UNIVERSITY OF CAPE COAST

COLLEGE OF HUMANITIES AND LEGAL STUDIES

FACULTY OF LAW

COURSE: GHANA LEGAL SYSYTEM

COURSE CODE: LAW 209

LECTURER: MR. TETTEH
INDEX NUMBER: FL/LLB/22/0061

QUESTION:

1. IN NOT MORE THAN THREE PAGES, COMPARE AND CONTRAST THE

COMMON LAW LEGAL SYSTEM AND THE CIVIL LAW LEGAL SYSTEM
2. IN NOT MORE THAN TWO PAGES, WRIT DOWN THE FACTORS THAT
NECISITATED THE INTRODUCTION OF TH DOCTRINES OE EQIUTY.
ASSIGNMENT ONE

THE COMMON LAW LEGAL SYSTEM

The Common Law legal system is a legal framework that originated in medieval England and
has since spread to various jurisdictions around the world. It is characterized by the development
of legal principles through judicial decisions and precedents. The origins and early development
of the Common Law legal system in England can be traced back to the Anglo-Saxon period and
were significantly influenced by historical events, legal reforms, and the gradual centralization of
legal authority. Before the Norman Conquest in 1066, England was comprised of various tribal
regions, each with its own customs and local laws. Disputes were often resolved through local
courts, applying customary rules. Local courts, presided over by local leaders, played a role in
administering justice. Shire courts, operating at the county level, heard more significant cases.
William the Conqueror introduced the feudal system, which involved the granting of land in
exchange for services. The king's courts, including the Curia Regis, traveled with the king and
became more centralized. Henry II (reigned 1154–1189) implemented legal reforms to
strengthen royal authority. The Assize of Clarendon (1166) established royal courts and
procedures, emphasizing royal justice. Judges began to travel around the country, hearing cases
and establishing legal principles. This itinerant system helped in the development of a more
uniform body of law. During the 14th and 15th centuries, case reports and Year Books started
documenting legal decisions. Judges' decisions were recorded, forming a basis for legal
principles and creating a primitive system of precedent. The concept of stare decisis, or standing
by precedents, began to take shape. Precedent, or the principle of stare decisis, is a fundamental
aspect of the Common Law. Courts are bound to follow the decisions of higher courts in similar
cases, creating a hierarchical system of legal authority. Legal principles are developed through
the resolution of specific cases rather than through statutory law. The Common Law system is
characterized by an adversarial system, where opposing parties present their cases before an
impartial judge or jury. Judges play a significant role in shaping the law through their decisions.
Common Law systems rely on the principle that decisions should be consistent with established
legal principles and reasoning. Judges engage in legal reasoning to apply existing legal principles
to the facts of a case. Decisions are often based on analogies to previous cases and interpretations
of statutes. Lower courts are generally bound by decisions of higher courts in similar cases.
However, courts may distinguish cases or depart from precedent under certain circumstances.
The Common Law system is known for its flexibility, allowing for adaptation to changing
societal norms and circumstances. Legal principles can evolve over time through the judicial
decision-making process. Equity, as administered by the Court of Chancery, played a parallel
role. The Chancellor's jurisdiction addressed cases where the common law remedies were
inadequate.

The Chancellor's decisions introduced equitable maxims and doctrines, such as those related to
trusts and fiduciary duties. The merger of law and equity in the 19th century incorporated these
equitable principles into the Common Law system. The maxims were;

 "He who comes to equity must come with clean hands"

 "Equity follows the law but not slavishly"
 "Equity looks to substance rather than form"
 "Delay defeats equity"
 "Equality is equity"
 "Where there is equal equity, the law will prevail"
 "He who seeks equity must do equity"
 "Equity will not suffer a wrong without a remedy"
 "Equity delights in equality"
 "Where the equities are equal, the first in time prevails"

