AUTHOR:

A.K.A. KOLAWOLE (MRS)

DEPARTMENT OF PRIVATE LAW
OLABISI ONABANJO UNIVERSITY,
PRL 402 AGO-IWOYE, OGUN STATE

PRINCIPLES OF
EQUITY
LESSON NOTE ONE

History of Evolution and Development of Equity in England

Two faces of Equity

The term “equity”is capable of two different meanings. In its general or everyday sense, equity
means 'fairness' or 'justice.' However, as used in the present context, equity refers to a particular
set of principles that are the product of one set of English courts...the court of Chancery

Thus when we use the phrase 'the common law and equity', we are employing a specialised sense
of the word equity. Indeed, in many publications you will find the words capitalised: Common
Law and Equity.

Nature and History of Equity

In the book of Proverbs Chapter 1 vs 3 we read that the proverbs of King Solomon the son of King
David was to enable man to:

i. Know wisdom and instruction; to perceive the words of understanding

ii. Receive the instructions of wisdom, justice and judgement and Equity.

The story of the wise judgement of King Solomon is documented in the Bible in 1st Kings, Chapter
3: 16:-28 NKJV. In the Quran we read about the exploits of Prophet Dawud (AS) and his son
Prophet Sulaiman (AS) in Q. 21: 78-82, 34: 10-14, 38: 17-26, 30-40. These stories illustrate the
meaning of equity in the ancient laws and lores. The principles of equity are thus universal in
nature and not peculiar to England and the English.

The principles of Equity had quite a different origin from the rules of common law. These
principles were developed by the Lord Chancellors of the King in response to petitions from
people dissatisfied, for one reason or another, with the decisions of the courts established by the
King (i.e. the Courts of Common Pleas, Exchequer and King's Bench), which were applying the
common law, as we have already seen. The Lord Chancellor, who in medieval times was the
principal adviser and minister of the King, was from the fourteenth century increasingly requested
to examine such petitions received by the King or members of his Council. At first, the Lord
Chancellor reported back with advice as to what should be done, but by the end of the fifteenth
century it was usual for him to deal with these petitions himself, and for the petitions to be
addressed to him directly. He then set up a separate court called the Court of Chancery (i.e. of the
Chancellor) where he dealt with these matters.

The Lord Chancellors at that time were usually high officers of the Roman Catholic Church, not
lawyers, so the principles they expressed were originally largely based on Christian principles and

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morality. As time went by, however, the Lord Chancellors and the judges who were appointed in
the Court of Chancery ceased to be Churchmen and were usually lawyers who had practised in the
Court, so that the principles of equity which they developed were modified and not so closely
linked with Church teaching. The principles adopted by the Lord Chancellors and the Court of
Chancery were, however, consciously based upon notions of fairness or equity, so they came to be
described as principles of equity.

The face-off between Equity and Common law

Naturally the courts of common law, i.e. the Courts of Common Pleas, Exchequer and King's
Bench, were not happy about the intervention of the Courts of Chancery when they overrode their
decisions and the Chief Justices of the courts of common law protested vigorously to the King.
This led to constant conflict between the Lord Justices of the common law courts and the Lord
Chancellor of the Chancery court. The common law court was frustrated by the frequent incursion
of the chancery on its jurisdiction, rulings and judgement. Thus the common law court in the case
of Neath v. Ridley(1614 Cro Jac 335) held that where there is a remedy available at common law
for a litigant the court of chancery must not assume jurisdiction over that suit.

This however went unyielded by litigants and the chancery much to the chagrin of the common
law court. Thus in the case of Courtney v. Glanvill (1615, Cro Jac 343); the common law court
threatened to imprison any litigant who after having obtained judgement in an action at the
common law court runs to chancery to obtain another ruling.

Matter came to a head in the Earl of Oxford’s case 1615 1Ch. R1; when Lord Ellesmere reversed
a common law judgement and declared a ruling to the effect that a landlord cannot take over
ownership of a building erected by the tenant. Lord Chief Justice Coke heading the common law
court petitioned King James 1 on the Lord Chancellor’s unruliness.

The Mediation and Resolution

King James 1 ruled in that case that if there was conflict between the rules of common law and the
principles of equity, the principles of equity must prevail. This ruling was based partly upon the
fact that the Chancellors were historically exercising powers delegated to them by the King and
Council; partly upon the fact that the principles of equity were supposed to be more fair and
equitable than the rules of common law; and partly upon a belief by the King, James I, that the
Lord Chancellor would be more likely to support the interests of the Crown than would the stiff-
necked Chief Justices of the common law courts at that time, who had started to show a tendency
to question the extent of the King's legal powers. It was thus both a moral decision and a political
decision. This was done where Lord Ellesmere reversed a common law decision to the effect that
a landlord cannot take over ownership of a building erected by the tenant.

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From then on, the Court of Chancery continued to exercise its jurisdiction and develop the
principles of equity. The next question to be considered now is from that period what was the
relationship between Equity and Common law?

THE RELATIONSHIP BETWEEN EQUITY AND COMMON LAW

The principles of equity had basically three different effects upon the rules of common law: to
confirm them, to supplement them, or to contradict them. Thus equity is sometimes found
endorsing and following the rules of common law, sometimes supplementing the common law to
make court proceedings more expeditious and effective, but sometimes contradicting it and
providing rights or duties that overrode the rights and duties established by the common law.

Equity Confirms the common law

If the court of Chancery saw nothing unfair or inequitable in a decision based on the common law,
would reject the petition, and decline to intervene in the matter. In such cases, equity was said to
confirm or follow the common law.

Equity Supplements the common law

Sometimes the Court of Chancery would intervene in proceedings in the common law courts, not
to interfere with the decision, but to provide some procedures or remedies that were better than the
common law courts could provide. Thus, the Court of Chancery held that it could order a party to
proceedings to answer questions on oath (called interrogatories) about facts within his or her
knowledge relating to the claim; to reveal all documents relevant to the proceedings in his or her
possession (discovery of documents); and then to produce them for inspection by the other party
so that the other party could see them, and copy them (disclosure of documents). (In this usage,
the word discovery is used in the sense of 'disclosure' or 'revealing'.) In this way, trials could be
speeded up, and adjournments on the grounds of surprise largely eliminated.

Again, the Court of Chancery held that it could issue an order prohibiting a party to proceedings
from doing something unlawful (injunction), and an order directing that a party specifically
perform the terms of a contract (order of specific performance). Both these remedies were often
much more useful for enforcing the rights of a party than was an order that the other party pay
damages, which was all that a court of common law could provide.

In such cases, Equity was not following the common law, nor was it contradicting it; rather it was
said to supplement the common law.

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Equity Contradicts the common law

Sometimes the Court of Chancery would intervene to contradict certain rules of common law that
it considered produced a very unfair or inequitable result. Some examples will demonstrate how
such principles of equity evolve.

A Property to be held on trust for benefit of another

The Court of Chancery held that if property was given to a person on the basis of that person's
assurance that the property would be used for the benefit of certain persons or purposes, it would
be quite unfair or inequitable if that person should use that property for his or her own benefit,
even though under the common law he or she was the lawful owner of the property. In this way
the Council of Chancery evolved the equitable principle of trust that overrode the common law
rights of ownership of property.

 An example of this is seen in Aberdeen Town Council v Aberdeen

University (1872) 2 App Cas 544
The House of Lords held that the Aberdeen Town Council, which had been
given certain property to hold in trust for the endowment of four
professorships at Aberdeen University, could not later lease that property to
itself, and use the income for its own purposes.

b) Prudence in dealing with trust property: The Courts of Chancery went further and held that a
person who has been given property to hold in trust for the benefit of others must not only act
within the terms of the powers given by the person establishing the trust, but must also act with
reasonable prudence with regard to the trust property, bearing in mind that it is held for the benefit
of the persons or purposes indicated by the person establishing the trust.

 This is exemplified in Re Whiteley (1886) 33 Ch D 347

In this decision the Court of Appeal held that trustees had failed to act in accordance with principles
of equity when, although empowered by the trust instrument to make investments of trust monies,
they made a loan to a brick making business that shortly afterwards went bankrupt. Since this
investment was considered by the court to be imprudent because the business was a speculative
enterprise and not financially sound, the trustees were required to make good the loss they had
caused.

c) Misrepresentation or mistake in making of contract: The Court of Chancery further held that
if a person entered into a contract on the basis of a misrepresentation made by the other party to
the contract, or on the basis of a mistake that was induced by, or known to, the other party, then it
was inequitable that that person should be bound by the contract, even though under the common
law he or she was absolutely bound by the contract.

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  This can be demonstrated by Solle v Butcher [1949] 2 All ER 1107. The
Court of Appeal of England held that a contract for the tenancy of a flat
could be rescinded by the landlord since both the landlord and the tenant
thought when making the agreement that the flat was, because of alterations
made to it, no longer bound by the restriction on rent imposed by rent
restriction legislation, which in fact was not correct.

In such cases, when the principles of equity were in conflict with the rules of common law, the
Court of Chancery would issue an injunction to prevent the common law decision being enforced,
and would provide its own remedies, e.g. injunction, order to account. LESSON THREE

Merger of Common Law and Equity

As we have seen, by the nineteenth century there were in England two systems of laws and two
systems of courts: common law, which was applied by the Court of Common Pleas, Court of
Exchequer and Court of King's Bench; and equity, which was applied by the Court of Chancery.

