English Common Law And Equity As A Source Of Nigerian Law
Origin Of Common Law
English common law is the basic law that was developed by the old common law courts out of the general and local customs prevailing among the various English Communities in the early centuries. While discussing the English societies of old and its customs a rough sketch of a society in general is desirable.
A society may be described as an association of people with a measure of permanence. It comprises:
3. A measure of independence
The culture impute manifest in the societies distinguishing art, philosophy, law, morality religion fashion, opinion. These attributes of society are modes of social control in that they prescribe in various ways how people out to behave. When a large section of the populace are in the habit of doing a thing over a much longer period they are said to be a cumstomed to the practice. These practices become models of behaviour and are adhered to simply because it is how things are done. Not all models of behaviour eventually become law; although many such models spring up in the society and are still approved of as models of behaviour.
The foregoing bear true resemblance to the origin of English Common Law. A historical inquiry into the origin of English Common Law can therefore be undertaken only when clear distinctions are made between local customs, general customs, usages, as law constitutive character of practices and how these practices had impacted into the Nigerian legal system.
Origin Of Equity
The common law court that administered common law then were the Exchequer, the Court of Common Pleas and the King’s Bench. Through systematic application by these courts, the rules of common law became formalized, rigid, highly technical, and gave rise to injustices as certain wrongs could not be remedied because the proper procedure was not followed. For example by the writ systems if an aggrieved person failed to lodge his complaint in the appropriate writ, his wrong would be unremedied. This worked hardship on the people and gave rise to injustices.
The practice therefore arose whereby the parties aggrieved by the injustices of the common law could file petitions to the King who was regarded as the fountain of justice and charity who had residual judicial power to intervene in particular cases to see that justice was done.
The king did not treat such petitions by himself, but rather he passed them to his chief secretary, the Lord Chancellor for treatment. The Lord Chancellor was specially fitted to deal with these petitions because he was an ecclesiastic and the keeper of the kings conscience and dealt with these petitions by appeal to grace and conscience. This is because he was not learned in common law but was learned in cannon law.
There were no fixed principles to guide him initially, but he decided each case or petitioon on its merits and awarded remedies according to what he considered to be fair and just between man and man. The principles adopted by the lord chancellor in deciding disputes brought before him later galvanized into the law of equity and the venues of his sittings became known as Court of Chancery or Courts of Equity. The Lord Chancellor’s court was recognized as a court in the 14th and 15th centuries and after the 17th century only lawyers were appointed Lord Chancellors and they began to apply the same principles in all similar cases. Thus the principles enuciated and applied by the Lord Chancellors Court (Chancery Courts or Court of Equity) metamorphosed into the rules or principles of equity or law of equity.
However, common law and equity continued to be administered separately by the respective courts until 1873 and 1875 when they were merged by the Judicature. The general effect of these Acts was not to fuse common law and equity but to fuse their administration, hence Maitland’s observation that the “two streams have met and now flow in the same channel but their waters do not mix”.
What this means is that what was merged was the administration of common law and equity and not the two legal systems as such, as both laws are now concurrently applied in one court.