These maxims include equity looks at substance other than form, equity looks at that as done that

ought to be done, where equities are equal, the first time prevails, delay defeats equity follows
the law, equity will not suffer a wrong without a remedy, equity imputes an intention to fulfill an
obligation, equity will not allow a trust to fail for a want of a trustee among others.
It should be noted that not all the maxims are applicable to Ugandas legal system, hence there
are those maxims which are applicable and are of relevance as critically discussed below.

Equity looks to the Intent rather than to the Form

At Common Law, observance of the correct forms or proceedings in relation to any transaction
was all important. Failure to do so often rendered a transaction invalid or led to a total loss of the
legal rights of a party. Conversely, if the due forms were employed in a transaction there was
often no possibility of challenging its validity or tempering its rigour. Equity, however, looking
to the intent rather than the form of words, considered it unfair for one party to insist on strict
observance of form and thereby defeat the substance of a transaction and the true intention of the
parties. This approach to technicalities has constitutional backing which requires Courts to
administer justice without undue regard to technicalities. This is enshrined in the 1995
constitution of Uganda1 which is to the effect that substantive justice shall be administered
without regard to technicalities.
In applying this provision, the supreme court of Uganda in Stephen Mabosi Vs. Uganda

revenue Authority2, held that a memorandum of appeal which was filed out of time could
not be rejected because the appellant could not file it before obtaining the official record of
proceedings from the high court which were released after the 60 days period required for filing
the memorandum of appeal has elapsed. This maxim is intended to examine instances where
equity has intervened to ensure that the substance is uphold over formalities and this instances
include, Covenants, mortgages, penalties, deeds among others and under instruments of
possession Justice Okello in Jaffer Bros limited Vs Hajji Bagalaaliwo 3, held that since
the relevant letter was issued by a competent authority there was valid repossession by the
appellant, here Court looked at substance of the action of the minister rather than the form of the
instrument required under the Expropriated Properties Act.
1 Article 126(2)(e)
2 Civil Application No. 16/1995
3 Civil Appeal No. 43 1997

Where equities are equal, the first in time prevails

This present maxim deals with priorities where there is a conflict between two competing
equitable interests in property because priority of time gives better equity. This maxim has been
applied in certain Uganda cases for example in Ndegejjewa vs Kizito and

Kubulwamwana4, the Court concluded that Kubulwamwanas equitable interests had priority
because it was created earlier than Ndigejjerawas interest. Court further stated that the first in
time rule only applies where equities are equal.
However, in determining priorities between competing equitable interests, the doctrine of notice
does not apply. In Ugandas legal system the general law rules for determining priorities are
substantially different with respect to land registered under The Registration of Tittles Act. There
are also situations where the courts do not apply the maxim for example in situation where there
are successive assignments or mortgages of equitable interests.
Equity regards that as done which ought to be done
Equity sees that as done which ought to be done at law. The decision in Walsh V Lonsdale5
provides a perfect illustration of the operation of this maxim. The decision to uphold the long
lease in that case was based on the ground that equity regarded that as done which ought to be
done, and in doing so, the court regarded the long lease as having been granted even though at
common law it failed for formality. This maxim is applicable in Ugandas situation through the
Registration of Titles Act6, whereby in breach of or non-observance of any of the covenant
expressed in a lease or implied by law, the leaser may exercise the right of re-entering the leased
property and this is because equity treats an agreement as done since the parties had agreed and
one had fulfilled the obligation. This principle is laid down in the case of Serunjogi Vs
Katabira7, were a memorandum of agreement had been signed by both parties. The defendants
sold to the plaintiff a piece of land and a house situated thereon, the plaintiff paid the full price
but the defendant neglected to transfer title and deliver up possession to the plaintiff. The P sued
4 (1952-56)7 ULR pp 31
5 (1882) 21 Ch D 9
6 Section 130 Cap 230
7 (1988-90) HCB Pg 148

