GHANA LEGAL SYSTEMS - RULES OF EQUITY

Okay, so dear friends and fellow students, welcome to this episode of our continuing discussions on Ghana legal systems. And as you saw what was put there, we are going to look at the rules of equity, the rules of equity. You would remember that in the video that we discussed about the sources of law, we went to Article 11 of the 1972 Constitution and we saw the hierarchy of laws that we have in Ghana, where as a nation, Ghana, we rely on as our sources of law. If people are dissatisfied and, for example, matters come before the court, what are some of the rules upon which the court rely on to have discussions, to adjudicate on the matter? Adjudication means that and make a pronouncement on them. We saw amongst others that we had the Constitution, the enactments of Acts of Parliament, but there was a particular aspect that was mentioned under Article 11 of the Constitution. It said the common law. Now you will notice that under the mention of the common law, it said that the common law also included what we call the rules of equity. All right, so in this video, we are going to discuss as a source of law, what exactly do we mean by the rules of equity? What do we mean by that? All right, now you see, if you remember in the discussions that we've had on the common law, how the common law developed, there was a situation that when at the time, after what, after the conquest in England, okay, the king at the time, William the Conqueror, had a situation, and the arrangement that he had was that he elected some people. Most of these people were clergymen, clergymen who would go around and they would just be hearing matters that people had among themselves, disputes. So when they had those disputes, they come back, adjudicate on those disputes, and gradually they apply the same principle to the place that they went. The history of the development of the law tells us that much of that activity, where they went and they were just taking back information and using it and applying them in other areas became what we knew as the common law. Why? Because it was a law that was common to those environments. So later, this area of the common law became much of the staple of the law that we had in England. But you see, the common law was a very restrictive arrangement. Restrictive in the sense that if someone wanted to bring up a matter under the common law, there were prescribed rates. The rates were documents that fitted the exact situation that had happened. The person would go, pick the exact rate, and cause a matter to be brought at the requisite court for the matter to be held. But now you see, human nature as it is, together with its infallibilities, there are times that situations will happen, or there will be disputes, that these disputes do not fit into the exact rates that were there in the common law. So the persons had to find a way of seeking justice. In that way, there was only one remedy. If what you were disturbed about did not fit into the exact rate or the common law, you had to find a way of trying to get to the king, seeking the king's conscience. So later, out of that, the king's conscience brought up a development of what we call the court of the chancery. So the court of the chancery became a court of the king's conscience. What did they exactly mean by the court of the chancery or the king's conscience? By the king's conscience, what it meant was that if there were issues that you did not have being covered by the rates that was available under the common law, you had to, for example, go and appeal personally to the king. And that court of chancery was where the king would now look beyond what the common law provided and provide a remedy for you. Guys, that was the beginning of the development of the law of equity. So equity became a source of a law where the king was going to apply his conscience, try and look at it and say, okay, even though this matter does not fit into the law, I think I will still want to do it this way. You get it. So equity becomes more or less or development of a moral construct of the law. That is, when you take the law and you think that something has happened, that if you put aside the law, it is still not so fair. It is still not so just. You appeal to the king of England and the king to the courts of chancery will grant you a remedy. That became equity. So the point is this, the whole development of equity came up with one essential point. And this is the principle. Equity is considered generally as the moral construct of the law. It is the general discretion that is imbued into a court to be able to set aside the law and apply some sense, some common sense, some kind of morality, some kind of fairness such that a person will not be unjustly treated. You get it. So let's see, for example, let me give you a situation for you to appreciate how this equitable remedies or this equity concept comes in. So see, two people have got an arrangement. So A says that he wants to buy a car that belongs to B. B is prepared to sell his car to A. Now he agree that he's going to pay the car in, let's say, six months. So B says that he's selling the car for, let's say, 6,000 cities. As an example, A agrees to buy that 6,000 cities. He promises B that, look, I'm going to give you 1,000 Ghana cities every month for the six months to elapse so that my money will be able