The Judicature Acts of the 1870s in England facilitated the merger of common law and equity.
The High Court of Justice was established to administer both legal and equitable remedies. The
High Court of Justice was established, bringing together the courts of common law and equity
under one umbrella. The British Empire's colonial expansion played a significant role in
spreading the Common Law system to various parts of the world. Former colonies adopted
Common Law legal frameworks, contributing to its global influence. The U.S. legal system,
heavily influenced by Common Law principles, developed its own body of case law and
statutory law. State and federal courts in the U.S. follow the Common Law tradition. The
Common Law system, with its emphasis on precedent and legal reasoning, became a global legal
tradition. Many countries, particularly in the British Commonwealth, continue to follow
Common Law principles. The Common Law system is distinct from the Civil Law system,
which relies more heavily on codified statutes and legal codes. While Common Law traditionally
relies on judicial decisions, modern legal systems often involve legislative enactments and
codification. Statutory law coexists with Common Law principles in many jurisdictions. While
Common Law principles persist globally, legal systems have diversified, with variations in
procedural rules and substantive law. The Common Law system's adaptability and reliance on
precedent laid the foundation for its enduring influence in legal systems around the world.
Understanding the Common Law system involves recognizing the central role of judicial
decisions, precedent, and legal reasoning in the development and application of legal principles.
The system's flexibility and adaptability contribute to its enduring influence in diverse legal
contexts globally.

THE CIVIL LAW LEGAL SYSTEM

The Civil Law legal system, also known as the Continental or Romano-Germanic legal system,
is one of the major legal traditions in the world. The historical roots of the Civil Law legal
system are deeply intertwined with the development of Roman law and subsequent adaptations
and modifications by legal scholars in continental Europe. The foundation of the Civil Law
system can be traced back to the Corpus Juris Civilis, a collection of Roman legal texts compiled
under the Byzantine Emperor Justinian I in the 6th century. The Corpus Juris Civilis included
the Codex Justinianus, Digesta, Institutiones, and Novellae, constituting a comprehensive
compilation of Roman laws. Roman law introduced fundamental legal concepts such as the
distinction between public and private law, the importance of contracts, and the concept of
property rights. These principles laid the groundwork for the development of legal systems in
continental Europe. Legal scholars known as glossators and commentators played a crucial role
in interpreting and adapting Roman law to the evolving social and economic conditions of
medieval Europe. They wrote commentaries and glosses on the Roman texts, contributing to the
reception of Roman law in different regions. The influence of Justinianic law spread across
continental Europe, shaping legal thought in regions such as Italy, Germany, and France.
Different regions adopted and adapted Roman legal principles according to their needs. Local
rulers and authorities in various regions developed their own legal customs and practices based
on Roman law and local traditions. Over time, these local laws became more formalized and
codified. One of the most influential codification efforts was the Napoleonic Code (Code
Napoléon) introduced in France in 1804 under Napoleon Bonaparte.The Napoleonic Code
served as a model for legal reforms in many countries and codified civil, commercial, and
criminal laws. Germany adopted its Civil Code in 1896, known as the Bürgerliches Gesetzbuch
(BGB). The BGB codified private law and served as a model for other civil law jurisdictions. The
Civil Code typically addresses matters such as contracts, property, family law, and torts. The
Civil Law system often distinguishes between private law (governing relationships between
individuals) and public law (dealing with the state and public institutions). Judges in the Civil
Law system act as legal experts and apply the law to the facts of the case. They are less involved
in shaping the law through the creation of precedent compared to the Common Law system.
Civil Law principles have influenced legal systems in many parts of the world, especially in
continental Europe, Latin America, Asia, and parts of Africa. Some jurisdictions have adopted
elements of both Civil Law and Common Law traditions, creating hybrid legal systems. France,
Germany, Italy, and Spain are among the countries with a strong Civil Law tradition. Many
countries in Latin America, such as Brazil and Mexico, have legal systems rooted in the Civil
Law tradition.

COPARING ANND CONTRASTING THE COMMON LAW AND CIVIL LAW LEGAL
SYSTEMS

The Common Law system and the Civil Law system are two major legal traditions with distinct
approaches to the development and application of law.

1. Sources of Law:

- Common Law System:

Judicial Decisions and Precedents (Case Law): Common law systems rely heavily on the
accumulation of judicial decisions over time. Judges interpret statutes and make decisions based
on precedent, creating a body of case law that contributes to legal principles.

- Civil Law System:

 Written Codes and Statutes (Codification): Civil law systems prioritize written laws and codes.
Legal principles are primarily found in comprehensive codes, covering various areas of law. The
emphasis is on explicit legislation rather than judicial decisions.

