates the application of common law doctrines as well
as equity under sec 11(1)iv as follows; in every civil case or matter before a magistrate's court law and
equity shall be administered concurrently. It follows that equity is applicable in Uganda thereby giving
relevance to its doctrines in Uganda's legal scene. It is of vital importance to note that courts of law in
applying Equity take into consideration the maxims of Equity which are the basis of the various
doctrines of equity that include the following.

5.0 DOCTRINE OF NOTICE

The concept of Notice refers to the knowledge of an existing fact; According to Prof. Bakibinga v the
rationale of the doctrine is to prevent a buyer of superior title from setting it up against earlier owners of
inferior interests which affect the property. The effect of this is that the buyer of the legal estate with
notice of the prior equitable interests affecting the estate takes it subject to prior equitable interests in
this regard; “Equity looks at the substance rather than the form” Notice can be Actual, constructive or
imputed. And it is based on the maxim "he who comes to equity must come with clean hands".

i
Equity and Trusts in Uganda by D.J Bakibinga.
ii
Article 126(2) (e) provides that substantive justice shall be administered with out undue regard to technicalities.
Stephen Mabosi v URA
iii

iv
Magistrates court act cap 16 sec 11(1)
v
Supra.1
 ACTUAL NOTICE; This is a situation where the buyer of an estate has actual or express
notice of a prior interest at the time when he or she made the purchase or at the time before the purchase
was completed .
In regard to the relevance of the doctrine of notice .The Registration of Titles Act (R.T.A) Section 64vi
encompasses the doctrine and it provides that a buyer of land shall hold that land subject to such
encumbrances as notified to the registrar. In Sempa Mbabali v w k kidza Odoki J held that the
defendants plea of bona fid purchaser could not stand because they knew all along that that part of land
they had purchased was for burial grounds and also the seller had sold them the land before his share of
the land had been ascertained. This therefore means that his hands were not clean.

CONSTRUCTIVE NOTICE; defined by Salden J in Williamson v Brownvii; where a

purchaser has knowledge of any fact sufficient to put him in inquiry as to the existence of some right or
title in conflict with that he is about to purchase he is presumed either to have made the inquiry and
ascertained the extent of such prior right or to have made the inquiry and ascertained the extent of such
right or to have been guilty of a degree of negligence equally fatal to his claim. The prior interest in
land should always be put into consideration In U.P.T.C V Lutaayaviii. Karokora J.S.C held thus "A
proprietor takes land subject to the interests of any tenant in the land in possession even if he or she had
no actual notice of the tenant".

IMPUTED NOTICE; notice which is neither actual nor constructive may be imputed to the
buyer through actual notice to the agent. It's established in agency law that that notice to an agent is
notice to the principal. In this regard, a buyer who instructed his agent to buy property at an auction sale
was taken to be affected by notice of an equity which came to his notice during the course of the
transaction. In Sejjaka Nalima v Rebecca Musokeix Odoki j a held that the appellant was not bona fide
purchaser without notice owing to the fact that Musoke and co advocates who were acting as her agents
had known of the alleged fraud concerning the disputed property

2.0 DOCTRINE OF ELECTION

vi
Sec 64(1) provides that a proprietor of land shall, except in the case of fraud hold the land or interest
in land subject to such encumbrances as are notified on the folium of the Register book.
vii
Salden L.J in Williamson-v-Brown Stated that constructive notice refers to knowledge of any fact
sufficient to put a purchaser on inquiry as to the existence of some right or title in conflict with that he
is about to purchase.
viii
Uganda Posts and Telecommunications-v- A.K.M Lutaaya CA No36 of 1995 (un reported)
ix
C.A no 12 of 1985 (supreme court of Uganda)
One of the most important doctrines of Equity is the doctrine of Election which is to the effect that a
person cannot claim benefit and reject burden under the same instrument. This meaning is derived from
the case of Codrington -v- Codrington per Lord Cairns that a person cannot accept a benefit under a
deed or will without the same time conforming to all its provisions.

Election is based on the maxim that “he who seeks Equity must do Equity”. Equity is either express
implied from the electors conduct and it therefore if X gives a gift of his property to Y and in the same
instrument makes a gift of Y’s property to Z then Y will be put to his Election. Y may elect to take
under the instrument and take over X’s property or he may elect against the instrument.

