PRESENTATION TOPIC:

EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE DONE.

NOVEMBER, 2023

INTRODUCTION

This maxim has its most frequent application in the case of contracts. As between two persons,
where one of them has incurred an obligation and undertaken upon himself to do something for
the other, the equity courts look on it as done and as producing the same result as if the
obligation or undertaking had been actually performed. In other words, as to the consequences
and incidents of the subject matter of contract, it will be traded as if the final acts anticipated and
contemplated by the parties have been carried out in the same manner as they ought to have been
and as they might have been carried out.1

This principle comes into play whenever there is an obligation arising under a Will, Trust,
Contract or a Court order. In equity, even though the obligation has not been carried out, the
existence of such obligation is sufficient to fix the right of the parties and to determine the nature
and character of such rights as they would have been if the obligation had in fact been
performed. This throws the fictitious nature of the doctrine into sharp relief.

In Afolabi V Govornor of Oyo State2, the Supreme Court applied the maxim to a statutory
obligation on the part of the Government in the process of appointing a traditional ruler. The
court held that if the Government had allowed to be done what the applicable Chief Laws
required, a member of the 1st Appellants’ Ruling House would have been sitting on the throne as
traditional leader. Consequently, a Chieftaincy declaration made by the Government later, which
postponed the right of the Ruling House and the right to the throne in question, was preserved.

EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE DONE

This maxim is a guideline which helps the Court of Equity to exercise its discretion in assisting
parties obtain justice for wrongs. It is better demonstrated where two persons enter into a
contract for instance for a sale of land. Consider this scenario; Chief George of Igala land has
agreed to sell 10 plots of his personal land in his community to Alhaji Bello for #100m as
evidenced by a contract of sale agreement and Alhaja Bello has paid a part payment of #50m to
him. The parties are now waiting for the survey plan before completion of payment and

1
Adamu Kyuka Usman, Law and Practice of Equity and Trust
2
(1985) 2 NWLR [Pt 9)
execution of the Deed of Conveyance. As far as Equity is concerned, “an agreement for a good is
as good as lease”3 so the agreement for the sale of land is as good as a sale of land.

The importance of this maxim lies more in the areas of property law. If a property is directed to
be converted from one form to another, the property in equity is regarded as converted in form
from the moment the direction becomes effective. So, if there is a trust for sale of real property,
and the settlor directs the trustees for sale to invest the proceed of sale in shares of a company,
the real property is regarded as converted into personalty the moment the trust becomes
operative. The result is that the party who is entitled to personalty on distribution immediately
becomes entitled. This is the doctrine of conversion.4

Where there is a specifically enforceable obligation, equity regards the parties as already in
position they would be in after performance of the obligation. Thus, in equity, a specifically
enforceable contract for a lease creates an equitable lease; a specifically enforceable contract for
the sale of land transfers the equitable interest in the land to the purchaser, the vendor holding the
legal title on constructive trust until completion. Standing on the equitable interest that has been
transferred to him, the purchaser can bring an action for specific performance that will compel
the vendor to convey the title to him.5

Two examples of this maxim may be given:

EQUITABLE ASSIGNMENT

Under the doctrine in Walsh V Lonsdale6, the plaintiff was the tenant and the Landlord; the
defendant. They entered into a 7-years lease and the tenant had entered into possession although
the lease was not under a formal Deed as required by law. Despite the absence of a deed, the
landlord claimed rent in advance and when the tenant defaulted, he sought a distress that is,the
right to sell tenant’s property for his rent. The tenant as plaintiff sued for injunction to restain
him from distress claiming the rent should be in arrears and not in advance. The Court of Equity
held that an agreement for a lease is as good as a lease in favor of the landlord so the injunction
was refused. One who enters into possession of land under an agreement for a lease of which the
court will grant specific performance, is in the same position (as between himself and the
landlord) as if the lease had actually been granted to him. In other words, ‘an agreement for a
lease is as good as a lease’.7

Following the principles which underlines this maxim, the Courts of Equity when faced with a
situation where legal formalities has not been followed, will act as though the Common law
requirements have been complied with and go ahead to enforce the contract. In ordinary sense,

3
Savage v Sarrough (1937)13 NLR141
4
J.O. Fabunmi, Equity and Trust in Nigeria
5
Adamu Kyuka Usman, Law and Practice of Equity and Trust (Malthouse Press Limited, 2014)
6
(1882) 21 Ch.D.9.
7
Gilbert Kodilinye, An Introduction to Equity in Nigeria
the maxim looks as anything the contracting parties are supposed or expected to do as part of the
contract as already done especially when it has to do with an obligation they can actually be
compelled to perform.

The leading Nigerian case is Savage V Sarrough,8 the fact of which may be stated simply. The
plaintiff and his brother and sister were owners of certain land and buildings. The defendant
obtained from the plaintiffs brother, a written agreement, not under seal, for a lease of five years.
The plaintiff claimed recovery of possession of the property. It was held that in Equity, the lease,
though not under seal, must be deemed to have been effectively granted and that for practical
purposes, the parties were inter se in the same position as if the lease were valid at law, and that
the claim for recovery of possession therefore failed.

