THE COMMON LAW AND EQUITABLE DOCTRINE

 



During the evolvement of the English Jurisprudence, in the Anglo-Norman era of 11th Century, equity emerged, as a distinct field of law, from the English common law, due to the kind of relief, grant of the Court. Equity doctrinal origin, is obtained from the writings of Aristotle Corpous Aristolelicum (384 – 322 BC), and the Roman law from the Twelve Tables, to the Corpus Juris Civilis, Circa 449 BC to 529 AD. However, a noticeable development of contemporary Equity doctrine, as a coherent body of law, administered simultaneously with the English common law, started from the English Court of Chancery, with the absolute purpose of granting legal remedies for cases, which the common law was inflexible, and couldn’t fairly resolve the disputed legal matters.

The English Common law, under the Anglo-Norman Royal Justice, were administered by three Central Courts, which were, the Court of the King’s Bench, the Court of Common Pleas, and the Exchequer. The evolving challenge with litigants, were the ‘writs’ and ‘procedures’ required of the Courts, which equally affected the quality of Judgement of the Courts, thou, created a circumstance, whereby Plantiffs were unsatisfied with the legal remedies, from the Common law Courts, and construed the verdict of that Courts, as unfair judgement, hence, appealed, by petitioning the King, which resulted the Kings Council, to be assigned in hearing such petitions, under the Chairmanship, of the Lord Chancellor, literally, considered as the ‘Keeper of the King’s Conscience’. The cause of such actions by the Chancery, were practically considered, as moral justification of the Chancellor, to intervene in such petition cases, as a conscionable form, in other to protect the ‘conscience’ of the King, as right before God. And, most appointed Chancellors of that era, were known of being theologically and clerical trained in the Roman law, as well the developed canon laws, hence, the style of adjudication by the Court of Chancery were of ‘aequitas’, imbued of the Judicial powers of the Roman Magistrates. Onwards to the 16th Century AD, Equity in principle were perceived to be derived from statutory interpretation from ‘aequitas’ of Roman law, to empower the Chancellor, in exercising unbounded discretion, which  allowed them to easily mitigate cases, out of the rigour of Common law adjudication, of the English legal system, of which the common law Courts, relied on the substance of the case, rather than solely form; a sharp contrast uphold by the Court of Chancery, at then, to exercise arbitrary decisions of ‘conscience’ by Clergy men, of no legal training. The very cause that necessitated the year of 1615 conflict between the Common law Courts, having Sir. Edward Coke of the King’s Bench, as the Chief Justice, and that of the Lord Chancellor Ellesmere, presiding for the Chancery Court. A circumstance that attracted an extensive criticism on the Court of Chancery, as a result, gave birth to Equity primacy to be enshrined in the Judicature Acts of the 1870s in the laws of England, with the effort to fuse the two Court, the Court of Common law, and that of the Equity Court, into a single unified Court system.

Australia, are among the few Countries, known of strong Equity Jurisprudence, emanating from the English legal system. In the year 1972, her Supreme Court introduced reform to it Act 1970, which empowered both the Equity and Common Law division of the Supreme Court, to grant relief, in either equity or common law, thou, made a categorical emphasis, where there was a conflict between the Common law and Equity, equity will always prevail. However, in the Courts of Scotland, considers Common law and Equity, as inseparable, with her Court of Session, exercise equitable and inherent jurisdiction.

 With that of India, the Supreme Court, adhered to the doctrine of equity, as a form of Common law, however, relied on the 1963 specific Relief Act of India Parliament, to enable the equity concepts codified, and made statutory rights.

 In relation to the United States Supreme Courts, on equity doctrine, they opted to have a wide discretion, to fashion relief in cases of equity. As established in the ruling of the Willard vs. Tayloe case, 75 U.S. 557 (1869), the Court decided, ‘that equity relief, is not a matter of absolute right to either party, it is rather, a matter resting in the discretion of the Court, to be exercise upon consideration, of all the circumstances of each particular case.’ However, there are some States in America, that holds separate dockets of Equitable matters, from Common law cases. Thou, the Bankruptcy Courts of the United States, under the Bankruptcy code 1979, is officially considered as, a Court of Equity.

 

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Emmanuel Tweneboah Senzu, DBA, Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone. Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

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