The essentials of election were espoused in Re Edwards.x Lord Jenkins L.J stated that an election
should consist of an intention on the part of the testator to dispose off certain property, that the property
should not actually be the testators or testatrix own property the property the testator purports to dispose
of should be alienable by the owner, for if its inalienable, the owner cannot comply with the wishes of
the donor. The property given is available and finally that a benefit should be given by the will to the
true owner of the property.

In Uganda the relevance of the doctrine of election is manifest in The Succession Act which has a
number of provisions that incorporate the doctrine of election ranging from Section 167 to Section
178, Sec 167xi and provides that a person whose property has been disposed off by the testator has a
right to elect. Hence these provisions illustrate the fact that the doctrine of election is incorporated into
Uganda’s legal system.
Sec 64(2)xii states that "…the land which is included in any certificate of title or registered instrument
shall be deemed to be subject to the reservations, exceptions, covenants conditions and powers if any
contained in the grant of the land and to any rights subsisting under any adverse possession of the land
and to any public rights of way and to any easements acquired by enjoyment…."
It is noteworthy however, that though the doctrine is reflected in Uganda’s legal frame work, it has been
of little practical importance as no significant cases have been decided relating to Election

3.0. DOCTRINE OF SATISFACTION.

x
Re Edwards. [1958] Ch.168C.A
Section 167 stipulates that where a person by his will professes to dispose off some thing of which he
xi

or she has no right to dispose the person to whom the thing belongs has aright to elect.
xii
Sec 64(2) succession Act
Also in consideration is the doctrine of Satisfaction defined as “the donation of a thing with the
intention that it is to be taken wholly or in part in extinguishment of some prior claim of the donee.” per
Lord Romilly in Chichester-v-Coventryxiii thus where W is under an obligation to give X something
and W gives X something else, there may be a presumption that W’s gift was made with the intention of
satisfying his obligation to X. This doctrine is based on the maxim “equity imputes an intention to
fulfill an obligation”

Satisfaction takes several forms first in consideration is satisfaction of debts by legacies xiv, the general
rule is that equity imputes to the donor an intention to give the legacy in satisfaction of the debt. Thus in
xv
the case of Talbot v Duke of Shrewsbury Lord Trevor stated that "if one being indebted to another a
sum of money does by his will give him a sum of money as great as or greater than the debt without
taking any notice at all of the debt, this shall never the less be in satisfaction of the debt, so that he shall
not take both the debt and legacy.
In this case the legatee has a choice to either to take the legacy and forego the debt or to forego the
legacy and insist on his contracted debt. However it should be noted that there are circumstances in
which intention to fulfill an obligation (satisfaction) may not be presumed, hence limiting the
application of the doctrine in Uganda. Fore example where the debt was contracted after the will ,
where the legacy is less than the debt where the legacy and the debt are of different nature and where
the legacy is not as beneficial to the creditor as the debt. Also sec 164 of the succession Act has limited
the application of this doctrine as far as this aspect of satisfaction is concerned in Uganda.
"where a debtor bequeaths a legacy to his creditors and it does not appear from the will that
the legacy was is meant as satisfaction of the debt , the creditor shall be entitled to both the as well
as to the amount of the debt"
Secondly Satisfaction of portion debts by legacies xvi the general rule is that equity leans against double
portions; hence equity will provide for the satisfaction of portion debts by legacies to ensure equal
division of the parents property among the children xvii hence where the legacy is equal to the promised
portion or exceeds it satisfaction of the portion debt is presumed. In Uganda however this is limited
under Sec 165 of the succession Act "where a father…does not intimate by the will that the legacy is
meant as a satisfaction of the portion , the child shall be entitled to receive the legacy as well as the

Lord Chichester-v-Coventry (1867) L.R2’H.L.71,95

xiii

Re Hawes where there was covenant by the testator made upon the dissolution of marriage to pay his
xiv

wife 3 a week ,charged upon specific assets and by his will, he gave her an annuity of 3 a week charged
on the whole of his estate. It was held that the testamentary annuity was satisfaction of the covenant.
xv
(1714) prec ch 394
xvi
Boyd-v-Boyd (1867) L.R.4.Eq.305- paying of an admission fee to the Inns of Court.
xvii
Cotton C.J in Montoya v Earl of Sand wich (18860 32 CHD 525
portion ". Under satisfaction of a portion debt by a portion Lord Selborne xviii stated "where a father…
gives a legacy and later makes a gift in the child's favour, there is a presumption that the gift was either
wholly or in part in a substitute for or an ademption of the legacy. " lastly is the satisfaction of legacies
by legacies.
How ever the doctrine will only apply if the legacy is in a sum as great as or greater than the debt or if
there is a direction to pay debtsxix (Satisfaction of debts by legacies)

