Maxims of Equity as Annotated by Current Nigerian Decided Cases (2000 – Present)
The Maxims of Equity are pithy expressions that serve as a set of rules and principles in governing the way equity operates.
They are:
- Equity will not suffer a wrong to be without a remedy.
- Equity sees that as done that which ought to be done.
- Equity delights in equality/ Equality is equity.
- One who seeks equity must do equity.
- Equity aids the vigilant not those who slumber on their rights/Delay defeats equity.
- Equity imputes an intent to fulfill an obligation.
- Equity acts in personam.
- He seeks Equity must come with clean hands.
- Equity follows the law.
- Equity will not assist a volunteer.
- Where there is Equal Equities, the law will prevail.
- Where the Equities are Equal, the First in time prevails.
- Equity looks to the intent, rather than the form.
- Equity will not allow statute to be used as a cloak for fraud.
I shall now discuss the application of these maxims ad seriatim succinctly, with the aid of current Nigerian decided cases.
Equity Will Not Suffer a Wrong to be, Without a Remedy
This is the root of all equitable jurisdictions; as the Chancery sought to (and indeed Equity seeks to) provide remedy to litigants where the common law courts of law denied them.
Thus, Equity will intervene to protect a right which exists but for technical defects, becomes not enforceable at law.
However, it should not be interpreted to mean every moral wrong is remedied by Equity.
In OMOYINMI V. OGUNSIJI; the court per Augie, JCA stated:
“The maxim, ubi jus ibi remedium is a common law maxim, which means where there is a right, there is a remedy. Thus, if a plaintiff has a right, he must of necessity have means to vindicate it, and a remedy where; he is injured in the exercise of that right. Indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. The Maxim is so fundamental to the administration of justice that where there is no remedy provided either by common law or statute, the courts have been urged to create one”. See LABODE V. OTUBU (2001) 7 NWLR (Pt. 712) 256.
However, it should be noted that; there exist a remedy if the right or cause of action arose and was brought within the required time stipulated by law. See I. T. F V. N.R.C (2007) 3 NWLE (Pt. 1020) pg. 28 ; where the plaintiff had a right but failed to commence action within the prescribed time; the court held the action statue-barred.
Therefore, when an action is statue-barred, a plaintiff who would have a cause of action automatically loses the right to enforce the cause of action by judicial process because the stipulated time limit has elapsed. See per Onnoghen , J.C.A (Pp. 30 – 32, Paras. A – B).
Equity Sees as Equity as Done That Which Ought To Be Done
Where there is a specifically enforceable obligation, Equity regards the parties as already in the position which they would be in after the obligation is performed.
Under this maxim, agreements for value are often treated as having been performed, at the time when they ought to have been performed, under the same conditions of performance and bearing the same consequences as if they were completely performed.
This maxim is the rationale behind the doctrine of conversion which states; “where a trustee or other person is under a binding obligation to sell land
In IRAGUNIMA V. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY (2003) SCNJ 207; the government leased a land to Nwosu for a term of seven years. Nwosu leased the same land to Okoro; who applied for a renewal for 60 years.
Okoro paid all the requisite fees but the deed of conveyance was not drawn up.
He thereafter, built a house on the land, which he sold to x.
Later, the government sought to sell the property as “abandoned property”.
On appeal, the Supreme court contended that since Okoro had done all that was necessary to renew the lease and it simply remained the part of the government in drawing up the deed of conveyance.
Equity would assume that the lease has been granted.
The legal implication being; “equity treats a contract to perform an obligation as though, it were already done”.
Also, in the case of; TIMOTHY V. OFORKA (2008) 9 NWLR (Pt. 1091) 204; (2008) All FWLR (Pt. 413) 1370:
A land instrument that was not registered was admitted in evidence and relied on for proof of equitable interest and payment of money by the respondent at the Ilorin Division of the Court of Appeal.
In the instant case, His Lordship Denton West J.C.A elucidated, the land instrument (purchase receipt) though not registered was admitted and relied on as proof of title by the respondent, in line with the principle of Equity which regards as done that which ought to be done”.
Furthermore, in the recent case of USMAN DANTATA JUR V. MOUKTAR MOHAMMED (2011) LPELR – CA/L/17213/08; the appellant, having paid a sum of money entered into possession of land without execution of the deed of assignment. The Court of Appeal per Ogunwunijo J.C.A said: “where a person is in possession under an agreement for the assignment of land – he acquires an equitable interest in the land before assignment is completed following the maxim; equity sees as done what ought to be done”. Therefore, applying the rule as laid down in WALSH V. LONSDALE; an agreement for the assignment of land is treated as assignment of land.
A similar decision was earlier held by the Kaduna Division of the Court of Appeal in MUSTAPHA V. ABUBAKAR (2010) LPELR – CA /K/ 211/ 07; where money was also paid for land and there was entry into possession of such land.
The Court held inter alia: “If there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate; if such possession was continuously maintained.
Equity Delights In Equality/Equity Is Equality
This is expressed in the Latin maxim; “Aequitas est quasi aequalitas”.
It means where two or more persons have an equal right in a property, the property will be divided equally in respect of those equal rights.
The maxim flows from the conception of Equity as a fundamental notion of equality and impartiality and is the origin of many equitable doctrines.
Therefore, in the absence of sufficient reasons for any other basis of division, those entitled to property should have the certainty and fairness of equal division as; “equity did delight in equality”.
In ANEKWE V NWEKE (2014) 9 NWLR (Pt. 1412) 393: the Supreme Court of Nigeria condemned the outrageous custom of the Awka Community of Anambra State which, disinherits a widow as such custom is repugnant to good conscience and fairness.
As equality is equity, equity administered by the Supreme Court of Nigeria opposed the Customary law of Awka people which prohibits a married woman – without a male child from partaking in the sharing of her husband’s inheritance.
The court condemned the refusal of customary law to recognize female inheritance with regard to property citing S.42 of the 1999 Constitution of the Federal Republic of Nigeria as amended (The fundamental right of freedom from discrimination).
Applying the principle of Equity being equality, she (the widow) has the basis for certainty and fairness of equal division of the deceased’s property on the virtue of her (the widow’s) equitable interest; regardless of whether she has a male child or not.
Hence, equity as it were, favors true equality both of rights and liabilities, dividing the burden and benefits in equal shares.
In another case of; OKEKE V OKEKE (2017): the Court held on appeal;
“a custom which enables a child born and fathered by another man to claim and inherit the property of a man who had died (sic) before he was even conceived by his mother and to disinherit the man’s biological child, because she is female is certainly inconsistent with sound reasoning”.
It is repugnant to natural justice, equity and conscience and is an affront to the natural order of human life.
Thus, equity steps in; in the absence of sufficient reasons for any other basis of division, to provide those who are entitled to property should have the certainty and fairness of equal division.
This is the technical juristic sense of equity.
One Who Seeks Equity Must Do Equity
The basis of this maxim is that to obtain an equitable relief, the plaintiff must be prepared to do equity. That is, equity in its popular sense of what is right and fair to the defendant.
This is the rule of unquestionable justice.
It twin principle is: “ He who seeks Equity must come with clean hands”. Though this looks only at the past conduct of the petitionary party (plaintiff).
This maxim examines the present and future conducts of the defendant to ensure it is in accordance with equity and meritorious to grant such relief(s) sought.
Thus, to receive equitable relief; the petitioning party (plaintiff) must be willing to fulfill all of his own obligations, completely as well.
