NATURE, ORIGIN AND RECEPTION OF EQUITY

All states and societies have legal systems and laws and these laws are strictly to be complied with. In an attempt to comply with the provisions of the law, there is the tendency that injustice may occur hence the need sometimes to moderate the rigors of legal rules. This has been done in various ways and by various legal systems. For example, by applying what is fair and just (which is equity), equity attempts to eliminate the harshness which could have resulted from the strict application of legal rules. Hence, equity is used synonymously with the word justice. Equity may be said to have originated from Roman law.

EVOLUTION OF ENGLISH EQUITY

The Anglo-Saxons and the early Normans and English Kings were the fountains of justice and this prerogative appeared to have been of imperial origin. Petitions were sent to the King who as a matter of grace offered remedies where the ordinary rule of law in his own courts denied them. In this way, the common law and equity originated together as one undifferentiated system in the effort of the King to carry out his duty of providing security and justice to all in the community by making use of his prerogative power through his prerogative machinery.

The Chancellor was the secretary of state for all departments and it was his duty to draw and seal royal writs. His power of inventing new writs to meet the needs of changing society received a radical check in the latter half of the 13^th century. This arose on the parliament's realization that the Chancellor's power of indirectly making law by inventing new writs challenged its own power to legislate. The development of common law by the issuing of new writs was therefore frozen by the Provisions of Oxford 1258 and only proceeded gradually after the in consimili casu clause of the Statute of Westminster 1285. Thereafter, common law was rigid and not adaptable to meet the constant social developments of the society. The result is that there were wrongs to which the law provided no remedy. Thus, petitions were sent to the council which were dealt with by the Chancellor who was a leading member of the council and who was closely connected with the common law courts. Two main groups of cases were referred to the Chancellor and the Chancery. The first was where the law was defective and the second was where there was a remedy but owing to the influence of the other party, redress could not be obtained. The Chancellor in exercising his powers was guided by the ideas of 'conscience, good faith and reason,' this was not surprising because Chancellors at that time were ecclesiastics who were conversant with the ideas of conscience and good faith.