The doctrine of satisfaction has been incorporated in Uganda’s legal scene and can be traced in Sections
164 to 166 of the Succession Act. Section 164 provides that where a debtor bequeaths a legacy to his or
her creditor, and it does not appear from the will that the legacy is meant as satisfaction of the debt the
creditor shall be entitled to the legacy as well as well as to the amount of the debt. This means that a
testator must show his intention to extinguish the debt which is in conformity with the holding in
Hammond –v-Smithxx. The Judicature Act section 14(2) (b)xxi, Magistrates Court Act section 11xxii
also provide for the application of the doctrine of Satisfaction in Uganda’s legal scene. Its practicability
is however very insignificant.

4.0 DOCTRINE OF PERFOMANCE

Performance is yet another doctrine of Equity which is to the effect that where a person covenants to
perform a particular act and later performs an act “which may be converted to a completion of this
covenant”, it shall be supposed that he meant to complete it per Kenyon MR, in Sowden v Sowden.xxiii
This doctrine is based on the maxim that “Equity imputes an intention to fulfill an obligation” xxiv.
Performance may take the form of a covenant to purchase and settle land, or a covenant to leave money;
it also applies to covenants in marriage settlements to lay out money, on the purchase of land to be held
on trust of the settlement. The doctrine also applies to situations where there is a covenant to pay money
to trustees to be used by them for the purchase of land. In this case, the covenanter will simply be
regarded as performing the covenant by buying land himself. The doctrine also applies where the
covenant is to settle property of a certain value.

xviii
RE Pollock (1885) 28 CHD 552
xix
Bradshaw-v-Huish (1889) 43 Ch.D.260.
xx
(1804) 3Beav. 452
xxi
Supra.3
xxii
Supra.4
xxiii
1785) 1 Cox Eq.Cas.165, 166, per Kenyon. M.R.
xxiv
Lord Lechmere-v-Lady Lechmere(1733)3PWMs 211;25E.R .673’(1735) Cas Temp Talb.80
The doctrine of performance in our legal scene today has a great effect in succession matters; wills are
construed literally through the wording as well as the circumstances surrounding the making. The other
factors that reflect performance in succession matters are the onerous bequests, contingent bequests and
conditional bequests contained in Secs 109-123 of the succession Act. . How ever the fact that there is
limited case law shows that the doctrine is of little practical relevance in Uganda's legal scene.

CONCLUSION
In sum, though the doctrines of equity are encapsulated in various legislations in Uganda, most
especially the succession act, it is generally agreed that they are more idealistic than practical in
Uganda's legal scene. This is due to prevalence of customs, illiteracy and the fact that many people die
intestate. It would be trite to say that the complex nature of these doctrines has limited their relevance to
Uganda since our legal system is not as developed as in England where they are said to have originated.
It would there fore be worthwhile to educate the society on matters pertaining to the legal principles
underlying these doctrines and also revise the laws that have them embedded within them so as to make
them clearer and more understandable. In so doing with time the abstract nature of these principles can
be illuminated upon and made practicable in Uganda's legal scene. Generally, decided cases
incorporating the doctrines of Equity are hard to come by in Uganda. However this does not mean that
the doctrines are practically of no relevance having highlighted some practical relevancies above

BIBILIOGRAPHY

TEXTBOOKS

1. Kodilinye G: AN INTRODUCTION OF EQUITY IN NIGERIA.

(Sweet and Maxwell, 1975)

2. Snell, E.H.T; THE PRINCIPLES OF EQUITY.

3. D.J Bakibinga: EQUITY AND TRUSTS IN UGANDA

4. L.B Curzon. EQUITY AND TRUSTS (Cavendish publishing, 1995)

STATUTES / LAW APPLICABLE

1. JUDICATURE ACT CAP 13 Vol 2 Laws of Uganda 2000.

2. MAGISTRATES COURT ACT CAP 16. Vol 2 Laws of Uganda 2000

3. SUCCESSION ACT CAP.6 Laws of Uganda 2000.

4. REGISTRATION OF TITLES ACT CAP 230 laws of Uganda.

5. PARTNERSHIP ACT CAP 114 laws of Uganda 2000.