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Equity XXIX

17) Equity is a shield and not a sword. As per the maxim equity is a defensive mechanism and not an offensive mechanism and an applicant seeks an equitable remedy when the applicant is deprived of something the applicant is genuinely entitled to and not otherwise for example when the doctrine of promissory estoppel is invoked. According to the doctrine, when one party makes a promise to another party and the second party relies on the promise and acts to his or her detriment than that promise is a valid promise and is a promise that is enforceable at law. Copyright © 2019 by Dyarne Jessica Ward

Equity XXVIII

16) Equity will not perfect an imperfect gift. With regards to gifts unless some form of consideration has been given equity will not intervene or compel the donor or his estate to make good on a gratuitous promise. There are however certain exceptions to this maxim for example the rule in Strong v Bird (1874) – where the donor intends to pass his property to another and maintains that intention until his death but for some reason or other fails to make the transfer during his lifetime, the property becomes vested in the intended donee as the donor’s executor, and the vesting of the property is deemed to be or is seen as completing the gift. Copyright © 2019 by Dyarne Jessica Ward

The Othello syndrome and a crime of passion

The Othello Syndrome takes its name after the Shakespearean play Othello where Othello kills his beautiful wife Desdemona because he believed that she was unfaithful. In the play Desdemona never cheats on Othello but he thinks that she has and he murders her. The phrase in modern day crime is used in reference to husbands and male partners who kill their wives or partners, often in a fit of rage, because they believe them to be either unfaithful or disloyal. Does the Othello Syndrome differ from a crime of passion? The answer in short is yes. In a crime of passion the accused can kill either his or her spouse or his or her partner or the person that he or she is with. Both men and women can commit a crime of passion. The case of R v Cunningham (1981) tells us that the accused can claim that he or she committed a crime of passion in the hope of mitigating the crime or being given a lesser sentence. The defense, not that it is a recognized defense in the normal sense of th

Crime - Infanticide II

The situation is somewhat more complicated in developing countries because despite some official figures being released, I suspect that the figures in these countries are higher than what they are or what they are perceived to be because a lot of births go unreported especially in rural areas with little or no medical facilities (95% of infants who are killed before they reach the age of 1 are not born in hospitals). Now a majority of these infants are killed by their mothers usually in the first week of birth but even if they survive the first week they are still at risk and many are killed before they reach their first birthday by either their fathers or their stepfathers. Overall the figures are high in both developed and developing countries. While a majority of the infants under the age of 1 or below the age of 1 that are killed in developing countries are female the same cannot be said for infants the same age that are killed in developed countries and in the latter th

Crime - Infanticide I

Infanticide or infant homicide is defined as the act of killing a child within a year of the child’s birth. While it is a crime that is mostly associated to developing countries or third world countries or countries that are still lagging behind the rest of the world, it is not unusual to come across cases of infanticide in countries that do not fit the tag or label of developing countries and that tends to suggest that there are various other causes or factors that compels the offender to commit the crime other than just poverty. Technically while it is murder, because the intention to kill is or was always there, in most of these cases it is clear that the parents or parent intended to kill the child, the accused may still have a defense under diminished responsibility because the intention to kill may have been brought on by a psychiatric illness. Now it is worth remembering that diminished responsibility is different from insanity and despite what most people may or may

The Perfect Crime – II

In R v Thornton (1996) the victim was particularly abusive towards his wife and on the day in question he threw his wife out of the house after abusing her together with a suitcase filled with her clothes. She returned later that day and tried to patch things up and the victim was even more abusive towards her. She then went into the kitchen and grabbed hold of a kitchen knife and she tried to patch things up again but her husband continued to be abusive and finally she stabbed him in the stomach with the kitchen knife and killed him. She was charged with murder and at her trial she raised the defense of diminished responsibility but she did not raise the defense of provocation. The judge however did direct the jury on provocation. The jury convicted the accused for murder and the accused appeal. Her appeal was allowed on the grounds that she suffered from a syndrome called battered women’s syndrome. From the decisions in the above cases we can come to the conclusion tha

The Perfect Crime I

I’m sure we’ve all wondered if it is possible to commit the perfect crime, and while the term itself belongs firmly within the pages of book or a novel and has little or no practical application or implication it is worth considering some the many possibilities, if anything, just for the sake of argument. Before we go further it is in reality difficult to commit the perfect crime because of the advances made in the field of science, in the medical field and in the field of forensics – which many people find interesting because it is essentially the field of crime solving that involves the use of modern day equipment and while the super-sleuth Sherlock Holmes relied on the powers of deduction and observation, the modern crime solver is more reliant on computers and is more at home in a lab than he or she is at a crime scene. Our accused is the battered wife. There are various moral questions that need to be raised and I think it is fairly obvious to most people that wife abus

Equity XXVII

15) Equity will not assist a volunteer. A volunteer in this context is a person who had not given consideration. In Currie v Misa (1875) it was held that consideration from the perspective of the law may consist of some right, benefit, interest or profit accruing to the party or some loss, sufferance, detriment, or responsibility incurred by the party. Copyright © 2019 by Dyarne Jessica Ward

Equity XXVI

14) Equity is equality. When there is nothing to indicate otherwise equity will divide any funds equally among all those who are entitled to it. In Burrough v Philcox the testator left the proceeds of his trust to any relative his child should nominate, and his child died without nominating any relatives and when the matter was brought before the courts it was held that the proceeds should be divided equally among all those who are entitled to it.  However, if such a division was not possible that the proceeds would not be divided because it is clearly not what the settlor would have intended see McPhail v Doulton. Copyright © 2019 by Dyarne Jessica Ward

