EQUITY AND TRUST

31.01.2024
1. Definition of Equity
2. Common law
3. Law that was not local
4. Custom & Decisions of courts
5. Law developed by old common law courts
6. Law that is not foreign
Once upon a time in England, there was an institution known as trust.
However, it was not recognized by the common law. Therefore, where a
trustee is given a property, then it goes to him. The reason being that the law
did not recognized a tripartite interest being created by one person.
Therefore, the arrangement goes to the detriment of the supposed
beneficiary.
Trust contemplates that another person exist to benefit from the relationship.
Because the law does not recognize the interest of a third party in the
relationship, when you give a property to a trustee to hold it in trust for
another, it is as good as you are giving it to the trustee therefore, he can do
as he wishes with the property without any remedy available for the
aggrieved parties.
There was always breach of trust by the trustee to the detriment of the
beneficiary without any remedy. Since there is no any remedy at law for such
breaches, a system was evolved outside the common law to protect the
interest of the beneficiary, that law was Equity. Equity emerges to give succor
to the victims of injustices that occur as a result of common law’s failure to
recognize such wrongs.

IS EQUITY A LAW?
It is neither yes nor no. it depends on the context. Equity cannot be fully
understood without contrasting it with common law.
WHAT IS COMMON LAW?
Common law can also be vied in four different context.

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1. It is a law that is not local but a law that applies to the whole of England.
2. It is a law based on the decisions of the courts of England developed
through the customs of the people. This definition necessarily implies
that any law that is not a legislation is common law.
3. Law that is based on the English legal system.
4. Any law that is not foreign is common law: [but] law brought by the
common law courts as distinct from the Courts of Chancery!
EQUITY AS A LAW:
When defining equity, you will only be defining it as a law developed by
the Courts of Chancery. Therefore, it is not a law per se. you’ll only be
right to call it a law in context of the Courts of Chancery.

WHAT IS EQUITY?
The definition of equity depends on the context that is being used. In a
general sense it means fairness and justice. However, the technical/legal
definition is that it is a branch of law that was developed by the courts of
chancery in order to mitigate the hardships created by the common law
courts.
Equity of a general juristic sense: it represents equity of …
Before common law, there was equity and it is equity of a general juristic
sense. In the primitive societies, there were no laws to protect the rights
and interests of people and the most powerful person will always have his
way and nothing will happen – injustice. The desire for justice gives rise
to make laws to protect the vulnerable in the society. This is the argument
put for the postulation that equity exists even before the common law.
EXAMPLES OF EQUITY OF GENERAL JURISTIC SENSE
1. In Fletcher v. Fletcher, Lord Denning was influenced by Equity of
a general juristic sense when he was giving an order of divorce.
2. In giving an order for extension of time. Normally, your application
will be regarded as incompetent and be struck out if you are filing
out of time but you are given the opportunity to file an application
setting out good reasons why you were not able to comply.

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 3. Allocutus: a plea for leniency that a convict makes after the court
finds him guilty but before sentencing. Before the decision of the
court in FRANCIS v. FRN (2021) it is usually the counsel to the
convict that makes the plea but after that decision, the court states
that the proper person to make the plea is the convict himself.

(Off-record)
In Awolowo v. FRN, there was never an eloquent plea of alocutus that was
made as it was in that case. It was a case of treasonable felony. It is
important to note that allocutus works where the judge had discretion as to
the punishment to be met. Where the punishment is fixed by law, the judge
cannot do anything but to apply the law.

07.02.2023
LEGAL INTEREST AND EQUITABLE RIGHT
What does legal right entail?
1. The first sense has to do with such rights that were recognized by
common law because it has satisfied the requirement of being in
writing and sealed. Where a right isn’t in accordance with the formality
accepted by common law, it is not a recognized right.1 The maxim for
this is legal form is essential form.
For any right to be created, there is a form in which it can be created,
if the form is not complied with, then the right is invalid – a form that is
not completed is also null. For example, if a right exist in writing but
isn’t sealed, it cannot be recognized as a legal right.
2. The second sense is in title in property: here there are legal interest
and equitable interest. An example of this is where two different
interests are created in a single property as in the case of trust
relationship. The interest of the trustee is a legal interest while the
interest of the beneficiary in the property is equitable interest. These
two rights are distinct and exclusive to one another. An analogy for this

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It coulb be remembered that a formal contract derives its validity from the form of being written, signed, sealed
and delivered. Even if there is no consideration, the law will recognize and enforce it.

