By Mwaba Phiri and Biba Tisankhe Mwape
EQUITABLE MAXIMS
Equitable maxims have long served to the remedy the injustices that arise from common law practices. Though it is considered a branch of law, equity on its own is not equipped to deliver instead it is supplementary to common law. The maxims of equity serve as a means providing remedies for injustices arising from common law practices such as the use of precedent which eventually bore rigidness when used over long periods of time. The following are a few Maxims of Equity and their implications at law.
(a) Equity acts in personam
Equity primarily operates against individuals rather than property. This principe is evident in Walsh v Lonsdale [1], where the court enforced a contract against the party rather than the property involved.
This case established that an agreement for a lease is equivalent to a formal lease in equity, meaning that even without a deed, the terms of the agreement are enforceable. This occurred when a landlord sought to enforce a rent prepayment clause from a lease agreement, even though a formal lease document was not created. Sir George Jessel MR in passing a judgement ruled that equitable principles prevail and as such, the agreement was treated as a lease ensuring the landlord could enforce its terms. Similarly, the House of Lords in Cox v Hickman [12] held that equity could enforce obligations against individuals even when they were not directly tied to the property.
(b) Equity acts on the conscience
Equity intervenes when a person’s conscience is affected, as seen in Keech v Sandford.[3] this case established the unwavering principle that a trustee cannot profit from their position of trust, regardless of external circumstances. A trustee who upon the landlord's refusal to renew a market lease for the infant beneficiary, Keech acquired the lease for himself. The court, presided over by Lord King LC, held that even though the landlord's refusal seemingly precluded the beneficiary from benefiting, the trustee's fiduciary duty remained absolute preventing him from exploiting the trust property for personal gain. This ruling cemented the stringent standard of loyalty expected of trustees and that any potential conflict of interest however seemingly justified is unacceptable ensuring the protection of beneficiaries' interests above all else and forming a cornerstone of modern trust law.
(c) Equity will not suffer a wrong to be without a remedy
This maxim asserts that there should be a remedy for every wrong, as illustrated in Ashby v White [4] where the court granted a remedy despite the absence of a statutory remedy thereby reflecting the principle that the law should provide justice even in the absence of a clear legal right.
(d) Equity follows the law
Equity does not override statutory law but complements it. In Earl of Oxford [5] it was established that where law and equity conflict, equity prevails but it does not disregard the law entirely. This further illustrates the relationship between common law and equity ensuring that equitable principles do not undermine legal statutes.
(e) Equity looks to intent rather than the form
Equity prioritizes the intention behind actions over strict adherence to legal formality as seen in Re: Ellenborough Park [6], the court recognized an implied easement based on the parties’ intentions reflecting the flexible nature of equity, allowing the court to achieve just outcomes based on the true intentions of the parties involved. Similarly, in Re: Cummings [7] The court enforced a trust based on the intention of the parties, disregarding formalities that would have otherwise invalidated the trust.
(f) Equity looks on that as done which ought to be done
This principle allows the court to treat an obligation as fulfilled if it was intended to be performed. A classic example is Re: Vandervell’s Trusts (No 2) [8], where the court treated a transfer as completed and established the importance of intention and the effectiveness of actions in achieving equitable outcomes.
g) Equity imputes an intent to fulfill an obligation
This maxim suggests that if a party intends to fulfill an obligation, equity will recognize that intent. In Re: Hargreaves [9], the court recognized the intent behind a will allowing for its enforcement. This principle supports the idea that the courts should give effect to the intentions of the parties as much as possible.
(h) Equitable remedies are discretionary
Equitable remedies are not guaranteed but are granted at the discretion of the court and one cannot compel the court to grant an equitable remedy. In Discretionary Trusts [10] , the court stated that the discretionary nature of equitable remedies are in so far that the courts have the power to refuse remedies based on fairness and justice.
Lord Diplock in the American Cynamid [11] case laid down principles upon which injunctions could be granted. (1) That there is a serious question to be tried, (2) inadequacy of damages and (3) the question as to where the convenience lies.
(i) Delay defeats equities
This principle states that a party who delays in asserting a right may lose it.
There is a time limit to which a matter can be brought before the court. In Leaf v International Galleries[12] , where the plaintiff’s delay in claiming a right led to the dismissal of their claim. This serves to encourage timely action in the pursuit of rights reinforcing the importance of diligence. Pioneer Aggregates (UK) Ltd v Aylesbury DC: The court ruled against a claimant who delayed in asserting their rights and emphazed the consequences of inaction [13]
(j) He who comes into equity must come with clean hands
This maxim requires that a party seeking equitable relief must not be guilty of wrongdoing in relation to the subject matter. In D&C Builders Ltd v Rees [14], the court denied relief because the claimant acted inequitably thereby ensuring that the courts do not assist those who have acted unethically.