and Court held basing on the maxim that equity treats an equitable interest as if it were already
conveyed hence the defendant was ordered to deliver up vacant possession of the promises.
Delay defeats equity
Otherwise known as the equitable defence of larches, a person who seeks equitable relief must
do so within a reasonable time 8. This doctrine can be used as a defence against an action and not
as a basis for establishment of a cause of action thus where the land owner knows that his rights
are being trampled on and chooses not to act, he / she is taken to have delayed in the violation
and will be estopped from denying otherwise. This can be seen in the case of Climatong Vs
Olinga9, the applicant for a period of thirty years occupied and cultivated the respondents land,
and although the latter was aware of the intrusion he made no attempt to stop it. The High court
held that the applicant had taken too long to enforce his right. However, courts will not apply the
doctrine in situations which are governed by statutes of limitation for example under The
Limitation Act10 it provides that no person shall make an action to recover land after the
expiration of twelve years from the date the cause of action accrued to him. Thus if a person does
not assert his right to bring an action within a reasonable time, then his conduct is seen as being
acquiescence of the wrong complained of. However, there are exceptions to the doctrine of
larches where by courts will not permit delay so as to bar a claim and they include disability or
infancy of the plaintiff, fraud on the defendant ignorance of the facts on which the claim is
based11.
Equity acts in personam
One of the more important maxims of equity is that equity acts in personam and its applicable
in Uganda. This maxim has its origins in the manner in which the Lord Chancellor would seek to
redress a legal wrong complained to by a claimant. The chancellor would not interfere with the
common law rule or judgment awarded by the common law courts. Instead he would ask the
defendant to appear before him personally. Here, were one acquires an equitable interest then it
is enforceable against the vendor thus in the case of Katarikawe Vs William Katwiremu and
8 Smith V Clay(1767)
9(1985)HCB 86
10 Cap 70 sections 6, 19, 21
11 Equity and Trust in Uganda DJ Bakibinga

Anor12, court held that where the purchaser acquires an equitable interest in the nature of right in
personam, its enforceable against the vender only. It is further illustrated in a situation where a
defendant fails to comply with a decree of specific performance; the court may appoint another
person to execute the transfer in respect of the dispute property13.
However, courts will not apply this maxim in situation where a bonafide purchaser for value of
the legal estate without notice of an earlier equitable claim over the subject property.
He who comes to equity must come with clean hands
Under this maxim, even if all matters of form were complied with, the Lord Chancellor could
deny the claimant a remedy if there was some impropriety in his conduct leading up to the
dispute complained of. Thus the plaintiff should approach the court free from any blame on his
part because court will not grant equitable relief to the plaintiff if there is any evidence of fraud,
mistakes or illegality. This maxim was applied in the case of Katarikawe Vs Katwiremu14
where court held that if a tenant is in beach of several terms of his agreement with the land
owner then court will not grant relief. When certain transactions are illegal and one seeks to get
an equitable relief, he / she cannot succeed.
Equity will not suffer a wrong without a remedy
This equitable maxim provides that, where possible, a wrong should be redressed by the courts, it
does not suggest that every possible wrong complained of should be addressed, but that where
there is a defect in the common law, then equity should provide an answer. A good example here
is trust. In the early development of equity, the court of chancery readily upheld the rights of the
beneficiary of the trust despite the trustee having a legal title to the trust property enforceable at
common law. The trustee would be compelled to recognize the rights of the beneficiary and
transfer the property to the beneficiary. This maxim is applicable in Uganda where by the
Trustees Act15 requires the trustee to carry out the terms to prevent him or her to commit what
would be in effect wrong against the beneficiary.

12 (1977)HCB 18737
13Civil Procedure Act Cap 65 Section 53
14 Supra
15Cap 164

Equity follows the law

The judge in Leech V Schweder16 gave the following useful exposition of this maxim (at 475)
I always supposed that where a right existed at law and a person only came into equity because
the court of equity had a more convenient remedy than a court of law ..There equity followed
the law, and the person entitled to the right had no greater right in equity that at law. This
maxim is applicable in Uganda according to the Judicature Act 17 which provides that equity is
based on the law.
The principles that only parties to a contract will be bound by that contract under the law of
conflict is observed by a doctrine of equity for example specific performance cannot be granted
where damages will provide adequate remedy, this is because equity follows the law is designed
to supplement the grant of damages but not to override them for example in contracts for sale or
lease of land. This maxim is thus of relevance in that the courts will not give out equitable
remedy where it is adequate under the law.

He who seeks equity must do equity

Under this maxim, a person seeking an equitable remedy must act fairly, thus the courts cannot
award a remedy to a plaintiff who acted in an unfair manner to the defendant. The applicability
of this maxim can be seen in the Ugandan case of Bank of Uganda Vs Hassan Bassajabalaba18
where court held that Bassajabalaba failed to act fairly when he forged a court order so as to get
back his land titles hence an equitable remedy could not be granted to him.
The maxim can be applied in the arrangements of doctrine of election, notice to redeem
mortgage, among others.
Having critically analyzed the maxims of equity which apply in Ugandas legal system though
decisions / case law and statutes, we shall now discuss critically the three categories of equity
showing the new rights which were created by equity, new remedies and procedures which were
all brought about by equity and show their relevance and applicability in Ugandas legal system.