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 is the physical body and soul. The common law only recognizes the
physical body while equity believes and recognizes that there is
another body – the soul which is not physical.2

EQUITY

EQUITABLE LEGAL
RIGHT RIGHT

The implication of the legal interest that the trustee has is that he is
seen as a legal owner and can use it as he deems fit. He can even sell
it to another and pass a good title. However, equity intervened and
establish another right distinct from the legal right of the trustee in order
to protect the interest of the beneficiary. That although his legal right is
recognized by Equity, he cannot be allowed to prejudice the interest of
the trustee.
NOTE: In a situation where a property owned by another is in
possession of a different person, the person in possession has more
power over the property over and above the owner. This is to an extent
that where a property is in possession of another and the owner takes
it away without the knowledge of the person in possession, he will be
stealing the property.

EQUITABLE RIGHTS
There are three senses to what equitable right entails.

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When we die, our soul survives us.

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 1. Right created not in accordance with form: this is a right that equity
recognizes that is not in accordance or compliance with the formality
of the common law. This is because equity looks at the intention of the
parties to enforce the right not the form of the agreement. It should be
noted that at common law, no matter the intention of the parties, a slight
noncompliance with the form by the parties will render such right
invalid. This is a hardship created by the common law.
2. Monetary value: in this context, when we talk about the equitable
interest in the property, we are referring to the monetary value of the
property as distinct from the property itself. E.g. when you have a
house in Zaria that is worth N5, 000, 000, the worth of the property
(5M) is the equitable right not the house itself
3. Procedural right: this refers to procedural rights that equity recognizes
such as the right of a mortgagor to redeem the mortgaged property
after the due date. It also include right to rectification/correct an
agreement – the right to modify/correct a written agreement by the
parties.

13.02.2024
HISTORY OF EQUITY
1. Medieval period
 Norman conquest
 Common law
2. Court of Chancery
 The lord Chancellor
3. Conflict between Equity and Common law
 Justice colle
 Justice Ellesmere
4. Systemization and Standardization of Equity

“At the root of the tree lies Equity” – Prof. Abdulkareem

One will be right to argue that there is no distinction more important in law
than the distinction between common law and Equity.

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Why are we studying the history of equity in the first place? The essence of
History is…
E.H. Carr defines history as the study of causes of events. In the context of
Equity, studying the history of equity means studying the causes and events
that led to the emergence of equity so that we can appreciate it as it is today.
Once upon a time in the medieval era, the battle of Hastings (Norman
Conquest) took place in 1066 which brings about the overthrow of Anglo-
Saxons and the emergence of King Williams. A system of law, known as
common law was introduced. This is considered as one of their greatest
achievements. The laws were based on customs of the people of England
and it operates based on the principle of judicial precedence. As time goes
by, judicial decision piled up to make what is known as common law today.
Common law was developed as a result of desire for justice.
NOTE: without the battle of the Hastings in 1066, we would not have had
common law. The king is referred to as the fountain of justice whom justice
is administered on his behalf by the courts. Cases with similar facts are
decided in similar way.
As time goes by, the common law became too rigid and technical.
Keywords: the chancellor. Writ of summons. Issuance of writ. Contract.
Debt. Trespass. Detinue.

Under the common law, the chancellor is like the secretary to the king and
whenever there is an action to be commenced in court, he is the one who
will issue the writ with which you can commence the action in common law
court. For you file an action in a common law court, you have to show that
your cause of action is within the type that is recognized by the common law
courts. There are already established prescribed areas (writs) which you can
institute actions. These are: contract, debt, detinue and trespass. If your
cause of action does not fit into any of the established writs, you cannot be
heard.
When breach of trust occurs, a beneficiary cannot enforce his right because
the law only recognized the right of ownership in the trustee. Furthermore,
there was no existing writ for breach of trust provided by law.

