ENUGU STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY

FACULTY OF LAW

ASSIGNMENT TOPIC:

JUDICIAL INTERPRETATIVE APPROACH TO THE APPLICATION

OF EQUITABLE REMEDIES IN LAND TRANSACTION IN NIGERIA

BY

NAME: UDEONU OLISAEBUKA CHARLES

REG NO: 2018030185075

LEVEL: 400

COURSE TITLE: EQUITY AND TRUST LAW II

COURSE CODE: LAW 422

LECTURER: DR. EMEKA NGWU

NOVEMBER, 2022
 EQUITABLE REMEDIES

 Act in personam: (on the conscience of the party).

 Are discretionary.

 Shall not be granted where it would be in vain. For example where constant supervision

of the court is necessary.

 It may not be available to a volunteer- OBA AKEZUA V BENIN DIVISIONAL

COUNCIL.

 Applies subject to other maxims of equity, like the claimant must come with clean hands,

must not delay, and so on.

THE REMEDY OF INJUNCTION.

Injunction emanated from the Latin “injungere” (to forbid or command). An injunction is a

discretionary and equitable remedy which compels a party to do or refrain from doing an act-

AMERICAN CYNAMID V ETHICON. The aim to preserve the res in cases of extreme urgency

and to prevent irreparable loss. “Res” was defined by Belgore JSC in MUHAMMADU BUHARI

V OLUSEGUN OBASANJO as the subject matter of the right complained of. High Courts are

empowered to grant injunctions. This is reflected in (section 25 of the Judicature Act 1873

Section 10 of the High Court law of Lagos and other State High Court laws.
TYPES OF INJUNCTION:

1. MANDATORY INJUNCTION: requires a party to do a specified act in order to restore the

parties to (as much as possible) status quo ante. Unlike mandamus, it is not granted to compel the

performance of a public duty by a public official.

2. PROHIBITORY INJUNCTION: Restrains a person (to whom it is directed) from doing a

certain act. Under this we have: Interim injunction: a temporary order granted in event of real

urgency to restrain the defendant from doing an act till a named date] .

3. INTERLOCUTORY INJUNCTION: granted for the parties to maintain status quo pending

the determination of the substantive suit. Perpetual injunction: A post-trial Relief granted to

permanently prevent the occurrence of the act prohibited. Unlike other injunctions, it can only be

set aside on appeal.

4. QUIA TIMET INJUNCTION: in Latin means “because he fears”. Lord Up John noted that

it is granted to prevent an apprehended legal wrong though none has occurred at present. For

example prevent publishing pirated copies of an applicant’s book.

5. MAREVA INJUNCTION: also called freezing injunction- MAREVA COMPANIA

DAVIERA V INTERNATIONAL BULK CARRIERS SA. Granted to freeze a debtor’s property

and prevent him from disposing same until the determination of the suit. Can be sought ex-parte

or on notice.

6. ANTON PILLAR INJUNCTION: granted to permit the plaintiff search and inspect the

defendant’s premises to discover infringing documents. If the defendant is forewarned, he may

dispose or destroy such documents, important for copyright and election cases. Section 22 of the
copyright Act provides that the plaintiff must be accompanied by a police officer not below the

rank of Assistant Superintendent of Police. This has been granted in ANTON PILLAR K V

MANUFACTURING PROCESSES and in EMMANUEL V EMMANUEL (a matrimonial suit)

also FERODO V UNIBROS NIG LTD.

CONDITIONS FOR GRANT.

Though an injunction is a discretionary equitable remedy, the discretion is exercised taking into

consideration the following: (The conditions were listed in AMERICAN CYNAMID V

ETHICON). They include:

The applicant must show that there is a substantial issue to be tried –OBEYA MEMORIAL

HOSPITAL V G FEDERATION.

It must be shown that the plaintiff would suffer irreparable damage if his application for an

injunction is refused and damages cannot compensate him for such damage- SARAKI V

KOTOYE.

Balance of Convenience must weigh in favour of the applicant: The court explained in ACB V

AWOGBORO , to mean that it should be evident that the applicant would suffer more damage if

the order is not granted. In SAVAGE V AKINRINADE , the plaintiff sought an injunction for

the removal of a multi- storey building which obstructed his premises. The court in refusing held

that the hardship would be more for the defendant.

Whether damages would be sufficient?

Whether the order would injure the interest of a third party?

