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EQUITABLE REMEDIES

Origins, rationale and nature of equitable remedies with particular reference to the remedies of specific
performance, recession and rectification
Introduction.
Equity describes a body of law whose doctrines share a historical pedigree and possess particular normative and
remedial characteristics. Equity is said to operate on the conscience of the defendant, so an equitable remedy is
always directed at a particular person, and his knowledge, state of mind and motives may be relevant to whether
a remedy should be granted or not. In law, equitable remedies are the judicial remedies developed and granted
by the old courts of equity, such as the Court of Chancery in England, and still available today in common law
jurisdictions.
Origin of equitable remedies
The creation of new remedies is called concurrent jurisdiction. Initially the exercise of concurrent jurisdictions
depended on rights recognized and enforced by the common law, the problem being the remedies given by
common law courts were inadequate. Equity intervened to provide adequate and just remedies and could order
equitable remedies like specific performance, whose subject matter was unique, injunction, and an order for an
account. However there were conditions to grant the equitable remedies and these still apply in Uganda today.
Section 38[2]The High Court shall have power to grant an injunction to restrain any person from doing any act
as may be specified by the High Court.
English equity developed diversely to influence other jurisdictions but also had its roots from the Roman law
that had developed from the Greek philosophers. Equity was resolved to where aggrieved party had no
quantifiable remedy so many petitioned to the King for relief against the unfair judgments. Soon, because of the
development of different cases that could not be administered fairly by the law, the King was overwhelmed thus
delegating his role to the Lord Chancellor who issued necessary writs for starting up every action at common
law. The Earl of Oxford case is highly recognized in the development of the equitable remedies for it draws the
relationship between equity and common law. The Lord Chancellor Ellesmere contended that he had power to
set aside common law judgments on grounds of equity and good conscience. The controversy was resolved by
King James 1 who ruled in favour of the Lord Chancellor and from that time equitable rules became supreme
over the common law rules. It brought about reforms like the Lord Cairns Act which empowered the courts in
cases of contracts to award damages in addition to equitable remedies.
The establishment of the Judicature Acts 1873-1875 which gave power to High Courts to administer both equity
and law concurrently.
In Uganda, by the order in council, 1902 and 1911, which received English law into Uganda law and
equity were to be administered concurrently and the rules of equity would prevail in case of conflict with the
common law. This is established under section 14(4) of the Judicature Act which states that,
in every cause or matter before the High Court, the rules of equity and the rules of common law shall be
administered concurrently; and if there is a conflict or variance between the rules of equity and the rules of
common law with reference to the same subject, the rules of equity shall prevail.
From this, the equitable remedies for our study include; specific performance, rescission and rectification. Other
remedies include; injunction, Account of profits, declaratory relief, equitable estoppel, certain proprietary
remedies, such as constructive trusts or tracing, subrogation.
 SPECIFIC PERFORMANCE.
The general rule of specific performance is stated by Mukanza, Ag J in the case of Haji Lutakome v
Sentogo that specific performance is not granted if the plaintiff would be adequately compensated by the
common law remedy of damages.
A decree of specific performance is an order of the court compelling the defendant personally to do what he or
she promised to do.
Thus, specific performance is the equitable right to the specific relief in respect of an intermediate class of
agreements which do not call for the execution of a further instrument.[6]
Nature of specific performance
The basis of jurisdiction to grant specific performance is governed by three principles and these include;
1. The inadequacy of common law remedies of damages for breach of contract. In Beswick v Beswick it was stated
that the common law remedy may be regarded as inadequate and specific performances may be available in an
appropriate case, where only damages can be recovered by an action of law.
Contracts which a promisee can expect a right to have specifically performed include the following;
 Contracts for the disposition of land. In these each peace of land is regarded as unique and irreplaceable thus
qualifying remedies to be inadequate.
 Chattels of unique value.
 Shares in a private limited company. Because of no ready market for shares in a private company and restriction
on their transfer, damages will normally be an inadequate remedy.