It was clearly unsatisfactory for litigants to have to take proceedings in two different courts, first
a common law court, and then the Court of Chancery, before they could have access to all the
fights, procedures and remedies that were available to them, and before they could be sure that
their legal rights and duties had been fully and finally determined.

In the early nineteenth century, steps were taken to deal with this situation by enacting legislations
that provided that:

 The Court of Chancery could provide the remedy of damages available in

the common law courts, i.e. Chancery Amendments Acts 1852 and 1858;
and

 The common law courts could provide the procedures and remedies
available in the Court of Chancery, i.e. Common Law Procedure Acts 1852
and 1858.

A much more radical step was taken between 1873 and 1875 when the Judicature Act 1873 was
enacted and came into force in 1875.

The Effects of the Judicature Act

It abolished the common law Courts of Common Pleas, Exchequer and King's Bench and also the
Court of Chancery.

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It merged the jurisdiction of the said courts into a High Court, which was to sit in divisions
corresponding to the former Courts of Queen’s Bench, Chancery and Probate Division, Divorce
and Admiralty Division; each division having both legal and equitable jurisdiction. This means
that any judge of these courts could exercise any of these jurisdictions.

From then on the separate court system was abolished, and although at first the rules of common
law and principles of equity still tended to be handled rather separately, in time they have become
intermingled and inter-mixed so as to make up one composite body of law, which is often
nowadays referred to as common law, but in fact contains the modifications introduced by equity.

The next question to be answered now is how were the principles of Equity received into Nigeria?

Further Reading

Fabunmi, J.O., (2006, 2nd Edition): “Equity and Trusts in Nigeria”, Obafemi Awolowo University
Press, Ile-Ife.

Jegede, M. I. (2007 Reprint.): “Principles of Equity”; Unique Design/Prints, Ibadan.

Kodilinye, G., (1998 Reprint): “An introduction to Equity in Nigeria”. Spectrum Law Publishing,
Ibadan, Nigeria.

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 RECEPTION OF EQUITY INTO NIGERIA

Pre class Activity:

 Opinion poll on the superiority or otherwise of the principles of Equity to the rules of
Common Law.

Relevant statutes and Ordinances

1. Ordinance No. 3 of 1863

2. The Supreme Court Ordinance No. 4 of 1876
3. Ordinance No. 17 of 1906 Ordinance No. 3 of 1908 (Northern and Southern Protectorates)
4. The Supreme Court Ordinance 1914
 Ordinance No. 3 of 1863 was the first instrument used by the British to introduce into
Northern and Southern Protectorates and the Colony of Lagos the laws and statutes
applicable in England. By virtue of S.1 of that Ordinance and subject to the usual
reservation of their being applied subject to existing local laws and in so far as local
circumstances would permit, the laws and statutes in force in England on the 1st day of
January, 1863 were imported into the Protectorates and the Colony. Although no specific
mention was made of the principles of Equity, in that section, it is assumed that such is
implied in S. 1.
 The Supreme Court Ordinance No. 4 of 1876 was the next in line. It clearly and formally
introduced the principles of Equity as part of the received English law.
 Ordinance No. 17 of 1906/Ordinance No. 3 of 1908 have the effect of importing the rules
of the English common law, the principles of Equity and Statutes of general application
which were in force in England on the 1st day of January, 1900 to the Northern and
Southern Protectorates and the Colony respectively.
 The Supreme Court Ordinance 1914 came after the amalgamation in 1914. Its effects were
also to import the rules of the English common law, the principles of English Equity and
Statutes of general application which were in force in England on the 1st day of January,
1900 were introduced into the whole of Nigeria.

Conclusion

Today every court in Nigeria will enforce the principles of Equity in the exercise of its jurisdiction
in any matter before it. A litigant need not plead specifically that the court exercises his
jurisdiction. It is implicit in all writs of summons filed in any division of court in Nigeria.

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THE RELATIONSHIP BETWEEN EQUITY AND CUSTOMARY LAW

The rules of Equity relates with the Nigeria Customary Law in three different ways namely; the
Repugnancy doctrine, the Residual Justice clause and the doctrine of Laches and Acquiescence.
By way of preliminaries, let us explain the concepts of ‘Equity’ and ‘Customary law.’
What Is Equity?
According to the Collins English Dictionary 6th Edition; “Equity” means “fairness”. In other words
the rules of equity were designed to produce reliefs in circumstances where the common law
provides none or denies same. According to Prof. A.N. Allot in his text New Essay In African
Law (Butterworth 1976), the word “equity” can mean either of two things “Fairness” or the
“Technical Equity” i.e. the body of rules formed by and formerly administered in the Court of
Chancery in England.

Equity can therefore be described simply as the use of the principles of justice to supplement the
law which in this case is the common law. In England, before the Judicature Acts of 1873-75,
equity existed side with the common law. The fusion of the administration of these rules of
common law and equity was achieved by the Judicature Acts.

How were the principles of equity made applicable in Nigeria?

Prior to colonization, historians told us that there existed nations or nation-states. Examples of
which are the Oyo Kingdom, Benin Kingdom, Northern Emirates & the Igbo Different Nation
States in the areas now known as Nigeria.

These states or nations had long before the advent of the European colonizers developed their
social, cultural, economic, legal and political systems which were adequate for their existence and
inter-action between and amongst themselves. These states had also developed codes in
international relations which enabled them to trade with their neighbouring nation-state even
before advent of the international slave trade. Furthermore the legal system of each of these states
varies from one nation-state to the other.
However, each state had developed its peculiar custom, norms of morality etc. for the
administration of justice between and amongst themselves. These rules or norms i.e the body of
them later transmuted into what we now call customary law.

What Is Customary Law?

Prof. C.O. Okonkwo in his text: Introduction to Nigerian Law defines Customary Law of a
community as “a body of customs and traditions which regulate the various kinds of relationship
between members of the community in their traditional setting”. Prof. OBILADE in his text:- The
Nigerian Legal System defines Customary Law as “customs accepted by members of a community
as binding among them”. It must be noted that Islamic law is categorized as a part of customary
law.
Customary has also been described as a ‘Mirror of accepted Usage’: Owonyin v. Omotosho, ‘the
organic law of the indigenous people’ : Ogunesan v. Oyewunmi and being flexible and dynamic
to suit the trends of the time: Lewis v. Bankole.

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Upon the advent of colonial rule, the various nations-states existing in the Niger Area were fused
into two (2) Protectorates namely: the Northern and Southern Protectorates. These protectorates
were later on amalgamated in 1914 to form the present day Nigeria.

We have noted how the Supreme Court Ordinance of 1876, Ordinance No. 17 of 1906, Ordinance
No. 3 of 1908 and the Supreme Court Ordinance of 1914 were used to usher in the administration
of English common law, the doctrines equity and the statutes of general application which were in
force in England as at the 1st of January, 1900 which were imported into the Nigerian legal system.
By these enactments the common law principles and the principles of equity were made applicable
in Nigeria and on its citizen.

The link between the principles of equity and the rules of Nigerian customary law could be seen
from the provision of S. 19 of the Nigerian Supreme Court Ordinance enacted in 1914. The section
provides as follows:-
Nothing in this Ordinance shall deprive the Supreme Court of the right to observe
and enforce the observance or shall deprive any person of the benefit of any law or
custom existing in the said colony and territories subject to its jurisdiction such law
or custom not being repugnant to natural justice, equity and good conscience.

This Ordinance although now repealed was the precursor of various similar provisions in the High
Court Laws of the various regions and subsequently of the federation and the various states in
Nigeria. An example of which is S.29 of the High Court Act Cap 510 Laws of the Federation of
Nigeria 1990 which provides thus:- “The court shall observe and enforce the observance of every
customary law “which is not repugnant to natural justice, equity and good conscience…”

The same provision can be gleaned from S.26 of the High Court of Lagos States, Laws of Lagos
State 2004 and also in S. 13 (1) of the High Court Law Vol. 2 Laws of Ogun State, 2006.

The totality or the effect of these provisions is that “customary law” became subjected to the rule
of natural justice, the rules of equity and the dictates of good conscience. What this means in other
words is that before a known and accepted rule of customary law in a particular community would
be observed or enforced in a court, such rule of customary law in a particular community would
be subjected to and must have passed the test of natural justice, equity and good conscience. This
test became known as the “Repugnancy Test” or The Repugnancy Doctrine”.

This is the first way by which the principles of Equity first came into conflict with our customary
law. The other two ways are the Doctrine of Laches and Acquiescence and the principles of the
Residual Justice Clause. We shall examine them one after the other.

The Repugnancy Test.

In Eshugbayi Eleko v Officer Administering the Government of Nigeria, [1931] AC 662; Lord
Atkins explained that a barbarous custom must be rejected on the ground of being repugnancy to
natural justice, equity and good conscience. In the same vein, the phrase “natural justice, equity
and good conscience” defies precise definition. Controversies and uncertainties surround its exact

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meaning. Scholars are of divergent views as to the nature of the Repugnancy Doctrine. Some
scholars are of the opinion that there are three (3) tests which must be passed by a rule of customary
law under the Repugnancy Doctrine. The other view is that the Repugnancy Doctrine should be
taken as one test i.e interpreted disjunctively to have one single meaning.
Prof. Derret in his article: “Natural justice, Equity and Good Conscience: Changing the law in
Developing countries” (1963) was of the firm view that the repugnancy Doctrine should be taken
as meaning simple “Natural Justice”.