16 Section 2
17 Cap 13
18 H.C.C.S No. 320 OF 2007

Equity is instrumental in the creation of new rights. This is covered in exclusive jurisdiction
and covers situations in which rights could be recognized and enforced at common law by the
common law courts.
Nevertheless, owing to the inflexibility of those courts and their adherence to the doctrine of
precedent, such rights were neither recognized nor protected at common law19. However, the
chancery court recognized and protected these rights. The rights are thus discussed her under.
Mortgage
Mortgages are legally recognized under various Acts including the Mortgage Act, registration of
Titles Act20, the land Act21 among others. A mortgage is defined as a conveyance of title to
property that is given as security for the repayment of a debt or the performance of a duty and
that will become void upon payment or performance according to the stipulated terms 22. Under
common law, a mortgage as a conveyance of the debtors title to the creditor on condition that
upon repayment, the creditor should re-convey the title to the mortgager. However, equity came
in to protect the mortgagor by creating the mortgagors equity of redemption which prevented
court from permitting any attempt of the mortgages to prevent the mortgagor from redeeming his
property. Since equity looks at substance and not the form, it donates the principle that a
mortgage is always a mortgage, thus it is not a question of form but of substance. So, if two
parties enter into an agreement to sale and which is in essence supposed to be a mortgage, equity
will regard it as a mortgage unlike under the law. In the case of Wasswa Vs Kikungwe23 which
involved mortgage of customary land, it was held that where a contract resembling a mortgage
between natives is sought to be enforced, the courts could apply the English law of equity
applicable to mortgages. Equitys intervention in mortgage was justified on the ground that
mortgages tend to be entered into by needy people who would accept whatever terms crafty
creditors may impose upon them. This was seen in the case of Matambulire V Yosefu Kimera24,
the plaintiff, in desperation to go on a pilgrimage to Mecca mortgaged his land to the defendant
on condition that if the plaintiff failed to pay off the loan within a specified period the defendant
19 Equity and Trusts DJ Bakibinga Pg 11
20 Cap 230
21 Cap 237
22 Blacks Law Dictionary 9th Edn Pg 1101
23 (1952-6)7 ULR 1
24 CA 37 of 1972

would become the absolute owner of the land, after the contractual date for payment had expired,
the defendant claimed ownership of land and rejected the plaintiffs subsequent attempts to
redeem.
Court held that the plaintiff was entitled to redeem until right to do so was foreclosed by order of
court or the land was otherwise disposed of in a mortgage sale. The registration of titles Act 25
provides that a Mortgage registered shall have effect of security and shall not act as or operate as
a transfer of land.
Equity also created equitable mortgage. In equity, a contract to create a mortgage was treated
as a promise by the debtor or executes a legal mortgage when called upon to do so. Since equity
regards as done that which ought to be done such an agreement created an equitable mortgage.
Section 13926 specifically enables the creation of an equitable mortgage of land by depositing his
or her title. The section provides further that every such an equitable mortgage shall be deemed
to create an interest in land. Thus equitable mortgages are relevant in Ugandas situation since
most of the people cannot comply with the provisions of the law for example registering a
mortgage yet they are in need of money or loans. Hence equity helped to remove that rigidity and
harshness of the law.

Equitable leases / unregistered leases

At common law, a purported lease that does not comply with formalities merely operates as a
contract whereby the proposed leaser promises to lease and the proposed lessee to take the land
subject to the terms of their agreement. Failure by either party to comply with the agreement
could result in an action for damages27.
Moreover, where a purported lessee enters into possession under the agreement he or she
becomes a common law tenant at will as was in the case of Souza Figueiredo & Co. Ltd V
Moonings Hotel Co. Ltd28.

25Cap 230 Section 116

26 RTA Cap 230
27 Walsh V Lonsdale
28 [1960]E.A 926

In equity, on the other hand, failure to follow legal formalities to crate a lease does not
necessarily render the lease void. Because equity treats as done what ought to be done an
agreement for a lese capable of enforcement by specific performance creates a lease. Such a
lease is variously referred to as an equitable or informal lease. This principle was laid down in
the famous case of Walsh V Lonsdale29, the facts of that case were as follows, the appellant and
respondent entered into a written lease agreement for a term of seven years subject to a periodic
payment of rent, in advance. Though the agreement was not by deed, as required by law, the
applicant entered into possession. When the appellant defaulted in payment of rent, the
respondent detrained on his goods. The appellant sued the respondent for conversion on the
ground that since the lease was not under deed, it was void. It was held that, though the
agreement was ineffective to create a legal lease, it was effective to bring into existence an
equitable lease for a term of seven years. Therefore, in the eyes of equity, the parties were
already landlord and tenant subject to the same terms and remedies they would have had if their
lease had been created by deed. Equitable leases are this recognized under the law of Uganda in
the Registration of Titles Act30. Therefore, an unregistered lease does not necessarily render the
lease void under equity.