As, the applicant to the court of equity is just as much subject to that power of the court as the defendant.
It asks the question: What are you doing? What will you do? In relation to the relief sought; will it be equitable to grant such remedy considering what you are doing and what you will/should do?
In ENEKWE V INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS. (2006) LPELR – 1140 (SC) and (2007) All FWLR (Pt. 349) Pg. 1053 at 1081.
The appellant in this appeal was the plaintiff before the Jos High Court of Justice asking him to set aside the sale of the appellant’s property mortgaged to the last respondent to secure a loan.
The property was sold to the 2nd respondent who later, sold it to the 3rd respondent by the 1st respondent when the appellant was in default in liquidating the loan.
Before the sale of the property, the appellant had earlier instituted an action in the same High Court against the 1st respondent; in an attempt to prevent the sale but the action was dismissed.
The appellant had appealed against the dismissal of this action to the Court of Appeal, Jos Division.
While, the appeal was pending – the appellant got wind that his property has been advertised for sale by the 1st respondent.
With no action pending before the High Court to stop the sale of his property, pending the determination of his appeal against the decision of the High Court dismissing his action – with the same motion on notice, the appellant filed an Ex-parte motion asking for the same relief of injunction stopping the sale of his property pending the hearing and determination of the motion-on-notice for the same relief by the court.
The Ex-parte motion was promptly heard and granted on the same day it was filed, while no date was given for the hearing of the motion-on-notice which remained not heard up to today.
The appeal by the appellant against the dismissal of his action against the 1st respondent is still pending unheard at the Court of Appeal.
Meanwhile, the 1st respondent which was quickly served with the Ex-parte order stopping the sale of the property pending the hearing and determination of the appellant’s motion on notice, was not served with that motion on notice as; no date was fixed for it’s hearing.
It was in this situation that the 1st respondent without taking steps to set aside the Ex-parte order of interim injunction restraining it from selling the appellant’s property pending the hearing and determination of his motion on notice, went ahead and sold the property to the 2nd respondent who later sold to the 3rd respondent.
It was on these undisputed facts at the background that the appellant abandoned his motion on notice for the relief of injunction pending the hearing of his appeal at the Court of Appeal and the appeal itself which he had previously abandoned; instituted and pursued a fresh action against all the respondents as defendants asking for the setting aside of the sale of the property.
The learned trial judge after hearing the parties in this action which he found as an abuse of court process, dismissed the action.
The appellant’s appeal to the Court of Appeal was equally dismissed.
Hence, the further appeal to the Supreme Court by the appellant.
At the Supreme Court, the Court held; the law is that a party should not be allowed to benefit from his own wrong (Nullus commodum protest de injuria, sua propria – No one can gain advantage by his own wrongdoing).
As, it could be seen that the appellant decided to ignore the main and real issue for determination in this appeal (the allegation of abuse on court process leveled against the appellant in filing an action in the same court while his motion for the same reliefs in the same court remained dormant and undetermined for many years; was actually the main issue) and hung on a subsidiary issue of lis-pendens upon which neither the trial court nor court boa based it’s judgement.
The appellant did not attack the substance of the decision of the trial court dismissing his action and subsequently, the Court of Appeal dismissing his appeal, the appeal therefore fails.
One who seeks Equity must do Equity: Thus, to receive equitable relief, the petitionary party must be willing to complete all of it’s own obligations as well.
Therefore, as the appellant failed to pay off the loan and interest which was still mounting, to the respondent; he could therefore not obtain equitable relief.
Since, what he possessed was equitable redemption of mortgage, until he pays off his loan, he was not entitled to recover his property.
In ABU V. INTERCONTINENTAL HOMES SAVINGS & LOANS PLC (CA/L/613/2012) (2016) NGCA 17 (21 JUNE 2016); the appellant’s contention at the lower court was the tenure of the loan is 84 months from the date of acceptance of the offer and that the full payment and accrued interest would not be due until 2015.
She further contended, that she is a joint owner of the property and that the Respondent held the property in trust for her in respect of her 30% contribution to the purchase price.
The property therefore could not be sold without consultation with her as a joint owner.
The Respondent on the other hand contended that, the failure of the Appellant to meet up with the repayment as agreed led to a forfeiture on the expiration date of 2015; further that since the legal interest in the property is in the Respondent, it has the right to sell the property as a consequence of the Appellant’s default
The Appellant provided only 30% of the purchase price, 70% was provided by the Respondent.
The property was bought for the Appellant but in order to guarantee the repayment of the loan and interest, it was agreed that the property be bought in the name of the Respondent.
The intention being that as soon as the loan and interest is paid back, the property will be re-conveyed to the Appellant.
The Court held in the circumstances; the interest the Appellant has in the property is her equity of redemption.
Thus, until she pays off the loan and interest thereon, she cannot recover the property. See also YARO V. AREWA CONSTRUCTION LTD & 2 ORS. (2007) LLJR-SC; wherein the same principle was applied to order receivership.
Equity Aids The Vigilant Not Those Who Sleep On Their Rights/Delay Defeats Equity
This maxim is expressed in the Latin words: “Vigilantibus non dormientbus jura subveniunt”.
It is a general principle of Equity that, a person will not be granted an equitable remedy if; he has been guilty of undue delay in bringing his action.
Such delay is known as laches and, a court of Equity will refuse it’s aid to stale claims where a party has slept over his right and acquiesced for a great length of time.
In NICHOLAS ELUMEZIEM & ORS. V. BONIFACE AMADI (2014) LCN/7466 (CA):
This is an appeal against the judgement of the Customary Court of Appeal, Imo State.
The original plaintiff in this matter, commenced this action for themselves and on behalf of Umuokorie family in Umuezuta, Umuokanne Ohaji District Holden at Umuapo against the Appellant’s who were defendants.
The trial Customary Court observed that the Appellants had from the onset of this case in 1994 exhausted all manner of day tactics to frustrate the case of the Respondents by making various applications at various levels of court; asking for adjournment at every sitting of the court or, being absent and we’re unwilling to open their defence at the time of delivering the court’s judgement.
The trial court after considering the unchallenged evidence of the Respondents and their witness, entered judgement for the Respondent bon 26/5/97.
The Appellants being dissatisfied with the judgement, appealed to the Customary Court of Appeal, Imo State.
The Customary Court of Appeal in a considered judgement delivered on 22/2/2007, dismissed the Appellant’s appeal and affirmed the judgement of the trial Customary Court.
It is against the said judgement of the Customary Court of Appeal, Imo State that the Appellants have appealed to this court.
The Court held that fair hearing denotes opportunity.
He submitted that there was abundance of opportunity given to the Appellants to present their case (defense) but they preferred to spurn the trial court and make mockery of our judicial system; they cannot complain of not being heard.
He further cited ATAMGA V. EFFIM (2001) FWLR (Pt. 58) at 1162; REYNOLDS CONSTRUCTION CO. LTD V. OKPEGBORO (2000) NWLR (Pt. 367) 268 at 374, OGUNDOVIN V. ADETERIN (2001) FWLR (Pt. 71) 1741 at 1744 – 1745, MUHAMMED V. KPELAI (2001) FWLR (Pt. 63) 1404 at 1408;
Equity therefore favors the party that is diligent and careful to the prejudice of him who is careless. The vigilant not the sleeping litigant is the one who is assisted by the law.
This is so because the law always abhors delay.
A party who wants to be absved from liability must be conscientious and vigilant the n defending his case and follow up the progress of the case.