Conduct of the applicant for example, he must not delay, he must come with clean hands, he

must be willing to do equity to the defendant, and so on. The court should extract an undertaking

to pay damages from the applicant in the case of his application causes hardship to the other

party- KOTOYE V CBN It can be extracted on appeal where the trial court failed to extract it.

The court would hesitate where the order would require constant supervision of the court as

equity does not act in vain.

SPECIFIC PERFORMANCE.

Is a discretionary and equitable remedy compelling a party to a contract to fulfill his obligation in

accordance with the terms of the contract especially where damages would not suffice to

compensate for non-performance telling the other party to perform their side of the bargain? An

order for specific performance can be made in one of the following situations:

Where there is a valid contract between the parties: a contract entails an offer which has been

accepted and consideration furnished with the intention of both parties to be bound. Anything

less is not a contract In HYDE V WRENCH, suit for specific performance failed as the

defendant had not accepted the plaintiff’s offer. In KURI V KURI , consideration was lacking.

Note also that specific performance would not be ordered for an illegal or void contract or a

contract obtained by fraud, duress, misrepresentation or undue influence. Or Where there has

been sufficient act of part performance : A contract may be unenforceable at common-law where

formalities have not been complied with for example Section 4 Statute of Frauds requires all land

transactions to be in writing. However, in equity, specific performance may be decreed where

there has been part performance: By the plaintiff. Unequivocally referable to the contract:
payment and entry into possession maybe sufficient act of part performance OGUNBAMBI V

ABOWABA.

Where the plaintiff has altered his position and it would be inequitable for the defendant to evade

his obligation by alleging non-compliance with mere legal formalities UDOLISA V

NWANOSIKE .

THE REMEDY OF RESCISSION.

It is an equitable remedy which enables a party to set aside a transaction and be restored to status

quo. It may be done by mutual agreement of the parties but the court may be needed to restore

property… it can be equated with cancellation. Until the contract has been rescinded, third

parties can acquire interest because the contract is not void.

BASIS OF RESCISSION.

 Fraud: In SULE V AROMIRE , the court noted that the innocent party is entitled to

rescind notwithstanding caveat emptor. At common- law, the plaintiff can sue for

damages for deceit. Innocent Misrepresentation: defined in DERRY V PEEK as a

statement the defendant makes honestly believing in his assertions. The statement must

be untrue and induced the plaintiff to enter the contract in reliance- REDGRAVE V

HURD. The rule has been varied by the Misrepresentation Act 1967 which provides that

damages may now be awarded for innocent misrepresentation in deserving cases. The

Act also shifts the burden to the represented to prove that he was not fraudulent or

negligent in making his statement. The position remains the same in Nigeria because the

misrepresentation act is not a stature of general application.

  Common Mistake: by both parties as to the subject matter of the contract which can

render the contract void and where it is not fundamental, voidable- CUNDY V

LINDSAY. Mistake here means misapprehension or oversight. In COOPER V PHIBBS,

the plaintiff contracted to buy land which already belonged to him. Held, that the

agreement could be rescinded. In BELL V LEVER BROTHERS, the appellants were

employed. They committed a breach which could lead to dismissal. When the company

merged, the respondent company paid them off and sought to recover money paid upon

discovery of the disobedience. The court held that the mistake did not relate to the subject

matter.

RECTIFICATION.

Seeks to correct a common mistake in the recording/writing of the contract so as to make it

reflect what the parties had actually agreed to- Lord Denning in ROSE V PIN. It may not be

granted for apparent or typographical mistakes that cannot alter the nature of the contract. It does

not seek to alter a contract but the instrument/document the burden of proving previous oral

consensus is really high on the person alleging such because Section 128 of the Evidence Act is

against using oral evidence to vary written agreements. Generally a unilateral mistake (only one

party) shall not be rectified except the mistake is fundamental to the execution of the contract or

there has been fraud. In A. ROBERTS AND CO V LEICESTERSHIRE COUNTY COUNCIL,

the plaintiffs had undertaken to build a school for the defendant within 18 months; the council

altered the period to be 30 months in the draft contract. The company signed ignorant of the

alteration. Rectification was ordered. When fraud is at play, it is advisable to seek rescission. In
THE VESSEL “LEONA II” V FIRST FUELS LTD, the court noted that in granting rectification,

we should consider: Whether there was a prior agreement between both parties.