Interest in real property / land

Common law recognized only registered land (legal) estate as the only interest in land. Section
5431 is to the effect that no instrument until registered in the manner herein provided shall be
effectual to pass any estate or interest in any land under the operation of this Act this binds
since it is the law and acts in rem. However, since equity acts in personam, it tries to protect
equitable interests in land through the doctrine of bonafide purchaser. The doctrine of bonafide
purchaser envisages that equitable rights are good against all people except a bonafide
purchaser of the legal estate for value without notice of the equitable interest in that land and
those claiming under them.

29 Cap 230 Section 54

30 Cap 230
31 RTA Cap 230

The applicability of this principle was adopted in section 176 32 which provides that No action of
ejectment or other action for the recovery of any land shall lie or be sustained against the person
registered as proprietor under this act, except in any of the following cases (a) the case of a
mortgage as against a mortgage in default (i) the case of a leaser as against a lessee in default (ii)
the case of a person reprieved of any land by fraud as against the person registered as proprietor
of that land through fraud or as against a person during otherwise than as against a person
deriving otherwise than as a transferee bonafide for value from or through a person so registered
through fraud.
Furthermore, its applicability is illustrated in the case of Lwanga Vs The registrar of Titles33
where the applicants late brother bought the suit property, but title was never transferred. One
Katamba fraudulently caused the land to be transferred in his names and later sold it to Salongo
who was registered as appropriator of the land. At the Magistrates court, Katamba was convicted
and ordered the suit property be transferred back to the applicants. However, the registrar refused
to comply with the order/. Odoki Ag J, as he then was, upheld the registrars grounds for refusing
to transfer title into the applicants name and held that Salongo was a bonafide purchaser for
value and under section 176; his title could not be impeached. The doctrine of bonafide
purchaser is therefore guided by the doctrine of notice which is divided into three
Actual notice; Hereunder for a person to claim under bonafide , that person must not have actual
of express notice of a prior interest at the time when he or she made the purchase or at any time
before the purchase was completed. This was illustrated in the case of Uganda Post and
Telecommunications V A.K.M Lutaaya & Anor34 where the respondent leased a large piece of
land from the mailo owner to the 2 nd respondent. Unknown to him, part of the land was occupied
by the 1st appellant with the consent of the mailo owner. The respondent successfully sued the 1 st
appellant in the High Court for trespass. On appeal, the decision was reversed by Karokora J.SC
who stated that the law is very clear that if a person purchases an estate which he knows to be
in the occupation of another other than the vender he is bound by all the equities which the
parties in such occupation may have in land

32 Ibid
33Miscellaneous Case No.7A of 1977
34 C.A No. 36/1995

Constructive notice; under this, a purchaser has some knowledge of encumbrances on the land
but does not bother or take initiative to find out the nature of the claim. This would be derived
from not following up some information or deliberately abstaining from making any inquires.
This was envisaged in the case of Sempa Mbabali Vs WK Kidza & others 35, the plaintiffs
father was a registered proprietor of the suit land, which he divided to his children by will in
certain portions except 35 acres saved for burial grounds and the remainder to be distributed to
beneficiaries in accordance with the will. Before the land was surveyed, one of the beneficiaries
sold his share to the defendants who surveyed the portion of the land and registered it in their
names. The plaintiff brought this action on behalf of the deceased estate for cancellation on
grounds of fraud. The Ds claimed to be bonafide purchasers for value without notice and
protected by section 189 of the RTA. Odoki J held that the defendants knew that part of the land
they had purchased was for burial grounds and that by the mere fact that they went ahead and
surveyed the land, shows that they are not bonafide purchasers for value for they had knowledge
of the plaintiffs interest in land remained for burial grounds.
Imputed notice; this is the notice which is imputed on the purchaser because his agent has
constructive or actual notice of the equitable claim but neglects or omits to inform his principle
(purchaser). In the case of Sejjaka Nalima V rebecca36; Musoke JA as he then was held that the
appellant was not a bonafide purchaser for value without notice on the basis that Musoke and
Company advocates who were acting as her agents had known of the alleged fraud concerning
the duplicated property.
Co-ownership; Under section 5637 is to the extent that two or more persons who are registered
as joint proprietors of land shall be deemed to be entitled to the land as joint tenants; and in all
cases where two or more persons are entitled as tenants in common to undivided shares of or in
any land, those persons shall in the absence of any evidence to the century be preserved to hold
that land in equal shares. This section is the stand of common law where property was held by
parties under joint tenancy, guided by the four units (time, possession, interest, title) and the right