2. Role of Judges:

- Common Law System:

Interpretation and Precedent: Judges in common law systems interpret statutes and apply
existing legal principles to the facts of the case. They also contribute to legal development by
creating precedent through their decisions.

- Civil Law System:

Application of Statutes: Judges in civil law systems act as legal experts applying the law as
written. Their role is to interpret and apply statutes to resolve cases, with less emphasis on
creating binding precedent.

3. Precedent (Stare Decisis):

-Common Law System:

Binding Precedent: Common law systems follow the doctrine of stare decisis, where decisions
of higher courts are binding on lower courts. This creates a hierarchical system of legal authority.

- Civil Law System:

Non-Binding Precedent: Precedents in civil law systems are not binding on subsequent cases.
While prior decisions may be considered persuasive, they do not establish strict legal precedent.

4. Adversarial vs. Inquisitorial System:

-Common Law System:

Adversarial System: In common law systems, legal proceedings are adversarial, with opposing
parties presenting evidence. Judges act as neutral referees, ensuring a fair trial.

-Civil Law System:

 Inquisitorial System: Civil law systems often use an inquisitorial approach, where judges play
an active role in investigating cases. Judges may question witnesses directly, and there is less
reliance on adversarial advocacy.

5. Legal Education and Profession:

- Common Law System:

Case Analysis: Legal education in common law systems often involves extensive case analysis,
teaching students to reason through precedents and legal principles.

Barristers and Solicitors: In some common law jurisdictions, there is a distinction between
barristers, who argue cases in court, and solicitors, who handle legal matters outside the
courtroom.

- Civil Law System:

Comprehensive Study: Legal education in civil law systems includes a comprehensive study of
legal codes and statutes.

Unified Legal Profession: Civil law systems may not have a clear distinction between barristers
and solicitors, with legal professionals having a unified role.

While the Common Law and Civil Law systems have fundamental differences, there are also
some similarities, especially in their broader objectives and functions within legal systems.

1. Legal Systems:

Both systems aim to provide a framework for regulating behavior within a society, resolving
disputes, and delivering justice.

2. Legal Professionals:

In both systems, legal professionals undergo formal legal education to acquire the necessary
knowledge and skills to practice law.
3. Courts and Judges:

Both systems have a hierarchical structure of courts where judges preside over cases and make
legal determinations.

4.Legal Interpretation:

Judges in both systems play a critical role in interpreting and applying the law to resolve
disputes.

5. Legal Norms:

Both systems aim to protect individual rights and provide mechanisms for individuals to seek
redress for legal grievances.

CONCLUSION

In summary, the Common Law and Civil Law legal systems exhibit fundamental differences,
with the former relying on judicial decisions and precedent, while the latter emphasizes
codification and statutes. Despite these distinctions, both systems share overarching objectives of
regulating behavior, protecting rights, and delivering justice. The Common Law system's
flexibility contrasts with the Civil Law system's emphasis on legal certainty. Modern legal
landscapes often incorporate elements from both traditions, showcasing a dynamic interplay
between the Common Law and Civil Law principles on a global scale.

REFERENCE

1. Alphabetical index of the 192 united nations member states and corresponding legal
systems, archived 2016-07-22 at the Wayback machine, website of the faculty of law of
the university of Ottawa
2. German civil code; German law code