In this instant case, the Appellant displayed nonchalant and lackadaisical attitude in the defense of his case and no court will accept that sort of attitude from any party to the proceedings.
The Appellants were given an opportunity to defense even in the face of constant adjournments and frivolous applications at their instance.
The maxim “equity aids the vigilant and not the indolent” is one that is appropriately invoked, in the instant case.
In ECOBANK NIGERIA LTD V. DELTA STATE BOARD OF INLAND REVENUE (DSBIR) – TAT/SSZ/ 005/2020; the matter bordered on the legality or otherwise of the Revenue carrying out tax audit or investigation on tax payers beyond 6 years, without establishing a case of fraud or willful neglect, on the part of the tax payer.
Highlights of the Case
The Revenue via a demand notice dated 28 October 3019, issued a Best of Judgement (BOJ) assessment on the Bank, as additional PAYE tax liability for an 11-year period, spanning 2000 to 2010.
The Bank objected on the ground that no case of fraud, willful default nor neglect has been established against it by the Revenue Board, and as such, cannot carry out an Audit or investigation beyond the statutorily recognized 6-year period.
The Bank further buttressed that since Equity aids the vigilant and not the indolent; waiting 20 years to raise an additional assessment was a clear case of acquiescence on the part of the Revenue.
In it’s response, the Revenue maintained that it reserved the right to conduct a tax investigation beyond the 6-year period, further to the provisions of S.55(2) of PITA, of it is discovered that a taxpayer is fraudulent, neglected or willfully defaulted on his tax obligations.
The Revenue Board argued that a discovery has been made through her Intelligence and Enforcement Unit, that the Bank had willfully defaulted and neglected to disclose the income of it’s employees according to the law, hence the need to carry out tax investigation.
Upon hearing the argument of both parties, the TAT held that it is lackadaisical of the Revenue Board to wait 20 years after the relevant year, to issue additional assessments despite having carried out tax audit previously on the same years.
The BOJ assessment being additional PAYE liability for 2000 – 2010 is null and void.
Finally, since Equity will aide not the indolent; the tax authority should ensure that tax audit exercises are carried out within the prescribed period
See also the cases of DANLADI V. DANGIRI & ORS. LPELR – 24020 (SC) – 2014 and OGLI OKO MEMORIAL FARMS LTD & ANOR V. NACB LTD & ANOR (2008) LPELR – 306.
Equity Imputes an Intention to Fulfill an Obligation
Where a person is under an obligation to do an act, and he does any other act, which is capable of being regarded as a fulfillment of his obligation, the latter act will prima facie, be so regarded
This maxim is the basis of the doctrine of performance and satisfaction.
Here in, Near performance of a general obligation will be treated as sufficient unless the law requires a perfect performance.
The rationale behind this maxim is that when parties enter a transaction, equity will presume that they intend to fulfill their obligations under the transaction.
In OGBEIDE & ANOR. V. OSIFO (2009) 3 NWLR (Pt. 1022) 423 at 441; On the issue of resiling a contract of sale: whether a grantor can be allowed to resume from a contract of sale he voluntarily entered.
Principle: It is trite law that a grantor cannot be allowed to resume from a contract of sale he purely and voluntarily entered.
Court ruling: A grantor having sold land as in this instant case can not and should not be allowed to derogate from his grant. He must not seek to take away with one hand what he has given with another hand. See EKPECH V. OWONDA (1998) 3 NWLR (Pt. 543) 618 at 642.
The appellant is estopped from derogating his grant.
As SECTION 173 of the EVIDENCE ACT, 2011 AS AMENDED provides:
“When a person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such a person or such person’s representative in interest to deny the truth of that thing”.
Hence, since the grantor willingly entered into the transaction, equity presumes that he intends to perform the obligations under the grant transaction and will estop him from resiling.
In REYNOLDS CONSTRUCTION COMPANY V. EDOMNWONYI (2003) 4 NWLR (Pt. 811) 513 CA; the appellant breached a contract for the supply of sharp sand having paid a sum of 4,000.00 Naira to the respondent. The court held that the party in default cannot recover for the performance of his obligations. Per Ibiyeye;
“The position of the party in default or breach is specifically that he will not be entitled to recover deposit paid by him as a security for his obligations”.
Where a person owing certain obligations does an act which may not be intended as a full performance of such obligations, equity will presume it was intended.
In this instant case, the appellant performed the act of paying 4,000.00 Naira as a security for the performance of his obligations, equity therefore presumes that, he intended to fulfill his obligations.
Equity Acts In Personam
One of the most important characteristics of the jurisdiction of the Court of Chancery (now called the court of equity) was that it’s decrees were directed in personam, that is the against the defendant personally as opposed to in rem which is against his property.
The maxim also means that in property matters, the Court of Chancery would act against the person of the defendant by committing him to prison for contempt if he failed to obey it’s decree.
Later, the Order of Sequestration developed and other convenient methods of enforcing the decree also evolved i.e. an order for the payment of money could be enforced by issuing a Writ of Fieri facias (Fifa).
In MTN (NIG.) COMMUNICATIONS LTD. V. CORPORATE COMMUNICATIONS INVESTMENT LTD. (2019) LPELR – 47042 (SC); MTN (the appellant) entered into a Trade Agreement with Corporate Communications Investment Ltd. (the respondent) who is one of MTN’s trade partners.
The agreement was drafted by MTN and sent to the Respondent for it’s signatures.
The respondent signed but MTN did not and kept the document.
There is a clause therein that, the agreement took it’s effective date from the date the Appellant appended it’s signature thereto.
Parties however, transacted on basis of the contract. MTN thereafter terminated the agreement without giving the required notice, relying on the relevant clause in the agreement.
Despite the respondent solicitor’s letter challenging the termination of the agreement and requesting an amicable settlement, the appellant withdrew 27 registration kits assigned to the respondent.
The respondent pleaded that in compliance with previous Trade Partners Agreements between the parties, it had incurred expenses in procuring facilities and equipments which were of no more use to it, given the purported termination of the Trade Agreement (Exhibit A).
It also pleaded that the abrupt cancellation of orders without a formal and valid termination of their agreement has caused it a huge financial loss.
At the end of the trial at the High Court, the Court found for the Respondent and awarded 25 Million Naira as damages and 20 Thousand Naira as costs.
The same decision was upheld by the Court of Appeal, aggrieved by the two decisions, MTN took the matter to the Supreme Court.
The legal question becomes: Can an unsigned agreement constitute a valid contract?
At first, none of the parties raised the issue. It was in the course of writing the judgement that the trial judge observed that Exhibit A was not signed by the appellant.
Upon discovery, he adjourned the delivery of the verdicts, and invited the parties to address him on the evidential weight, to be attached to it.
A court of law has the enabling power to raise a new issue and invite the parties to address that issue. See EZEUDU V. JOHN (2012) 7 NWLR (Pt. 1298) 1.
The Appellant saw this as an opportunity to escape liability.
It argued that the agreement was worthless and that it was immaterial that the Appellant was the one who prepared it.
The Appellant’s rationale is that it was one of the terms of agreement is that;
“The agreement would take effect from the date the last person signs and that since it didn’t sign the document after it was signed by the respondent, the document was inadmissible and could not be relied upon as a valid contract between the parties”.
This argument was rejected by the Court on 2 grounds:
- On the conduct of the parties
- On the equitable maxim that, “equity looks to the intent rather than to the form of contract”.
Rejecting the argument, the Court held that the Appellant could not be allowed, by deliberately withholding it’s signature, to take advantage of it’s wrongdoing and use it as a weapon against the respondent.
