1. What equity is

Two meanings of equity

In everyday speech equity means fairness. In law it means something narrower: the rights and remedies that the Court of Chancery developed in England, and the rules that have grown out of them. A trust, an injunction, specific performance and the equity of redemption all come from that court.

How Chancery began

After 1066 the King's courts built up the common law. It worked through writs, and a claim that did not fit a writ had no remedy. The common law was also rigid. A debtor who paid but did not get his sealed bond cancelled could be made to pay again, because the bond was conclusive proof of the debt. An oral promise that the law required to be in writing could not be enforced.

Justice was still the King's, so people who could not get it in the common law courts petitioned the King. By the fourteenth century the petitions went to the Chancellor, the keeper of the great seal. By about 1474 he was making decrees in his own name. His court became a court of conscience. It looked at whether it was against conscience for the defendant to rely on his strict legal rights.

The quarrel with the common law

Equity did not say the common law was wrong. It acted on the person. If the common law said John owned land, but equity thought Abdul should have it, equity ordered John to deal with the land for Abdul. Disobeying that order was contempt, punishable by prison.

The common injunction brought the conflict to a head. Chancery would order a party not to sue at law, or not to enforce a judgment he had won. Coke, the Chief Justice, released people jailed for disobeying such orders. The Earl of Oxford's Case in 1615 set out why Chancery existed: general laws cannot fit every case, and the Chancellor corrects men's consciences for frauds, breaches of trust and oppression. In 1616 King James I ruled for Chancery. Where the two conflict, equity prevails.

The Judicature Acts and fusion

The Judicature Acts of 1873 and 1875 created one High Court that applies both law and equity. Where the rules conflict, equity prevails. The orthodox view is that only the administration was fused. Ashburner said the two streams run in the same channel without mixing their waters. Legal rights stay legal and equitable rights stay equitable. Walsh v Lonsdale shows the effect: an agreement for a lease that equity would enforce gives an equitable lease, and in the one court the equitable view wins. Lord Diplock later called Ashburner's metaphor mischievous, and said the systems had fused. Most writers still treat legal and equitable rights as distinct, because that is how the remedies work.

Equity in Sierra Leone

Section 74 of the Courts Act 1965 receives the common law, the doctrines of equity, and the English statutes of general application in force on 1 January 1880. So the maxims, the trust and the equitable remedies are part of Sierra Leone law. English statutes passed after 1880, such as the Law of Property Act 1925 and the Trustee Act 2000, apply here only if Sierra Leone has adopted them. English cases decided since 1880 are persuasive, and courts here cite them.