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In Donoghue v. Stevenson, one of the arguments against the claimants
was that there was no privity of contract between the defendant and the
claimant, meaning there was no cause of action. The court was then able to
bypass the technicality to create a new cause of action for the reason that
the whole idea of negligence does not rest only on the rights and liabilities of
contracting parties.
Because new writs and cause of actions were created by Lord Chancellor
(as was done in Donoghue v. Stevenson) the common law courts will strike
it out because they did not recognize such causes of actions. Further action
were taken to limit the powers of Lord Chancellor from creating any writ
without seeking the consent of the King-in-Council.
Since in Common law a Trust is merely an imagination of the settlor, the
common law refuse to recognize the third party right – shortcoming.
Another shortcoming of common law is that it does not compel discovery of
document from a person even if the document in question is fundamental to
the final determination of the suit.
Another shortcoming of the common law is that it only recognizes and
awards damages as a remedy. No other remedy is recognized. If Dangote
disturbs your sleep at night, he will only be liable for a damage for such a
wrong. The problem with damages in this situation is that the defendant can
always afford the damages and will continue to cause damage/injury to the
victim. Justice has not yet been done since the plaintiff remains under the
nuisance of the defendant. This is a fundamental shortcoming of the
Common law system.
Sometimes, as a plaintiff, even if you obtained judgment from the court and
the defendant is wealthy or powerful, enforcement of such judgment is
nearly impossible because of the power of the defendant. He can even
intimidate the jury….
Because of how the system becomes worse, there was a feeling that justice
can no longer be obtained from the common law courts, Prof. A.K Usman
describes the situation of Common Law that time as a “sinking ship”.
Therefore any attempt to rescue the common law has to be from somewhere
other than the common law system itself.
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Because of these shortcomings of the common law, litigants will now take
recourse to the King (remember that justice in the common law courts is
administered on behalf of the King).
When petitions are presented to the King-in-Council, he presides and
exercises such powers as appropriate3 to do justice in the circumstances.
But as the petitions become too much and bulky, the King now delegates
this responsibility to the Lord Chancellor.
As time goes on, Lord Chancellor now starts hearing appeals directly from
the litigants without necessarily having them go to the king first because
people think it is not necessary to go to the common law first since they will
eventually go to the King-in-Council anyway. Therefore, Lord Chancellor
began entertaining fresh cases directly. This marks the equitable
jurisdiction of Lord Chancellor – the court of Chancery was created.
However, the common law courts vehemently oppose this as there was no
law in place that gives the Lord Chancellor the judicial power of entertaining
cases.
Equity is like a makeup on the law. Law without Equity is like a lady without
makeup.

Equity does not exist in a vacuum; neither is it a warlord fighting against the law,
rather it emerged to support the law in due administration of justice.

CONFLICT BETWEEN THE COMMON LAW AND THE CHANCERY

The two arguments canvassed against Lord Chancellor making new writs
are:
i. Creating new writs created by the Chancellor amounts to him
exercising legislative function.

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Such as exercising his power of prerogative of mercy.

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 ii. The common law makes distinction between law and morality and
Chancellor making writs based on morality is not legal.

Writ of prohibition to be ordered against Lord Chancellor.

The matter was brought to King James to be settled. The decision reached
there was that if there is a conflicting judgment between the common law
courts and the Chancery, the decision of the Chancery will be favored over
common law court’s decision.
The Chancellor basically uses his sense of what is right and wrong to
determine cases between them – the equity of the general juristic sense. Of
course, the chancellor is well-versed in Christian morality so it helps a lot in
guiding their conscience.
As there is no any law that regulates the domain of courts of Equity at that
time, it is purely based on conscience. This made one of the critics of Equity
to criticize them as “…..”
Albert Einstein in describing the theory of relativity, said if you put your hand
on a hot stove for a second, you will feel as though it has been there for a
whole hour while if you were gisting with a really nice, kind, ravishing and
beautiful lady for an hour, it would feel as though it was merely for a minute.
As time goes on, Equity started following precedents too as common
law did to the extent that when a matter is brought to the court of
Equity, it is not enough that you move the court to do justice but you must
show that your case has precedence in the courts of chancery; a classic
case of judicial precedence! Equity starts operating like a common law.
This brings the decline of Equity.
There was then a system introduced to rescue equity as well. We shall
discuss about this in next class.

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REFORM OF EQUITY & COMMON LAW

Common Law Procedure Act of 1852, 1854, 1860

Chancery Amendment Act – Lord Cairns Act 1
The Judicature Act, 1873 -1875

Since there are two courts operating side by side and there was no clearly
defined boundaries and powers, conflict is bound to happen. This is to be
expected. The law gave the common law to entertain cases in the courts and
the chancery too has equal powers to entertain cases; they have a
coordinate jurisdiction – none is superior to the other. Similar problem
happened with the High Court and Federal High Court in Nigeria until the
constitution made clear what exclusive jurisdiction of the Federal high court
is in s. 254

Certain laws were made in order to resolve this conflicts.

The first of these is the Common Law Procedure Act of 1852, 1854 and 1860
– it gave the common law courts the power to …

At the end of the day, the Judicature Act was enacted to merge all the
principles of common law and equity in a single court. The courts were
harmonized into one Supreme Court of Judicature. Before the Judicature
Act, the two courts were operating independent of the other though with the
power to apply the principles developed by the each other.