(h) He Who Seeks Equity Must Do Equity
This maxim might be closest comparative to the Golden Rule at law. It implores the individual seeking equitable remedies to be willing to afford the same fairness to the other party. It draws on mankind’s conscionable trait and in a sense advocates for the treatment of others in a way one would want to be treated at law. In a contractual scenario this would entail, for instance, that a party who fails to fulfil their obligations and later wishes to rescind a contract must show fairness by returning a deposit made by the other party in respect of the same contract [15] It is worth noting that the doctrine of election reflects an element of this maxim in that when an individual elects one remedy or benefit, leaving the other to be taken by the other party, they show a degree of moral consideration (conscionable trait) towards the other party therefore affording them such fairness. [16]
(I) Equity Regards the Balance of Convenience
It is said to be common in cases where a conflict of interests arises between parties. The courts when deciding whether to grant a requested relief (often times an injunction) in an action brought by parties tend to decide on a relief that does not obstruct justice for the parties to the case. Factors such as; potential harm or loss that may be caused to the parties, the likelihood of success of claims at trials or the potential impact of third parties influence how and when the court applies this maxim. This is so that the courts, can make more informed decisions on whether to grant of refuse to grant reliefs sought by the parties. This maxim is also often used in conjunction with other maxims such as Equity will not suffer a wrong without a remedy [17]
he maxim, additionally, does not apply where there has been a deliberate invasion of legal rights that common law fails to provide remedy for. Such would imply, for instance, that a wrongdoer cannot then object to a restraint placed on his illegal activities for reason that he will incur loss of profits. The criterion is whether the legal remedy is inadequate if so the nature of the injury or damage is put into question too as to whether it was irreparable or of a continuous recurring nature. An injunction can then be granted based off an urgent present necessity. Where future damage from the view of equity is seen as irreparable[18]. The case of Harton Ndove V National Educational Company Zambia Limited explores this maxim in the respect of its application.
(j) Where They Are Equal Equities the Law Prevails
When persons have equal claims under equity in a particular instance the law takes charge in deciding how to resolve the conflicting equities. The courts consider the applicable law to decide their course of action seeing as to how both parties hold the same rights to a property in question. For instance, a plaintiff with rights to property encounters a purchaser (the defendant) who paid a full purchase price for the same property but without notice of any sort (making them a bona fide purchaser of the same) the priority is given to the legal equitable interest. Now whilst statutes such as the High Court Act in section 135 have stipulated that where there is a conflict between common law and equity that equity should prevail this maxim contrast between equal equities y and the law stating how the law is use to decide the course forward.
(k) Where They Are Equal Equities the First Time in Time Prevails
Applied often where parties have attained rights to property in question and it is unclear which one of them is to take the property in dispute. Priority is given to the individual that acquired the equitable rights in the property first. In practice this implies that the equitable remedy, the right to property, is granted to a person who held an interest first in the property in question. This is especially the case in the law of trusts. Notably the doctrine of notice which was designed to manage how to decide which equitable interest was to be prioritised over the other before the introduction of any systems of registration was founded on this maxim [19]. This maxim fails for instance where one party had prior knowledge that the property in question had an owner (an individual who held right to it) and still went ahead to purchase it. This of course has an exception in the sense that if the second buyer to the property is a bona fide purchaser then the application of this maxim is defeated. This principle is explained at length in the case of Clementina Banda and Another v Boniface Mudimba[20] where the courts reasoned that a purchase of property that had prior equitable interest was defeated only by a bona fide purchaser without notice.
(l) Equity Like Nature Does Nothing In Vain
It points to the fact that when equity intervenes in a particular matter it does so to uphold a necessary value or outcome. The said outcome is the delivery of justice to persons seeking relief from various infringements. The courts then are careful to issue out equitable remedies only in situations that present themselves as requesting the remedy to achieve justice. The use of this measure as practical remedy and not uniform formalities or technicalities is then realised in that it has specific instances which courts deem it fit to be applied [21]. A famous instance is if a party to an issue brought forward requested an injunction against another and the courts find that the issuance of such a remedy to will serve no purpose in the matter at hand. This draws back to the fact that remedies at equity are to remedy an injustice not to merely be a formality that serves no purpose or an empty action taken by the court.
(m) Equity Never Wants (Lacks) A Trustee
In the law of trusts when a trust is created but no trustee but in place or appointed to manage it or oversee it will not fail by virtue of an absence of a trustee, the principle allows for the appointment of a trustee. It protects and ensures the realisation of a trust regardless of an instance in which a person creating it fails to appoint a trustee, where if appointed the trustee refuses to take up the responsibility or even where such appointment was faulty. Morice v Bishop of Durham [22]
(n) Equity Aids Vigilance
he maxim points to the fact that an equitable remedy is awarded to the one who takes immediate action to bring their matter before the courts. In diligently seeking out relief to address their infringed rights allows for the accurate analysis of the facts and evidence related to the case so that a just decision is rendered. In the preservation of evidence, this maxim in a criminal law instance involving rape (Provided for under section 132 of the Penal Code) [22],would place emphasis on the need to prove the victims state by medical examination. Victim’s delay to obtain this evidence as soon as possible to avoid any deterioration of evidence that is essential to the successful prosecution of the offender. In the case of The Registered Trustees of the African National Congress of South Africa v Mhango [23] the courts noted how the delay of the plaintiff in handing a notice to the defendant in respect of the claim they wished to receive relief for contributed to the to receive such relief. In the words of the court the maxim equity aids the vigilant was seen to have militated against the plaintiffs due to this and additional reasons. In this respect it can be seen how the maxim is applied in practical matters brought before the court.
