Land Law III – Fixtures and Chattels

Hobson v Gorringe (1897) gives us a practical example of how a chattel can become a fixture. The freeholder of a sawmill or an owner in fee simple (a fee simple means absolute ownership of land or a landowner whose interests in the land cannot be disputed) went on to purchase a gas engine under a hire purchase agreement and as per the agreement the gas engine was to remain a chattel until the final instalment was paid, and affixed the gas engine to the land with bolts.

The hirer then mortgaged the land to a third party and defaulted on the hire purchase agreement. A dispute arose between the owner (a person who has sold goods under a hire purchase agreement and the mortgagee).

If the gas engine was a still a chattel, as per the hire purchase agreement, then the owner was entitled to take it back. However, if the gas engine had become a fixture, then it had become a part of the land and the owner cannot take it back without the consent of the mortgagee.

The court of appeal, taking into account the decision in Holland v Hodgson (1872), decided that there had been sufficient annexation to make the gas engine a permanent feature of the land and hence the gas engine had ceased to remain a chattel and had become a fixture.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Assault (Summary)

Assault (a non-fatal offence) is defined as the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim (recklessly).

Assault per se does not involve physical contact i.e. the defendant does not have to a lay a finger on the victim. It suffices that the conduct of the defendant (by words or actions) has put the victim in fear of his or her life.

However, in order to successfully convict for assault the prosecution also needs to establish that: –

  1. the defendant had sufficient capacity or ability to carry out the threat and
  2. the defendant showed a willingness to carry out the threat.

As per s39 of the Criminal Justice Act 1988 – Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

Summary offences are offences that are dealt with by the magistrates’ court and are governed by Part 37, Criminal Procedure Rules 2010 and do not require trial by jury i.e. a magistrate can determine what constitutes an assault and what doesn’t.

Is verbal abuse sufficient to constitute an assault? – Verbal abuse is defined as inappropriate and improper use of language to undermine someone’s dignity and language that causes another person to suffer from or to succumb to profound and serious psychological injury.

Under normal circumstances in order to convict for assault the defendant needs to display a willingness to carry out the threat, without which the victim would not be successful but the law is changing and humiliating a person with the intention of making him or her feel inferior especially in public may constitute an assault especially if there is medical evidence that suggests that the victim was emotionally scarred because of being repeatedly subjected to verbal abuse.

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus reus).  The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence.

In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.

Assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery. Assault is also a crime that cannot be committed by omission and in this instance the court decided that the crime was not the fact that the defendant refused to move his car (omission) but the fact that he reversed his car onto the police officer’s foot and if we look at it from that perspective we can establish both the mens rea (the intention to cause the victim to apprehend immediate and unlawful violence) and the actus rues (the act of driving the car onto the police officer’s foot).

As per R v Savage (1991) and R v Parmenter (1991) the type of recklessness that applies to non-fatal offences (s.47 OAPA 1861) is subjective recklessness.

The actus reus (the physical element) for assault can be divided into four components. They are as follows: –

  1. The victim must apprehend violence.
  2. It must be immediate i.e. the victim is of the belief that the defendant is going to act or react violently at the time the words were spoken or the threatening gestures were made and not something that is going to occur a day or a week later or something that is going to happen somewhere down the track see Tuberville v Savage (1669).
  3. It must be unlawful
  4. The victim must apprehend personal violence or violence towards himself or herself.
  1. The victim must apprehend violence: –

In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that the defendant’s acts and actions did not constitute an assault.

In R v Lamb (1967) two boys got their hands on a revolver. The boys believed that the chamber was empty and started fiddling around with it when in fact there were two bullets in the chamber.

One boy pointed the gun at the other and it went off killing the other boy.

It was held that no assault had taken place. Pointing a gun at someone could constitute an assault i.e. a threat that puts someone in fear of imminent harm but in the given situation neither of the boys were even remotely afraid and the victim did not apprehend fear and therefore there could be no assault.

It is worth comparing the decision in R v Lamb (1967) with the decision in Logdon v DPP (1976).

In Logdon v DPP (1976) the defendant pointed a fake gun at the victim (a replica) who was instantly terrified and would not calm down until she was told that the gun was a fake. It was held that the actions of the defendant constituted an assault because it caused the victim to immediately apprehend violence.