The Court further stated, relying on the case of ADEDJI VN.B.N LTD. (1989) 1 NWLR (Pt. 96) 212 @ 226 – 227 E – A; that:
“It is morally despicable for a person who has benefited from an agreement to turn around and say that the agreement is null and void or unenforceable as contended in this case”.
In addition, His Lordship, Ejembi Eko, gave an elaborate dictum thus:
“Though not mutually executed, Exhibit A was regarded by the parties as ‘their binding contract’.
Equity acts in personam and therefore takes as done that which ought to be done, if from the conduct of the parties such inference can be drawn.
In the instant case, such facts abound on which the two courts below concurrently found that the parties intended to be bound by Exhibit A and that Exhibit A would be the basis of their mutual transaction, whether or not the document was formally executed.
Again, equity acting in personam would look at the intent of the parties and the substance (merits, surrounding circumstances) and not at the form in which it occurred.
In this instant case, insistence on compliance with all formalities of executing a written agreement will be oppressive to the respondent.
The appellant in the court of justice will not be allowed to take advantage of the Respondent on his own iniquity by his ingenuous booby trap by which he deliberately withheld his signature while at the same time it made the respondent go with the impression that the relation is governed and regulated by Exhibit A”.
In conclusion, the principle of law is that an agreement, though not executed by one party, may be a valid contract
As such, if one party withholds execution, but allowed the other party who had executed to carry out any obligation under the agreement to the benefit of the party who did not execute the agreement may be deemed valid and enforceable notwithstanding that the execution was by one party.
Equity acts against the defaulting party (as in this case, the appellant) in personam by issuing an order to specifically perform the contract against the appellant.
Further more, in COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD. V. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR LER (2019) SC 239/2011; following the judgement of the Federal High Court wherein it entered judgement for the plaintiff, it ordered that the plaintiff is the owner of the entire land comprised in the survey plan, and is entitled to the grant of statutory right of occupancy over the 16 hectares of land and that the 1st defendant has no interest whatsoever in the land and the purported grant of leases or certificate of occupancy over same to the 3rd – 8th Defendant’s are null and void.
Subsequently, counsel to the 1st and 2nd Defendants now Respondents (who were among the 8 Defendants in the suit at the Federal High Court), elected and communicated to the Appellant their decision not to appeal against the judgement of the trial court in favor of negotiation towards an amicable resolution.
However, a motion on notice was filed more than a year later at the instance of the Respondents, seeking for an order of court extending the time within which to seek leave to appeal, an order granting leave to the applicants to appeal and an order enlarging the time within which the applicant may appeal against the judgement of the trial court.
The Appellant relying on Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, vehemently opposed the application.
It contended that the Respondents who had abandoned their right of appeal by electing not to appeal constitutes “good and substantial reasons for failure to appeal within the prescribed period”.
The lower court granted leave to the Respondents to appeal against the judgement of the Federal High Court hence, the instant appeal by the Appellant contending that the 1st and 2nd Respondents did not give good and substantial reasons for failing to appeal within the time prescribed by law and so the discretion was wrongly exercised in favor of the Respondents.
The appeal was allowed and the Court on the principle of estoppel by conduct stated:
“The principle of estoppel by conduct is based on the public policy that says;
- There must be an end to litigation; and
- It’s aim is not only to hold a party to his undertaking that he will no longer insist on either his right or obligation from the judgement, but also not allow a person benefit from his prevarication”.
Rev. E. Eko J.S.C held further, “Equity generally abhors subterfuge, deception and any other unconscionable conduct”.
Therefore, Equity acts in personam against the Respondents by Estoppel as they had abandoned their rights by electing not to appeal and that too failing to appeal within a reasonable time prescribed by law.
That is why it is stated that he who comes to Equity must come with clean hands.
C. C. Nweze, JCA (as he then was) emphasized this in STANDARD CHARTERD BSNK NIGERIA. LTD. V. DR. TUNJI BRAITHWAITE (2013) LPELR 20814 (CA) in his statement:
“Equity like an immaculate garment, abhors the company of those who are likely to contaminate it’s majesty; taint it’s purity or dampen it’s allure!
Above all, since it does not trade on detergents those who approach hallowed portals are forewarned to denude their hands of all dirt that may be detestable and impeachable. See also TONIMAS (NIG.) LTD V. CHIGBU (2020) 6 NELR (Pt. 1720) 237; (2020) LCN/4907 (SC).
He Who Comes Into Equity Must Come With Clean Hands
This maxim relates to the common law principle of “Ex turpi causa non oritur action”, which translates to “a baseless cause has no action”.
It looks to the previous conduct of the plaintiff in relation to the particular relief seeking (what was done?) . By the maxim, the plaintiff must not only prepare to do what is right and fair, but must also show that his past record in the transaction is clean.
The saying is this, “He who commits iniquity shall not have equity”.
In TONIMAS (NIG) LTD V. CHIGBU (2020) LLJR – SC; (2020) 6 NELR (PT. 1720) 237.
Summary of Facts:
The Respondent landlord of the Appellant), in this appeal granted to the Appellant a lease of a vacant parcel of land at which came to be known as No.6 Ebino Mbanoto.
The Appellant built on the land a Petrol Station called TONIMAS FILLING STATION. The Respondent was appointed a dealer at the Petrol Station, and he operated in the Petrol Station.
Among the terms of agreement, exhibit A is the payment of rent annually at 25 Naira payable in the month of January each year, commencing from 23rd April, 1985.
After some years of operation of the Petrol Station by the respondent, the Appellant found shortfall in the account of the sum of 278,311.
The Appellant asked the respondent to refund same and the respondent declined to pay.
In the sublease exhibit A is contained the clause thus:
“If without reasonable cause or excuse on the part of the leaser, the rents herein reserved shall be in arrears or remain unpaid for 3 consecutive years after becoming due and payable, the sublease may re-enter upon the demised and the sublease herein may cease and determine”.
When the Appellant demanded that (sic) the refunded make up the shortfall in the Petrol Station business; the respondent claimed and invoked the provision in the sublease of repossession of land on which the Petrol Station reside.
The Appellant deposed that the respondent drove away all it’s staff in the Petrol Station and repossessed the land, the respondent also refused the shortfall.
The respondent then proceeded to the High Court for an action for the forfeiture of the lease. At the same Court, the Appellant counterclaimed for the equitable relief against the forfeiture.
The High Court dismissed the respondent’s claim for forfeiture and awarded the appellant’s claim for relief against forfeiture.
The court demanded the Appellant to pay the arrears of rent.
It was at the subsequent hearing that the respondent refused to accept same up to December 1994; the respondent refused same even when he was to be issued a cheque personally and at the High Court Registry of Ekiti State, stating that he does not want payment by any other means other than physical payment in his palace.
The Appellant and Counsel made several journeys to the respondent’s house. Often, the respondent would send messages through his wife or servant that he was not available.
It was after several instances of this notice that he (the Appellant) commenced proceedings in the Magistrate Court when it became clear to the Appellant that the respondent’s was waiting for 3 years to elapse before he commenced another forfeiture proceedings.
The Appellant then sought in the Magistrate Court equitable relief against forfeiture, and for leave to pay rent by cheque or through the High Court Registry.
Meanwhile, there was no specified mode of payment in their contract.
The respondent’s only excuse for not accepting payment by any other means than payment of rent in his house, is that he will not be able to issue receipts for payments.