WHAT IS THE EFFECT OF THE JUDICATURE ACT?

Has the Judicature act fused all the principles of Equity and common law as
well as the courts together? Were the principles of equity and common law
merged together or they still existed independent of the other?

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One view is that the Judicature act fused all the principles together as well
as the courts. They were married together as one.
Another view is that whether the principles were fused depends on the
circumstances of the case – Lord Denning
The third theory, which the popular and the most preferable view, is that the
rules of common law have not been fused with the principles of equity even
though the courts were merged. Despite the fusion of the courts in 1873, the
principles of Equity and common law still remained independent though
administered in the same court. – Lord Ashburner. As the Mediterranean sea
flow through the same channel without mixing, so are the principles of Equity
and Common law; they flow through the same channel (court) and they do
not mix – legal right still remains a legal right and equitable right remains
equitable right.
Equity gradually developed from the applicat.0ion of equity of the general
juristic sense, to the application of Lord Chancellor’s conscience and finally
to the application of a law (Equity in the technical sence).

THEREFORE, Equity in the technical sense is the branch of law

developed and administered by the court of Chancery before the
Judicature Act, 1873.

14.02.2024
EFFECT OF THE JUDICATURE ACT
i. Fusion of Equity and Common law
ii. S.25 of the Judicature Act
a) Effect of leases not under seal. Walsh v. Lonsdale
b) Variation of agreements under seal. Berry v. Berry
c) Extension & Liability for assets
d) Contribution of sureties/guarantors

The second effect of the Judicature act is s.25 of the Judicature Act. This
provision provides that where there is a conflict between the common law

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and equity, the rule of equity prevails. The prevalence of equity over common
law in times of conflict.
The third effect is that the power of courts to grant common injunction was
abolished.
[As far as the fusion of the two systems are concerned, the judicature act
has fused their administration, however, what is not clear is, “to what extent
is the fusion of the two systems?”] We are told that when a man marries a
woman they are considered as one but that does not mean one of them
ceases to be a human.
After the fusion, the remedy you will get from the court depends on the right
you are claiming, if you claim to enforce a legal right, you must prove to the
court that the right was created and recognized by the law else no remedy
can flow from such right. However, where the right a litigant is claiming falls
short of the form at common law, he will rely on Equity and prove his
entitlement to such right.
For example, Contracts under seal and simple contract
Once a contract is signed, sealed and delivered, it is valid notwithstanding
anything to the contrary. However, under equity, even if the contract is not in
writing it can still be enforced but there has to be a consideration flowing
from the party relying to enforce the contract. Thus, if a contract is signed,
sealed and delivered but there was no consideration, equity will not help you
to enforce it! Form to common law is what consideration is to Equity.
Contracts under seal is under Common law while simple contracts are under
Equity.
With this exposition, if the contract breached of is a contract under seal, the
only remedy available is damages as the right claimed is under common law
and common law only recognizes damages as a remedy.
NOTE: if you go to the court for it to compel a person to do something, it
would amount to injunction. If you have given a consideration then you will
have a remedy of injunction but if there was no consideration, equity will not
help you.
The distinction between equitable and legal right is not for fun. It determines
the remedy a party gets.
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The provision of s.25 of the Judicature Act was inspired by the position of
the court in the case of Xxxx v. Xxxxxx
However, this does not mean that in all cases equity will prevail. The general
rule is that Equity follows the law i.e., the law is generally above Equity.
Some of the few instances where equity prevails are:
1. Effects of leases not under seal
Difference between lease and tenancy. Rent is the amount of money
that a tenant pays for staying on the land for a specified period of time.
By law, every agreement that has to do with land must be by writing –
s.7 of the Statute of Frauds. When the period is between months up to
2 years, it is tenancy. However, if it is for 3 years and above, it is a
lease.
At common law, any lease agreement must be under seal. Not
complying with this formality during creation renders it invalid even if it
is in writing.
Equity took an opposite direction by recognizing a written agreement
of lease that was not in writing. Equity regards as done that which
ought to be done.
Here, there is clearly a conflict between common law and equity, now
which position should be taken? In Walsh v. Lonsdale, (a locus
classicus case on the conflict between common law and equity) the
court held that in Equity, an agreement that is in writing but not under
seal is as good as it is under seal. Equity recognizes such contracts.
2. Variation of Agreements under seal: under common law, agreement
under seal can only be amended under seal not by any other means
therefore agreement not under seal cannot be used to vary an
agreement that is under seal. The parties must follow the form they
followed during the creation of the original agreement. However, Equity
allows an ordinary agreement in writing not under seal to vary an
agreement under seal. In Berry v. Berry,
3. Executor’s liability for assets: at common law, the executor must pay
the legatees if he fails to make the properties available to them which
they are entitled. However, at equity, if the loss of the property is not
as a result of the executor’s carelessness, then he will not be liable.

