THE UGANDA PENTECOSTAL UNIVERSITY
KAMPALA- CAMPUS
FACULTY OF LAW
NAMES OF STUDENT: TUMWESIGE JAY
CLASS: LLB IV
SEMESTER: I
REGISTRATION NUMBER: U/2021/LLB/051/E
COURSE UNIT: EQUITY AND TRUSTS
NAMES OF LECTURER: MR. NIMUSIIMA BRITON
A Legal Memorandum to Account for the Historical Evolution of Equity and
Its Inception in Uganda.
DATE; 23RD SEPTEMBER, 2024
FROM; TUMWESIGE JAY
TO; KAA & CO
As I embark on this important assignment, I have no regrets of reproducing one of
Uganda’s lead author’s introductory statements on the subject at hand. Professor
David Bakibinga1 writes to the effect that the notion of equity appears to be less
understood among ordinary citizens as well as litigants while discharging their
duties. A statement that I wholly associate myself with though the reasons why I do
so will be a matter of discussion some other time!
At this moment before looking at Equity in its historical perspective, I will labor to
provide for its definition from various sources. To begin with, Professor Samantha
Hepburn2 in her textbook3 intimates that the concept of equity has different
meanings according to the social, ethical or legal context in which it is examined.
Some of the more common interpretations include: symmetry, balance,
harmony, morality, justice, fairness, a form of property interest and a
recognized and established legal principle. In a legal sense, however, equity is
primarily associated with justice.
On the other hand, the two learned authors 4 on Snell’s Equity5 write to the effect
that in its most general sense, equity refers to a conception of justice that
transcends the substantive and procedural rules of the positive law. It
introduces an ethical element into the positive law by holding the parties
to a more sensitive or exacting standard of justice than the rules of
positive law would require of them.
However be that as it may in Black’s law dictionary 6 equity is defined as fairness,
impartiality, evenhanded dealing. It is a body of rights constituting what
is fair and right.
In the words of John McGhee and Steven Elliot 7, across many legal systems, the
principles which motivate the intervention of equity have been variously expressed
1
David Bakibinga, Revised Edition Equity and Trusts 1 st January 2019
2
Samantha J Hepburn, BA, LLB (MON), LLM (Melb) Senior Lecturer in Law, Deakin
University
3
Principles of Equity and Trusts Law 2 nd Edition at page 52
4
John McGhee QC,MA(Oxon) of Lincoln’s Inn, Barrister and Steven Elliot QC,BA
(Hons),JD (Hons), DPhil (Oxon) of Lincoln’s Inn, Barrister
5
34th Edition 2020 Thomson Reuters
6
8th Edition by E. Garner at page 1634
7
Supra
as aequum et bonum, loosely translated to mean conscience or transcendent
principles of natural law.
Accordingly, the learned author of the dictionary 8 while submitting on equity adds
that the recourse to principles of justice to correct or supplement the law as
applied to particular circumstances forms the fabric of Equity.
One of Uganda’s celebrated learned writers on Constitutional Law John Tamukedde
Mugambwa9 attributes its (Equity’s) inception into Uganda’s legal regime from the
provisions of the 1902 Order- in Council ( herein after referred to as the Device) a
legal document that served the purpose of formalizing Her Majesty the Queen of
England’s rule into her colonial territories. The writer humbly submits that
subsequently the ‘device’ was incorporated into the Buganda Agreement. The
device gave birth to the reception and repugnance clauses ideally baptized by
scholars as the Reception and Repugnance Doctrines respectively. However
much emphasis in my write-up will hinge on the reception clause as best known to
legal scholars. It is the submission of Mr. Tamukedde that the reception clause is
remembered for having formalized the application of foreign law into Uganda’s legal
framework. In effect it meant that all laws as they were framed and applying in
Great Britain, were to be applicable in Uganda having turned into a British
protectorate. Countries like India, Kenya and South Africa among others weren’t
an exception to this syndrome. That way Uganda received laws not limited to the
Judicature Act of UK, Doctrines of Equity and Common law among others.
Worthwhile to mention is that Uganda’s legal terrain was infiltrated by these foreign
principles as early as 1894 when it became a British Protectorate, 1962 when it
received its first Constitution, 1966, 1967 and 1995.
This bespeaks the fact that no wonder Uganda’s Judicature Act10 particularly under
section 14 (2) (b) (i) the Legislature settled the position so far as the written law
doesn’t apply, the High Court shall have regard to doctrines of Equity and Common
law provided that the same aren’t inconsistent with the foundational law. It could be
argued that pursuant to section 11 (1), (3) of the Magistrates Courts Act11 our
Legislature cemented the position of Equity in our legal framework when it went
ahead to provide for the concurrent application of Common Law and Equity. As if
that wasn’t enough, they went ahead to incorporate what was partly the decision of
King James during the Earl of Oxford case12 where upon he decreed that
whenever a case concerns the application of both doctrines of Equity and Common
law, the doctrines of equity should take precedence over common law.
So far relevant, the aforementioned statutory provisions maintain as follows;
8
n.6, supra
9
Bluebook 21st ed. John Tamukedde Mugambwa, The Legal Aspects of the 1900
Buganda Agreement Revisited, 25 J. Legal Pluralism & Unofficial L. 243 (1987).
10
Cap 16 revised Laws of Uganda, 2024
11
Cap 19 revised Laws of Uganda, 2024
12
(1615) 1 Rep. Ch.1
The rules of Common Law and Equity shall be administered concurrently and where
there is a conflict or variance, Equity shall take precedence. This provision serves as
an acknowledgement of what Tamukedde intimates in his work as earlier on alluded
to.
Conclusively speaking, the birth and or emergence of Equity and its inception into
Uganda is best explained by the presence of a rigid law at the time and the
concession that however much the law is well written, the same is insufficient and
cannot address all circumstances. This is well illustrated in Aristotle 13’s writings. At
one particular time, Aristotle had this to say;
The source of the difficulty is that equity, though just, is not legal justice,
but a rectification of legal justice. The reason for this is that law is always
a general statement, yet there are cases which it is not possible to cover
in a general statement ... Hence, while the equitable is just, and is
superior to one sort of justice, it is not superior to absolute justice, but
only to the error due to its absolute statement. This is the essential
nature of the equitable; it is a rectification of law where law is defective
because of its generality.
So the introduction of these legal principles was to supplement the Ugandan written
law which perhaps was silent on numerous subjects and ideally speaking, the
subject has been of much importance in our legal regime for to submit otherwise
would be an indication of blindness towards the reality.
SIGNATURE ………………………………………….
13
The Nicomathean Ethics, Book Vx, 5-xi, Rackham, H (trans), 1926 .
References
1. The Constitution of the Republic of Uganda 1995
2. The Judicature Act Cap 16 revised laws of Uganda
3. The Magistrates Courts Act Cap 19 revised laws of Uganda
4. Bluebook 21st ed. John Tamukedde Mugambwa, The Legal Aspects of the
1900 Buganda Agreement Revisited, 25 J. Legal Pluralism & Unofficial L. 243
(1987).
5. David Bakibinga, Revised Edition Equity and Trusts 1 st January 2019
6. Principles of Equity and Trusts Law 2 nd Edition
7. Black’s Law Dictionary 8th Edition E. Garner
