INTRODUCTION
Equity is the custom of courts outside the
common law
or coded law. Aristotle's
discussion of the virtue of justice has been the starting point for almost all
Western accounts. For him, the key element of justice is treating like cases
alike.[1]
JUSTICE
Justice
is the essence of law, and all it seeks to achieve. The law is an instrument of
justice, and to this effect, any law that is unjust is null and void because it
involves a self-contradiction. The purpose of law is to serve the cause of
justice, when it turns out to be unjust it negates and nullifies itself. This
is applicable to an immoral law. Justice implies treating equals equally.
Justice is fundamental for the equality of men. However, this is quality is of
an ontological undertone, it does not consist social equality or any other
equality. This is because of the obvious fact that all men are not equal
socially and otherwise, but ontologically, as human beings all men are equal
and this is the basis on which the concept of justice is built.
In
the ancient Greece, the sophist philosopher, Trasymarchus equates justice with
might, and believing it to be for the interest of the stronger. For him, might
is right. However, this is wrong. Justice has not compatibility with might.
Plato links justice with harmony in the society; when there is harmony there is
justice. This harmony is the product of faithfulness from the society, each
part of the society (guardians, auxiliaries and artisans) performing its
function effectively. Justice for Aristotle is the greatest of all virtues and
is “what is lawful, fair and equal”. However, he distinguished between
different kinds of justice which include: universal justice, particular
justice, remedial justice and commercial justice. Universal justice exercises
virtue both to the self and the other, it is an attitude of fairness toward
all. Particular justice have to do with particular instances of justice,
obviously it will exercise exceptions. Remedial justice has to do with fairness
in human transactions. Commercial justice has to do with fairness in business.
CLASSIFICATION OF JUSTICE
There
are five classifications of justice: legal justice, social justice,
distributive justice, commutative justice and vindicative justice. Legal
justice is concerned with the citizen-state relationship. It requires faithful
observance to the common good laws of the state. The common good precedes
private interest and should not be sacrificed for private interest. Otherwise
would be a violation of legal justice. It is referred to as legal justice and
social justice. Distributive justice has to do with the state’s relationship to
the citizens. It requires equitable distribution of duties and privileges among
the citizens.[2]
Commutative justice concerns the relationship among citizens. Cheating, fraud,
theft, and destruction of others properties are violations to this kind of
justice. Vindicative justice concerns consequences and punishments. It involves
giving proper sanctions and punishments for offences. Any disproportionate
punishment is a violation of this kind of justice. However, punishments must
not be given out of spirit of vengeance.
On
the part of the defendant, justice requires freedom; like freedom of choice of
lawyer. Constraint and coercion are not needed.
EQUITY
Equity
is a peculiar interpretation and application of the law to ensure justice in
particular cases where literal application of the law will result injustice.
Equity results from an attempt to mitigate the rigidity of legal rules to make
it adaptive to particular circumstances. Allen describes it as “a liberal and
humane interpretation of law in general, so far as that is possible without
actual antagonism.”[3]
Equity aims at curbing injustice in the application of the law. The law is an
imperfect instrument of justice without the supplements of equitable remedies.
Equity is a principle of justice and
fair play in law administration. Law is not always achieving justice, but
equity comes in to help achieve this justice. Equity serves as a corrective
major for the strictness of the law, to ensure justice. Law aims at uniformity
and universality which are its essential characteristics. Uniformity has no
exceptions because a rule cannot be expressed in different forms and with
different meanings. It can be expressed in different forms but not with
different meanings or it will cease to be a rule. However, a strict adherence
to uniformity may not be able to avoid injustice in certain occasions of law
administration.
Socrates’ preoccupation with the
uniformity and universality in the application of law made him submit to the
unjust sentence passed on him and equally it influenced his refusal of escape
according to Plato’s plan for him. Socrates never wanted to reject the death
sentence of the same law that he benefited from its protection. Socrates does
not want to be inconsistent; he doesn’t want the law to bend in his case. The strength
and weakness of the law with regard to justice is dependent on its
characteristics of uniformity and universality. There would be many cases of
injustice if equity does not come to the aid of law to correct its weaknesses.
The inability of the law to achieve
its aim is because every case represents different problem and the law, given
its nature, does not make room for unforeseen cases, neither does it permit
variation in peculiar individual circumstances. The limitations of the law
necessitate a resort to the principles of equity, which are principles of
social justice. This implies that the deficiencies and the imperfection of the
law necessitated the principles of equity. Equity is ordained to temper and
mitigate the rigour of the law. Hence, equity is a remedy for the limitations
of the law in ensuring justice in all circumstances. Because of the
universality and uniformity of the law, it is incapable of ensuring justice in
peculiar cases. The human nature of the law makers allows them not to see
future peculiar cases that may not fit into the universal normal conditions
envisaged by the law. Law makers envisage normal condition and situations, but
situations are not always normal. Abnormal and peculiar situations are outside
the project of law and a strict application of law in such cases will result
injustice. Equity therefore is to ensure justice in such situations. Judges do
resort to equity when the application of the law results injustice.
HISTORY OF THE CONCEPT OF EQUITY
The concept of equity has its origin
back to the ancient Greek philosophers in their concept of the “ideal law” in
contrast to the imperfect positive law. The sophist pointed out the
imperfection and limitation of the positive law and they refer to this as the
“tyrant of mankind”, “product of mere opinion”, agreement contrary to nature”
etc. the sophist disproves positive law for sometimes making men act contrary
to nature, and making men slave, distinguishing between free born and slave
while nature made all men free and equal. All these bring out inadequacies of
the law in ensuring justice.
Ideal law for Plato is that which
can ensure perfect justice. Positive laws are imperfect reflections of the
ideal law. The ideal law for Plato is the law of nature. The distinction
Aristotle made between natural justice and legal justice shows the inadequacy
of positive law to ensure universal justice. Aristotle’s theory is influential
on jurisprudence. Aristotle recognizes equity as a superior kind of justice.
Roman jurists developed the idea of
equity as an integral part of their legal system with the influence of Greek
natural law philosophy. Roman law and legal system was famous and all other
countries that their legal system was influence by the Roman law have
consistently maintained equity as an integral part of their legal system.
People who felt justice was denied
them by the common law appealed to kings for justice, and kings administered
equity. With this, chancery courts were established and vested with the
administration of equity. The chancery court became like a court for appeal,
after the common law court. In 1875, all superior courts were amalgamated into
a Supreme Court judicature administering both rule of equity and rule of law.[4] The separation between the
courts ended with the judicature act of 1876.
PRINCIPLES OF EQUITY
1. Equity
serves as remedy when the law fails
2. Equity
presupposes the law, and it aids the law.
3. Where
the equities are equal, the law prevails.
4. Where
there are equal equities, the first prevails.
5. One
who seeks equity should also do equity.
6. An
unjust person cannot be seeking for equity.
7. Delay
defeats equity
8. Equity
treats equals equally.
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It
is better to be intelligent than prayerful
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