On the other side of the coin however is Speed Acting C.J. in Lewis v. Bankole 1908 NLR Pg. 81
who decided in that case that there are 3 distinct tests combined in the Repugnancy test namely:

1. The test of natural justice.

2. The test of equity
3. The test of good conscience.
However, he was overruled on appeal to the Privy Council, as it was decided that the test is simply
that the rule of customary law being tested must not be contrary to the rule of natural justice. It
appears that today, the commonly accepted interpretation is that the test simply means one thing
i.e. “Fairness or Justice”.
We submit that this is the better approach as by this; the test can be moderated into a certainty
meaning that the concept of the Repugnancy Doctrine will at all times be understood to mean
“Fairness/Justice”.

The Purpose Of The Repugnancy Doctrine

A host of scholars have commented one way or the other as to the purport of the Repugnancy
Doctrine. Whilst some scholars believe that the Repugnancy Doctrine is meant to subjugate the
Nigeria culture into subservience for the English law, some scholars however believe that the
Repugnancy Doctrine is meant to “civilize” the various Nigerian customary laws. We may
therefore say that there are two theories in respect of the purport of the Repugnancy Doctrine
namely:
(i.) The Subjugation theory and (ii) The Civilization theory

Prof. Olayide Adigun believes that the Repugnancy Doctrine is simply a tool of subjugation and
that it was designed to stultify the growth of our customary law. Prof. I. O. Agbede amongst other
scholars however believes that the Repugnancy Doctrine is an active tool for the civilization of
some of our harsh customary practices and that same has served a useful end in the quest for the
reformation of our customary law.

What Ought to be the Subject Matter Of The Repugnancy Test: The Rule of Customary
Law Or Its Effect?

There is a controversy as to what ought to be subjected to the Repugnancy Doctrine. In other

words; is it the rule of customary law which is being tested that must not on its own be repugnancy
to natural justice, equity and good conscience or is it that such rule must be considered to ensure
that its effect must not be repugnant?

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The favoured opinion by scholars is that the effect of the rule is what matters as it is possible that
a rule of customary law may be sound on its own and equally not be repugnant but may become
repugnant when it is put into use considering its effects on the society in the short or long time.

Application of The Repugnancy Doctrine On Rules Of Nigeria Customary Law?

As we have noted above, Nigeria is distinctly different from England. Its people, its cultures, its
socio-economic, legal and political antecedents are basically different from the English culture.
Indeed anyone can imagine the disparity in the ideas of the Nigerian culture and the English
culture. Thus for the Nigeria culture or legal system or body of rules that is; rules of customary
law to be subjected to a test which is basically English in origin and in practice is to expect a big
clash. This clash is evident in virtually all aspects of civil law governed by customary law.
According to Prof. J.O. Fabunmi in his text “Equity & Trusts in Nigeria” the Repugnancy
Doctrine affects rules of customary Law in two different ways of its application namely:
(i) Its application to substantive Law i.e. the body of rules of customary Law
(ii) Its application to Procedural law i.e. the rules guiding the administration or enforcement
rules.

PART II: The Repugnancy Doctrine and its Application to Substantive Law

Under this heading to better appreciate the Repugnancy doctrine it might be necessary to classify
or showcase some cases falling under specific rules of customary law namely:-

(A) Repugnancy Doctrine and Rules Of Customary Law Relating To Marriage & Divorce:-

We must note that the Nigeria culture and customary law admits of polygamy whilst, the English
concept of matrimonial cases admits only of monogamy. One can therefore imagine what effects
are likely to be produced on our customary law by using the English norm of monogamy as the
standard for measuring the validity of a customary law rule on marriage which is basically
polygamous in nature. Simply put the cultures are so different. For an instance, the English culture
does not admit of the idea of bride price, whereas same is an essential requirement for a valid
customary marriage. It is therefore apparent that ab-initio, the idea of bride price to a foreign judge
or scholar would be highly repugnant. One can then imagine what such a judge’s ruling or
judgement will be on any matter based on the payment or non -payment of bride price.

In the case of Mariyama v Sadiku Ejo 1961 1 NRNLR pg. 81, there was established in court, a rule
of the Igbirra native law and custom that any child borne within ten months of a divorce belongs
to the divorced husband and not the new husband. Thus in that case, the divorced husband, (the
respondent in this case) claimed the child born ten months after the divorce as his own child as
against the new husband’s claim. It was however found in evidence that the parties had no conjugal
relations in the last fifteen months before the child was born thus confirming that the child born

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belongs to the new husband. The court rejected the rule as being repugnant to natural justice, equity
and good conscience.

The justification given by the court in rejecting this rule of Igbirra native law and custom law is
that the resultant effect of the enforcement of the said rule would be to take the child away for life
from her natural parents i.e. the appellant in this case and her present husband and given to a total
stranger i.e. the divorced husband (the respondent in this case) who would most expectedly
maltreat the said child.

We submit that although the decision in this case is sound, in that it is beneficial to the welfare of
the child in issue, the rule should not however be seen to be unfair or unsound in itself as its aim
in the society or the particular community is to curb adultery amongst married women. We further
submit that a simple DNA test would have sufficed to determine the paternity of such a child even
if the evidence had shown that there had been conjugal relations between the divorced couple
within ten months of the divorce.

In Edet v. Essien 1932 11 NLR pg. 47, a rule of customary law stipulates that any child born by a
woman whose bride-price was not returned after a divorce will automatically belong to the
divorced husband was rejected as being contrary to the Repugnancy Doctrine.

The rule of customary law which stipulates that the consent of a young girl need not be sought in
order for her to be married to a man of her father’s choice was raised in the case of Osamwonyin
v. Osamwoyin 1972 10 S.C. pg 1. The Supreme Court rejected the rule as being repugnant to natural
justice, equity and good conscience.

In Meribe v. Egwu 1976 NSCC pg. 181, the rule of Igbo custom which recognizes woman to
woman marriage was declared as being repugnant to natural justice, equity and good conscience.

In Okonkwo v. Okagbue 1994 9NWLR pg. 301, the Supreme Court held that since marriage is a
union of a man and woman, both being living persons; a marriage which was purportedly made
between a living woman and a dead man for the purpose of procreating through other men, children
for the said deceased person in order for the children to be able to inherit the said deceased’s estate
was repugnant to natural justice, equity and good conscience.

(b) Repugnancy Doctrine And Rule Of Customary Law Relating To Inheritance And
Succession.

The cases of Danmole v. Dawodu 1962 1 ANLR Pg. 707 and Taiwo v. Lawani 1961 ANLR. 703
represent a manifestation of the attempt to impose English concepts on the Nigeria customary law
under the guise of the Repugnancy doctrine by the court of first instance. In these cases, the Federal
Supreme Court did not find the Yoruba rule of customary law which stipulates that the estate of
intestate person whose marriage was polygamous be distributed by the method as “Idi-igi” i.e. per
the number of wives and not by “Ori-ojori” i.e. per the number of children as being repugnant

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despite the court of first instance ruling to the contrary. Interestingly though the court of first
instance was presided over by a Nigerian judge…

Perhaps, the reformatory nature of Repugnancy doctrine may be said to have been made manifest
in the case of Lewis v. Bankole 1908 1 NLR Pg. 82 where the court found as being repugnant the
rule of Yoruba customary law which stipulates that a female cannot be made the head of a family
even if she were the eldest amongst all the members of the said family. The court in that decision
upheld the right of the female to succeed as the head of the family.

In the very recent Supreme Court decision in Mojekwu v. Iwuchukwu 2004 All FWLR part 211
pg. 1406, the Supreme Court refused to uphold the appellant’s claim that the brother of a deceased
intestate person is entitled to the estate of his brother to the exclusion of his blood issues simple
for the reason that they are females

(C) Repugnancy Doctrine and the Rules Of Customary Law Relating To Pledges And
Redeeming Of Pledges.

In Nwangwu v. Okonkwo 1987 7 S.C (Part 1) pg. 32 at pg. 37, UWAIS JSC found that the custom
of redeeming a pledge of land with a human being is certainly repugnant to natural justice, equity
and good conscience and therefore untenable in the present day Nigeria.

PART II: The Repugnancy Doctrine and Its Application To Procedural Law.

It is trite that the basic concept of natural justice through procedure in law courts has always been
clearly rested on the two cardinal rules viz: Nemo Judex In Causa Sua & Audi Alteram Partem.
These rules when translated mean that a man cannot be a judge in his own cause and also that a
man shall not be condemned without having heard him first (a man must be allowed to put up his
own defence). These are also well recognized in their own way by the various customary laws.
However, there are instances of abuse of these rules and the superior courts have had to call into
question such procedure followed by a customary court. Thus any proceeding under customary
law before a customary adjudicatory body which contradicts these two cardinal rules will be found
to be contrary to the Repugnancy Doctrine.

In Guri v. Hadeija Native Authority 1959 4 FSC pg 44, the Federal Supreme Court declared as
being repugnant, a rule of customary law which prevented persons accused of highway robbery
from defending themselves.

In the case of Thomas v. Oba Ademola II 1945 18 NLR pg. 12, the Council of Chiefs (Iwarefa
Chiefs) expelled the plaintiff, a holder of an “Iwarefa” title from the Iwarefa body without giving
him an opportunity to defend himself in respect of the charge levied against him. The expulsion
was held invalid.

