Equity Jurisdiction

QUESTION: ‘Equity jurisdiction may be divided into three categories namely;

exclusive jurisdiction (the creation of new rights), concurrent jurisdiction (the
creation of new remedies) and auxiliary jurisdiction (creation of new procedure).
Examine the above statement with the aid of relevant authorities?
The Black’s law dictionary defines equity in its popular sense as the equivalent to natural
justice.1[1] That it involves fairness, impartiality and an even handed dealing. Put another way,
equity refers to whatever is just and right in all human relationships and transactions. 2[2] The
ordinary and popular meaning of defining equity is not that exhaustive as far as the definition of
equity is concerned because it supposes that equity as administered by courts embraces
jurisdiction as wide as that which would result from carrying into operation all the principles of
natural justice. The ordinary conception of equity is therefore based on morality and is linked to
what is preached in churches and mosques and hence one would be right to say that it is not that
exhaustive.
Furthermore, the main short coming of the ordinary conception of equity is that it is fluid and
moralistic and incapable of enforcement by the court.3[3] It is also captured by Objective xii of
the National Objectives and Directive Principles of state policy contained in the Constitution
of Uganda, 1995 which enjoins government to take steps to realize balanced development of the
diverse areas of Uganda and to pursue affirmative action in relation to the least developed areas. 4
[4] Even within the constitutional context, the objectives and directive principles of state policies
are eruct justifiable. This is a clear short fall in that courts may not come in to enforce such a
situation on objective.
It is really not possible to define equity definitely and successfully, it can only be described
by giving an inventory of its contents or in the historical terms.
Equity may be described as that part of the law which immediately prior to the coming into force
of the supreme court of judicature Acts 1873-1875 was enforced exclusively in the court of
chancery and not at all in the court of common law. Equity was always a supplementing
jurisdiction of common law until judicature Act of 1873-1875.This means that if common law

1[1] Blacks law Dictionary pg 579

2[2] Bakibinga, Equity and Trusts in Uganda pg 1

3[3] Ibid 2 pg 6

4[4] Petit, Equity and the law of Trusts (Butterworth) 8 Edition pg 1

courts for any reason failed to do justice, an aggrieved person would petition the King seeking
extra ordinary justice. The cases referred were to the King who later referred them to the
Chancellor.5[5] The cases referred to the chancery were in to two main groups;
Firstly cases where the law was defective and secondly those where there was theoretically a
remedy at common law but could not be enforced for one reason or another. Furthermore, plaints
without writs for which are not fully explained, apparently ceased to be available and the same
time virtually ceased to be held.6[6] In giving relief in these cases, new law was being created
and it was this new law which became known as “equity” in contrast to the “common law”
dispensed in the common law courts. As cases in equity started being reported, settled maxims of
Equity were developed. A vivid example in the central institution of equity jurisdiction the
trust, the chancellor never denied that the trustee should deal with the trust property for the
benefit of the beneficiary. This can be illustrated by the case of DKLR of Holding Co (No2)
Ltd V Commissioner of Stamp Duties (1982),7[7] where Hope JA said; “ The trustee has at
law all the rights of the absolute owner in the fee simple, but he is not free to use those rights for
his own benefit in the way he could if no trust existed.”
As the equity courts merged with the common law courts, case reporting started in the
equity courts and principles of equity became settled and would be referred to in the subsequent
cases. The most frequently cited authority on the effect of the Judicature Acts on so far as the
fusion of common law and equity is concerned is Walsh V Lonsdale8[8] essentially the
question down on whether the defendant could bring a legal remedy of distress with respect to
lease which formerly would have been regarded equitable only. Effectively an agreement to
grant a lease rather than one in proper legal form.
Equity jurisdiction may be divided into three categories, namely; exclusive jurisdiction (the
creation of new rights), concurrent jurisdiction (creation of new remedies) and auxiliary
jurisdiction (creation of new procedure). In England, before the judicature Act of 1873, largely
as a result of Story’s Equity Jurisprudence 9[9] all breaches of equity were ordinarily classified as