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 Equity looks into the situation and decides but common law doesn’t
care how the property got lost.
4. Contribution of Sureties/guarantors: where for example, A, B and C
serve as sureties for Mr. Z for a debt of N500 million collected from a
creditor, Mr. X, and the ration of they guarantee is in N200 million,
N100 million and N200 million respectively and B becomes bankrupt,
leaving only A and C, at common law, they are only obligated to pay
the exact amount they undertook to pay and no more. However, at
Equity, they are obligated to cover for B after paying their own; their
liability is joined at Equity.

22.02.2024
RECEPTION OF EQUITY IN NIGERIA
1. Ordinance No. 3 of 1863
2. Ordinance No. 4 of 1876
3. Ordinance No. 17 of 1906
4. Ordnance No. 3 of 1908
5. Supreme Court Ordinance od 1914
EQUITY AND NIGERIAN CUSTOMARY LAW
Repugnancy Doctrine
 Darrett
 T.O. Elias
 Speed C.J. Bankole v. Lewis
….
1. Edet v. Essein
2. Mariyama v. Sadiku Ejo
3. Amadare v. Goodhead
4. Okonkwa v. Okagbue
5. Mojekwu v.Mojekwu

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SOVEREIGNTY
The concept of sovereignty can be viewed from different perspectives. But
for the purpose of this discourse, we are looking at it from the legal
perspective.
For a country to be sovereign, it must be able to make its own laws.
Nigeria was under the British influence as one of its colonies. As British
colony, English laws were imported into Nigeria. These laws include the
doctrines of Equity. If not for Colonialism, we would not be discussing about
Equity.
Equity was brought to Nigeria by the use of legislations as a vehicle. The first
of such legislations is Ordinance No.3 of 1863. The essence of this
Ordinance is to make English laws applicable in the colony of Lagos.
Issue arose whether this Ordinance introduces equity as well. The strongest
opinion is that it includes Equity as well notwithstanding the fact that Equity
was not clearly spelt out in the legislation.
The second of such legislations is Ordinance No.4 of 1876. This ordinance
clearly stated that doctrines of Equity shall apply.
Ordinance no.17 of 1906: it enjoins the courts to observe native customary
law.
Ordinance no.3 1908: …..
Supreme Court Ordinance of 1914: after the amalgamation of Nigeria in
1914, this ordinance made all the laws that were in force in England from
1900 to be applicable throughout the country. It also empowers the courts to
observe the observance of Native law and custom that are not repugnant to
Natural Justice, Equity and good conscience. Today, the various state high
court rules have similar provisions. When the law says that the courts shall
observe and enforce the observance of native customs that are not
repugnant to natural justice, equity and good conscience, the Equity here
is of the general juristic sense and not technical equity.

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EQUITY AND NIGERIAN CUSTOMARY LAW
Natural justice. Equity. Good conscience. What do these terms mean?
The basis of interaction between Equity and customary law is the Equity of
General Juristic sense.
T.O. Elias sees these concepts as nothing but “fairness”. However, Speed
C.J. in Bankole v. Lewis is of the view that all of these concepts are distinct
from one another and have their different meaning.
However, the correct view is that all of these concepts mean the same thing.
Any attempt to differentiate them amounts to mere academic exercise in
making a distinction without difference.
Is the Equity we are dealing with in Nigeria the pre-1900 equity or post 1900
equity? Read the book! (the fact that matters is it doesn’t make a difference).
Is the equity that applies to customary law the technical equity or the Equity
of the General juristic sense?
Nigeria is a nation consisting many different ethnic groups all with their
distinctive customs and traditions. While some are not good, some are
outright barbaric as they go as far as enjoining the killing of twins.
Where a customary law is barbaric, Equity will intervene and make it
inapplicable, however, where it is okay and good, and it will allow it.
In the case of Edet v. Essein: Essein deserted Inyang for Edet, she gave
birth to two children and Inyan xxxx
The grounds he relied on is that since th woman did not payback the bride
price, the marriage is still subsisting and any child born before tha payback
belongs to the earlier husband. The court declares this custom as repugnant
to natural justice, equity and good conscience.
In Mariyama v. Sadiku Ejo: the last time the first husband and wife had
sexual intercourse was 15 months but within 10 months after divorce. The
first husband claims the child but the law discards such custom as against
natural justice….
Amadara v. Goodhead: the court held that the child belongs to the family of
the deceased husband. A departure from Edet and Mariyama. Fagbemi