Furthermore, a procedure which allows an interested or a biased person to be an umpire in such

cause or matter which affects him has been rejected as being repugnant in several cases. An
example is the case of Adeniran & Ors. v. The Caretaker Committee of Ife Divisional Council &
Ors 1963 1 ANLR at pg. 39; where the Ooni-in-council of whom the Ooni of Ife is the chairman

13
presided over a matter that has to do with a contract in which he is interested. It was held that the
proceeding of the Ooni-in-council breached the provisions of the Nemo judex rule and was
therefore declared repugnant.

Will A Rule Of Customary Law Be Declared Repugnant Merely Because It Does Not Comply With
English Rules?

The question has been raised as to whether or not a rule of procedure under customary law will
necessarily be declared repugnant simply because it does not conform with English law. We must
note that the Nigerian judges have come to accept that English law is never the test for validity of
the customary law.
In the case of Bukar of Kaligari v. Bornu Native Authority 1953 20 NLR pg. 159 the court
expressed the normal approach when it opined that the fact that a customary court did not follow
strictly the laid down English rules of procedure does not mean that the other procedure adopted
is repugnant so long as the cardinal rules of natural justice has not been breached.

What about a customary law rule which negates a right which is available under English law?

It is trite that the fact that a rule of customary law deprives a person of certain right which he would
have been entitled to under English law does not make such a custom to be repugnant to natural
justice, equity and good conscience. This was the decision in the case of Rufai v. Igbirra Native
Authority 1957 NRNLR pg 178. The appellant in that case had been using a portion of his land as
a mosque for daily prayers, the respondent N/A pursuant to a rule of Muslim law (recognized under
Igbirra customary law) which frowns at the proliferation of Friday mosques especially within a
certain kilometer radius, prevented (by use of the police authority) the appellant from using his
mosque as a Friday mosque. The appellant claimed damages for trespass on land and injunction
restraining the respondent N/A from continuing to disturb him in the lawful use of his property. It
was held on appeal that the rule is not necessary repugnant to natural justice, equity and good
conscience merely because it deprives the appellant the right to the lawful occupation and use of
his property even though that is a right recognized under English law.

It must be noted that this view has now found statutory backing in most of the Customary Courts
Law of the former regions of Nigeria and subsequently in the various Customary Courts Law or
Area or Area Courts law of each of the states of the Federation. An example is S. 49 of the Ogun
State Customary Court Law 2006 which provides that where a decision of a customary law has
been made and a challenge to same is being heard by a higher court; no objection on the ground
that there has not been full compliance with any English rule of evidence or procedure shall be
entertained “…. but every court exercising the powers of appeal shall decide all matters in
accordance with substantial justice without undue technicalities”.

Consequences of the Repugnancy Test

Once a rule of customary law is declared repugnant, it is of interest to know what becomes of such
a rule of customary law. Ordinarily, one would expect that such rule would be discarded and that
the courts would refuse to enforce such a rule of customary law in that case and in subsequent
cases.

14
However, this is not always the case. While it is true that the rule may not be enforced in the
particular case in which it was declared as being repugnant, circumstances may warrant such rule
to be used in other exceptional cases especially where it will meet the demand of justice for such
a rule to be enforced. For example, whilst the court in Danmole v. Dawodu (supra) held the “Idi-
Igi” custom as the applicable custom in a polygamous situation, it however does not mean that
Ori-Ojori method of distribution is repugnant as that rule may well satisfy the end of justice in a
monogamous situation.

Thus, the mere fact that a rule of customary law has been rejected in a particular case given to
circumstances or considering the injustice that it may wrought if enforced in that particular case,
does not necessarily mean that such a rule is repugnant and must not be enforced in other cases of
different facts or circumstances.

The Supreme Court in the case of Okonkwo v. Okagbue (supra) held that where a rule has been
declared repugnant, if there is an alternative rule, that other rule is to be considered and if it passes
the Repugnancy test, it ought to be enforced in place of the rejected one.

Quite apart from the above it is a known fact that most rules of customary law which have been
declared repugnant are still being practiced and adhered to by majority of persons living in the
locality where the custom has been declared repugnant. Examples are evident in the trial by ordeal
system which though is a crime under the criminal code; yet it is still being practiced in the so
called hinterlands of different cultures in Nigeria.

Another example is the Igbo cultural practice known as the Osu Caste System, the abolition of
which was legislated upon by virtue of “The Abolition of the Osu Caste System Law of Eastern
Nigeria 1957”. Indeed it is noteworthy that this system is still being so tenaciously held unto even
by the so called elites of Igbo origin. A journalist, Mr. Ray Ekpu writing in the Newswatch
Magazine of the September, 1989 commented on this disturbing malaise and said that the
obnoxious practice is still being gladly observed by the Igbos despite their social, educational and
political advancement.

It has been suggested that where a rule has been declared repugnant in a particular locality the
same rule should also be deemed as not applicable in other locality having similar rules of customs.
This ought to be so in order to ensure that there is an acceptable standard common to all localities
of the same culture as regards their rules of customary law.

What about statutes and the common law?

It is trite that statutes, common law, and customary law co-exist under the Nigeria legal system
and that they might all be applicable in a number of matters. Thus where a rule has been declared
repugnant and there is no alternative rule to be considered, it has been suggested that recourse may
be had to English law, where English law is applicable considering the intention of the parties, the
nature of the transaction (i.e. whether English law can govern the transaction) and the conduct of
the parties. One may pose the question: “where there is no customary law rule or English law or
statute which may govern the adjudication in a particular case, what law will be used?”

15
The answer to this question leads us to another area where there is an inter play between the Nigeria
customary law and the rules of Equity. It is called the “Residual Justice Clause”

THE RESIDUAL JUSTICE CLAUSE

The residual justice clause is a creation of statutes. It has its root in the earlier regional laws of the
federation of Nigeria. For example, S.34 (4) of the High Court Law of Northern Nigeria 1963
provides the answer to this question. It provides as follows:
“In cases where no express rule is applicable to any matter in controversy the court shall
be governed by the rules or principles of Natural Justice, Equity and Good Conscience”.

Similar provisions were available in virtually all the Regional High Court Laws in Nigeria. This
provision simply means that where no statute or common law rule or customary law provides for
a law to govern certain transactions then it is acceptable that the court may fall back on those rules
which are of a residual nature that is readily available to serve the interest of justice. This has been
interpreted to mean that the rules of natural justice, equity and good conscience must be applied.

The application of this doctrine can be gleaned from certain cases where the court was reluctant to
declare a rule of customary law as being repugnant and finding no other rule either under English
Law or Customary law applicable resorted to the application of the residual justice clause to ensure
fairness. An example of such situation is seen in the case of Aghenghen v. Wagregor 1974 NLR
pg. 181, where the Supreme Court had the opportunity to rule on apportionment of compensation
money between customary tenants and the overhead landlords. The Supreme Court finding no rule
of customary governing apportionment of compensation for compulsorily acquired land resorted
to the use of the “Residual Justice Clause” and apportioned the compensation sum in the ratio of
two thirds (2/3) and one third (1/3) to the customary tenants and the overhead landlords
respectively.

This same principle was given effect to in the case of Akpan Awo v. Cookey Gam 1913 2 NLR 100,
where the court stated that the decision in that case was arrived at simply on the ground of equity
and not on any received English law or on any rule of customary law.

We must note however, that although the other regions and subsequently states in the Federation
had similar provisions in their various Laws, these provisions had been repealed as the Residual
Justice clause has become obsolete. This is so because the nature, extent and quality of the Nigeria
Customary Law are now more expanded and well known to all and sundry.

Tutorial Questions

1. S. 13 (1) of the High Court of Ogun State Laws 2006 provides as follows:-
“Nothing in this Ordinance shall deprive the High Court of the right to observe and enforce
the observance or shall deprive any person of the benefit of any law or custom existing in

16
 the communities subject to its jurisdiction such law or custom not being repugnant to
“natural justice, equity and good conscience”.
Analyse this relevance of this provision vis-a vis the decided cases on the Nigerian
customary law rule.
2. Equity is universal to all cultures where the attainment of substantial justice in individual
cases is the sole purpose of dispute resolution.
Discuss this statement in view of the common impression that equitable concepts are the
mere inventions of the English Law.
3. In the course of the haphazard development of the principles of equity, the conflict between
equity and common law reached a crescendo and the harmonization of the two streams of
English law were completed with the promulgation of the Judicature Act 1873-75.
4. Analyse the process of the growth and development of equity and the significance of the
Judicature Act 1873-75 on the English legal system.

THE DOCTRINE OR DEFENCE OF LACHES AND ACQUIESCENCE

This is the third area of law in which there has been a manifest interplay between Customary Law
and the Principles of Equity. The doctrine of laches and acquiescence was created by the rules of
Equity in line with the ideal that every legal system must operate a limitation of time within which
claims over a particular right may be brought by any party. This is known as doctrine of
“Limitation of Actions”.

The rationale behind the limitation of actions is that it would be difficult to achieve effective justice
if there is a long gap between the time a cause of action arose and the time when the claim is
brought before the court. Indeed it might be impossible to achieve justice as witnesses might have
grown old and might have lost their memory or they might have died or dispersed thus making
proof of such delayed claims impossible.