35 (1985) HCB 46
36 CA No. 12 of 1985
37 RTA Cap 230

of survivorship whereby one of the co-owner died, he would be survived by others and if they all
died in a common calamity, the young would survive the older.
Despite of that, equity saw it as unfair since it concerns itself with fairness as directed in the
maxim equality is equity. Thus equity leaned in favour of tenants in common where people
held the property in individual share. Equity in most situations and also in absence of words of
severance presumed that co-owners intended to create a tenancy in common but not in joint
tenancy. The best example of tenancy in common can be seen in the Partnership and in equity,
the presumption is that the property which is acquired by partners in business is held by them as
beneficial tenants in common, where the partnership deed does not specify the shares of the
partners, the Partnership Act38 applies with the result that each partners are entitled to share
equally of the assets and liabilities. The maxim equality is equity also applies in matrimonial
cases or matters for example in cases intestate sucession where a person dies without a valid will,
property is shared amongst the deceaseds descendants and also dependant relatives equally. This
is envisaged in the Succession Act,39 under section 27 which embeds the rules governing intestate
succession. In cases of divorce equity presumes equal sharing of the property between both
spouses. This was envisaged in the Ugandan case of Julius Rwabinumi V Hope
Bahimbisomwe40 where Justice Amos Twinomujuni held that matrimonial property is joint
property between husband and wife and should be shared equally on divorce irrespective of who
paid for what and how much was paid thus invoking the maxim.
Trusts. The law of trust arises where one party gives property to trustees to hold for the use of
beneficiaries. Trust according to the Blacks law Dictionary 41 is defined as the right, enforceable
solely in equity, to the beneficial enjoyment of property which another person holds the legal
title. It may also be a property held by one person (trustee) at the request of another (the settler)
for the benefit of a third party (the beneficiary). Under Common law, a trustee held the legal title
of the property. The law of trust comprised of various trusts which include vitiated, charitable,
implied, resulting trusts and constructive. Thus once a trust is established, the beneficiary has in
38Section 27(a) Cap 114
39 Cap 162
40 Civil Application No. 30 of 2007
41 9th Edition

equity a priority in equity against any subsequent holder of the property other than a purchaser
for value of the legal estate without notice. A trust is therefore mandatory in nature, the trustees
have no choice as to whether they may fulfill the intention of the settler but instead they are
regarded to fulfill the terms of the trust as stipulated in the trust instrument and implied by law.
Under equity, the beneficiaries are given power to ensure that the trustees carry out their duties.
Thus before 1873, the Common Law did not recognize the equitable rights of the beneficiaries
under a trust, however, equity regarded the beneficiaries as real owners of the property or estate
with the trustee being only a custodian of the property for them 42. Thus since the Judicature Acts
of 1873 75, equitable interests of the beneficiaries can be enforced in any Court. This approach
is also evident in Uganda under the Judicature Act43 and the magistrates Court Act44.
Trusts can also be seen in the Constitution Under Article 237(2)b45 which accords the
government power to hold land in trust of the people with an aim of preserving the environment.
Further Article 23946 provides the Uganda land Commission power to hold and manage any
land in Uganda vested in or acquired by government thus it is the trustee and under equity, the
beneficiaries are the people.
Concurrent jurisdiction (creation of new remedies); initially the exercise of concurrent
jurisdiction depended on rights recognized and enforced by the Common law. As time went on,
problems arose whereby the remedies which were being issued by the common law courts were
inadequate and equity thereby intervened to provide for adequate and just remedies for example
injunctions, specific performer, recession and these were granted after fulfilling certain
conditions. Those remedies created by equity are of relevance and still applicable in Uganda
as analyzed below;
Injunction;
It is defined as a Court order commanding or preventing an action 47. It can also be an order made
to compel observance or performance of some obligation. Its applicability in Uganda can be seen
42Equity and Trusts in Uganda by DJ Bakibinga
43 Cap 13
44 Cap 16
45 1995 Constitution of Uganda
46 ibid
47 Blacks Law Dictionary 9th Edn 855