5[5] Ibid 2 pg 2

6[6] Ibid 6 pg 5

7[7] (1982) 149 CLR 431

8[8][1882] W.1127
 more accurately into three headings; the exclusive, concurrent and auxiliary jurisdiction as
discussed below.
The exclusive jurisdiction was said to comprise matters in which a court of equity alone
had jurisdiction to grant relief. This was in form of creation of new rights which could be
declared by courts of equity. The exclusive jurisdiction of equity was that jurisdiction that only
courts of equity and not common law courts could exercise. An example of such a jurisdiction
was the enforcement of trusts. Equity in its exclusive jurisdiction created a new right under
which a person purported to hide under the common law. An example can be deduced from
section 50 of the Succession Act Cap 162 whereby all trusts created by testamentary disposition
must be executed and attested in accordance with the provided for formalities. In the event that
someone follows the provisions of the law with ill motives like fraud, equity disqualifies such
fraud which is actually a creation of a new rights. This was attested in the case of Cook v.
Brooking 2 Vern 50 (1688) where it was held that equity will not permit a statute to be used as
an instrument of fraud. A trust is a relationship whereby property is managed by one person for
the benefit of another.10[10] This was also espoused in the case of Re Bostocks Settlement11[11]
A trust is created by a settler who entrusts some or all of their property to people of their choice
called trustees. The trustees hold legal title to the trust property but they are obliged to hold the
property for the benefit of one or more individuals or organization usually specified by the
settler. The trust was under exclusive jurisdiction of equity. Even though, historically, the
protection, of the beneficiary was based on the chancellor’s willingness to proceed in personam
against the trust, that protection has ended up by creating rights in the nature of ownership. This
was espoused in the case of Sinclair V Brougham.12[12]
Exclusive jurisdiction could be divided in to two categories.13[13] The first aspect was that which
depended on the subject matter as in the case of trusts and second the one which depended on the
type of remedy which was to be administered examples being equitable reliefs against penalties
9 [9] Jury Trial of Complex causes-English practice at the time of the Seventh Amendment (1980) 30 Cap
REV 43

10[10] Hanbury and Martin , Modern Equity 5th Edition 1997 pg 9

11[11][1969]1 wlr445

12[12] (1994) IAC at pg 444

13[13] Supra 2 pg 7
disguised as liquidated damages for instance in hire purchase contracts and the moderation by
equity of provisions in tenancy or lease agreements relating to forfeitures for breaches of
renditions or covenants.
Another area that is a creative activity of equity in its exclusive jurisdiction is that of the
contractual license. A series of cases beginning with Errington V Errington14[14] suggested
that a contractual license gave rise to an interest in land which would bind a purchaser for value
with notice. After a careful consideration of the cases the court of appeal, however, in Ashburn
Anstalt V Arnold15[15] affirmed that a mere contractual license to occupy land is not binding
on a purchaser of the land even though he has notice of the license. This is an important and
intelligible distinction between contractual obligations which give rise to no estate or interest in
the land and proprietary rights which by definition do. All the above explained are related to the
exclusive nature of equity which is the creation of new rights.
Concurrent jurisdiction is also a creation of equity which is the jurisdiction exercised in
equity where similar if not identical relief might be a available in an action at law. Concurrent
jurisdiction can as well be known as creation of new remedies.16[16]
Concurrent jurisdiction comprised of matters to deal with that which was possessed by both the
courts of equity and the courts of common law. Thus, a court of equity when granting a decree of
specific performance was said to be exercising its concurrent jurisdiction. Equity had power to
decree specific performance and law to award damages. In this respect the equitable doctrine of
rescission, rectification, partnership and account all belong to the concurrent jurisdiction.
Sometimes it was said in the concurrent jurisdiction there was power in either courts to grant
exactly the same remedy on exactly the same facts for example the recovery of money paid
under a mistake of fact and some actions for account or contribution.
Some actions for damages for Fraud are some of the suggested examples of the new created
remedies. As to damages for Fraud, the actions for damages of fraudulent acts were espoused in
the case of Demetrious V Gekas Dry cleaners.17[17] This was in the light of creation of new
remedies in the concurrent jurisdiction.
14[14] (1952) IKB 290