Limitation of action had long been recognized at common law and it forms portion of the received
pre-1900 rules of English common law which were made applicable to Nigeria. Moreover certain
local statutes enacted on the issue are designed to limit the period by which a claim will cease to
exist or will become statute barred i.e. be barred by statue from being adjudicated upon. This is
known as the limitation period.

An example of such a statute is the Limitation Law of Ogun State 2006. S.4 (1) (2) and (3) stipulate
the limitation period for claims in respect of actions based on torts, contracts, breach of trusts,
action for an account as six (6) years. S.6 limits all actions for the recovery of land to twelve (12)

17
years in the case of an individual grant and thirty years in the case of the State grant from the date
in which the cause of action accrued.
In Muomah v. Spring Bank Plc (2009) 3 NWLR (Pt. 1129) p. 553, on the nature of statute of
limitation and rationale therefore, the Court of Appeal held that:
The law on limitation of actions is the pivot upon which the wheel of litigation rotates
and the ruthless watchman that guards the gates to the sanctuary of justice. The Statute
of Limitation is therefore an Act of peace based on the principle that long dormant claims
have more of cruelty than justice in them, as the defendant might have lost the evidence
to disprove a statement of claim and that persons with good causes of action should
pursue them with reasonable diligence. The reasoning of the statute of Limitation is that
greater injustice is likely to be done by allowing stale claims than by refusing them a
hearing on the merit.

While the statutes enacted the Limitation period, the Court of Chancery formulated the doctrine of
Laches and Acquiescece (hereinafter L&A).The basic difference between L&A and limitation of
action lies in the origin. The origin of Limitation of Action Law is an Act of Parliament and thus
dependent on express law which goes strictly by the rule of effluxion of time. L &A however is a
creation of the court of Chancery and is dependent on rules of equity, fairplay and justice. Hence
for L&A merit must meet with morality of the case or of the parties. The doctrine is a manifestation
of the maxim of equity “Equity aids the vigilant and not the indolent”. The rationale behind the
doctrine of L&A however is not totally different from that of Limitation Laws as both have the
same purpose which is that of ensuring equity, justice and fairplay.

By way of analogy, the doctrine of laches and acquiescence is one of the situations where equity
indeed follows the law. This is so because equity also recognises the statutory limitation periods
above stated. However where the relief sought is an equitable relief such as specific performance,
tracing, injunction etc. the court will refuse to go by the Limitation period but go by the equitable
doctrine of L&A. Equity in this instance will supplement the law. On its own, Equity does not state
any period of limitation but uses circumstances and facts of each case to develop its own unique
system of rules. Thus the fact that a particular claim is not statute barred does not make it free from
L&A because as we said earlier merit must meet with timely claim of the cause of action.

The doctrine of “Laches and Acquiescence” was propounded in the case of Lindsey Petroleum Co
v. Hurd (1874) LR 5. C. at p. 239. Sir Barnes Peacock in that case laid down some of the principles
by which a court of equity may presume that there has been “Laches and/or Acquiescence”. The
principles may be enumerated as follows:

Premise A: Where there exists a remedy, relief, claim or right in favour of a person or a
party:

BUT…

1. Where (such) a party (plaintiff) has by his conduct done something which might fairly
be regarded as a waiver of his right to a remedy;
Or,

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 2. Where a party (plaintiff) has by his conduct and/or neglect (though not waiving his
right to the remedy) has put the other party (defendant) in a situation in which it would
not be reasonable to place him (defendant) if the remedy were afterwards to be asserted
(by the plaintiff).

Premise B: And there has been

1. Delay (The length of delay). (Laches)

2. Acts or Expenses by the other party (The nature of the acts done during the interval)
which might affect the balance of justice in deciding one way or the other.
(Acquiescence)

Conclusion to be drawn from Premise 1 and 2.: The right has been abandoned and No right
exists again !

BECAUSE:

It would be practically unjust, unfair and/or inequitable to give such a remedy.

The Interpretation

The simple interpretation to be given to the above analysis is that where a party has been guilty of
an unreasonable delay in enforcing his right he would be estopped from claiming such a right. The
doctrine of “Laches and Acquiescence” thus operates to bar or prevent a party from claiming a
right which he had abandoned for so long and which the other party had reasonably believed that
he is no longer interested in.
“Laches” may be described as “Lapse of time coupled with circumstances which make it
inequitable (unfair) to enforce a claim”. “Acquiescence” may also be described as “Conduct of a
party over a claim; which makes it assumable that he has given an implied or tacit consent to the
other party to continue to enforce such a claim.

The doctrine of “Laches and Acquiescence” thus became a “shield” or a “defence” behind which
a party (defendant) may hide in order to claim a right which he reasonably believes has been
abandoned by the first party (plaintiff). First, this reasonable belief is often predicated on the first
party’s delay in exercising his right which is called “laches”. Second such a delay is also
interpreted in that the first party has consented to the second party’s taking over of the abandoned
right which is called “acquiescence.”

The very thin difference between laches and acquiescence is therefore that while laches is a
delay/failure to do what the law requires to protect one’s rights under circumstances misleading
or prejudicing the person being sued, Acquiescence relates to inaction (of the plaintiff) during the
performance of an act (by the defendant) which contradicts the first party’s rights.

Further, while acquiescence relates to a voluntary or intentional act of the party who is deemed to
have consented (acquiesced), laches is often involuntary, i.e. the party who is deemed to have

19
‘lached’ might not know of his delay an act against your right but looking on as the act continues
which inaction is interpreted to mean a tacit consent or acceptance of the act against your right.

Taken together we can summarise what laches means as follows: “Knowledge of a claim,
unreasonable delay and neglect (by the plaintiff) which taken together hurt the opponent or the
other party”

Elements of Laches & Acquiescence

i. Was there a delay? If YES then there is Laches. This does not mean mere delay or lapse
of time only. The delay must be unreasonable. Why was there a delay?
ii. What effect does the delay have on the other party? The delay must have caused
prejudice or injury to the other party.
iii. Is ACQUIESCENCE an integral part of LACHES? YES!
iv. Is LACHES founded on ACQUIESCENCE? NO! BECAUSE, LACHES is founded
on both unreasonable delay and ACQUIESCENCE!

Laches and Acquiescence versus Customary Law

Having seen the position of Equity with respect to this doctrine or defence of “Laches and
Acquiescence”; one must ask: “In what way does this doctrine of Equity interacts with the rules
of customary laws in Nigeria”?

The simple answer to the above question is that the doctrine or defence of “Laches and
Acquiescence” represents one of the ways in which there lies a big clash between the Nigerian
Customary Law rules and Equity. This is so because the rule of Nigerian Customary Land Law
on land and landed property is that an established owner does not necessarily lose his right to an
“adverse possessor” (rival claimant/opposing party) simply because he has been out of possession
for a long period of time.
The rule is not affected by the Limitation Law. This is codified under S. 65 of the Limitation Law
of Ogun State.
A plethora of cases represent this position of customary law. First, OSBORNE C.J. stated as much
in the case of Att-Gen. v. John Holt & Ors (1910) 2 NLR. Pg 1; Mora v Nwalusi (1962) 1 ANLR,
681; Olohunku v Teniola 1991 5 NWLR Pt. 92, p.501at 513.

With that background in mind one must therefore expect clashes when there is an attempt to make
the provisions of laches and acquiescence applicable to the customary law. We shall now look at
how the doctrine was made applicable to the Nigerian customary law.

Application of the Doctrine of “Laches and Acquiescence” To Customary Law

As we must have noted above, the rationale behind the principle of Limitation of Action is to
forestall injustice which would definitely arise where there is an unreasonable delay before taking
action in a claim. If this is so then it is also clear that a strict application of the rules of customary

20
law which does not recognize any limitation will certainly work hardship and injustice. It was
therefore necessary for the customary law rules to be made subject to all rules of equity.

We must note carefully that although this rule of customary law is known and accepted as law
under the guarantee of statue, no court will however apply this rule where there are circumstances
in which it will be unjust to apply same. Thus by the provision of S. 20 of the Customary Courts
Law of Ogun State, the principles of Equity including the equitable doctrine of Laches and
Acquiescence was made applicable as part of the law to be administered by the customary courts.
The application of the doctrine of Laches & Acquiescence came up in the case of Akpan Awo v.
Cookey Gam (1913) 2 N.L.R. 100 at 101, the Full Court led by Webber J. formulated the principle
that :
... [i]t would be wholly inequitable to deprive the defendants of property of which
they have held undisputed possession and in respect of which they have collected
rents for so long a term of years with the knowledge and acquiescence of those who
now dispute their title, even if it were … clear… that they entered into possession,
contrary to the principles of native law.
Webber J. went further to state the basis of the decision thus: “We do not decide this point in
accordance with any provision of English law as to Limitation of actions but simply on the grounds
of equity, on the ground that the court will not allow a party to call in aid principles of native law
…merely for the purpose of bolstering up a stale claim.”

Thus the court having found that the defendants had been in undisturbed possession for a number
of years with the knowledge and acquiescence of the plaintiffs applied the doctrine of laches. See
also the cases of Aganran v. Olushi 1907 1 NLR 266; Johnson v. Onisiwo 1943 9 WACA 189;
Oshodi v Balogun 1936 4 WACA 1 .