Encyclopedia Britannica. Retrieved 2020-05-27

DOCTRINES OF EQUITY

The doctrine of equity refers to a set of legal principles and remedies that developed alongside
the common law in the English legal system. It originated from the need to address perceived
shortcomings and inflexibilities in the common law. Equity operates on principles of fairness,
justice, and conscience, providing remedies that may not be available or adequate under the strict
application of common law rules. Historically, in England, there were distinct common law
courts and equity courts, each with its own set of rules and remedies. The Chancellor's
jurisdiction, historically rooted in medieval England, represents a crucial aspect of the
development of equity and the administration of justice.: In medieval England, the Chancellor
was often a clergyman appointed by the king to serve as a royal adviser. The Chancellor's
authority extended beyond political and administrative matters to include the dispensation of
justice. The Chancellor presided over the Court of Chancery; a court separate from the common
law courts. The Court of Chancery focused on matters of conscience and fairness, providing a
distinct alternative to the rigid rules of the common law. The Chancellor's jurisdiction was
characterized by the application of equitable principles. Equity, in this context, referred to
fairness, justice, and the ability to provide remedies when the common law fell short. Unlike the
common law, which was bound by strict rules and remedies, the Chancellor had the flexibility to
fashion remedies based on the particular circumstances of each case. This allowed the Court of
Chancery to provide justice where common law remedies were inadequate. The Chancellor's
decisions were guided by considerations of conscience and equity. The Court of Chancery
became a forum where individuals could seek redress when legal remedies did not align with
principles of fairness. Common law courts focused on monetary damages and legal remedies,
while equity courts, specifically the Chancery Courts, provided more flexible remedies based on
fairness and justice. The Judicature Acts sought to overcome the historical division between
common law and equity by unifying the legal system. The Acts aimed to eliminate procedural
and substantive distinctions, creating a more cohesive legal framework. The Acts established the
Supreme Court of Judicature, which included the High Court and the Court of Appeal. This
unified court had jurisdiction over both common law and equitable matters, providing a single
forum for litigants to seek a wide range of remedies. The Judicature Acts introduced a single set
of procedural rules applicable to all cases, regardless of whether they involved common law or
equity. This promoted consistency, reduced delays, and simplified the litigation process. The
Acts affirmed the principle that, in case of conflict, equity would prevail. This meant that
equitable principles could be applied even in cases traditionally governed by common law. The
merger allowed litigants to seek both legal and equitable remedies in a single court. The
flexibility and range of remedies provided by equity became integral to the unified legal system,
ensuring that the courts could address the diverse needs of litigants. The reforms brought about
by the Judicature Acts had a profound and lasting impact on the legal systems of many common
law jurisdictions. The Acts influenced the development of a comprehensive body of law where
both legal and equitable principles coexist. The legacy of the Judicature Acts endures,
emphasizing the importance of integrating equitable principles into the broader legal system.
Equity's emphasis on fairness, justice, and flexibility continues to shape legal decisions, ensuring
that remedies are tailored to the specific circumstances of each case. The historical role of the
Chancery Courts and the reforms introduced by the Judicature Acts represent a significant
evolution in the legal landscape. The unification of common law and equity has contributed to a
more adaptable, equitable, and accessible legal system that continues to influence legal practice
and decision-making. Equity recognizes that rigid application of legal rules may lead to unfair
results in certain circumstances. It allows the court to consider the equities of a case, taking into
account the unique facts and individual merits. Equity provides a diverse set of remedies tailored
to the specific needs of a case. For instance:

 Specific Performance: Orders the party to perform a specific act, such as fulfilling
contractual obligations.

 Injunctions: Restrains or compels certain actions to prevent irreparable harm.

 Rescission: Cancels a contract, restoring the parties to their pre-contractual positions.

  Rectification: Corrects mistakes in legal documents to reflect the true intentions of the
parties.

MAXIMS OF EQUITY

Maxims encapsulate fundamental principles of equity. Some common maxims include:

 "He who comes to equity must come with clean hands"

Meaning: A party seeking equity must have acted fairly and without wrongdoing in the matter at
hand.

 "Equity follows the law but not slavishly"

Meaning: Equity complements the common law but is not bound by it. It seeks to achieve justice
where the strict application of legal rules may lead to unfair results.

 "Equity looks to substance rather than form"

Meaning: Equity focuses on the underlying fairness and substance of a situation rather than rigid
adherence to legal forms or technicalities.

 "Delay defeats equity"

Meaning: If a party unreasonably delays in seeking equitable relief, the court may deny the
remedy due to the adverse consequences of the delay.

 "Equality is equity"

Meaning: Equity strives to treat all parties fairly and without favoritism.

 "Where there is equal equity, the law will prevail"

Meaning: If the equities on both sides are equal, legal rights will be recognized and enforced.

 "He who seeks equity must do equity"

Meaning: A party seeking equitable relief must be willing to act fairly and fulfill their own
equitable obligations.

 "Equity will not suffer a wrong without a remedy"

Meaning: Equity seeks to provide a remedy for every wrong or injury.

"Equity delights in equality"

Meaning: Equity seeks to ensure that parties are treated equally and fairly.

 "Where the equities are equal, the first in time prevails"

Meaning: If the equities on both sides are equal, the party who took action first will prevail.