to complete this kind of payment. He agrees. So he begins paying the money. He pays the first month, pays the second month, pays the third month, pays the fourth month. He pays the fifth month. Now in the fifth month, A's wife became sadly ill. He went into the hospital and the doctors had to operate on his wife. So what did A have to do? He had to go and try and pull out all the money, perhaps even borrow from some friends, and use that money or apply those funds to the health of his wife. Because of that situation that he found himself in, he was not able to fulfill the safe installment payment, the safe and the final payment that he had to make to B. And you know what B says? After the six months has elapsed, B now tells A that, look, I gave you all this time, but you have not been able to pay me the safe amount. So because of that, I'm no longer selling the thing to you. I've sold it to somebody. Come for the rest of your money and go your way. How do you feel about such a situation? Do you think that B has been fair to A? But you see, if you were going by the common law, there would have been a rule. And the law was that if you are not ordered obligation, then that is the end. But if you think about it, you begin to get in your gut and your sense that it is not fair. Right? It is not fair. At least consider the kind of situation that he went into. Is that not the case? So now this is where the concept of equity began to demand. This kind of rationality that if it were those days, if the common law does not satisfy, that is the end. You have to go and just appeal to the king and the king's conscience will apply that. So equity refers to that kind of part of the law that allows the court. And we are saying that it imbues the courts with the general discretion to set aside the law. They will not follow the law in the strict sense, just to make sure that an unconscionable contract, an unfair, a distasteful unfairness will not occasion or what we say that it will not occasion a miscarriage of justice. Someone does not suffer unnecessarily. You get that. All that is what we refer to as the rules of equity. So when Ghana says under our source of law, that part of our source of law is the common law, we are agreeing to establish that particular hard and hardcore and fast rules. And again, we are saying the rules of equity, which means that beyond the written text, there will be some other actions that it will be not be so morally prudent to allow that thing to go on. That is part of what we call the rules of equity, said that the court will have the discretion or the power to know that there is a law, all right, but we will not use the written law. We will apply some other concept of ideas because we don't want the other party or either parties or one of members of the party to suffer gravely or unjustly. That is what we refer to as the rules of equity. Now, watch. When we mentioned the rules of equity, it has two combinations. There is what we call the maxims of equity and we also have the doctrines of equity. Now, the combination of the maxims of equity and the doctrines of equity put together gives us the rules of equity. So when article 11 mentions that the common law will include the rules of equity, it is an encapsulation of the maxims of equity and the doctrines of equity. Now, that brings us to the other part of our discussion. What is the difference between the maxim and the doctrine or what is a maxim of equity and what do we mean by the doctrine of equity? Now, see, when we say the maxim of equity, a maxim is like a motto, like a proverb, like an adage. A maxim is a statement of universal truth. It is so crisp and sustained that someone will just need to think deeply about it and you can apply it in his life. That is a motto. For example, someone says that do unto others what you want others to do unto you. Blankest statement. It's a statement of universal truth. Is it not true? It applies. It's a fundamental statement of truth. It applies in 99 or 100% in all the cases. That is like a motto. Someone will say that the truth will always defeat the lies. That is a maxim. You understand that? So those kind of short statements or adages, they are maxims, statements of universal truth. When you come into the concept of equity or the discussions of equity, we have got such statements, those adages, those proverbs, those short words and phrases that exposes this idea of fairness. We are saying that those are what we call the maxims of equity. Some of them may include he who seeks equity must come with clean hands. That statement is a maxim of equity. It is a statement of universal truth. That is anybody who wants fairness to be done to him, he himself should not be guilty of sins or unfairness. Is that not true? Yes. So that is a statement of universal application. Then we also have equity will not suffer a wrong to be without a remedy. Guys, all these are some of the examples of what we call a maxim. So I repeat, a maxim is a statement of universal truth. It could be a motto, an adage or a proverb. All right. So we have got maxims of equity, several of them. All right. Now let us come to a doctrine. What is the doctrine of equity? Now when we say the doctrine of equity, the doctrine has been defined in several authorities to be like a teaching, a creed, a belief system, a kind of an explanation, a theory, okay, a teaching