In Smith v Superintendent of Woking Police Station (1983) the defendant frightened the victim by staring through the window of her ground floor flat. It was decided that despite the fact that the defendant was outside the building there was enough evidence to suggest that the victim was terrified and perceived immediate violence. The nature and the type of violence need not be specified and it sufficed that the victim feared immediate violence.

In R v Meade and Belt (1823) the defendants surrounded the plaintiff’s house singing menacing and threatening songs. It was held that mere singing alone could not constitute an assault.

It’s worth comparing the decision in R v Meade and Belt (1823) with the decision in Read v Coker (1853).

In Read v Coker (1853) the plaintiff was a paper-stainer who rented a premise from the defendant. The plaintiff fell behind in his rent and the defendant employed a third party to purchase his fixtures (machines, apparatus etc.) and resell them back to the defendant.

Subsequently the plaintiff and the defendant came to an arrangement where the plaintiff could continue to use his fixtures in the employment of the defendant.

The defendant later became dissatisfied with the plaintiff and ordered him to leave. When the plaintiff (Read) tried to return to the premises the defendant had his men surround him and the men threatened to break his neck. The plaintiff filed for assault and was successful.

Whether an act constitutes an assault or otherwise depends on the facts.

Words alone are sufficient to constitute an assault. In R v Wilson (1955) the plaintiff was a gamekeeper and he caught the defendant poaching. The defendant punched and kicked the plaintiff when he tried to arrest him and yelled “get out the knives”.

The defendant was found guilty of common assault and as per Goddard CJ (obiter) words alone are sufficient to constitute an assault i.e. the words need not be accompanied or followed by threatening gestures.

In order to convict for assault the prosecution must establish that the assault was directed at the person and not at someone else despite the fact that the victim may apprehend immediate fear.

In R v Pembliton, (1874) the defendant was ejected from a pub and became involved in a fight with a group of men in the street. The defendant picked up a large stone and threw it at the men, but the stone missed and crashed through the pub window behind them.

The question that arose was whether malicious intention could be transferred, and it was held that malicious intention to strike a person or the intention to cause some form of injury to a person could not be transferred to breaking a shop window. However, the defendant could be found guilty if his actions were reckless.

In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out.

It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly.

What was said obiter in R v Wilson (1955) was followed in R v Constanza (1997). In R v Constanza (1997) the defendant for a period of almost two years followed a female ex-colleague from work, sent her over 800 threatening letters and made numerous silent phone calls to her number.

The victim was eventually diagnosed by a doctor as suffering from clinical depression and anxiety due to fear caused by the defendant’s actions. The defendant was found guilty and the courts reaffirmed that words alone were sufficient to constitute an assault if it caused the victim to apprehend immediate fear.

The rule that words alone are sufficient to constitute an assault became firmly entrenched in R v Ireland and Burstow (1997) which further broadened the scope of liability for assault that is committed merely with words and continued along the lines of what was said (obiter) in R v Wilson (1955) and the decision in R v Constanza (1997).

In R v Burstow (1997) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

The questions before the courts were as follows: –

  1. Are words alone sufficient to constitute an assault and
  2. Do psychiatric illnesses (injuries) fall within the scope of s. 18, s. 20 and s. 47 of the Offences Against the Person Act 1861 and can they be defined as bodily harm.

s.18, s.20 and s.47 of the Offences Against the Person Act 1861 (OAPA 1861) read as follows: –

s.18 Shooting or attempting to shoot, or wounding with intent to cause grievous bodily harm – Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, . . .  with intent, . . .  to do some . . .  grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable . . .  to be kept in penal servitude for life . . .

s.20 Inflicting injury with or without a weapon – Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .  to be kept in penal servitude . . .

s.47. Assault occasioning actual bodily harm – Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . [to imprisonment for a term not exceeding 7 years] . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding [two years] –

It was decided that on: –

  1. Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition …. that words cannot suffice is unrealistic and indefensible. With reference to phone calls – that fact that the caller calls and remains silent to cause fear and intimidation is sufficient to constitute an assault – Lord Steyn see R v Ireland (1997)
  2. Psychiatric illnesses (injuries) do fall under the scope of bodily harm or can be classified or categorized as bodily harm.

The defendant can commit an assault by merely remaining silent. In R v Ireland (1997) the defendant harassed three separate women over a period of three months by continuously making repeated phone calls to them and remaining silent. He was convicted under s.47 of the Offences Against Persons Act (1861) (OAPA 1861). The defendant appealed on the grounds that silence cannot constitute an assault.