The Supreme Court held:
“As all parties are ad idem, and there is no doubt about the appellant’s obligation under exhibit A to pay his rent when due. The lower court found, correctly in my view, that the mode of payment insisted by the respondent is not contained in Exhibit A and hereby unenforceable.
Equity therefore acts in personam and would not allow a party to benefit from his own wrong or mischief”. See also ADEDEJI V. OBAJIMI (2018) LPELR – 44360 (SC); 16 NWLR (Pt. 1644) 146 where; the Appellant who he willy-nilly refused (with no lawful excuse) to perform a contract he had willingly signed, and had deliberately held the respondent to ransom by refusing to pay up, was refused the benefit of his own wrong.
Therefore, the respondent can not benefit from his wrong (by refusing payments) as equity ensures that the plaintiff must not only prepare to do what is right and fair, but must show that his past record in the transaction is clean.
The court therefore ordered the Appellant, in the spirit of mutual intent of the parties to exhibit A and his obligation to pay rents as and when due, to pay the agreed rent (including the rents that became due in the course of litigation) by means of certified cheque drawn in the name of the respondent which shall be sent to the respondent’s last known address as endorsed on the deed of sublease.
Again, in OBASI V. STATE (2020) LLJR – SC; the Appellant was arraigned before the Anambra State High Court, Eguata – Ekwulobia on30/06/1997 on a 6 – count charge of malicious damage, rioting, stealing and riotous demolition of property.
According to the Appellant, after the commencement of the trial by Ezeani J, he was transferred out of the judicial division in 1999, which caused the Respondent to become lackadaisical towards prosecuting the matter thereby causing the Appellant to witness incessant transfer of the Judges assigned to hear the matter, this spanned over 20 years, without the matter commenced properly.
Consequently, the Appellant with others applied vide a motion dated 8/3/2016 for an order dismissing and discharging them of all charges brought against them.
The respondent’s case however, is that since the arraignment of the Appellant on 14/6/1999, the Appellant and his Co-accused person’s used all kinds of techniques including consistent absences from the criminal proceedings to frustrate the speedy trial and determination of the Court Charge against them.
The Respondent emphasized that the Appellant failed to appear for trial in over 40 occasions and requested for adjournments for over 15 times.
In fact, the ruling of the trial court disfavored the Appellant, who appealed to the lower court. Having considered the appeal, the lower court also dismissed the appeal, hence this current appeal.
The court submitted that delay (substantially caused by the Appellant and his Co-accused person’s) defeats equity.
Furthermore that it is trite that a person cannot claim breach of his right of fair hearing where he has willfully absentee himself from the said trial.
He cited in reliance AG RIVERS STARE V. UDE (2006) 17 NWLR (Pt. 1008) 436, 456 – 457; The Appellant’s in this present case are bound by their own acts) omissions and that of their counsel.
The Appellant who had complicity in the long delay in his prosecution cannot equitably take benefit of his counsel’s tardiness and also the non-attendance in court by some Co-defendants to insist that because of the long delay in his trial, the charges against him must be quashed and dismissed.
It is truism that he who comes to equity must come with clean hands.
The Appellant has soiled hands to ask for the discretion or favor of this Court. This appeal therefore lacks merit and is hereby dismissed. See also DANSAKI V. FRN & ORS (2018)) LPELR – 43897 (SC).
Equity Follows The Law
Equity follows the law because, it does not abolish the law, it pays reverence to it and only ameliorate (gloss over) the law where, the law will bring unintended hardship to the people.
Thus, equity follows the law but a rider should be placed on it that it does so not slavishly nor always. Only when a lacuna exists in the law, that equity will not blindly follow but will do something to close the gap by supplying the missing connection (nexus).
For instance: Equity will not follow the law to deny or defeat the equitable interest of the beneficiary under a trust, whereas, common law does not recognize the rights of the beneficiary under a trust.
Equity only interferes where there are some important circumstances disregarded by the common law and where the lack of a remedy at law will cause injustice to a party.
It should be noted, however, that where common law rules were archaic or excessively rigid, equity would refuse to follow them.
In DANKULA V. SHAGAMU (2008) ALL FWLR (Pt. 413) 1280; there was an equitable owner of a property and a subsequent legal owner of the property without prior notice of the interest of the prior equitable owner.
In giving priority to the equitable owner, the Court held:
“In law, only a purchaser for valuable consideration who obtains a legal estate at the time of his purchase without a notice of a prior equitable right is entitled to priority in equity as well as at law.
In which case, equity follows the law …” Per Ariwoola .J.C.A a t P.1307, Paras C – D (CA).
Also in NWANKWO V. ECUMENICAL DEV. CO. SOCIETY (2002) 1 NWLR (Pt. 749) 573; the Appellant had earlier covenanted to bear the outstanding debt of their company alone, but later claimed that the principal obligor should be joined in the suit. The court held inter alia that:
“Generally, it is said that equity follows the law. Where the law is at play, equity must keep watching from the side line, Appellants who covenanted to bear the outstanding debt of their company alone should not be heard invoking the principle of equity in the air”, Per Fabiyi, J.C.A.
As noted earlier, the extent to which equity follows the law is that of justice.
Thus, where injustice will be occasioned by following the law, equity may come in.
In UZOMA V. ASODIKE (2009) LPELR – CA/PH/188/2007; The Appellant after the material consideration received, signed a document with the intention to divest himself of the title to the property in favor of the respondent.
It was later contended that the form in which the document has been signed was inappropriate. The Court looked at the intention and the substance of the case to hold that the document had been executed.
According to the Court: Equity follows the law. And, it looks at the substance not the form. Equity acts in personam, and takes as done that which ought to be done.
The Court of law and justice will therefore hold a party to his bargain where it is shown that the party executed a document, albeit wrongly as the Appellant is suggesting, by which he has, upon material consideration received, divested himself of title in favor of another. Per Ejembi Eko, J.C.A (Pp. 11 – 12 Parade E – B).
Equity follows the law and will always intervene to prevent fraud from being perpetrated on the party who had altered his position on the faith of the contract. See also ADEDEJI V. OBAJIMI (2018) LPELR – 44360 (SC) ; 16 NWLR (Pt. 1644) 146, this principle of equity avails the Court of Justice to always ameliorate the rigidity and inflexibility of the Common law.
Adopting the dictum of Aderemi, JCA (as he then was) in OGBEIDE V OSIFU (2008) 37 WRN 61 at 79 – 80, (2007) 3 NWLR (Pt. 1022) 423, that is: “Equity is a source of law, which has always sustained the characteristics of infusing elements of fairness and justice into the legal system as a whole, by the very process of mitigation of the strict legal rules”. See also HARUNA & 2 ORS V. ADAMU MU’AZU MODIBBO & ANOR. (2004) 16 NWLR (Pt. 906) 487 at 550.
Equity Will Not Assist a Volunteer
A lack of consideration in return for the settlor’s promise will deem a beneficiary under equity, “a volunteer” and equity will not assist a volunteer under the premise that it’s one-sided nature cannot impose an obligation.
In law, a volunteer generally means, a person who enters into a contract without consideration, that is to give anything (e.g. Money or money’s worth) pursuant to the contract to make it legally binding.
Equity does not aid a volunteer, however, equity will assist a beneficiary only when there is a perfectly constituted trust.
A volunteer is defined in equity, as one who has not offered consideration for a benefit they have received or expect to receive. It is different from a volunteer in English Language or generally, who is, a person who freely offers to perform an act or conduct and does not expect any rewards whatsoever.