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argued that the reason for court’s decision is that the biological father did not
show sufficient interest in the case and if the child was given to such a house,
he will not be in the best interest of the child. The second is that in the two
previous cases, the women deserted the houses of their husbands but in this
case she was still in the house of the deceased husband.
In Okonkwo v. Okagbue: a person marries a woman on behalf of another
deceased person so that all the children born in the marriage belong to the
deceased person.
In Mojekwu v. Mojekwu: the Oli-Ekpe of Nwewi: if a person dies and is
survived by female children, his brother will inherit him to the exclusion og
female children. On Appeal to the Supreme Court, the appeal was allowed
and Niki Tobi JCA’s judgment was upturned. But today, this custom is no
longer allowed to stand by our courts. “Are some Nigerian Customary Law
really Repugnant?” an article written by Professor Aboki. In this article, he
reviewed the above cases and argued that those customs are not repugnant
and should not have been decided the way they were.
Under some customary law, there is a procedure which does not allow an
accused person to defend himself. Such custom was declared repugnant to
natural justice, equity and good conscience. See the case of Mbi v. Numan
Native Authority.
NOTE: the repugnancy test operates from two fronts; procedural law (Mbi v.
Numan Native Authority) and the substantive law.

RESIDUAL JUSTICE CLAUSE

This is where in a particular case there was no any applicable customary
law, Equity will come in and fill the void. For example, in the case of Andre
v. John a person dies leaving a halfbrother and a half sister. In distribution
of their share, there was no any provision under the customary law stipulating
the share of each in such a circumstance. The court now invoked its
equitable jurisdiction and creates a rule (where it divides the estate equally
between the heirs). The court has power to invoke its Equitable jurisdiction
to fill such void.

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However, there is a restriction to this clase in a way that such rule does not
become a rule of customary law. It is just for the purpose of such case.

26.02.2024
NATURE OF EQUITABLE INTEREST
1. Obligatory
2. Proprietary right theory
3. Hybrid theory
4. Right in rem or right in personam
For the purpose of recap, in a trust relationship, legal interest is in the
trustee while the equitable interest is in the beneficiary.
This section is concerned with such equitable right. Usually, Legal rights
are right in rem while equitable interest is right in personam. Now, is an
equitable interest a right in rem or a right in personam?

Settlor

TRUST
RELATIONSHIP

Trustee Beneficiary

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A right in rem is the one that can be enforced against the whole world while
a right in personam is a right that can only be enforced agaisnt a particular
party.
Therefore, we are trying to find out whether the beneficiary can enforce his
equitable right on the trust property against only the trustee or also against
any third party that interferes with the trust property.
Some are of the view that equitable interest is a right in rem while others
hold the contrary view – that it is a right in personam. For those who haod
right in personam, thy contend that in a trust property you cannot have two
different rights in the same property and with the same character, it is
simply not possible. That two interests cannot coexist in the same property.
Another reason for this view is that the equitable interest cannot be
enforced against a third party. This is based on the logic that where a third
party bought the trust property for value without notice that the property is a
trust property, the beneficiary cannot sue the third party in this instance.

Where a property is vested in a trustee for the benefit of a beneficiary, the

trustee cannot transfer the property to the detriment of the beneficiary.
Before Equity, he could sell without any consequences but when Equity
came in, it stipulates that everything he does must be for the/in the interest
of beneficiary – there is an encumbrance put on him by Equity.
Whether a third party would acquire a valid title in such a sale is subject to
his knowledge that the property is a trust property; if he has knowledge, it is
an invalid title and if he doesn’t, he has a good title.
Because the third party is an innocent purchaser in the first scenario, the
law will not make him suffer and the law will prevent the beneficiary from
pursuing and suing the third party. Therefore, despite the right he has in
the property, he cannot sue the third party based on his dissatisfaction on
the transaction. With the above, reasoning, the proponents on the view that
equitable interest is right in personam…..
NOTE: that the trustee has valid title on the trust property.

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On the other hand, the proponents of right in rem argued that equitable
interest is right in rem said that the beneficiary does have the right to go
after a third party who purchases such trust property with knowledge that
the property is a trust property.
An illustration:
A trstee X sold a trust property to a third party Y (who doen not know that
the property is a trust property) for 10 million Naira. After the sale, X bought
company shares of 10 million Naira in a bank. Can the beneficiary sue
here? NO but the beneficiary can, by the doctrine of tracing go after the
bank (shares in the bank) to recover such shares because they are
proceeds of a breach of trust.