The appeal was dismissed, and the conviction was upheld. Silence can constitute an assault when it is done to instill fear in the victim or to intimidate the victim.

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, “come with me or I will stab you.” I would, therefore, reject the proposition that an assault can never be committed by words.” – Lord Steyn

On whether psychiatric illnesses fall under the scope of bodily harm –

“In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that “bodily harm” in sections 18, 20 and 47 must be interpreted so as to include recognizable psychiatric illnesses.” – Lord Steyn

   2. The fear must be immediate: –

In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed.

It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim.

  1. The act must me unlawful: –

In R v Arobekieke (1988) the accused was chasing the victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train and onto to the railway tracks and was subsequently electrocuted. The accused was arrested, charged and convicted for constructive manslaughter or unlawful act manslaughter. The accused appealed.

The appeal was allowed and the conviction was quashed. While the victim was in fear; the actions of the accused were not unlawful. Peering into the open doors of a stationary train may instill fear in the passengers but the act in itself is not unlawful –  while the victim did apprehend an imminent danger or was in fear for his safety, the actions of the accused was not sufficient to constitute an assault.

  • It is also not an assault if the victim is acting in self-defense for example when a would-be victim is abusive towards his or her attacker to prevent some harm from coming to him or her and
  • When one party is abusive towards another to prevent a crime.
  1. The victim must apprehend personal violence or violence towards himself or herself i.e. the victim must apprehend fear of immediate violence to his or her person: –

If the victim does not take fear and is injured or dies because of some other inherent cause or causes, the defendant’s actions may not be construed as an assault.

In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away.

Unknown to the defendant, the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed. The conviction was quashed.

Children more than adults are the most likely victims of an assault and the law recognizes this fact and makes it an offence to willfully assault a child.

S.1 of the Prevention of Cruelty to Children Act, 1894-

“If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, willfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor”.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Land Law II – Fixtures and Chattels

In Holland v Hodgson (1872) the owner of a mill purchased some looms to be used in his mill and the looms were affixed to the floor with nails, giving them some degree of permanency. The owner then mortgaged the land and defaulted on the repayments. The mortgagee (the lender in a mortgage) sought to repossess the land and sought to take control of not only the mill, but also of the looms. The mortgagee could do so if the looms were a fixture and the question before the court was whether the looms were a fixture or a chattel.

The general rule is that what is annexed (affixed) to the land becomes part of the land and because the looms were attached to the land, they had become part of the land and were regarded as fixtures. Therefore, the mortgagee was entitled to them.

Any item that is affixed to the land is to be regarded as a permanent feature of the land unless it has been regarded all along as a chattel and was never intended to become a permanent feature of the land.

Whether an item is to be regarded as a fixture or a chattel depends on the facts of each case, and in deciding whether an item is a fixture or a chattel, we have to take into account two factors: –

1) The degree of annexation

2) The object of annexation

An item that is attached to the land by no more than its own weight is normally regarded as a chattel say for example a block of stone that has just been left in the backyard as opposed to an item that is affixed to the land by some devise or mechanism, i.e. if the same block of stone was cemented to the land in the backyard than it would become a fixture but even then it is difficult to say with any degree of certainty without looking into the facts of the case if an item is a fixture or a chattel and we also have to take into account the intentions of the mortgagor when the item was first brought on to the land.

If the mortgagor intended the item to be a chattel it is best that he maintains that intention from the start and conveys that intention to the mortgagee.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Parliamentary Supremacy

As per the doctrine of separation of powers the government is divided into three branches, the legislative, the executive and the judiciary. The legislative body comprises of the two houses of Parliament (the upper house and the lower house, in the UK it is the House of Lords and the House of Commons), the executive which includes the Prime Minister, the cabinet ministers, the civil service, the armed forces and all law enforcement agencies and the judiciary which comprises of judges and those who are tasked with interpreting the law.

It is the function of Parliament to legislate i.e. to make laws, it is the role of the executive to enforce the laws and it is the role of the judiciary to interpret laws or the will of Parliament and to decide if laws have been broken and to penalize those who have broken the law in accordance with the severity of the crime or the offense that is committed. It is an offense per se to go against the will of Parliament.