Instead, a volunteer at law is a person who enters into contract or any form of transaction without further consideration, that is to provide anything to the contract to make it legally binding.
In the case of DONATIO MORTIS CAUSA; it is an exception to the maxim: “Equity will not assist a volunteer” as, it is a gift made in contemplation of death, conditional on death, the donor having parted with dominion over the subject matter of the gift. A donation made “mortis CAUSA” is an inter vivos gift by which the donee is to have absolute title if the donor dies.
In the case of BENJAMIN ONWUGHAMBA EZENWA V. OKPARAO OKO & ORS. (2008) 3 NWLR (Pt. 1075) 610; The Appellant entered into a lease agreement with the 1st respondent in respect of the land tenure n dispute for a term of 10 years which was to expire on 25th January, 1975 with an option to renew same for a further term of years.
The lease duly came to an end by the efflux of time though the Appellant had, meanwhile, put up a foundation on the land up to the floor level before abandoning same following the outbreak of the Nigerian Civil War.
It is important to note that the lease ended without the 1st respondent agreeing to renew the lease nor, to accept further rents from the Appellant.
The lower court therefore came to the right conclusion when they held that the lease was duly terminated by the efflux of time.
However, the action for specific performance appears to be founded on the option to renew the contained in the lease agreement between the Appellant and the 1st respondent.
Learned counsel for the Appellant has submitted that the 3rd respondent can be ordered to specifically perform the contract of option to renew particularly as he stepped into the shoes of the 1st respondent and was a volunteer, who did not take notice of the Appellant’s equities.
By “a volunteer” the law means a person who enters into any transaction of his own free will or a person to which property is transferred without valuable consideration.
It is the second meaning that is more relevant to the facts of the case.
Recall, that the principle of specific performance relates to enforcement of contract entered into between the parties and which involves, offer, acceptance and consideration.
One may ask, in relation to this case: what is the contract that the Appellant wants to enforce?
There is only one lease agreement between the parties which expired by effluxion of time.
With that expiration any rights arising there from became spent or non-existent and consequently unenforceable.
Hence, there is no cause of action.
In BALOGUN V. ALLI – OWE (2000) 3 NWLR (Pt. 649) 477; (2000) LLJR – CA; The Court held that,
“ It is settled that the onus is on the person who seeks to enforce his right under a contract to show that he has fulfilled all the condition precedent, and that he has performed all those terms which ought to have been performed by him.
Where the plaintiff fails or defaults in the discharge of his own obligations under the contract, the action must fail”.
In this instant case, what obligations are imposed on the parties would seem to be shrouded in vagueness and uncertainty.
The court will generally refuse to order the performance of an obligation, the terms of which suffers from inconclusiveness and uncertainty.
Even if the evidence of the plaintiff as to the conditions of the tenancy were to be believed, there was no evidence of the performance of their own side of the obligations.
In such circumstances, an order of specific performance will not be issued.
Where There Is Equal Equity, The Law Will Prevail
This maxim governs the priority of competing interests in property one of which is legal and the other equitable. If two competing interests are equal in the eyes of Equity, then the legal interest takes priority over the equitable interest.
The term “Equity” here means, that the facts and surrounding circumstances of the parties are on all grounds meritorious with nothing vitiating the merits and fairness of the case such as Estoppel, duress, undue influence, notice, registration, negligence to mention a few.
These vitiating factors, particularly the doctrine of notice has modified the conditions governing the transfer of interest in land.
In ORUMWENSE V. AMU (2008) VOL. 41 WRN 154; there was an agreement to sell land to the Appellant and he had an Equitable interest over the property, but the Respondent also had a legal right over the property by executing a deed of assignment and obtaining the Governor’s consent.
While giving priority to the respondent, who had a legal interest, the court had this to say:
“ Before the Governor’s consent, the priority was in favor of the Appellant’s grant being first in tim, but after the Governor’s Consent which conferred legal title on the respondent, then their document carried priority …” Per Ogunwumiju JCA at 178 – 179 lines 30 – 15.
Again, in MEADOWS V. FABANWO (2013) JELR 34026 (CA); (2013) LCN/6551 (CA); the Court of Appeal held that:
“priority of title could only be invoked where the equities are equal, so the 2nd Appellant’s case that he bought it in 1998, cannot bring into operation the principle of priority if title, as the 2nd Appellant did not prove title by purchase which he had pleaded and relied upon at the court below”.
Unlike the respondent who had pleaded and process complete title by purchase to the disputed piece of land. See UGBO V. ABUNIME (1994) 8 NWLR (Pt. 360) Pg. 1; where the supreme court held that “he who is first in time prevails” is only applicable where the equities are equal.
However, where both parties with competing interests in land both have equitable title then the rule of priority in equity will apply. Where a common vendor has sold land to the purchaser earlier in time, there can be nothing left to give another purchaser who takes later in time.
The principle, Nemo day quod non habet, (meaning, one cannot give what he does not have) applies. See OLAHUNDE V. ADEYOJU (2000) SC.
In OMALE V. MAIKUDI (2022), it was held that where the equities are equal (and neither have legal title), the first in time prevails. The Court of Appeal stated: at law and equity, the basic rule is that “Estates” and “interests” rank in the Order of Creation. Thus Qui prior est tempore portion est jure, meaning “he who is earlier in time is stronger in law”. The law is therefore settled that the interest of the Appellant takes priority over that of the Respondent’s since, he was the first in the order of priority, he is automatically earlier and stronger in law than the Respondents. See the case law authorities of: AYANWALE V. ODUSAMI (2010) 12 SCNJ 362 at 379; OLUKOYA V. ASHIRU (2006) 5 SCNJ 107 at 121, ONWUZO V. MINISTER FCT (2022) LPELR-57699 (CA), JOSEPH ERO V. IYIOLA OLUKAYODE TINUBU (2012) LPELR – 7869 (CA), OLAGUN V. AKERELE (2012) LPELR – 9791 (CA).
In ASHIRU V. OLUKOYA (2006), the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities pursuant to the well recognized maxim “qui prior est tempore portior est jure” applies (meaning that he who is first in time has the strongest right, dictates that the first in time takes priority). See also EJUETAMI V. OLAIYA (2001) SC.
In LABODE V. OTUBU (2001), the Supreme Court held that, in law and equity, the basic rule is that estates and interest primarily rank in order of creation and he who is earlier in time is stronger in law.
Also, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over others.
In KACHALLA V. BANKI (2006); the court held that the law has been well settled, where a person pays for land and obtains receipt for the payment followed by his going into possession, equitable interest is created for him in the land and such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land. This is affirmed to be the state of the law in ORASANMI V. IDOWU (1959) 4 FSC 40; (1959) SC NLR 97.
However, fraud, duress and misrepresentation where the transaction has been set aside by a competent Court of law and notice (actual constructive or implied) of the equitable interest in property before the purchase serves as an exception to the legal maxim.
Where the Equities Are Equal, The First In Time Prevails
This maxim governs the question of the priority of rival equitable claimants to the same property. It is expressed thus: “qui prior est tempore portion est jure”. It is designed to resolve the problems of priority and conflict.
Thus, where the competing interests are equitable, then the equities are said to be equal and therefore, the first in time would prevail.
In other words, the time of acquisition of interest becomes the deciding factor as to which one takes priority. Thus, the equitable interests are ranked according to the order of their creation.
It provides the foundation for the doctrine of notice and also the law on priority of mortgages of land.