2. Equity will not act in vain. Court has to observe the maxim to exercise the discretion to order specific
performance.
The remedy will be observed where the defendant can comply with the order. In John v Lipman, the defendant
changed his mind on a concluded contract of sale of land to avoid specific performance by selling the land to
another company acquired by himself for that purpose. It was held that the defendant could not resist the order
of specific performance as he was still in the position to complete the contract.
A remedy in personam. In relation to specific performance, equity acts in personam, the order normally
issued against the individual defendant. If the defendant is within the court’s jurisdiction, he can be compelled
by the court to execute his or her obligation. In Chellarum v Chellarum defendants to this litigation challenged
the jurisdiction of the English court. It was held, giving judgment for the defendants, that the English court did
not have jurisdiction. The burden of proof was on the party asserting that England was the proper forum. The
only real connection was the possibility that the trusts were governed by English law, which was disputed by the
defendants.
Rationale of specific performance
1. Contracts for the sale of land. A piece of land is unique the court would order specific performance for the
purchaser or lessee even when the monetary payment is adequate.
2. Contracts for the sale of personal property. These posses such unique character and for that court will order
specific performance. Section 51 of the SOGA authorises courts to decree specific performance of a contract of
sale of specific goods.
3. Volunteers. Specific performance may be exceptionally granted where the plaintiff is in possession of the land
as a volunteer in unjust circumstances to deprive him of the legal estate.
4. Contracts for personal work or services. Courts cannot enforce agreements strictly in their nature because such
contracts require constant supervision of the court and it would be contrary to the public policy for a court to
continue an association which the two parties cannot sustain on their own.
5. Contracts for the creation of transient or terminable interests. In Verall v Great Yrmouth Borough
Council[11]has clarified that the authorities on transient interests are suspect and an agreement to occupy the
premises for two days is other things being equal specifically enforceable.
6. Contracts to transfer goodwill. Here specific performance can be ordered for the transfer of goodwill and the
premises or assets of the business.
7. Complete contract only enforceable. In Ogden v Fossick[12], the plaintiff applied for specific performance of
the agreement that the defendant would grant to the plaintiff a lease of coal wharf and tat the defendant would
be promoted. It was held that the specific performance could not be granted because of that part of the contract
of employment which could not be enforced.
8. The mutuality principle which states that specific performance will not be granted unless the remedy is mutual.
However a minor cannot obtain a decree for specific performance and it cannot be decreed against him.[13]Leach
MR stated that specific performance is only granted when the remedy is mutual.
Defences to specific performance
 Mistake and misrepresentation. Here one has to prove that he made bonafide mistake with reasonable grounds,
it may well be thought inequitable to rant specific performance.
 Conduct of the plaintiff may disqualify him from benefiting from specific performance. It requires that he who
comes to equity must come with clean hands.
 Laches and acquiescence bar the grant of the remedy.
 Misdescription of subject matter, say, for a vendor, cannot fulfill his promise to transfer property which
corresponds exactly with that which he contracted exactly to convey.
 RESCISSION
Rescission is defined as the unmaking of a contract between parties. The equitable remedy is concerned with the
avoidance abinitio of agreements or other dispositions. It requires a court order, and the court has discretion
whether to grant it.

Nature of rescission
In a situation where the contract is voidable but not void, the contract remains valid but may be rescinded. It
arises where a contract is expressed by word or orally in an unequivocal manner that he or she is no longer
willing or that he or she refuses to be bound by the contract. This puts an end to the contract and restores the
parties as between themselves to the position they were in before the contract was entered into. However, it is
important that for rescission to take effect, it must be possible to restore the parties to the position they were in
before the conclusion of the contract.
Grounds for rescission
In case of a mistake say, common or mutual mistake. Instances recognized under this are those where the
mistake is as to existence of the subject matter, identity of subject matter, quality of the subject matter of the
contract. Also for the unilateral mistake where the party is mistaken as to whom he or she he contracted with.