under the Judicature Act48 that gives the High Court power to grant to any one in any act
specified by the High Court. Furthermore, the Magistrates Court Act49 gives power to
Magistrates to grant this 4emedy based on the extent of their power in granting it.
The remedy of injunction is further subdivided into other types that is, the prohibitory/
mandatory injunction, one which aims at deterring the happening of an act. The enforceability
of this injunction is through a Court ordering the said act not to be performed. This is through the
issuing of mandatory injunction. This can be illustrated in the case of Sky petroleum V V.I.P50
where the defendant was stopped from withholding the supply of petrol.
There is also the perpetual and interlocutory injunction; a perpetual injunction one that aims
at settling a dispute between parties. They are however not necessarily perpetual as held in the
case of Babumba V Bunju51. The interlocutory injunction on the other hand is given until the
commencement of the trial.
The rational for its application and subsequent execution is, as shown the case of Musoke V
Kezaala52 to be; that in the midst of the delayed trial the plaintiff may suffer loss if the defendant
dealt with the matter in dispute. Ex-parte injunctions also help one who cannot wait for motions
to be read. Thus it is applied until when the application on motion is heard but not after.
Interim injunctions on the other hand stop the defendant from acting in a certain way up to the
commencement of a given date.
In as much as the remedy may be helpful to the people in such circumstance and is thus
applicable, there are limitations to its applicability. For example, if there was a repeated
performance of a positive act, they are not granted, in this case, the common law remedy of
damages is awarded. This was shown in the case of Dowry Boulton Paul Ltd V Wolver
Hampton Co53, where Court refused to grant an injunction that aimed at compelling the
defendant to maintain an airfield citing the fact that it was a positive act was a hindrance.
48 Section 40(1)
49 Section 220
50 (1974)1 W.L.R 576
51 1988-90 HCB 81
52 [1987]HCB 81
53 (1971)1 WLR

More into the complexity of its applicability, we turn to UCB V General Parts where it was
established that for one to succeed, he/she must prove that if not granted, he will suffer
irreversible damage. Thus it must be established that it is more convenient for the injunction to
be executed in regards to the plaintiffs damages54
Specific performance; The general rule of specific performance is stated by Mukanza J55 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 where one
promises the performance of an act but is hesitant or refuse to execute it, court may issue the
remedy of specific performance. As regards applicability, the sale of Goods act 56 provides for its
applicability in regards to specific and ascertainable goods. Its application by court is provided
for under the Judicature Act57 and the Magistrates Court Act58
There are particular instances for the application of this remedy i.e.
(i)

Where the application of damages will not provide sufficient remedy

(ii)

Where Court cannot supervise the execution of the said agreement among others

Rectification;
It is the Courts equitable correction of a contractual term that is misstated 59. It is a remedy
whereby court orders or change in a written document to reflect what is ought to have been there
in the first place. The essence of rectification is to bring the document which was expressed and
intended to be in pursuance of a prior agreement into harmony with the written document 60. In
Rose V Pim61 Denning L J stressed that it is necessary to show that the parties were in complete
agreement on the terms of the other contract but by an error wrote them down wrongly.
54 Equity and Trust in Uganda Pg 67
55Haji Lutankome V Sentogo [1988-90]HCB 95
56 Cap 79 Section 52
57 Cap 13
58 Cap 16
59 Blacks Law Dictionary 9th Edition
60 Cozen Hardy MR in Christmas V Wall (1911)104 LT 85
61 [1953]2 QB 450

This remedy may be used to ratify a number of documents including conveyance documents,
building contracts, inherence policies, bills of exchange, marriage settlements among others.
However, where the contract has been fully executed and nothing remains to be done under it, it
will not be rectified62. Rectification operates on grounds of common mistake, continuing
intention of the parties, matter of law, unilateral mistake. Its also important to note that the
burden of proof lies on the party seeking rectification and a clear and high standard is required.
The essence of rectification may be solely based on parole evidence in exception to the stand by
rule that oral evidence is not generally admissible to vary a written instrument.
Rescission
In a situation where the contract is voidable but not void; the contract remains valid but may be
rescinded as per Clough V London and North Western Rly Co63
Rescission arises where a party to the contract express by word of mouth in an unequivocal
manner that he or she is no longer willing or that she / he refuses to be bound by the contract.
This puts an end to the contract and restores the parties as between themselves to a position they
were in before the contract was entered into 64. 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. In other words restituo in integrum must be possible. Note should be taken of
the fact that the remedy of rescission is not granted by Court but it is an act of an individual.
However there must be sufficient grounds for execution of such remedy, thus there are specific
people whom the remedy seeks to help. These incidents might be where there has occurred a
mistake as to the terms of a contract supported in Sole V Butcher. Those include unilateral
mistakes, where one party is mistaken as to the person he contracted with as seen in Ingram V
Little65 or a collateral mistake where there was mistake as to the identity of the subject matter.
There will also be situations where one party may withhold information sufficient for a contract.
Much as its relevance to the said categories of people cannot be downgraded, note must be taken
that its applicability might be limited in some areas e.g. under mistake there is only a limited
62 Caird V Moses CH Div 22 (1886)
63 (1871)LR 7 Exch 26
64 Equity and Trusts DJ Bakibinga Pg 137
65 (1960)3 ALLER