A well-known case on this maxim is CAVE V. CAVE; where it was held that: (I) where there is equal equity, the law prevails; and (II) where the equities are equal, the first in time prevails. Therefore, the first in point of time will have priority over other competing equitable interests.
In OLUMIDE V. AJAYI (1997) 8 NWLR (PT. 517); the Plaintiff was the first to have equitable interest over the property by registering the deed of conveyance, while the defendant also registered a deed of conveyance in respect of the same piece of land, with the full knowledge of the Plaintiffs’ interest over the property. It was held inter alia that:
“it is a well-known principle of law that where the equities are equal, the first in time prevails. There is no Equity in favor of the defendant in the present case, which he can rely on to defeat the earlier interest that were registered in the names of the plaintiffs”. Per Uwaifo, JCA (P. 20, Paras A -B).
In AJAYI V. OSUNUKU (2008) LPELR – CA/L/278/96; the Appellant/Plaintiff had actual and constructive notice of the equitable interest of the defendant/respondent who had paid part payment of the property, but still claimed he was a bona fide purchaser. The court held that: “it is trite that priority in law is basically determined by the principle Qui prior est tempore portion est jure”.
The case of ADU KOFI V. G. A. ADJEI (1942) W.A.C.A Pg. 198; is relevant wherein the basic rule of temporal order of priority are modified by the maxims in stating that:
“ where equities are equal, the first in time ought to prevail in the absence of fraud, negligence and other vitiating factors”. Per Ogunbiyi, JCA (Pp. 35 – 36, Paras D – F).
The court gave judgement therefore in the interest of the defendant/respondent against the plaintiff.
In W.T. EJUETAMI V. MRS BENEDICTA O. OLAIYA (2002) 1 SUPREME COURT MONTHLY 87 AT 108; (2001) CLR 12 (n) (SC); it is the case of the first defendant that as far back as 1875 the second defendant agreed to assign to him the unexpected terms of his sublease.
On the other hand, the Plaintiffs’ claim is that in 1976 he entered into negotiations with the second defendant for assignment of the sublease which he eventually got.
On his own part, the second defendant denied any agreement to assign the property to the first defendant. He however confirmed that he has assigned the property to the plaintiff.”
The trial judge held;
“the main and crucial issue to be decided in this case is whether there was any agreement between the second defendant and the plaintiff on one hand and the second defendant and first defendant on the other hand for the assignment of the property and who in law is really entitled to the assignment of the property”.
Further review of evidence led by the parties thereafter follows:
“Although agreement to assign the property was pleaded in paragraph 3 and 8 of statement of claim; however, there is no evidence of the agreement in writing and the second defendant has denied making any such statements”.
Section 5(2) of the Law Reform (Contracts), Law of Lagos State of Nigeria, requires contract of sale of land evidenced by writing or a note of memorandum of agreement signed by the parties or some person(s) lawfully authorized by them to be recognized and enforceable.
The onus is on the first defendant to prove by producing evidence in writing that in 1975, the second defendant agreed to assign the property to him since second defendant has denied such agreement.
Therefore, in the absence of any note or memorandum signed by the second defendant, the first defendant has failed to prove that there was an enforceable contract between him and the second defendant in 1975 as regards assignment of property.
However, it seems clear from the argument in the Appellant’s brief that the real complaint of the Appellant is that the lower court wrongly resolved the competing interests of the parties in the disputed property.
In the resolution of whether the Appellant’s contention deserves to be upheld, it is desirable to refer, howbeit briefly, to some of the pertinent facts found by the court below.
It is clear that the Appellant was from 1974 a tenant of the defendant/respondent until he paid 15,000.00 Naira in October 1978 as part payment of the 50,000.00 Naira agreement upon orally for the assignment of the lease to him.
Although the defendant/respondent claimed the 15,000.00 as rent, the learned trial judge found against him on this point.
It is common ground that the trial court therefore held that the equitable interest of the Appellant arose from October 1978.
On the other hand the Plaintiff/respondent was granted an equitable interest in the same property in dispute, 38 Oba Akran Areme in November 1876 by virtue of Exhibit F. It is manifest from the evidence on record that the proceeds of the cheque for 3,000.00 Naira was received by the defendant/respondent who in turn signed Exhibit F. Thus, the Plaintiff/respondent obtained an equitable interest in the property in dispute in November 1976.
In 1981, the property in dispute was conveyed to the Plaintiff/respondent by the defendant/respondent
In order to determine whether the decision of the trial court that the Plaintiff/respondent was not entitled to be adjudged as the holder of legal estate in respect of the disputed property, the court below after referring to such authorities as COLE V. FOLAMI (1956) 1 F.S.C 66, said inter alia thus:
“Only a purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equity as well at law. In such a case, equity follows the law, and where the equities are equal, the law also prevails.
In law and equity also, a purchaser of an equitable interest without notice takes free from a prior equity if his purchase gave him the better right to a legal estate.”
In other words, assuming that the first defendant had no knowledge of the prior Equity of the Plaintiff when he paid his balance of 35,000.00 Naira and the 2nd defendant accepted same, the 1st defendant who have had a better right to the legal estate, unless there are circumstances which make it inequitable to do so.
Here In;
(I) Following the Appellant’s brief the Appellant had no knowledge of the prior Equity of the plaintiff/respondent.
(II) The second qualification put forward by the Appellant is that the defendant/respondent accepted the sum of 35,000.00 Naira from the Appellants.
It would appear that the contention was based on what was said in the court on the Judgement applied by Awogu JCA said on Page 400 of the record, it reads:
“True the 1st defendant tendered his balance and would have had a better right to the legal estate, but the 2nd defendant refused to perfect the title (in fact, returned the money) and rather took that of the plaintiff (whose Equity ranked earlier in the order of creation) and conveyed the property to him in payment.
Here, the Plaintiff/respondent in this appeal is the person with prior equity and therefore possessed a better right to the legal estate. “
Support is found for this view in ROBERT TAYLOR &ANOR. V. RUSSEL & ANOR. (1982) A.C. 244; where Lord Macnaghten said at PP.259, thus :
“it is admitted that by this the principle that an Equitable mortgagee who has advanced his money without notice of a prior Equitable mortgage may gain priority by getting in the legal estate unless the circumstances are such as to make it inequitable for him to do so manifests.”
Applying this principle to the case at hand, the Plaintiff/respondent was the possessor of an equitable interest (converted thereafter into legal estate) in the property in dispute without notice of the subsequent equitable interest. Therefore, the Plaintiff/respondent thereafter obtained legal estate. The legal estate he has so obtained remains with him unless it can be shown that the Plaintiff/respondent acted inequitably in the legal estate.
Equity Looks to the Intent Rather Than To The Form
The Court of Equity makes a distinction between a matter of substance and form
Equity insists that what is important is the substance and not the form and will, therefore, not allow a matter of form to defeat that of substance.
Equity will not allow technicalities defeat matters of the substance (merits of the case).
In the case of ALHAJI BABA .M. SALEH V. ALHAJI SHETIMA MONGUNO & ORS; the court held thus:
“In it’s resolve to construe statutes and rules of court only for the ends of justice, this court has articulated in a number of cases that whenever a plaintiff establishes a wrong that has been inflicted on him by the defendant, he should be granted a remedy despite of defects and other inadequacies as to form and contents of the agreement by which he initiates his claim.”
This is demonstrated in the earlier case of ALIU BELLO & 13 ORS. V. A.G. OYO STTE (1985) (Pt. 45) 828; in which Oputa JSC stated;
“Law and all it’s technical rules ought to be but a handmaid of justice and legal inflexibility which may be becoming of law may; if strictly followed only serve to render justice grotesque or even lead to injustice”.
