HISTORY AND DEVELOPMENT

OF COMMON LAW
& EQUITY

©Richard Obeng Mensah Esq., Business Law,

KNUST Business School @ 2018/2019.
MEANING & ORIGIN OF COMMON LAW?
 What is Common law?
1. Broad sense...unwritten laws received from England
- common law ≠ statute law.
2. Narrow sense...the which was administered by common law
courts before the passage of the Judicature Acts (1873-1875).

3. It was the law that was common to the entire country (originally
England and Wales) as opposed to the local customs which was
applicable to only parts of the country.
History of Common Law...
 The Norman Conquest of England in 1066
-the beginning of the history of English Law
-preceding period under Roman occupation (Anglo-Saxon period)
-during this period England was not united...no central administration...no
uniform legal system
-local customs of German origin and royal statutes were applicable in local
courts presided over by bishops and Earls.

 The Normans created a uniform and common law on the unification of the diverse
local customary laws.
History & Development of Common Law...
 William the Conqueror (1028-1087) defeated the Anglo-Saxons in the Battle
of Hastings
-introduced a strong centralised system of administration over the whole
country
-Tribal rule gave way to a feudal system with the King as the supreme
feudal overlord
-segregation of the Church and state...bishops removed from courts
-a separate system of ecclesiastical courts was created.
 The Curia Regis (King's Court), which combined executive, legislative and
judicial powers, was also created.
 The King was regarded as the "fountain of justice" and the "keeper of the
peace" with powers over order and peace in the kingdom.
History & Development of Common Law...

 The Curia Regis was the highest court in England and its judges interpreted
the common law
-It travelled on circuit and also supervised the local courts which
continued to function
-it eventually split into three royal courts, namely the Exchequer, the
Common Pleas, and the King's Bench.
 The royal courts were centralised in Westminster but judges from these went
on circuit to hear local disputes twice a year
- this practice led to the reduction of the jurisdiction of the local courts. -
during the 15th and 16th centuries, the practice developed of difficult
cases being adjudicated in Westminster
-when the same or similar issues arose again, the earlier solutions were
applied.
History & Development of Common Law...
 This led to the development of the system of binding precedents
-thus the system of stare decisis (standing by previous decisions) developed -
as the judges progressively developed a system of rules applicable to
similar cases, a common law or a universal legal system enforceable
throughout the country emerged.
 Civil actions in the common law courts were built around the writ system
-to begin an action, a plaintiff had to obtain a writ (a written command
issued by the Lord Chancellor in the King’s name ordering the defendant to
appear in court and show cause why the plaintiff should not be given the
relief he claims)
-if there was no appropriate writ to cover the type of claim the plaintiff
was making, there would be no remedy-the rule was: "no writ, no remedy."
History & Development of Common Law...

 The whole law was contained in the register of writs

-legal development was only possible by the granting of new writs or the
extension of existing writs to new cases
-extension of the law was severely limited by the Provisions of Oxford 1258
AD, which prohibited the issue of new writs by limiting it to those available
before the year 1258.
 The Statute of Westminster 1275 tried to mitigate the effects of the
Provisions of Oxford by providing that in similar cases (in consimili casu), the
Chancery could issue new writs. As a result, existing writs were applied to
cases which they were not originally meant for.
 English judges developed the practice of creating law from case to case, by a
casuistic process that continues to this day.
ORIGIN & DEVELOPMENT OF EQUITY
 The growth of the common law was quite rapid in the 13th century but by
the 14th century it ceased to have the momentum of previous years.
 The following defects stifled its development:
1. The writ system became too rigid;
2. Difficulty procedure in the common law...most trivial error in a
writ could lead to the action being lost...mistakes
common...complex rules;
3. Delays, bribery & corruption and oppression;
4. Inadequate remedies-damages/specific performance?;
5. Non-recognition of the concept of trust;
6. Strict adherence to doctrine of precedence ... previous decisions
were followed rigidly without recourse to its unfair
consequences.
ORIGIN & DEVELOPMENT OF EQUITY
 People who were unable to obtain justice either because they could not
obtain a writ or the writ was defective or there was no appropriate remedy,
began to address their complaints to the King-in-Council.
 Initially, the Council considered these petitions but the practice developed
whereby these petitions were referred to and dealt with by the principal
civil minister, the Lord Chancellor, who was usually a cleric (and referred to
as the "keeper of the King's conscience").
 The Chancellor disregarded the formalities and technicalities of the
common law and decided each case on its merits in the light of his
conscience and fair dealing, and in the process developed principles that
became known as equity.
 He was not bound by the common law remedies but devised his own.
ORIGIN & DEVELOPMENT OF EQUITY
 The Chancellor recognised new interests in property which were unknown
to the common law and granted new remedies such as the decree of
specific performance to compel a person to perform his obligation.
 Since the decisions taken were not based on rigid rules, it was said that
"equity varies with the length of the Chancellor’s foot."
 To counter the uncertainty that had crept into the system, equity began to
follow the practice of stare decisis, which had proven a powerful force in
unifying the diverse systems of local customs under the common law.
 In this manner, the Court of Chancery developed case law based on equity
and this body of law supplemented and sometimes corrected the common
law.
 CONFLICT BETWEEN EQUITY &
COMMON LAW