These maxims encapsulate the guiding principles of equity, providing a foundation for fair and
just decision-making in various legal contexts. They highlight the flexible and discretionary
nature of equity, emphasizing the importance of fairness, clean hands, and the pursuit of justice.
Equity intervenes when enforcing legal rights would lead to unfair or unconscionable results. For
instance, if a party takes advantage of another's vulnerability, equity may provide relief to
prevent unjust enrichment. The Chancellor's legacy persists in modern legal systems, influencing
contract law, property law, and other areas where equitable principles remain relevant.
Understanding the Chancellor's jurisdiction provides insights into the roots of equity and the
evolution of a justice system that balances legal rules with considerations of fairness and
conscience. The Chancellor's legacy is visible in the equitable principles and remedies that
continue to shape legal proceedings today.

The introduction of the doctrine of equity in the English legal system was driven by several
factors, including perceived shortcomings and rigidity in the common law. Here are key factors
that necessitated the development of equity:

1. Rigidity of Common Law:

Common law, while providing consistency and predictability, was often rigid and formulaic.
It relied heavily on precedent, and decisions were made based on legal rules without
sufficient consideration of fairness or individual circumstances. Example: In common law,
the principle of privity of contract historically prevented third parties from enforcing a
contract to which they were not a party. This rigidity could lead to unjust outcomes,
especially in situations where a third party had a significant interest. Equity addressed this by
allowing third-party beneficiaries to enforce contracts through the doctrine of promissory
estoppel.
2. Inadequacy of Remedies:

Common law remedies were limited in scope. In many cases, the only remedy available was
monetary damages, which may not have been suitable for addressing certain types of disputes,
especially those involving trusts, family matters, or specific performance of contractual
obligations. Common law often provided damages as the primary remedy, which might not be
sufficient in cases where money could not adequately compensate a party. Equity introduced
specific performance, as seen in the landmark case of Moss v. Hancock (1803), where the court
ordered the specific performance of a contract for the sale of land.

3.Formalism and Technicality:

Common law proceedings were characterized by formalism and technicality. Strict adherence
to legal forms and procedures sometimes led to injustice, as the substance of a dispute could
be overshadowed by procedural requirements. In common law, strict adherence to formalities
in property transactions could result in the forfeiture of property rights. Equity intervened in
cases like Rochefoucauld v Boustead (1897), recognizing equitable interests in property
despite technical deficiencies in the legal transfer.

4. Development of Trusts:

The emergence of trust relationships, where one party holds property for the benefit of another,
posed challenges for the common law. Equitable principles were developed to address these
situations, allowing the Chancery Courts to recognize and enforce trusts. Equity played a crucial
role in the development and recognition of trusts. In the case of Milroy v Lord (1862), the court
examined the requirements for creating a valid trust and clarified the equitable principles
surrounding the transfer of property for the benefit of another.

5. Conflict between Law and Morality:

Instances arose where the strict application of the common law led to outcomes that were
perceived as morally wrong or unjust. Equity sought to address these moral and ethical
considerations, providing a more flexible and conscience-based approach to legal remedies.
Equity played a crucial role in the development and recognition of trusts. In the case of Milroy v
Lord (1862), the court examined the requirements for creating a valid trust and clarified the
equitable principles surrounding the transfer of property for the benefit of another.

The development of equity in response to these factors led to the coexistence of common law and
equity in the English legal system. Over time, efforts were made to reconcile and merge the two
systems, contributing to the modern legal framework in common law jurisdictions.

CONCLUSION

In summary, the doctrine of equity was introduced to address limitations in the Common Law
system, offering flexibility and fairness in legal remedies. It emerged as a response to the rigid
rules of common law courts, providing additional avenues for justice in situations where
common law fell short. The doctrine of equity has since played a crucial role in balancing legal
principles and ensuring a more equitable administration of justice.

REFERENCES

1. J Martin, Hanbury and Martins Modern Equity (19th edn Sweet and Maxwell 2012) ch 1
2. Maitland, Frederic William (1909). Chaytor, A.H. Whittaker, W.J. (eds). Equity; also, the
forms of action at common law: two courses of lectures. Cambridge University Press

CASES

1. Moss v Hancook (1803)

2. Rochefoucauld v Boustead (1897),
3. Milroy v Lord (1862)