that comes out of that. So the maxim is like the proverb of the doctrine. You get it. When you have a doctrine, the doctrine is more elaborate. It consists of a teaching, a detailed explanation of the maxim. That is what we mean. So when we talk about the maxim of equity and the doctrine of equity, it is basically put together to call the rules of equity. So the point is that every maxim gives rise to a doctrine and every doctrine can be condensed into a maxim. Hope you get that. So when we mention the rules of equity, students and dear friends, we are saying that it is a combination of the effect of the maxim and its accompanying doctrine. Now, some of the doctrines of equity will be the doctrine of specific performance. We will explain that shortly. The doctrine of bona fide purchaser for value without notice. If you have not seen our in land law, you look for a defense to actions in land, bona fide purchaser. It is a doctrine in equity. We have got the doctrine of promissory estoppel and a host of others. Those are doctrines. Those are teachings. But a maxim is an adage. It is a motive. Do you get that? So there's a difference between the maxims of equity and the doctrines of equity. But remember, the two go hand in hand to produce the rules of equity. All right. So you realize that in the teachings of the doctrines, several maxims may be apparent in there. So now, in this part of our discussion, we are now going to pick up what are some of the maxims in equity. We'll just talk about one or two. Then we'll also explain some of the doctrines of equity. All right. So let's see one of the maxims of equity. Hello, lovely people. I'm sure you're enjoying our videos. As you've realized, our videos are in two parts. We've got the course-based ones that discuss the various sections of the law. I've also got the everyday law. The course-based are designed for academic study and in-depth understanding of the law. But if you are interested in knowing about the law as it will appear or to be useful for an everyday man, please always try and keep a focus on the everyday law content. It is done in vernacular and in a simple and easy way so that the man on the street will be able to appreciate the law in his daily life. If you stand in need of any academic support for any of your law courses, please do not hesitate to reach the number below, either via call or by WhatsApp. Stay tuned for more of our videos on Supreme Law Publication. Okay. So one of the maxims of equity that we want to look at, and again, we'll discuss the circumventing doctrines, is the maxim, equity will not suffer a wrong to be without a remedy. Again, equity will not suffer a wrong to be without a remedy. It is a maxim of equity. It is a statement, a proverb, an adage. What are some of the doctrines that emanate out of this? Some of the doctrines that come out of this is the doctrines of constructive trust. I'll explain to you shortly what some of those things mean. You can also have other doctrines of equity emanating from that. But like I said earlier, the two put together will produce a rule of equity. So equity will not suffer a wrong to be without a remedy. What this maxim or this proverb, this adage simply means is that if somebody is a party to a transaction or a situation, and you realize that through no fault of his, the person is going to suffer a serious harm, a person is going to suffer a serious wrong. Guys, the question is, do you think it is fair for us to just want to allow the person to suffer that harm? Obviously not. There has to be a means of remedying the situation, helping to rectify or correct that particular wrong. That is fairness. So equity will not suffer a wrong to be without a remedy. So sometimes when matters come to court or there are situations and the court just looks at the situation and realizes that, oh, okay, this issue here, you may not really have a particular law, or maybe if we're applying the law strictly, this person's matter, I'm not sure he will be successful. But the point is that, can you just watch that because there is no particular law or there is no clear-cut situation that has it in the statute, so we just allow the person to just suffer that wrong? The rules of equity says that that maxim, equity will not suffer a wrong to be without a remedy, will be kicked into jail. Now, I'll give you a very interesting case that came up recently in Ghana, and the case is entitled Amasewa v. Garba Hashimo and Isaka Hashimo. It was delivered by her leadership, Justice Professor Henrietta Abdenyakomen Sabosu, Justice of the Supreme Court, a very interesting, nice, stellar, I mean, wonderful, wonderful, wonderful piece of judgment. Let me tell you the story. There was this girl, this woman, young lady, affable, nice-looking from sources. She name was Amasewa. She traveled to Italy to go and do some kind of business. When she went, according to the facts of the case, she was working as a carpenter, like doing some kind of woodwork. She met a very young, nice Ghanaian guy. The guy's name was Isaka Hashimo. They met So, instantly, one or two things got together, and they fell in love, and the idea was that they were planning to kind of, what, spend their lives together. Now, through some circumstances, Isaka told Ama that, Ama, look, here in Udinese, I mean, this work is no pain. Join me and let's go to Napoli. When we go to