 Although the common law and equity operated alongside each other with
mutual tolerance, the great popularity of equity led to a period of conflict
with the common law courts.
 The conflicts between the two arose out of the practice of the Court of
Chancery to issue "common injunctions" forbidding a person on pain of
imprisonment from bringing an action in the common law courts or forbidding
the enforcement of a common law judgment.
 The common law courts retaliated by, for instance, waiting for the Chancellor
to imprison the common law litigant defying an injunction and then releasing
the imprisoned litigant by the process of habeas corpus.
 The rivalry between the two came to a head in the Earl of Oxford's case in
1615, when Coke offered a direct challenge to the Court of Chancery's
jurisdiction.
 CONFLICT BETWEEN EQUITY &
COMMON LAW

 To put an end to the rivalry, James I, on the advice of Lord Bacon, then his
Attorney-General and later Lord Chancellor, gave a firm decision that where
common law and equity were in conflict, equity prevails.
 The King's ruling was never fully accepted and some competition between the
orders of court continued until the administration of equity and common law
was fused together by the Judicature Acts of 1873-1875.
 The principle that equity prevails where there is a conflict now appears in the
Supreme Court Act 1981.
 After the Judicature Acts, the two systems settled down and carved out
separate but complementary roles.
 The Judicature Acts brought about the amalgamation of the two systems of
courts in a way that allows both common law and equitable remedies to be
obtained by a litigant in the same action and in the same court.
 FUSION OF EQUITY & COMMON LAW...
 Although the Judicature Acts fused the administration of equity and common
law, it did not fuse their principles.
“The two streams have met and now run in the same channel but their
waters do not mix."
 Equity filled the gaps left by the common law and became a system of case law
governed by doctrine of binding precedent.
 The greatest contribution of equity is that it introduced a number of new rights
which were wholly unrecognised by the common law courts, such as the rights of
a beneficiary under a trust and the equity of redemption.
 It also provided new remedies which the common law courts did not provide
such as the injunction, specific performance, rescission and discovery of
documents.
 However, the equitable remedies were discretionary and not granted as of right
and are usually granted only where it is clear that the common law remedies are
inadequate.
Nature of Equity
 Dudley v Dudley (1705) 24 ER 118, LC, per Lord Cowper:

"Now equity is no part of the law, but a moral virtue, which qualifies,
moderates and reforms the vigour, hardness and edge of the law, and is a
universal truth; it does also assist the law where it is deffective and weak
in the constitution (which is the life of the law) and defends the law from
crafty evasions, delusions, and new subtilties, invented and contrived to
evade and delude the common law, whereby such as have undoubted right
are made remediless; and this is the office of equity, to support and
protect the common law from shifts and crafty connivances against the
justice of the law. Equity therefore does not destroy the law, nor create
it, but assist it."
MAXIMS OF EQUITY...
 The basic nature of equity is expressed in the renowned "maxims of equity."
 Examples of Maxims of Equity:
1. “Equity looks on that as done which ought to be done“ - it will give
effect to the parties' intentions notwithstanding the absence of some
formality required by the common law. In Walsh v Lonsdale an
agreement to create a lease was considered as equivalent to the lease
itself. In Maddison v Alderson the equitable doctrine of part
performance was applied to enforce a contract even though, by reason of
the Statute of Frauds, it could not be proved at common law.
....
2.Equity will not suffer a wrong to be without a remedy: Adjei v Foriwaa
3. He who seeks equity must do equity?
4. He who comes to equity must come with clean hands?
5. Equity follows the law but not slavishly?
Next Lecture

 Read on

The Structure & Jurisdiction of the

law courts in Ghana.
THANK YOU
SEE YOU LATER!