category of people that such remedy might be applicable such as mistakes as to identity of the
subject matter among others.
There are also incidents where one can lose a right to rescind, for example, where the contract
has been executed as seen in Badda V the premier thrift society 66 where parties cannot be put
back to their pre contractual position. Thus this equitable remedy is of relevance to an innocent
party who is tricked into the contact through misrepresentation; duress, undue influence among
others.
Quantum meruit
This is yet another equitable remedy applicable in Uganda by virtue of the judicature Act 67 and
the magistrate Court act68. There might be situations where one violates the terms of a contract
and in such a situation; the aggrieved party has an option of asking for payment for the work
done69. The right to payment does not arise out of the original contract but it is based on an
implied promise by the other party arising from the acceptance of an executed consideration.
Quantum meruit may be identified under two basic situations that is;
(i)

Where one party abandons or refuses to perform contract where a party to a contract is
prevented from completing his obligations under the contract he may claim under
quantum meruit and the leading case here is Planche V colburn70 where it was held that
P could discover on quantum meruit for the work he had done under the contract.

(ii)

Where work has been done under void contract; thus where one party has derived
benefits under a void contact, a claim based on quantum meruit is possible as per Greer
L. J in Craven Ellis V Canons Ltd71

Furthermore a claim on quantum meruit is also possible where the contact between the parties is
silent on the precise sums to be paid. Thus in Silvesta Gidudu Bulafu V Mayobo Mulambuli,
G.C.S Ltd72, the plaintiff had written contract to construct a building for the defendant. The
66 (1961)1 ALL N.L.R 240
67 Cap 13
68 Cap 16
69 Law of Contract in Uganda DJ Bakibinga
70 [1824-1834]ALLER Rep 94
71 [1936]3 ALLER
72 Civil Appeal M.M 59 of 1969(Uganda)

plaintiff also claimed that there was an oral agreement that he should clear and level the site. It
was held that as the work was done and needed to be done before construction could start, the
plaintiff should receive shs 1,800 as reasonable remuneration for the work done.
Auxiliary Jurisdiction, creation of new procedures;
Equity created new procedures laid down by the Court of Chancery in the administration of
justice. The rules of procedure which were created by equity include rules on discovery of
documents, testimony on oath, interrogatories among others.
Further, Equity developed an ease in the procedure which relates to the maxim that delay defeats
equity were justice was always delayed in common law due to its technicalities. Article 126 (2)
(e)73 provides

that substantive justice shall be administered without undue regard to

technicalities. Related to that, section 4(2)74 is to the effect that, with regard to its own
procedures and those of the Magistrates Courts, the High Court shall exercise its inherent
powers; (c) to ensure that substantive justice shall be administered without undue regard to
technicalities. In Stephen Mabosi V Uganda Revenue Authority75, court held that a
memorandum of appeal which was filled out of time could not be rejected because the appellant
could not file it before obtaining the official record of the proceedings from the High Court
which were released after the 60 day period required for filing the memorandum of appeal had
elapsed.
Equity created a new procedure in the administration of Ugandan customary law by
introducing application of equality, conscience and good faith. Before the reception date of
English law,76 Uganda was governed by mostly customary law which was administered by the
Kings and Chiefs accordingly in different regions. Customary law was administered in line with
the norms and customs of a given community although some of these norms and customs were
promoting inequality, unfair and unjust treatment up to when we received the Orders-InCouncil77 which was to the effect that in all cases civil and criminal in which the parties are
native, every court; (a) shall be guided by native law so far as applicable and is not repugnant to
justice and molarity or inconsistent with any order in council or any regulation or rule made
731995 constitution.
74 Judicature amendment Act of 2002
751995 Supreme court of Uganda pg 64
76 1902 & 1911 order in council
77 1902 order in council