Napoli, we'll get a very good job, and we'll be able to make money, and after we've made money, we can get married and come back to Ghana and continue to live up Now, unbeknownst to Amasewa, when Isaka Hashimo took her to Napoli, the job that Isaka had been telling Amasewa all along in Udinese that, oh, let's go to Napoli, let's go to Napoli, was prostitution. So, Isaka took Amasewa to Napoli, and he told Amasewa that, look, this thing is just going to be for a very short time, not a problem. So, just get it done, and strangely, Amasewa accepted. Well, matters of the heart and love, someone may say. So, in Napoli, Amasewa was into prostitution. It was Isaka who would pick up Amasewa, drop her off at the prostitution station, then she would go sleep off with women, then the money that Amasewa makes, he gives it to Isaka, and he keeps it and all that. Now, this thing went on for a bit of a long, a very long time. Then, eventually, she brought most of those prostitutes to Isaka, who had now come to Ghana. They built up a house at Tantra Hill, they put up another house at Ajuigano in Accra, they bought some cars, they bought those kind of stuff. Lo and behold, when Amasewa decided to now come back to Ghana, because she had some documentary issues, when she came, Isaka said that, look, I don't want to have anything to do with you anymore, okay? Me, I can't marry a prostitute. Can you imagine that? All the prostitutes that Amasewa had made, or the investment that she has got out of that prostitution business, he gave it to Isaka. He came, he built a house, and he was chasing after women, disgracing her and all that. What was Amasewa's remedy? Now, the question is, she said, prostitute, prostitute, if you take the law, what right do you think a prostitute should have? Question. Guys, you understand that? But you see, the Equity General Council, equity will not suffer a wrong to be without a remedy. So, she said, prostitute, we should allow Isaka to just benefit from Amasewa's prostitution when he knew what he was actually doing, so that he just takes over the property and all that. Bam! So, the maximum of equity kicked into jail. The Supreme Court held the matter, it went up to the Supreme Court, and Her Ladyship, Professor Mensah Bosu, which was a stellar judgment, like I tell you, you should read it, okay? So, the Supreme Court saw it and said that, no, the maximum of equity has to kick in. Then the doctrine of constructive trust came in, and this is what, in that erudite judgment by Her Ladyship, Mensah Bosu said, in Amasewa versus Gariba Hashimi and Isaka Hashimi by court. As the facts of this case show, there is sufficient evidence on record that the plaintiff, on a balance of probabilities, proved her claim against the defendant. He led her to believe they were on the verge of getting married. On the whole, the circumstances in which the defendant obtained control of the properties makes it unconscionable for him to be permitted to enjoy the fruit of their common endeavor alone. Guys, did you see what the Leonard Professor Justice, Herita Mensah Bosu, speaking for the Supreme Court in the Amasewa versus Gariba Hashimi and Isaka Hashimi case? You saw that, that it would be unconscionable, it would be unfair to allow Isaka to just take the proceeds and just go away. So, the doctrine of constructive trust came in. It's a doctrine in equity, which says that if you cheat somebody or you treat somebody unfairly out of his proceeds or his sweat, any money or any property or assets that you make out of cheating him or defrauding him, it is deemed that you are holding it in trust for him. If that matter comes up to court, the person can come back and also seek to claim compensation or interest in that property that you used your money for. That was what we referred to as constructive trust. But in later discussions, we'll go into details. But guys, the point is this. You will realize that ordinarily by the law, we were positive we don't have a right. Prostitution is even illegal. But we can also allow a person to also ride on someone's prostitution, which was at its own instance, and profit out of it. Equity would not suffer a wrong to be without a remedy. Equity was put into action in that stellar case of Amasewa versus Gariba Hashimi. You got that. So now you see in this illustration, in this example, we've seen equity, the maxim of equity. We've seen the doctrine of constructive trust. The two put together gives us a rule of equity. Understood? All right. Now let me take you to another interesting example of how this particular maxim again, equity will not suffer a wrong to be without a remedy, plays out and its accompanying doctrine. In this example, we are going to look at that maxim, equity will not suffer a wrong to be without a remedy, together with an accompanying doctrine of what we call specific performance. It is a doctrine in equity or specific performance. Now this was a case. Now the case was entitled Dr. Edward Santin versus Dr. Edward Akwa and others. Edward Santin had a nickname, Wanaleas, which was called Niyo Oshika. Yes, that was the situation. Now this was from the brief facts of the story. Now Niyo Oshika, Edward Santin, saw or met up with Dr. Edward Akwa and his wife. Okay. And they represented to him that they have a land at Oriyarifa. So Niyo Oshika, Edward Santin said that, oh, he wanted the land. This was in 