Common law as a term means the law of the land developed from local and general customs prevailing among the English communities immediately after the Norman Conquest in 1066 A.D.
This common law was administered by the courts of King’s Bench, Common Pleas, Exchequer as well as by the Kings Justices on circus (mobile court).
The Common law courts were set up to meet the needs of individual cases and extend this to new situations according to the dictates of justice.
The court was assisted in the chancery headed by the Lord Chancellor who functioned as the King’s Prime Minister.
He was entrusted with the custody of the King’s great seal and therefore, was required to issue royal writ before any action could be commenced in any common law court. Through systematic application, it’s rules gradually became formalized, rigid, and highly technical.
The powers of the Lord Chancellor to issue writs at this time was unfettered and it’s judges had a wide discretion to entertain actions not commenced by royal writs.
In time, this responsiveness to redress wrongs diminished. Issuance of writs by the Chancellor acquired a peculiar form and in due course came to be governed by its own technicalities, thus for any new writ to be issued, it must suit the available writs.
Gradually over the years, common law judges became less interested in hearing cases not backed by royal writs.
As if this was not enough, the provisions of Oxford were enacted to take effect from 1258 AD. The provisions restricted the power of the Lord Chancellor to issue new writs where the course of action is unknown to law. This state of affairs inflicted hardship on parties seeking to institute proceedings in common law courts and this paved the way for the birth of Equity.
Equity – Common Law
“The doctrine of equity” is the second type of English law received in Nigeria. It was developed by the old English Court of Chancery as a result of the rigidity, deficiency, and hardship of the common law and the resultant hardship it meted out to litigants.
Many litigants therefore, could not get the remedy or redress they were seeking for in the common law courts. Many litigants therefore, could not get the remedy or redress they were looking for in the Common Law Courts. The option left for such litigants was to petition to the king as the fountain of justice to intervene in the matter for the love of God and in the way of charity.
The King then sat with his Council which consisted of the Lord Chancellor and other trusted advisers. With time the king receded to the background and it became customary for petitions to be addressed to the Lord Chancellor. This was confirmed by an order issued by King Edward II in 1395.
In the course of time, the Lord Chancellor started trying such petitions in his own courts and decrees were made in his own name. this marked the onset of the equitable jurisdiction of the court of Chancery. The four situations that could give rise to petitions to the king or to the King’s council are:
- Where Common provides no remedy at all for the wrong complained of, for example, breach of trusts, redemption of mortgage property after contractual date of redemption has elapsed.
- Where the remedy provided by common law courts was inadequate to meet the real demand of the situation. For example, common law courts could only award damages but sometimes, the petitioner may want an order to get the other party to carry out a duty which he had undertaken (an order of specific performance).
- Where there is an allegation that the common law judge had been under the influence of the other party or had interest in the subject matter of the case and had failed to act impartially.
- Where a party got a judgment by fraud in the common law court.