Equity XXV

13) Equity will not allow a trust to fail for want of a trustee – the maxim speaks for itself and as far as a trust is concerned, it takes precedence regardless of whether the settlor has appointed a trustee or not and in the absence of a trustee, whoever has legal title will be considered or regarded as a trustee or the court will appoint someone to act as trustee and in instances where the appointed trustee is dead, the court will step in to appoint a new trustee. Copyright © 2019 by Dyarne Jessica Ward

Equity XXIV

12) Delay defeats equity. The Limitation Act 1980 lays down a limitation period after which the applicant or the litigant may not be successful. For example, Section 22 and 23 of the Act read as follows: - Section 22 Time limit for actions claiming personal estate of a deceased person. Subject to section 21(1) and (2) of this Act— (a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and (b) no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due. Actions for an account Section 23 Time limit in respect of actions for an account. An action for an account shall not be brou

Equity XXIII

11) He who comes to equity must come with clean hands. As per the maxim any applicant or litigant who seeks the aid and assistance of a court of equity must do so with clean hands i.e. his or her actions cannot be tainted with fraud or malice and there cannot be a hidden agenda behind the scenes. He or she cannot have acted unfairly or unjustly, oppressively or arbitrarily prior to seeking the aid and assistance of a court of equity. Copyright © 2019 by Dyarne Jessica Ward

Equity XXII

10) He who seeks equity must do equity. As per the maxim, an applicant or a litigant who is relying on equity must have acted equitably himself or herself before he or she can petition a court of equity to intervene on his or her behalf. If the applicant’s or litigant’s actions are tainted with fraud or malice than a court of equity certainly would not intervene on his or her behalf. Whether a court of equity chooses to intervene or otherwise is entirely at the discretion of the court and a court of equity will be reluctant to intervene or will be hesitant to intervene if it finds that the actions of the applicant or the litigant is tainted with fraud and malice. In Haywood v Cope (1858), it was decided that, as per Lord Romilly MR, - the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person

Equity XXI

9) Equity will not suffer a wrong to be without a remedy i.e. where there is a wrong equity will intervene to right the wrong. Equity will intervene to remedy the defects of the common law and this maxim is in line with the Latin legal maxim ubi jus ibi remedium (“where there is a wrong, there must be a remedy”). Copyright © 2019 by Dyarne Jessica Ward

Equity XX

8) Equity acts in personam. Equity acts against a person as opposed to acting in rem i.e. acting against a thing or acting over something that the court does not have jurisdiction against or acting against the world at large. Hence equity does not interfere with common law but rather acts in tandem with it or alongside it to ensure that justice is done. When acting in personam, the courts generally will not interfere with land or titles abroad, or decide on matters which do not fall within the scope, ambit or jurisdiction of the court. Copyright © 2019 by Dyarne Jessica Ward

Equity XIX

7) Equity regards what ought to be done as done. This maxim applies to remedies like specific performance i.e. where the courts will compel a party to perform its stipulated duties. In Nutbrown v Thornton (1805) the plaintiff entered into a contract with the defendants to purchase some machines. Subsequently the defendant refused to deliver the machines and because the defendant was the sole vendor for that type of machines, the plaintiff brought an action against the defendants and sought specific performance as a remedy. The court granted specific performance and compelled the defendants to perform their duties as stipulated by the contract. Copyright © 2019 by Dyarne Jessica Ward

Equity XVIII

6) Equity imputes an intention to fulfil an obligation: - Where a person has an obligation and the person acts, towards fulfilling the obligation or in furtherance of fulfilling the obligation, whether intentionally or otherwise, equity will deem that the person has intended to fulfill his or her obligation. Copyright © 2019 by Dyarne Jessica Ward

Equity XVII

5) Equity will not permit a statute to be used as an instrument of fraud. If a court finds that by insisting that the provisions of a statute be complied with will facilitate or permit fraud then equity will intervene on behalf of the aggrieved party. In Banister v Banister (1948) Mrs. Banister inherited two cottages upon the death of her husband and she sold both cottages to her brother in law for £150 less than the market value on the promise that she could live in the cottage that she was occupying for the rest of her life. Upon the completion of the sale her brother in law sought to evict her, and Mrs. Banister claimed that she had a beneficial life interest that arose when her brother in law gave her an oral undertaking that she could remain in the property for life. Her brother in law sought to rely on s. 53 (1) (b) of the Law of Property Act 1925 which reads as follows:- “a declaration of trust respecting any land or any interest therein must be manifested and proved

Equity XVI

4) Equity looks at substance rather than form. Equity looks into the subject matter and decides on the facts rather than merely complying with the legal formalities. In Parkin v Thorold (1852) Lord Romilly (MR) recognized the fact that equity will distinguish between what is a matter of form and what is a matter of substance. If they find that by looking at the form or by merely adhering to formalities, the substance will be defeated, then equity will go further and look into the substance of the matter. Copyright © 2019 by Dyarne Jessica Ward

Equity XV

3) The following two maxims are concerned with priorities: - a) Where the equities are equal the law prevails i.e. when two parties have acted equitably, and there is no evidence of either party acting in bad faith (mala fide) or there is no evidence of fraud, then equity cannot provide a remedy and the law will prevail. b) Where the equities are equal the first in time prevails. The second maxim is slightly more complicated than the first. When there are two equities i.e. two parties with equal interests than the first party that registered his or her interest or the original equity will succeed as opposed to the next. It goes back to the issue of notice and at times when there is an equitable interest involved it is best to give notice to others that such a right or interest exists. Copyright © 2019 by Dyarne Jessica Ward