In Cooper v Phibbs the appellant was a legal owner and trustee of land, unknown to the other party was that the
property belonged to them. The appellant renovated the place and let it to the defendant. The defendant
discovered it was their property and wanted to set aside the contract. The House of Lords held that the contract
should be set aside subject to expenditure of the former. A contract is rescindable because such a mistake is
fundamental to render the contract void which may not be provided in common law however equity resolves it.
Where there is a misrepresentation rescission may be granted. This means setting the contract aside for all
the purposes so as to restore the state of things which existed before the contract.
In the case of constructive fraud rescission may be granted. Undue influence is a constructive fraud that is
provided for relief on grounds of actual pressure, special advantage in case of a relationship between the parties,
say parent-child, guardian-ward, doctor-patient. This can also be rebutted if the party benefiting from the
transaction shows that it was free exercise of independent will. The other is unconscious bargains which may
include catching bargains, dealing with poor and ignorant persons, and inequality of bargaining power.
Relief to undue influence can only be restricted on grounds of impossibility of restitution, affirmation, delay,
and third party rights.
Limits of rights to rescind.
In case of impossibility of restitution, the relief to rescind is barred by changes made by the misrepresentee and
misrepresentor, deterioration or decline of value, benefit to misrepresentee, improvement in subject matter.
The right to rescind may also be barred by the intervention of third party rights, say, a person induced by
fraud to sell the goods cannot rescind after the goods have been bought by an innocent third party.
Where the misrepresentation is fraudulent, lapse of time will not bar rescission. This is supported by the
rule that time only begins to run from the discovery of the truth as stated in Armstrong v Jackson.
RECTIFICATION
According to the Osborn's Concise Law Dictionary, It is a remedy whereby court orders a change in a written
document to reflect what it ought to have said in the first place.
Nature of rectification
Rectification may be used to rectify documents which include conveyancing documents, building contracts,
insurance policies, bills of exchange and marriage settlements. Rectification is limited to the harmonization of
the written document with the intention of the parties. In Mckenzie v Coulson, James VC stated that the courts
rectify instruments purporting to have been made in pursuance of the terms of the contract. Therefore it is
necessary for a plaintiff asking for rectification to show that there is a concluded contract antecedent to the
instruments sought to be rectified.
Grounds for rectification
These include; common mistake of the parties in recording their antecedent agreement, rectification may also be
granted in case of a mistake of law where it arises from the legal effects of the words used, that is where the
parties intended the same legal effect but they used words whose legal effects did not conform with their intent.
Then the concurrent intention of the parties must remain unaltered up to the time of execution of the documents
intended to the effect of the antecedent agreement.
The plaintiff must establish a finally concluded contract antecedent to the instrument sought to be rectified.
In Rose v Pim, Denning LJ stressed that it is necessary to show that the parties were in complete agreement on
the terms of other contract but by an error wrote them down wrongly.
Limitation of remedy of rectification
If the contract is incapable of performance. This dwells from the maxim that equity does not act in vain. It
will also be refused where the bonafide purchaser for value without notice of the contract has acquired interest
in the subject matter of the contract.
Where the contract has been fully executed and nothing remains to be done under it, it will not be rectified.
In Caird v Moss, the agreement sought to be rectified had to be construed by the court and money had passed
between the parties based on judicial construction. The action of rectification was dismissed on the ground that
an attempt to reform spent agreement under cover money paid under it could not be allowed.
A claim of rectification may be barred by laches and acquiescence.
Conclusion
In conclusion, equity intervened to provide adequate and just remedies thus the equitable remedies just
supplemented the common law remedies and only superseded common law remedies if they conflicted.
They are mainly necessary for contracts and courts have to mainly look at the subject matter of the contract
instead of the facts, thus they don’t rely on precedents. For an equitable remedy to be granted it must also be in
line with the maxims and the major ones are; equity will not act in vain and he who comes to equity must come
with clean hands.