Among the three tiers of government, Parliament occupies the highest tier, or is the highest body in a democracy or in any nation with a government by the people, of the people for the people (a principle that forms the basis of any democratic government) followed by the executive and below the executive is the judiciary who play no part in the legislative process (but they do make laws when they create judicial precedent but those laws are subservient to acts of Parliament and in case of conflict between the two i.e. judge-made law and enactments, enactments will prevail) and only come into the picture when the law needs to be clarified, Parliament or draftsmen can sometimes be ambiguous or when the law has been broken and a dispute arises, and a decision has to be made.

From the above it is fairly obvious that Parliament is the highest body in the land, and the simple reason is because Parliament in the safeguard of the nation and when Parliament falters, the nation will also falter.

The doctrine of supremacy of Parliament simply states that Parliament is highest body in the land and no power domestic or foreign can challenge the will of Parliament or can go against the intentions of Parliament.

Parliament can legislate on any matter and pass bills that not only apply in the present or the future but it can also legislate to cover acts done in the past i.e. legislate retrospectively or retrospective legislation see the War Damages Act 1965.

The doctrine of Parliamentary supremacy has to be viewed in light of the the doctrine of Parliamentary sovereignty, the two are often interchangeable, and as per the doctrine, no one  can the challenge the authority of Parliament.

Parliament in short can legislate on any matter anywhere and the other two branches of government, the executive and the judiciary, are bound by it. While Parliament rarely legislates on matters outside its territory it can theoretically do so, see the Southern Rhodesia Act 1965 which was passed after Rhodesia’s Unilateral Declaration of Independence.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Land Law I – Fixtures and Chattels

English land law is concerned with interests in land and in addition to ownership there are four other interests in land that may arise in the course of day to day living. Those interests are as follows: –

1) Minor and overriding interests

2) Equitable interests

3) Covenants

4) Leases and licensees

Fixtures and Chattels

When it comes to land law it is important to distinguish between fixtures and chattels. While they may both look like a permanent feature of the land, they may vary with regards to ownership. A fixture will always belong to the owner of the land while a chattel may not necessarily belong to the owner of the land and may belong to someone else.

Another way of looking at it would be to regard a fixture as permanent property that is always attached to the land and a chattel as property that is not affixed to the land. A chattel may also be defined as an asset which is tangible and moveable and a chattel may  become a fixture.

As per section 62 (1) of the law of Property Act 1925, a conveyance (sale or transfer) of land will include any fixtures on it. Section 62 (1) of the Law of Property Act 1925 reads as follows: –

“A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof”

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

“Disturbed Area”

The Armed Forces Special Powers Act (AFSPA) was enacted by the Indian Parliament in 1958 and came into force on the 11th of September 1958. The act initially came into force to address the situation in Assam but was later extended to some of the other states to counter any threats that may arise there.

The act is synonymous to the term “disturbed area” which in itself is wide and ambiguous and the scope and ambit of the term is undetermined. The act enables the legislative body to confer upon the armed forces the powers of search and arrest should it see fit to do so.

In 1972 the power to declare an area, state or territory, a “disturbed area”, was extended to the Central Government and as per the 1972 amendment the Central Government does not need parliamentary approval or the approval of the legislative body to declare an area, territory or state a “disturbed area”.

While there is no definition of what constitutes a disturbed area (a disturbed area as per section 2 (b) is an area declared by notification under section 3 of the act), it would be fair to surmise that an area could be designated a “disturbed area” if the lives of ordinary citizens in the area, or those going about their day to day business or lives of members of the armed forces and members of the civil service was put at risk, or an area where the general public are subjected to a higher level of risk than normal or risk other than that which would be deemed acceptable and that risk is a result of, ethnic conflicts, riots, protests or a general lack of law and order.

The special powers conferred on the members of the armed forces, under the act, is to help them or to assist them in bringing the situation under control as soon as possible and to contain and prevent the situation from spreading or escalating.

Copyright © 2019 by Kathiresan Ramachanderam

Continue Reading

Equity Summary

The origins of the law of equity date back to the period just after the Norman conquest of England in 1066. Prior to that the only law that existed, as far as the courts were concerned, was common law, and it strictly adhered to the principle of Stare Decisis, a Roman legacy which established the system of judicial precedent which is based on the principle that like cases should be decided in like manner.

Strict adherence to the doctrine however deprived the law of any sort of flexibility, and it resulted in some unfair decisions, and equity, which in the normal sense of the word means fairness, stepped in to mitigate the harshness and the rigidity of the common law system and to make the law more flexible.

Litigants who were denied justice started petitioning the king and the king would hear their pleas and make a decision based on his conscious, setting aside the common law, if he had to, in that particular instance. Equitable decisions do not create a binding precedent.