The Supreme Court of Nigeria followed this principle in the case of Dr. N.A Iragunima V Rivers
State Housing Authority & Ors,9 when it held thus: ‘Equity regards as done that which ought to
have been done… James Okoro and the 2nd respondent are treated in equity as being in the same
position with respect to their respective rights as if a lease has been granted…’10

In this case, a plot of land was leased to Nwosu by the Government of Eastern Nigeria for a term
of seven years. Nwosu assigned the lease to Okoro. The deed of assignment was duly registered
in the deeds registry. Okoro applied in 1973 for renewal of the lease for a term of 60 years which
was granted. He paid all the requisite fees but the deed was not drawn up for execution. He built
a house on the land which he sold to the plaintiff. The plaintiff later discovered that the 1 st
respondent sold the land as abandoned property. She sued, seeking a declaration that ownership
be vested in her; that the sale was null and void, damages for trespass and a perpetual injunction.
The Judge gave judgment in respect of all her claims.

THE DOCTRINE OF CONVERSION

The maxim is the foundation of the equitable foundation of the equitable doctrine of
Conversion.11 Briefly, the principle of Conversion is to the effect that if example, there is an
obligation to sell or purchase land, even though the duty has not been carried out, Equity regards
the land as having been sold or purchased so that the parties may make land money as the case
may be, and the right of the parties will then be decided according to the character of the agreed
object.12

If a trustee or other person is under a binding obligation to sell land and convert it into money or
to invest a sum of money in the purchase of a land. Equity regards that as done which ought to be

8
(1937) 1-3 N.L.R. 141
9
(2003) 5 SCNJ 207
10
See also Ogundaini V Araba(1978) NSCC p.3334; Osagie V Oyeyinka &Anor (1987) 2 NSCC 18 Jaffar V
Ladipo(1969) ANLR 60
11
Hart V TSKJ NIg Ltd. (1998) 12 NWLR Pt 578.
12
Fletcher v Ashburner (1779) 1 Bro CC 497
done and treats the property as being in its converted state from the time when the duty to
convert arose.13

Bowen, L.J. once said; ‘It is an established principle in equity that when money is directed or
agreed to be turned into land, or land agreed or directed to be turned into money, equity will treat
that which is agreed to be or which ought to be done as done already, and impresses upon the
property that species of character for the purpose of devolution and title into which it is bound
ultimately to be converted.”14

The equitable doctrine of conversion rests on the maxim that equity regards as done what ought
to be done. The doctrine becomes relevant wherever there is an obligation arising under a will,
trust, contract or court order, to sell or purchase land. In equity, even though the obligation has
not been carried out, the existence of such obligation is sufficient to fix the rights of the parties
and to determine the nature and character of such rights as they would have been if the obligation
had in fact been performed. 15 The notional or fictitious conversion usually becomes effective at
the date of the instrument expressing the intention, if a deed or contract, and if a will, at the date
of the testator’s death.16

The doctrine has its root in the simple principle that when property has been given to a trustee it
must not be in the power of that trustee to alter the devolution of the beneficial interests by
committing a breach of trust. The development of the doctrine at the beginning of the 18th
century can be traced to the unfairness of allowing trustees prejudicially to affect the interests of
beneficiaries by postponing sales or purchases of land.17

CONCLUSION

If a trustee or other person is under binding obligation to sell a land and convert it into money, or
to invest a sum of money for the purchase of land, equity regards as done which ought to be done
and treats the property as being in its converted form from the time when the duty arose. One
Nigerian case in which this maxim has been invoked was the case of Hart V T.S.K.J. Nig Ltd18
where $360,000 paid for a lease of land was treated as land.19

No doubt the doctrine is designed to promote justice and also to assist the owner of the subject-
matter of conversion in the accomplishment of his objective as regards the ultimate devolution or
distribution of his property in accordance with his presumed intention.20

13
Snell, 26th ed., pp 513-527
14
Att Gen V Hubbuck (1884)13 Q.B.D 225
15
M.I Jegede, Principes of Equity
16
Ibid., at 245
17
M.I Jegede, Principes of Equity
18
(1998) 1 NWLR (Pt, 578) p. 372
19
Ibid
20
M.I Jegede, Principes of Equity
The law of equity has evolved to grant equitable remedies and uphold natural justice which was
generally the judge’s discretion. The maxim of equity regards as done what should have been
done deals with the cases where the right of plaintiff to receive performance of the contract and
the court makes sure that the person gets equitable remedy and the contract is executed by
making the defendant perform his part of the contractual obligations. This maxim is necessary to
uphold the principle of justice, equity and good conscience.

REFERENCE

1. Adamu Kyuka Usman, Law and Practice of Equity and Trust (Malthouse Press Limited,
2014).
2. Gilbert Kodilinye, An Introduction to Equity in Nigeria (2nd Ed, Spectrum Books
Limited, 2018).
3. M.I Jegede, Principes of Equity (Ethiope Publishing Corporation, 1981).
4. J.O. Fabunmi, Equity and Trust in Nigeria (2nd Ed,Obafemi Awolowo Press Ltd, 2006).