1999. They went and showed him the land at Oriyarifa. They didn't agree on the price. He said that Dr. Akwa told Niyo Oshika, Edward Santin, that the land was 42 million Ghana cities. That was 42 million Ghana cities, 4,200, old currency. That time, it was a lot of money, 42 million. Now you see, when they said that, so what Niyo Oshika, Edward Santin said that he agreed. Then he said, okay, that's fine. I'm going to, I like it. So immediately, within the very shortest time, he pulled out 4 million cities and gave it to Dr. Edward Akwa and his wife, paid into the account and told them, okay, you take this money, prepare the documents for me as part payment. I want the land. I'll do it. Give me some time. I'll pay the rest. Do you know what happened? When the time passed, just within, they didn't even allow any extended time. They called Edward Santin, Niyo Oshika, and told him that they can't allow, they can't sell the land to him anymore. So they are selling the land to somebody. What do you think about that? Now, if you look at the law, naturally, the point is that they gave you three months. You are not able to pay. So, if you can't, time is real. The law has caught you. But if you think about it, it's unconscionable. When you told him 42 million, he didn't hesitate and he gave you 4 million Give me the documents. So, if even there is some delay, why don't you notify him and tell him that, oh, masa, your time is up. You still not brought the balance. So, what are you doing? I mean, guys, is that not a fair thing to do? That is where equity comes in. So, the courts held that, no, if you are looking at equity, what you are doing, what Dr. Edward Akwa and his wife was doing to Edward Santin was not proper. Now, in the matter that had reached the Supreme Court, Justice Clemens Honyonuga, quoting the matters or an earlier situation decision by the Supreme Court in Coglex No. 2 v. Phil, which was delivered by Justice Kinsley-Akwa at the time, but Justice Clemens Honyonuga in this Edward Santin and Dr. Edward Akwa's case, repeated and restated that matter with exuding and stunning clarity and precision. Let's look at what the court said on the doctrine of specific performance in Edward Santin v. Dr. Edward Akwa and others. The relief of specific performance will lie wherever, as in the instant case, agreement between the parties has got to such a stage that it will amount to fraud on the other part of the party to refuse to perform a side of the bargain. Guys, you saw that. So, that was what the Supreme Court said, and that is what we refer to as a doctrine of specific performance. If someone enters into a transaction with somebody, and one of the parties have acted in a certain manner that is like he has put in so much into it, it will not be equitable for we to allow the other party to say that he's not going to perform. So, you said 42 million, and the Supreme Court said, when you said, he didn't hesitate. You have not even given a document, but he paid 4 million to you outright. Why is it that you cannot also reciprocate and give him some time and also allow him to take over the property? And you are saying that he should come and take his money and sell the land to somebody. No, sell the land to him. He's ready with the money. Take the 38 million and allow him to go and take the land. So, you see, the maxim, equity will not suffer a wrong to be without a remedy, now translated into the doctrine of specific performance. The two together is a rule of equity. So, guys, you see, when we talk about the rules of equity, it is a combination, and again, an encapsulation of the maxims of equity and the doctrines of equity. The two together refers to the rules of equity, and it is part of the laws of Ghana. So, the point is this. The courts in Ghana have what we call an inherent jurisdiction in equity. If there is something that is unconscionable, that is unfair, no matter the classification, it can be brought to court, and the court will adjudicate on it. So, in our state, that statement means that the court is a court of justice and a court of equity, and this is part of the rules. So, there are several maxims of equity. Some of them is like he who seeks equity must do equity. There is another maxim that says that he who approaches equity must do so with clean hands. There is those that says equity follows the law, but not specifically, but several of them. As you progress in your study of the law, you are going to become very much acquainted and familiar with several maxims of equity. The corresponding doctrines, a few of them we were speaking about, the doctrine of specific performance. We have what we call the doctrine of promissory estupel. There is a doctrine of due influence, and as you study the law again, land law, areas of contract, and you begin to see all these particular components. But at this juncture, it suffices to say that when the courts or when the constitution mentions under Article 11 that the rules of equity are part of the laws of Ghana, ladies and gentlemen and students, this is what we mean by the rules of equity. The maxims of equity, we've discussed them, the doctrines of equity, and we are saying the rules of equity is an encapsulation, a crystallization of the maxims of equity and the doctrines of equity put together. All right? All right. So stay tuned as we continue in our study of Ghana legal systems.