under any order in council or ordinance. This was later upheld by section 15(1)78 which provides
that nothing in this Act shall deprive the High Court of the right to observe or enforce the
observance of, or shall deprive any person of the benefit of, any existing custom, which is not
repugnant to natural justice, equity and good conscience and not incompatible either directly or
by necessary implication with any written law.
These provisions have helped judges administer customary law only where it is seen not to be
contrary to molarity and good conscience. A case in point is that of Best Kemigisha v Mabel
Komuntale79 herein, the custom of Toro that denied a woman authority to acquire letters of
administration of her late husbands estates was held to be repugnant to natural justice, equity
and good conscience.
Article 2(2)80 provides that if any other law or any custom is inconsistent with any of the
provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall,
to the extent of the inconsistency, be void. The Constitution reflects the principles of equity
under its provisions as seen hereunder;
Article 21(1) about equality is to the effect that all persons are equal before and under the law in
all spheres of political, economic, social and cultural life and in every other respect and shall
enjoy equal protection of the law.
Article 32(1) on affirmative states that, notwithstanding anything in this Constitution, the State
shall take affirmative action in favour of groups marginalized on the basis of gender, age,
disability or any other reason created by history, tradition or custom, for the purpose of
redressing imbalances which exist against them.
Some of these provisions are reflected in Acts for example the land Act 81 under section 39 which
prohibits the sale or transfer of family land without the consent of the other spouse or even
children. Furthermore Section 27 of the Land Act also provides for the rights of women, children
and persons with a disability regarding customary land and is the effect that Any decision taken
in respect of land held under customary tenure, whether in respect of land held individually or
communally, shall be in accordance with the customs, traditions and practices of the community
78 Judicature Act Cap 13
79Civil suit No.5/98
801995 constitution of the republic of Uganda.
81 Cap 237

concerned, except that a decision which denies women or children or persons with a disability
access to ownership, occupation or use of any land or imposes conditions which violate articles
33, 34 and 35 of the Constitution on any ownership, occupation or use of any land shall be null
and void.
To this end, it is worth noting that equity has been so instrumental in reconstructing our
customary law by removing the unfair and unjust customs with are contrary to natural justice and
molarity as analyzed above.
Equity also provided for the rules of procedure which included administration of interrogatories
and discovery of new documents,82 as provided for under Rule (1) that, in any suit the plaintiff or
defendant may apply to the court within twenty one days from the date of the last reply or
rejoinder referred to in Order VIII, rule 18(5), of these Rules for leave to deliver interrogatories
and discoveries in writing for the examination of the opposite parties, or any one or more of
those parties, and those interrogatories when delivered shall have a note at the foot of them
stating which of the interrogatories each of the persons is required to answer; except that as
provided by the Act. And Rule (12) is to the effect that, (1) Any party may, without filing any
affidavit, apply to the court for an order directing any other party to the suit to make discovery on
oath of the documents, which are or have been in his or her possession or power, relating to any
matter in question in the suit; (2) On the hearing of the application the court may either refuse or
adjourn the hearing, if satisfied that the discovery is not necessary, or not necessary at that stage
of the suit, or make such order, either generally or limited to certain classes of documents, as
may, in its discretion, be thought fit; except that discovery shall not be ordered when and so far
as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for
saving costs. Thus these procedures are followed by courts in civil matters thus redressing the
rigid procedure of common law.

In conclusion therefore, the conflict between the Chief Justice Coke and the Lord Chancellor
Ellesmere gave equity more prominence and popularity since the King ruled in favour of equity.
82 Order 10 of the civil procedural rules Cap 65/71

It should be noted that equity emerged due to the rigidity, harshness and unfairness of common
law rules through creating new rights (exclusive jurisdiction) such as equitable rights under a
mortgage, property rights among others, creation of new remedies (concurrent jurisdiction)
which were not recognized by common law Courts thus occasioning a miscarriage in justice,
these remedies include injunctions, specific performance, rescission among others and lastly the
creation of new procedure (auxiliary jurisdiction). All these rights, remedies and procedures are
applicable in the Uganda legal system by virtue of the Judicature Act 83 and the Magistrates`
Courts Act84and where there is a conflict between common law and equity, equity shall prevail as
eper section 11(3)85which section was a reflection of the supreme decision in the case of Earl of
Oxford86thus equity is applicable and of relevance in Uganda legal system as critically analyzed
Above

83 Cap 13
84 Cap 16
85 Magistrates Courts Act Cap 16
86 1615