In time the number of cases began to increase and the king delegated the task to the Lord Chancellor who decided each case on its merits and his decisions were based on what was fair and just, as opposed to previous common law decisions.

That however led to two separate adjudicating mechanisms that ran concurrently and in order to remedy the drawbacks of having a dual court system and to create some sort of uniformity parliament passed the Judicature Acts of 1873 and 1875.

Under the 1873 Act the old higher courts were abolished and a new Supreme Court of Judicature was created consisting of the High Court of Justice and the Court of Appeal. The High Court was divided into five specialist divisional courts based on the old central courts (King’s Bench, Common Pleas, Exchequer, and Chancery), with the addition of the new Probate, Divorce and Admiralty division.

Equity was administered by the Court of Chancery and any litigant seeking an equitable remedy post the implementation of the 1873 and 1875 acts could bring his or her claim before the Chancery Division of the High Court.

In order to facilitate the workings of equity, a set of rules were developed. These rules developed organically, and they became known as equitable maxims. They are as follows:-

1) Equity varies with the length of the Lord Chancellor’s foot. This maxim simply means that equity does not operate on a system of binding precedent and a court of equity does not decide like cases in like manner but rather decides each case on its facts, keeping in mind or taking into account what is fair and just. Therefore there is always the possibility with regards to equitable decisions, that even if the facts were the same in two cases, the decisions might be different.

2) Equity follows the law i.e. it works to mitigate and tamper the harshness of the law. Equity does not overrule common law judgments or decisions but rather acts in personam and equitable decisions effect only those who are party to it and do not affect others. In Re Diplock (1948) for example, the rightful beneficiary was entitled to trace monies that were wrongfully paid to a charity. Despite the fact that the transfer was legal, the beneficiary had an equitable right to it and therefore the beneficiary was allowed to trace (tracing allows the rightful owner to recover property and monies that were wrongly given to another or transferred without the consent of the rightful owner) the monies.

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 later equity. 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.

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 the court finds 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.

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 by some writing signed by some person who is able to declare such trust or by his will;”

Because the undertaking was not evidenced in writing as per s 53 (1) (b) of the Law of Property Act (1925) her brother in law was of the belief that he could legally evict Mrs. Banister.

It was held that Mrs. Bannister held the cottage on constructive trust and she could remain there rent free for the rest of her life. A valid trust had been created despite the fact that s. 53 (1) (b) of the Law of Property Act 1925 had not been complied with.

6) Equity imputes an intention to fulfill 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.

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 defendants refused to deliver the machines and because the defendants were the sole vendors 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.

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 over 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.

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”).

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 then 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 are 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 may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.

According to the rules and established principles (equitable maxims), mentioned above, a court of equity will only be prepared to intervene if they find that the applicant or the litigant has acted equitably himself or herself.

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.

12) Delay defeats equity. The Limitation Act 1980 lays down a limitation period after which time 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 the 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 brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account”

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.

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 then the proceeds would not be divided because it is clearly not what the settlor would have intended see McPhail v Doulton.

15) Equity will not assist a volunteer. A volunteer in this context is a person who has 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.

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.

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

Continue Reading

Indian Pomegranates (Smaller Type)

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Dragonfruit

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading

Summoning of Beal

Hail Beal, bearer of burdens, horned God with hoofed feet. Hail Beal who appears with the balmy breeze, he who is ushered in by the scent of the fragrant narcissus.

Hail Beal, the God of Beyond, whose skin is ablaze with the light of the triumphant moon, whose eyes are alight with livid flames.

Hail Beal, at whose sight demons tremble, whose presence stifles the voices of the howlers and the prowlers of the night. Hail him, who is blessed with the strength of a thousand oxes.

God of handsome proportions, broad of shoulder, slim of waist, pale of face with hair of golden straw. Hail Beal who is lithe of body and fleet of feet. Hail Beal at whose presence the storms cower and the winds shudder.

I invoke thee, God of light and God of might, God who is blessed with infinite sight. I summon thee, God who is our unfailing guide, to preside over our gathering and to smoother our following with thy love.

I call upon the four sisters, the Guardian of the Northern Tower, the Guardian of the Western Tower, the Guardian of the Southern Tower and the Guardian of the Eastern tower to allow him who directs all our ceremonies smooth and safe passage.

Copyright © 2019 by Dyarne Jessica Ward

Continue Reading