15[15] (1989) CH 1

16[16] Supra 5 page 8

17[17] (1991) 22NSWLR 561

The exercise of concurrent jurisdiction depended on rights which the common law recognized
and enforced. The short fall to this was that in some cases the remedies given by the common
law courts in enforcing these rights were inadequate. It is convenient to mention briefly at this
point that one distinction between the common law and equity lay in the remedies available. In
general, the only remedy available at common, a part from a real action for the specific recovery
of certain interprets in land was damages. A plaintiff who established his right and the breach of
it by the defendant was entitled to this remedy as a matter of right, no matter how little merit
there might seem to be in his claim. In such circumstances, where a person failed to establish a
right in damages in common law, he would suffer an injustice to that extent. This called for
creation of new remedies under concurrent jurisdiction.
Equity had no powers to award damages which was until 1858 18[18] when it started awarding
monetary compensation for the infraction of an equitable obligation as was illustrated in Raineri
A Miles19[19] where Turner LJ said “it is the constant course of this court in cases between
vendor and purchaser…….to direct an inquiry as to the deterioration of the estate pending the
contract and in doing so the court is in truth giving damages to the purchaser for the loss which
has sustained by the contract not having been literally performed.”
In light of the above, equity invented a variety of remedies, the grant of which is always in the
discretion of the court. The most important are specific performances and injunction. These are
orders in personam directing a person to do or not to do some specific thing and disobedience of
such an order is contempt of court. An equitable remedy may be awarded both to enforce a right
recognized only in equity and also to enforce a legal right though this will only be done where
the common law remedy of damages is regarded as inadequate.
This condition of awarding equitable remedies only when common law remedy of damages is
regarded as inadequate simply in the grant of equitable remedies in Uganda. The grant of an
injunction by the court is specifically provided for in section 38(1) of the judicature Act, Cap
13 which provides that;
‘The High Court shall have power to grant an injunction to restrain any person from doing any
act as may be specified by the High Court.’

18[18] Chancery Amendment Act 1858

19[19] (1981) AC 1050 pg 1081

Another branch of equity jurisdiction is auxiliary jurisdiction. This comprised of matters in
which a court of equity entertained jurisdiction in order to enable parties claiming legal rights the
more convenient or effective way to establish these rights in a court of common law.
Equity under auxiliary jurisdiction was exercised in order to assist the defective procedure at
common law with a view to common law courts giving better and effective justice. This included
not only cases where a court of equity granted relief to prevent irreparable injury pending a
decision at law for example, Quia Timet injunctions or to prevent a multiplicity of suits once a
legal right had been decided. An example of this is bills of inter pleaded also in circumstances
where relief was granted in order to facilitate proceedings already pending at law for example
bills for discovery, bills for the perpetuation of testimony and bills for examination de bene ese.
Auxiliary jurisdiction in effect led to the development of new procedures including the
administration of interrogatories and discovery of documents now provided for in order 10 of the
Civil Procedure Rules Cap 105 and perpetuation of testimony. When the auxiliary jurisdiction
is invoked, the court’s reasoning process is or should be different and the range of available
relief that requires consideration might include common law damages. This fact necessarily
affects the conduct of the case in such ways that; The claimant for relief must establish a
common law right either under the general law for example in contract, tort or to the extent that
the law of restitution is not in truth equitable in character restitution or a statute in aid of which
equitable relief for example an injunction or an order of specific performance is sought.
Another effect of evoking auxiliary jurisdiction is that even if the real right is established the
claimant needs to persuade the court that he or she should on an exercise of the court’s discretion
be left to his or her remedy in damages at law. In Cervisy V Cervisy20[20] it was held that the
claimant must establish that damages are not an adequate remedy. This would be a ground under
which court would exercise its auxiliary jurisdiction.
In conclusion, the nature of equity work is such that close attention needs to be given in
each case to a precise identification of the jurisdiction sought to be invoked. Generally, equity
follows all instances upon an examination of all circumstances of the case. It is my submission
that there is need to identify a distinct head of jurisdiction as prerequisite to its exercise.

BIBLIOGRAPHY
20[20] (1982)2 NSWLR 567,
1.      The 1995 Constitution of the Republic of Uganda

2.      The Judicature Act Cap 13

3.      The Succession Act Cap 162

4.      Black’s Law Dictionary

5.      Bakibinga D.J, Equity and Trusts in Uganda

6.      Phillip Petit, Equity and the Law of Trusts, 8th Edition (Butterworth)

7.      Hanbury and Martin, Modern Equity, 5th Edition 1997

8.      Lord Devlin, The Uses of English Legal History