Exceptions to the Application of Laches & Acquiescence to Customary Land Law

Considering that the application of the defence/doctrine of laches and acquiescence is for the
purpose of serving the end of justice, there must be some limit to its application to customary land
law for without such limits the doctrine may as well work the very same injustice it seeks to avoid.
Thus although the doctrine continues to apply to Customary Land Law, the defence will not avail
a defendant in certain circumstances because the rule continues to apply to Customary Land Law
with ONE notable exception namely: WHERE THE SUPPOSED LONG POSSESSION IS
NOT “OPEN AND ADVERSE”!!!

What is open and adverse possession?

Open and Adverse possession by a defendant is characterised by the absence of an outright grant
to the defendant whether for value i.e. by sale or by way of gift whether absolutely or restrictively.
Adverse possession by a defendant means possession which is NOT GRANTED BY THE
PRESUMED OWNER (PLAINTIFF) BUT WHICH IS CONTRARY TO THE
PLAINTIFF’S RIGHT.
For example, a customary tenant or a pledgee is not an adverse possessor not an. See the case of
Ekpelle v. Ojo (1926) 7 NLR. Pg. 96. The rationale for this is that a grant to a customary tenant
retains the reversionary interests in the grantor whereas in the case of an absolute grant of title, the
right of reversion abates as the grantee is given the right to hold the land in perpetuity. Thus

21
customary tenants hold for a term which will definitely end upon forfeiture one day no matter how
long and is subject to reversion to the original owner.
Customary tenants are therefore expected to hold subject to good behavior. An essential condition
is usually that they cannot alienate portions of the said land nor set up an adverse title to that of
the original owner. Once a customary tenant sets up an adverse title against his landlord he stands
at the risk of forfeiture of his tenancy.
Similarly in the case of pledges also the defence of laches and Acquiescence will not hold water
as a pledge under customary law is deemed redeemable in perpetuity. The rule is once a pledge,
always a pledge.
The application of this rule can be found in some cases like Kofi v. Kofi (1933) 1 W.A.C.A.
284. In Leragun v. Funlayo (1955-56) W.N.L.R. 167, Irwin J., held that lapse of time for more
than 30 years is not a bar to the recovery of land which was pledged. See also the case of Okoiko
v. Esedalue 1974 3 S.C at pg 15, where the plaintiff sought to recover a property which was
customarily pledged to the ancestor of the defendant many decades ago. The various courts starting
from the court of first instance to the Supreme Court held that plaintiff was entitled to the land, the
long period of the pledge notwithstanding. Furthermore, in the case of Ogunwo v. Ogunwo 1960
LLR 20, it was held that the right to redeem customary pledge of land is perpetual as opposed to
the common law doctrine of foreclosure after a reasonable length of time.

In all the above instances it is therefore noteworthy that the doctrine or defence of Laches and
Acquiescence cannot affect the owner’s reversionary interests.

We must conclude by saying that the limitation of the defence of Laches and Acquiescence in this
way is justifiable in that an original owner cannot be shortchanged in his reversionary interest
simply because he acquiesced to the customary tenant’s long possession for the sake of
guaranteeing his peaceful enjoyment of the land. In other words the rights of the occupier to the
peaceful enjoyment of his possession cannot defeat the right of the original owner to claim back
his title upon the determination of the occupier’s occupation.

The Rules of Laches and Acquiescence

We must note that there are no fixed or fast facts or ground upon which a case of laches and
acquiescence may be based on or be said to have occurred. There is also no minimum or maximum
time for the period of unreasonable delay. However the courts through the cases have enunciated
certain principles which should serve as guidelines for the courts in recognizing situations where
it may well be said that Laches and/or Acquiescence has arisen. These principles according to Prof.
J. O. Fabunmi include:

i. Actively giving up of a right by delay of action for an unreasonable period= LACHES.

See the cases of Akpan Awo v. Cookey Gam 1913 2 NLR 100, Aganran v. Olushi 1907
1 NLR 266; Johnson v. Onisiwo 1943 9 WACA 189.

ii. Passively, standing by while a right is being breached (passive or tacit consent)=
ACQUIESCENCE. See the case of: Rafat v. Ellis 1954 WACA.

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This has to do with standing by and watching the other party exercising diverse acts of title
and/ or incurring great expenses without taking prompt action to correct him or set him in the
right i.e. without challenging him.

The Meaning of Laches and some Judicial decisions on same.

Laches is deemed to be an unreasonable lapse of time. As to what will constitute lapse of time it
has been said that the time may well be twenty years or less depending on the circumstances of
each case. The degree of laches which will be required to successfully obliterate the original
owner’s reversionary right in land to confer such right on an occupier; was considered the case of
Agbogunleri v. Depo 2001 LHC. Pg. 109. In that case, a High Court of Lagos State held that a
period of inaction for about twenty years which the plaintiff admitted in evidence was deemed
sufficient. See also Ezekwesili v. Onwuagbu 1998 3 NWLR PT 541 PG 217.

Similarly, the Supreme Court in the case of Ageh v. Tortya 2003 6 NWLR PART 816 PAGE 385
made some pronouncements on this doctrine. The appellant was the defendant in the High Court
whilst the respondent was the plaintiff. It was adduced in evidence that one Haruna Toba sold the
disputed land to the appellant. Subsequently, the appellant commenced construction works on the
said land. Immediately after the commencement of works in early 1992, the respondent took steps
to warn the appellant of his right to the land. The appellant however continued building day and
night. The respondent issued a writ of summons against the appellant in April, 1992.
At the trial, the appellant pleaded the defence of “Laches and Acquiescence”. The High court
however rejected the defence. Upon the appeal, the Court of Appeal considered the meaning of
Laches.
The Court held per MUHAMMAD JCA at page 398 paragraphs E-F and page 399 paragraphs
E: That Laches means or connotes…. neglect to assert a right or claim which taken together with
lapse of time and other circumstances causing prejudice to the adverse party. In other words where
a party recognizes that a right is available to him and does not take active step in enforcing such
right within a reasonable length of time, then “Laches” will be deemed to have occurred. The
court held based on the evidence adduced that the respondent was not guilty of Laches as he took
prompt action to enforce his right.

The Meaning of Acquiescence and Judicial decisions on same.

In the case of Okereke v. Nwankwo 2003 9 NWLR. PT 826 PAGE 592, the Supreme Court had
the opportunity of considering the elements of acquiescence that will suffice to deprive a party of
the title to a disputed land. It held as follows: Before a party can avail himself of the defence of
laches and acquiescence, the following elements must be proved by the defendant namely:

(a.) That the defendant was indeed mistaken as to his own rights over the land;
(b.) That the defendant had in reliance to the said mistake expended money on the land.
(c.) That the plaintiff knew of the existence of his own rights which is inconsistent with
the right claimed by the defendant over the land;
(d.) That the plaintiff knew of the mistaken belief of the defendant;
(e.) That the plaintiff either directly or otherwise encouraged the defendant in the
defendant’s expenditure of money.

23
 (f.) That the position of the defendant had been altered to his prejudice or detriment, in that
he had been induced by the other party’s inaction to spend money.

The conclusion to be drawn from the above case is that once it is successfully proved that the
defendant incurred great expense whilst the plaintiff was just standing by; then the courts will not
hesitate in deciding that there has indeed been acquiescence.

In the case of Kayode v. Odutola 2001 FWLR PART 57 PAGE 975, the Supreme Court held that
a high degree of acquiescence is required to deprive a party of his legal right unless he has acted
in such a way that it would be fraudulent for him to set up those rights again.

In that case the respondent (Odutola) was the plaintiff in the High Court and was claiming damages
for trespass to land and injunction. He based his root of title on a Deed of Conveyance in 1949.
The appellant (Kayode) was the defendant in the High Court. He based his root of title on a Deed
of Conveyance registered in 1964. The appellant as defendant also pleaded the defence of “Laches
and Acquiescence” and adduced evidence to the effect that he had been in possession of the said
parcel of land since 1957 until 1964 when he started building on the land when the respondent
took him to court in that year but was non- suited. It was not until 1976 that he commenced the
second suit at the High Court. The High Court upheld the defence of Laches and Acquiescence as
pleaded by the defendant. The plaintiff felt aggrieved and appealed to the Court of Appeal.

The Court of Appeal allowed the appeal and gave judgement to the plaintiff/appellant by rejecting
the plea of Laches and Acquiescence. The defendant/ respondent appealed to the Supreme Court.

The Supreme Court held that the true meaning of “Acquiescence” is in a situation:
...where a person refrains from seeking redress when there is brought to his
notice a violation of his rights of which he did not know at the time and in
that the person stood by in such a manner as really to induce the person
committing the act and who might otherwise have abstained from it, to
believe that he assents to it being committed. Accordingly if a stranger
begins to build on another’s land supposing it to be his own and the real
owner perceiving his mistake abstains from setting him right and leave him
to persevere in his error, the court of equity will not allow such real owner
afterwards to assent his title to the land on which the stranger has expended
money on the supposition that the land is his own.
per IGUH JSC. at page 999, Paras. D-F.

However based on the evidence on record in that case, the Supreme Court held that the plea of
Laches and Acquiescence was not successfully proved before it as the plaintiff /respondent had
earlier on sued the defendant/ appellant in an earlier suit in 1964 but was only non- suited.