(o) Equality Is Equity
Aequitas est Quasi aequalitas is the latin statement that points to the fact that equality is equity. This may be one of the most straight forward maxim there is. The doctrine of equity was after all invented to advocate for fairness and equality is very often rightly associated with fairness.9 In the law of trusts, when the courts are faced with instances where there are no instructions on how property is to be distributed they abide by the assumption that the property was intended to be shared equally. The same assumption is also applied when the instructions left render an unfair outcome that the party appeals against.
(p) Equity will not assist a volunteer
There is a general rule that restricts the courts of law from coming to the aid of a volunteer. A volunteer (or Officious Inter-meddler) is defined as an individual who has received no valid consideration to support their claim to a benefit they were to receive. Hence it would be wrong to conclude that maxim exists to do more than complete common law so as to make it a formidable tool for achieving justice [24] Indeed it would defeat its purpose which is to perfect the common law legal system [25]. After all Chancellors in the day used to consult common law judges on areas where relief should be granted to a petitioner. This is connected to the fact that equity acts in personam or that it is not intermeddling. Often applied in the principle of restitution which concerns itself with curbing events of unjust enrichment. It more importantly places importance on providing means of recovery when persons were bestowed benefits that they would otherwise fail to claim under contract. Take note that persons pleading such benefits under estoppel will and are excluded from this maxim.
(q) Equity will not Permit a Statute to Be a Cloak for Fraud
There are numerous instances in which the available law or absence of it can play into the advantage of the guilty party resulting in an injustice towards the other. This maxim of equity holds a responsibility to the courts that the judgment rendered be according to the purpose of issuing out justice to the innocent party and not merely the routine mandate pf interpreting law without considering the outcome of its application. Unconscionable decisions resultiing from blunt interpretation of law are common in the law of trusts, criminal and even administrative branches of law among [26].
In the case of Kalumba Kashiwa Mwansa and Another v Kenneth Mpofu [28] the Supreme Court held that such fraud, however, has to be claimed by the party seeking relief and proved to a degree higher than one on a balance of probabilities but lower than beyond reasonable doubt to receive reliefs available in the matter under the guidance of this maxim.
BIBLIOGRAPHY
STATUTES
The High Court Act no. 27 of the Laws of Zambia, 1960
The Penal Code Act no. 87 of the Laws of Zambia, 1931.
CASE LAW
Clementina Banda and Another v Boniface Mudimba (2011) ZMHC 116
Harton Ndove V National Educational Company Zambia Limited (HP 1692 of 1979)
Kalumba Kashiwa Mwansa and Another v Kenneth Mpofu SCJ NO. 34 of 2018
Walsh v Lonsdale (1882) 21 Ch D 9.
Earl of Oxford’s Case (1615) 1 Ch Rep 1.
Ashby v White (1703) 2 Ld Raym 938.
Leaf v International Galleries [1950] 2 KB 86.
D&C Builders Ltd v Rees [1966] 2 QB 617.
Morice v Bishop of Durham (1805) 10.The Registered Trustees of the African National Congress Of South Africa v Mhango (2020) ZMHC 17
BOOKS
Michael Haley and Lara McMurty Equity & Trusts. Sweet Maxwell, 2014
JOURNALS
Normann Witzleb, Equity Does Not Act in Vain: An analysis of futility arguments in claims for injunctions vol. 32 the Sydney law review 2010 Reflections on the fusion of law and Equity after 75 years (1954).R 329 at pg. nt328.
The Doctrine of Equitable Election. Harvard Law Review 23 no.2, (1909): https://doi.org/10.2307/1325048
WEBSITE SOURCES
Equitable Jurisdiction (Volume 47, 2021) /4.
Principles of Equitable Jurisdiction/(10) Equity Does Not Allow a Statute To be Made an Instrument or Engine of Fraud www.lexisnexis.co.uk/legal/comentary/halsbury’ s-law-of-england/equitable-jurisdiction/equity-does-not-allow-a-statute-to-be-made-an-engine-of-fraud-01 Lord Neuberger MR Lecture on “Equity, ADR, Arbitration and the Law: Different Dimensions of Justice,” (Paragraph 29-30, pg. 13-14). May 19, 2010, Available at https://www.scribd.com/document/97576639/ADR-Article (Accessed February 2, 2025).
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About the Authors
Mwaba Phiri is a third- year law Student at the University of Zambia and currently serving as Research Coordinator at the Legal Aid
Biba Tisankhe Mwape is a third year law Student at the University of Lusaka currently serving as Researcher at the Legal Aid Initiative