The hybrid theory

This theory maintains a middle-of-the-road approach as it contends that it is
the circumstances that will determine whether equitable right is a right in
rem or right in personam.

NOTE: The importance of making this distinction is that the kind of right in
the property will determine the jurisdiction of the court you can approach.
Where the right is in rem, it is a right in the property and you sue in the
court where the property is situated but if it is in personam, you sue in the
court where the defendant resides. Usually, whenever land is involved, it is
a right in rem and where it is a breach of contract, it is usually a right in
personam!

EQUITABLE DOCTRINES
The Equity tree
At the bottom of the tree lies the roots which symbolizes the history of
Equity and Common Law, their historical developmet.

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Between the roots and the branches is the stem which symbolizes
practices of equity and equitable remedies (injunctions, restitution, specific
performance, etc.)
At the branch level are the twelve Equitable maxims.

We have already discussed the history and development of Equity and now
we are moving to the stem: Equitable doctrines. These practices are the
ways that Equity develops in redressing the injustices of Common law. The
Maxims are the byproduct of the practices, they do not exist before the
practices. After the twelve orthodox maxims, we have the sub-maxims.

DOCTRINE CONVERSION AND RE-CONVERSION

CONVERSION: this is a (fictional) process whereby a landed property is
converted/translated into money (personal property) or money is converted
into a landed property. Reasons for development of this doctrine:
i. Before 1925, where a person dies intestate, the heirs of the deceased
are entitled to inherit his landed property while his next of kin will
inherit his personal properties. Who inherits what is dependent upon
the distinction between a landed property and a personal property.
After the enactment of the Law of Property Act in 1925, this
distinction is no longer relevant because the law does not differentiate
between personal property and landed property therefore this reason
is no longer valid.
ii. In respect of sale of xxxx xxxx xxxx ….because equity regards as
done that which ought to be sole. Where a trustee is given instruction
to sell a landed property for 10 million in GRA, the law will deem such
property as already sold and deem the beneficiary having 10 million
in cash. Because he has the duty to sell, and he did not give any
reason for not being able to sell, Equity regards him as he has
already sold the land. Similarly, where it is money, e.g given to the
trustee to buy a house of 20 million Naira in Zaria, Equity will consider
the house as already bought because the trustee has duty to buy
such a house – Equity regards as done that which ought to be done.
This reason is still valid.
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RE-CONVERSION: Re-conversion takes place when there is a failure of
conversion. This is a reversal of the process of conversion such that where
a trustee entrusted to sell a trust landed property and the settlor decides to
amend the trust and instruct the trustee to keep the property in favor of the
beneficiary, the money will be re-converted to its original state and vice-
versa. Note that by the doctrine of conversion, the mere instruction to sell
the land has already converted the land into money, therefore where the
land has not yet been sold and the settlor changed his mind to retain the
land, re-conversion will apply.
04.03.2024
SATISFACTION
1. Satisfaction of debt by legacy4
2. Satisfaction of legacy by legacy (ademption)
3. Satisfaction of legacy by later portion
4. Satisfaction of portion debt by legacy or later portion
All these doctrines are about presumptions, where there is something to
the contrary, then it applies.

SATISFACTION OF DEBT BY LEGACY

It is a presumption of equity where a debtor makes a provision in his will for
a creditor for the same amount….
For example, where the debtor is owing the creditor 10 million Naira and
the debtor did not pay for such debt but however made a will for the same
10 million Naira in favor of the creditor, Equity will presume such amount as
satisfying the debt owed and will prevent the creditor from claiming the
original debt. Equity will treat it as a payment for the debt – that the debtor’s
intention was not to give a will but an intention to payback the debt. Another
scenario is between husband and a wife, where a wife lends 50,000 naira
to her husband and her husband left a will for her of 1 million Naira, she is
not expected to come back and still claim that 50,000 naira. It is
inequitable, unreasonable and does not make sense!

4
a gift of personal property by will

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Equity makes sure that a person does not get twice what he is entitled to,
equity is against double portion.