Therefore, the court will not endure that mere form or friction of law introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the case.
SUMMARY OF FACTS OF ALHAJI BABA M. SALEH’S CASE (S.C. 403/2001) (2006) NGSC 53 (6 JULY 2006).
The Appellant brought in as parties to the application, the 3rd to 7th respondents in this appeal are alleged to to have brought the properties of the Appellant following the execution carried out based on the order of the Chief Judge made on 29/2/1984 but which was set aside in 15/7/1986. Rather than expeditiously hear the application, the Chief Judge strangely ruled, that he would not hear it until the fresh suit filed by the Plaintiff had been disposed of.
The motion was not heard until 21/2/1997 after 10 years of filing on 7/4/1997, the Appellant’s application was dismissed mainly on the ground that since the 3rd – 7th respondents had not originally been parties in the suit between Plaintiff and Appellant
(Suit No. M1152/82), the Appellant should have commenced a fresh suit against them to set aside the sale of his properties to them.
Another reason is that the application should have been brought within 21 days after the properties were sold. It is noteworthy that the 2nd – 7th respondents participated in the proceedings on the application to set aside the Appellant’s properties Dissatisfied with the ruling of the High Court, dismissing his application to set aside the sale of his properties, the Appellant brought an appeal before the Court of Appeal, Jos Division (the court below) which was also dismissed.
At the Supreme Court, the court held that; the facts leading to the dispute out of which this appeal arose is all about the properties of a citizen sold based upon judgement which was subsequently set aside on the ground that it was a nullity.
As there was a clear distinction between the Appellant’s properties in respect of which no leave to sell was obtained and that which the leave to sell was obtained for.
Thus, the judgement against the Appellant was given 16/12/1982. The Appellant 7 houses were sold in 1984 3 of them under a court order and 4 of others without a court order – which amounts to plain “theft in broad daylight”.
On 27/1/1986, the judgement of the High Court, which was declared a nullity by the Court below. The plaintiff did not appeal against the judgement.
Rather than promptly move to restore the Appellant’s 7 properties to him, the trial judge ruled that he could not do so until a fresh suit filed by the plaintiff we disposed of.
In the process, Appellant’s properties were in the possession of those who bought it for 10 years that the new case was pending before the Chief Judge, 24 years after and he hadn’t gotten back the property.
The property was therefore sold under the “purported execution of a judgement” subsequently declared null and void by the court below.
The court held, that the reasoning that the Appellant ought to have bought his properties in accordance with the rules of the court will, if upheld, defeat justice having seen:
- The Appellant’s rights to have his property back was delayed up for 10 years by the trial court which insisted on hearing the Plaintiff’s new case before the Appellant’s application.
- The trial court should have seen that having delayed the Appellant for 10 years, his suit stood a risk of being statute barred.
- The 3rd – 7th respondents had the opportunity of presenting their case, therefore there was no denial of justice to them.
Hence, it is distinctively unjust to set the Appellant on a path which, will end disastrously since the new action he might file would be statute barred.
Equity therefore looks at the intent (merits of the case) and not the formality of the law as to insist compliance with the Rules of court in which circumstance, would lead to miscarriage of justice.
In MTN NIG. COMMUNICATION LTD. V. CORPORATE COMMUNICATIONS INVESTMENT LTD. (2019)) LPELR – 47042 (SC); the court held, in this instant case, such facts abound on which the two courts below concurrently found that the parties intended to be bound by Exhibit A (the Trade Agreement entered into by the parties) and that Exhibit A would be the basis of their mutual transaction, whether or not the document was formally executed.
Again, equity acting in personam would look at the intent of the parties and the substance and not the form.
In the instant case, insistence on compliance with all formalities of executing a written agreement will be oppressive to the Respondent.
The Appellant, in the court of justice, will not be allowed to take advantage of the respondent on his own iniquity by his “ingenious booby trap” by which he deliberately withheld his signature while at the same time, it made the respondent go with the impression that the relationship is governed and regulated by the same Exhibit A.
Allow a Statute to be Used as a Cloak For Fraud
This means equity prevents a party from relying upon the presence or absence of a statutory formality, if to do so would be unconscionable and unfair.
Courts of equity independently of any statute will relieve against fraud, if proceedings are reasonably brought after it’s discovery.
In the words of Lord Cottenham:
“a Court of Equity will wrest property fraudulently acquired not only from the perpetrator of the fraud, but from his children’s children and children as well and from any person to whom he may have parceled the fruits of his fraud.”
See CITIZENS BANK V. LEFFLER, 228 md. 262, 269 (md.1962).
In GREAT NIGERIA INSURANCE PLC V. ZEAL TRUST LTD (2021) LCN/15009 (CA); The issue was the interpretation of Section 50 of the Insurance Act, 2003 vis-à-vis whether what constitutes payment in advance to cover an insurance risk necessity mean payment at the point of entering the insurance contract.
The Appellant is holding the view that the only condition precedent for a valid Insurance contract under Section 50 of the Insurance Act is the receipt of an insurance premium which is evidence that the premium has been paid. Taking the argument of the Appellant as the legal position will mean that once the Respondent is unable to produce a receipt of payment of full premium then the Appellant can be excused from liability under the insurance policy.
The question therefore will be, if there is sufficient evidence that the premium was fully paid but not a receipt to show for it, can it be said that the insurance contract is not valid? The Answer is No!
What is important for the insured to be indemnified is that the premium was fully paid (before the risk insured occurred).
The Appellant did not deny the fact that the Respondent paid for the premium at the point or time that the insurance contract was entered, which is clearly immaterial and not the clear wordings or purport of Section 50 (1) of the Insurance Act, 2003.
Thus, a contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is, to all intents and purposes, illegal, null and void and unenforceable. See EIMSKIP LTD V. EXQUISITE INDUSTRIES NIGERIA LTD (2003) 4 NWLR (Pt. 809) 88 at 118 – 199 Paras H – A.
In ADESANOYE V. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242; the Court held, in such a situation, the consequences of non-compliance follow, notwithstanding that the statute does not specifically provide for sanctions.
Thus, although the Act may not specifically provide for sanctions, a contract which is illegal still remains illegal. See also JOMBO UNITED COMPANY LTD V. LEAD WAY LTD (2016) 15 NWLR (Pt. 1536) 439.
About Author
Onyemauwa Covenant Ugonna is a 400-level Law student at Imo State University (IMSU), Nigeria. She is a finalist at the Nigerian Institute of Chartered Arbitrators (NICArb) 2024 Debate Competition. She is a one-time Co-ordinator of Divine Chambers (a Students’ Chambers at the Faculty of Law, IMSU). She currently serves as: the Vice-president of the Legal Debate Union LDU, IMSU Chapter, the Treasurer of the Legal Clinic, IMSU Chapter, the Secretary of the Law Students Association (LAWSA) Bar Council, IMSU chapter; and the Head of the Litigation Department, Divine Chambers at IMSU. She is a passionate enthusiast on International Humanitarian Law as she believes that humanity is the essence of society. In addition, she is a multifaceted personality exploring the areas of International Arbitration, Intellectual Property Law and the intersections between Artificial Intelligence (AI) and Medical Law. For contacts and enquiries, you can reach her via: Email Address: onyemauwacovenantugonna@gmail.com OR LinkedIn: https://www.linkedin.com/in/covenant-u-onyemauwa-
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