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EQUITABLE INTERESTS, THE DOCTRINE OF NOTICE AND PRIORITIES
When confronted with the topic of equitable interests, the essential questions for every student of
the principles of Equity ought to be:
1. What are equitable interests?
2. Is there any difference between a Legal and an Equitable Estate or Interest?
3. Why did the Chancery court create equitable interests?
4. How did the Chancery court create equitable interests?
5. What are the various classifications of equitable interests created?
6. How will priority be determined among competing legal and equitable interests?

These questions and a few more relevant comments and observations will be the purview of this
unit but first let’s look at a glossary of terms which you are expected to be familiar with.

GLOSSARY OF TERMS

in rem – against a thing as distinct from a person. It is a right or an action good against the
world because it is attached to the thing and not the person.
in personam –against specified persons.
Equity’s darling: The doctrine of bonafide purchaser of a legal estate for value without notice-
This doctrine can be illustrated from the Scripture : Genesis 23: verses 1-20:
Legal rights bind the world; Equitable rights bind everyone except the “bonafide purchaser for
value”.
Let’s break the doctrine down to pieces.
bona fide – absence of fraud and dishonesty
purchaser for value – a person who has paid a consideration of money or money’s worth.
Consideration here also includes money paid or settlement made in expectation of marriage.
However a purchaser for value does not include heirs, executors or donees. The opposite of a
purchaser for value is- a volunteer
volunteer –a person who is not a purchaser for value. A volunteer is a person who has not paid
any consideration of any kind. An example is a donee.
Notice- A legal concept describing a requirement that a party be aware of any fact or information
affecting their rights, duties and obligations. At equity notice is of three types namely:

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i. Actual Notice -Actual notice means an active or apparent or known awareness of the
relevant facts. A party will only have actual notice if it can be established that he was told
or had heard of such relevant facts. It may also be inferred from the fact that he saw the
relevant facts. For example where a party visited an undeveloped parcel of land and saw
the marks of an old foundation. Thus Actual notice is when a purchaser has actual or
express notice of prior interest, if, at the time when value was given by him, or at any time
before the completion of the transaction, he was in fact aware of the existence of such
interest. See Joyce, J. in Perham v. Kempster (1907) 1 Ch. 373 at 379; Hummani Ajoke v.
A.Y. Oba (1958) W.N.L.R. 208, 210.
ii. Thus, actual notice consists of such personal knowledge of a prior equity affecting property
which a purchaser intends or proposes to buy.

Constructive Notice - Constructive notice means what would have been known had a party
made enquiries that ought reasonably to have been made. For example in the purchase of
a land or landed property, reasonable enquiries encompass two classes of conduct: e.g.
Inspection of title documents and physical inspection of the property. Thus Constructive
notice is founded on the assumption that although the purchaser had no personal or actual
knowledge of the prior interest or equity affecting the property which he proposes to buy,
the purchaser would have had such notice if he had made reasonable inquiry or due
diligence required in the circumstance of the transaction. In Labinjo v. Olufunmise Suit
No. LD/355/68 (unreported), the trustees of a trust under which the plaintiff was a
beneficiary, sold in breach of trust, the trust property situate at 20, Glover Street, Lagos, to
the defendant who claimed that he was a bona fide purchaser for value of the legal estate
without notice. He, however, admitted under cross- examination by the plaintiff’s counsel
that he made no enquiries or caused any investigation to be made as to the interests (if any)
which affected the title of his vendor. The court held that in accordance with section 3(1)
of the Conveyancing Act 1882, the defendant had constructive notice of the plaintiff’s prior
equitable interest. It was clear that the defendant would have had notice of the plaintiff's
equitable interest had he made such inquiries and investigations which ought reasonably to
have been made by a prudent man of business. Thus, the purchaser's claim of bona fide

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 was destroyed by his failure to investigate. Therefore, he was held to be constructive trustee
of the legal estate for the benefit of the plaintiff.
Imputed Notice- Imputed notice consists of the actual or constructive knowledge of the
purchaser’s agent or legal practitioner. Such parties must be acting in their capacity as agent or
legal adviser for the purchaser when they obtain or ought to obtain the relevant knowledge.
This is a kind of notice which is neither actual nor constructive to the purchaser, but which is
imputed to a person through the actual or constructive knowledge of his agent. It is based on the
settled principle that notice to an agent is notice to the principal. Notice will however be imputed
to a purchaser only through his bonafide agent. See Orasanmi v. Idowu (1959) 4 F.S.C. 40 at 42.
Where it was held that a purchaser who instructed his agent to purchase a property at an auction
sale is affected by notice of an equity which has come to the knowledge of his agent in the course
of the transaction. Barristers and solicitors are, in most cases, agents of purchasers for the purposes
of purchasing land.
It is important to note that notice or information acquired by a solicitor in a previous transaction
used to be deemed as imputed notice on his principal in a subsequent transaction. However the
rule has since been modified in Mountford v. Scott.(1823) Turn & R 275; 37 E.R 1105.
Thus as of today information acquired by a solicitor (as agent) in one transaction cannot affect,
through the doctrine of imputed notice, his client (as principal) in a subsequent transaction.
Statutory modifications have also been enacted to that effect. See particularly, S.136 (1) (ii) of the
Conveyancing Act, 1882, (a statute of general application applicable throughout Nigeria except
the states carved out of the old Western region of Nigeria) and S. 194 (1)(ii)(b) of the Property and
Conveyancing Law of Western region of Nigeria (PCL) 1959. Thus in Okunubi v. Assaf (1951)
13 WACA 226 at 231, the West African Court of Appeal held that notice that comes to the
knowledge of a solicitor in a previous transaction cannot be imputed to a purchaser in a subsequent
transaction.
So long! Now to the first question!
What are equitable estates or interests?
Equitable estates or interests are creation of equity. Before the Judicature Act they are only
recognised and enforced in the courts of equity. In National Provincial Bank Ltd. v. Ainsworth
[1965] AC 1175 at 1247-8; [1965] 2 All ER 472 at 494, per Lord Wilberforce: described an
equitable interest to be:

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  definable
 identifiable by third parties
 capable in its nature of assumption by third parties, and
 have some degree of permanence or stability.
See also Okere v. Akaluka 2014 LPELR24287 (CA)

Is there any difference between a Legal and an Equitable Estate or Interest? YES
i. Before the Judicature Act, Equitable estates or interests are only recognized and enforced
in the courts of equity; whereas at common law the legal interest is conclusive of beneficial
interest i.e. the right to use and enjoy.
ii. Legal interests are rights in rem; while equitable interests are rights in personam.
iii. Legal rights are good against the world; equitable rights are good against all persons except
Equity’s Darling; i.e. a bona fide purchaser of a legal estate for value (BP4V) without
notice and those claiming under such a purchaser.

Q. 3: Why did the Court of Chancery create equitable interests?

 There are 3 categories of equitable jurisdictions – exclusive, concurrent and auxiliary

jurisdictions.
1. Exclusive jurisdiction – Since equity will not suffer a wrong without a remedy it created a
category of rights which are known solely to and are recognised in equity only. For
example, common law (CL) does not know of anything called a trust. Thus when equity
enforces a trust, it is exercising its exclusive jurisdiction. Similarly the concept of fiduciary
duty is an entirely equitable concept and CL does not know of anything called a fiduciary
relationship. Here equity contradicts the law.

2. Concurrent jurisdiction – since equity follows the law, equity agrees to certain rights which
are recognised by CL. An example is that both common law and equity recognise breach
of contract. This means that there is a concurrent jurisdiction for both common law and
equity in a case of a breach of contract for the sale of land. Here equity confirms the law.
Assume that Ade (vendor) has breached a contract for the sale of land to Bili. CL would

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 say breach of contract only and award damages to purchaser. Equity will say to Bili
(innocent party) that damages would not be enough because Bili agreed to purchase a
specific parcel of land and to give damages is not to give land for which Bili have bargained
to acquire. Equity will force Ade to transfer the land to Bili. Thus equity will give Bili not
only damages, but also Specific Performance (SP) of contract. If Ade defies order for SP,
he will be guilty of contempt of court. In the early days of equity the court of chancery will
imprison such a person until he purges himself of the contempt; for equity acts in personam.

3. Auxiliary jurisdiction – This jurisdiction is seen more in the procedural rules of the court
of chancery. Equity will come in to give better protection for the infringement of a purely
CL right. An example is where equity orders discovery of documents. For example if a
debtor denies that there is debt or the amount of a debt, the creditor can have discovery of
documents. Debtor can also say that creditor did not give enough documents. A similar
order is the order of interrogatories on oath. Here equity does not contradict CL, neither
did it confirm the law but rather it supplements the law
How did the court of chancery create equitable interests and estates?
Equity intervenes on common law and creates property or proprietary interests or estates where
there was none at common law in the following circumstances:
A. The abuse of positions of trust or confidence, as exemplified in the law of trusts and
fiduciary obligations generally;
B. The inequitable denial of obligations, as exemplified in the doctrine of part performance
leading to specific performance and the principle of equitable estoppel;
C. The exploitation of vulnerability or weakness, as exemplified in principles relating to
unconscionable dealing and undue influence;
D. The insistence upon formal rules in circumstances which make such insistence harsh or
oppressive as exemplified by the refusal of right to estate in land when contracts of sale
are unwritten and refusal of specific performance on the discretionary ground of hardship;
E. The unjust retention of property, as exemplified in cases of foreclosure of mortgages

Let’s now look at the above instances with the aid of Case studies.