Exceptions to satisfaction of debt by legacy:

1. The legacy must not be less than the debt: in this case, the legatee
will enjoy both the debt and the legacy
2. The property conveyed in the will and the debt must be the same – if
the debt involves money, the will too must involve money.
3. The property must be as beneficial as the debt. Therefore, if the
legacy is going to be contingent upon the residue5 of the estate, then
it cannot qualify as satisfaction. If it is not contingent, it means you
are getting your share even before the estate is distributed among the
heirs.
4. There must not be express intention by the debtor to pay the debt.
For example, where the debtor makes it clear that despite the debt,
he is making such a will, then the creditor will be entitled to both.
Equity will only intervene where there is a silence on the part of the
debtor.
5. The debt must have been incurred before the legacy was given.
Therefore, where the legacy was already made and later, the debtor
incurs the debt afterwards, there cannot be satisfaction of debt by
legacy.
All the above requirements must be met concurrently before
there can be satisfaction of debt by legacy.
At equity, you have to be honest6 before you can be charitable that is
why these requirements are put in place.

SATISFCATION OF LEGACY BY LEGACY

This envisages two situation.
Where a person in his will gives a legacy of 10 million naira to one of his
children and gave another 10 million naira to the same person (for

5
Meaning, it is possible that nothing may remain at the end of the day.
6
Honesty here is settling your debt first before giving out gifts.

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example, where the first 10 million naira’s purpose is stated and the second
10 million naira’s purpose is or is not stated) equity will deem the first 10
million as satisfying the second. He cannot get all the two.
The second scenario is where a person has already made a will and a
codicil 7was created to amend the first will. Where in the codicil the testator
gave another similar legacy to the same child as found in the original will,
the subsequent legacy will satisfy the first one. This second scenario
covers a situation where there is a same will in two different documents
while the first scenario deals with two similar wills in the same document.

SATISFACTION OF LEGACY BY LATER PORTION

This has to do with a situation where there is a legacy in a will that was
made by a person as a locus parenti ………

Where a father gave a son 10 million while he is alive (portion) and left a
legacy of 10 million naira in a will. The will will be taken as a satisfaction of
the legacy. Therefore the child cannot come around and claim the legacy
after the death of the father.

SATISFACTION OF PORTION DEBT BY LEGACY OR LATER PORTION

Where a father promises to give a child a certain amount of money (which
he did not) and subsequently gave him same amount in a will, it will be
regarded as satisfaction of the portion debt.
Where it is a situation where ……. . …… .. .. . .. . . . .. . … . . . . .. . . .. . .. .
… . .. . . . . . …… ….. … …….. …. .. .. . . …. … . .
There can be satisfaction protanto.

7
supplement to a will; a testamentary instrument intended to alter an already executed will

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 NOTICE8
1. Actual Notice
2. Constructive Notice
3. Imputed Notice
All these mean “notice” and imputed notice is no less important than an
actual notice.
Where a person buys a trust property from a trustee in breach of trust,
whether the purchaser acquires a good title or not is dependent upon
something …. Notice! It is notice that will determine whether the purchaser
can acquire a good title and prevent the beneficiary from attempting to
recover such property.
Although the trustee has legal and superior title to the property, his power
to sell is subject to the equitable interest of the beneficiary.

ACTUAL NOTICE
This simply means express and direct notice. It does not matter who is
giving the information; whether he is a party or not. So long as you have
the notice of the state of affairs then you are deemed to have notice.
See section 93 of the Property and Conveyancing Law
The implication of the statutory provisions is that once a (mortgage) has
been registered in compliance with the law, a party entering into agreement
in respect of the property, you are deemed to have notice by virtue of such
registration.
See also Property Law of Kaduna State.

CONSTRUCTIVE NOTICE
This arises where a person has knowledge of certain facts which if he had
used them carefully, they would lead him into discovering that such
property is encumbered. A party he is expected to exercise due diligence.

8
Notice is all about knowledge of the existing facts.

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For example, where a person claiming ownership of property only presents
a photocopy of the title documents, it should be sufficient information for
you to go further and enquire about the whereabouts of the original
documents. Where you chose to look the other way, you cannot claim lack
of notice of some existing interests that are on the property.
There could also be constructive notice where a vendor wants to sell a land
to you and you visited the land and found others occupying the land. They
may be tenants alright but the sell could still be against their own interest
as they may be staying on the land for another year.
In the same vein where a reasonable buyer is expected visit the land and
you did not, you are deemed to have knowledge and notice of the state of
affairs in regard to the land. It is to your detriment.
IMPUTED NOTICE
This is where you are not aware but your agent is, you are bound by his
notice at law. The law will impute his notice to you. The kind of notice
contemplated is that of a bona fide agent not any random agent without
your authority. See Samowa v. Idowu
Difference between when a purchaser and an owner. At the time of
contract, he barely a purchaser who has acquired equitable interest in the
property but it is upon conveyance of the property that he will become an
owner.
The scenario he gave in class about Mr. A and Mr. B where the doctrine of
notice will apply [ban gane ba!]

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