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  Case Study 1: Bili and the Trust Fund

Ada --------------------------------------Bili ------------------------------------------ -Chinedu

(Settlor/ Testator/Landowner/ feeofor to the use)(trustee/feoffee to use )(cestui que use)
Legal estate Beneficial estate
CL Equitable
 Facts: Ada entrusted her close friend Bili with the sum of 10M and a 2storey building for
the use of Chinedu, Ada’s son who is still an infant. Bili however has difficulty in keeping
shut the purse strings of the trust fund and bought for himself a landed property at Lekki to
the tune of N5M. The remaining N5M is in a fixed deposit with Diadem Bank in Bili’s
name. He receives 50k per month on same as profit. He also mortgaged the 2storey building
to Diadem Bank.

 Common law approach- Common law does not recognise the beneficiary of a trust. Bili
however is recognised as the legal owner of the trust fund and the 2storey building. At CL
he has the absolute right to use and enjoy same. Hence no interest is held by Ada or Chinedu
in the Lekki property or fixed deposit.

 Equity approach- Equity recognises the legal owner of the trust fund. Bili is the legal owner
of the trust fund. Equity also recognises Chinedu as the beneficiary i.e. the equitable owner.
Bili will be guilty of breach of fiduciary duties and breach of trust if he fails to keep the
purse strings shut and can be held to account. Furthermore, Bili will be deemed to hold
both the Lekki property and the fixed deposit in trust for Chinedu. Chinedu is also
beneficially entitled to the 2storey building.

 Right created: Equitable proprietary right of the cestue qui trust/use in trust fund and the
2storey building. See Saunders v. Vautiers 1841 10 L.J Ch. 154

Case Study 2: Abi’s bad conduct/breach of contract

 Facts: Abi (vendor) exchanges an agreement to contract with Bala (purchaser).
Consideration being executory. Abi gets a better offer from Chemi (he knows about Bala’s
offer and the agreement) and completes the sale to Chemi before Bala knows.

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  Common law approach-- Bala is not the owner as the contract has not been completed so
the property cannot be given to him. Chemi takes the property absolutely. However CL
agrees that there is a breach of contract and will award damages against Abi.

 Equitable approach-- Equity will hold that there is a breach of contract but that damages
cannot sufficiently compensate Bala. Equity will order specific performance of the
contract. Bala thus gets an equitable interest from the exchange as equity looks on that as
done which ought to be done. This interest can be enforced against Chemi if he knows
about Bala’s contract with Abi.

 Right created: Estate Contract. See Walsh v. Lonsdale 1882 21 Ch. D 1; Lysaught v.
Edward 1976 2 Ch. D 499

Case Study 3: Antar and the Ajah Duplex

 Facts: Antar deposited the photocopies of the title deed of his Duplex at Ajah with Boyo
in exchange for a loan of N5M. Without paying up the loan, he subsequently sold the
Duplex to Cynthia and executed a deed of assignment in favour of Cynthia.
 Common law approach-- Boyo is not recognized at all. CL does not recognize mortgages
by way of deposit of title deed. Cynthia takes the property absolutely.

 Equitable approach-- Equity will hold that the deposit of title deed to the Duplex is
sufficient intention that Antar intends to mortgage the property for the sum of N5M. Since
equity looks at the substance rather than the form equity will hold that there is an equitable
mortgage created in favour of Boyo. This interest can be enforced against Cynthia. (when
he is not a BP4V i.e. has no notice of Boyo’s contract with Antar. This however is
impossible in this case as Cynthia ought to have asked for the title deeds to the property).

 Right created: Equitable Mortgage

 London County and Westminster Bank v. Tompkins1918 1 KB 515

Case Study 4: Ben’s Purchase Agreement

Facts: Ali agreed to sell two acres of land to Ben. Ben paid the purchase price and Ali issued a
purchase receipt. Just as he was entering into possession, Chukwudi came to challenge Ben on the

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land; brandishing a signed, sealed and delivered conveyance of the land in his favour executed by
Ben’s father.
 Common law approach—Ali who has a signed, sealed and delivered conveyance of the
land is in compliance with the provision of S. 4 of the Statute of Fraud 1677. Chukwudi
cannot claim ownership of the land as common law does not recognize an oral agreement
for the purchase of land or landed property. Ali takes the property absolutely.

 Equitable approach-- Equity will hold that Chukwudi having paid the purchase price even
though he has no written conveyance thus gets an equitable interest from the payment of
the purchase price as equity looks on the substance rather than the form and also since
equity will not allow a statute to be used as an instrument of fraud. See Uzoma v. Asodike
(2009) LPELR-CA/PH/188/2007

 Right created: Equitable proprietary interest on the two acres of land.

Case Study 5: Dorobuchi’s Fantastic Mansion

 Facts: Don Doro executed a legal mortgage in favour of EnnyBank in the sum of N50M.
The collateral is Doro’s landed property situate at Ikoyi, Lagos consisting of an 11
Bedroom Mansion (all rooms ensuite), a deluxe swimming pool, a king size gym and a
well laid out golf pitch. The value of the mansion was put at N165M as at the date of the
legal mortgage. The date of redemption was 1st of August 2014. On the 2nd of September
2014 Doro notified Ennybank of his intention to redeem the mortgage. Ennybank replied
on the 3rd of September that it has foreclosed the mortgage and sold the mansion to Fancy
Microfinance for the sum of N100M only.
 Common law approach— Where the mortgagor failed to repay the loan on the date of
redemption as fixed by the mortgage, he lost forever his right to redeem the property.
Ennybank is therefore in order because once the date of redemption as stipulated in the
mortgage deed is past the mortgagor can no longer redeem the mortgage. Therefore Fancy
Microfinance takes the property absolutely.

 Equitable approach-- Equity, however, always considered a mortgage to be a mere security,

and regarded the provision for repayment on the day stated in the mortgage covenant to be
a mere formality. Equity thus allows a mortgagor to redeem his property within a

32
 reasonable period after the redemption date has passed. Since equity looks at the intent
rather than the form, equity will hold that Doro’s right to redeem the mortgage subsists and
this right can be enforced against Fancy Microfinance since it knows or should have known
or is deemed to know about Doro’s right of redemption.

 Right created: Equity of redemption.

What are the various classifications of equitable interests created?

This is one of the areas where scholars have disagreed on whether there are different classes of
equitable interests or not. To some scholars, equitable interests are one and the same, while some
accept that there are different categories of equitable interests. The latter school of thought must
be preferred because research has shown that different equitable interest means different rights
protected by equity. For our purpose we shall adopt this view and look at the two (2)
distinguishable categories of equitable interests namely:
 A mere equity in specific property.
 An equitable proprietary interest in specific property.
 Mere Equity: A mere equity is a right which must be enforced in order to acquire an
equitable proprietary interest in a specific property. A mere equity is thus a right which is
less than an equitable interest. This means that before a mere equity can ripen into an
equitable proprietary interest, it must first have been enforced in a law court through
litigation. The fruit of that litigation will become the equitable proprietary interest in the
specific property. Thus we say that a mere equity is logically antecedent to the equitable
interest so that the mere equity must be enforced in order to acquire the equitable
proprietary interest. A mere equity can thus be likened to a raw dough yet unbaked or an
un-ripened fruit. When the raw dough (mere equity) is baked, it becomes bread (equitable
interest)
An example of “mere equity” is the right to set aside a transfer of property, where the transfer was
tainted with fraud on the part of transferee. Thus when a vendor enforces his right to set aside a
fraudulent sale in court, he is exercising right to a mere equity. The judgment he gets from the
court; setting aside the fraudulent sale gives him an equitable proprietary interest in a specific
property.

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For elucidation, let’s look at the case of Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113
CLR 265.
Facts: Terrigal, a hotel owner, gave a registered mortgage on its property to Latec Inv. Limited.
Terrigal could not pay its debt to Latec, so Latec sold the property. Latec however behaved
fraudulently and sold the property to its subsidiary called Southern Hotels who gave a floating
charge which subsequently became a fixed charge to MLC Nominees.
The following observations are apparent:
i. The sale by Latec to its subsidiary was fraudulent.
ii. Terrigal as the mortgagor could have set aside the sale.
iii. Thus Terrigal has a mere equity.
iv. This mere equity can be enforced by Terrigal in court by an action for setting aside the
sale to Southern Hotels.
v. Once Terrigal enforces the right, the fruit of his judgement is an equitable proprietary
interest in the property.
vi. Why equitable interest? Because Terrigal has a right of redemption at equity.

 Equitable Proprietary Interest

As explained above, the equitable proprietary interest attaches straight to a specific property. This
means that the interest is clearly definable and identifiable by third parties from the onset. It can
be likened to a ripened fruit which awaits the taste of its owner although it might need to be litigated
upon in order to get its taste. It can be likened again to an oven fresh baked bread or ripened fruit.
An equitable proprietary interest is therefore unlike a mere equity which can be likened to a raw
dough yet unbaked or an unripened fruit.
An example of equitable proprietary interest is the equity of redemption of a mortgagor. Thus
when a mortgagor enforces his equity of redemption in court, he is enforcing his equitable
proprietary interest; a right recognized at equity as attaching to the mortgage property. Another
example is the equitable ownership of a beneficiary under a trust in respect of specific property.
For elucidation see the cases of Casborne v. Scarffe 1737 1 Atk 603; Kreglinger v. New
Patagonia Meat Cold Storage Co. Ltd. 1914 AC 25 .

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