Equity XXIV

12) Delay defeats equity. The Limitation Act 1980 lays down a limitation period after which the applicant or the litigant may not be successful. For example, Section 22 and 23 of the Act read as follows: –

Section 22 Time limit for actions claiming personal estate of a deceased person.

Subject to section 21(1) and (2) of this Act—

(a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and

(b) no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.

Actions for an account

Section 23 Time limit in respect of actions for an account.

An action for an account shall not be 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.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XXIII

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

Copyright © 2019 by Dyarne Jessica Ward

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Equity XXII

10) He who seeks equity must do equity. As per the maxim, an applicant or a litigant who is relying on equity must have acted equitably himself or herself before he or she can petition a court of equity to intervene on his or her behalf. If the applicant’s or litigant’s actions are tainted with fraud or malice than a court of equity certainly would not intervene on his or her behalf.

Whether a court of equity chooses to intervene or otherwise is entirely at the discretion of the court and a court of equity will be reluctant to intervene or will be hesitant to intervene if it finds that the actions of the applicant or the litigant is tainted with fraud and malice.

In Haywood v Cope (1858), it was decided that, as per Lord Romilly MR, – the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person 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.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XXI

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

Copyright © 2019 by Dyarne Jessica Ward

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Equity XX

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

Copyright © 2019 by Dyarne Jessica Ward

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Equity XIX

7) Equity regards what ought to be done as done. This maxim applies to remedies like specific performance i.e. where the courts will compel a party to perform its stipulated duties.

In Nutbrown v Thornton (1805) the plaintiff entered into a contract with the defendants to purchase some machines. Subsequently the defendant refused to deliver the machines and because the defendant was the sole vendor for that type of machines, the plaintiff brought an action against the defendants and sought specific performance as a remedy. The court granted specific performance and compelled the defendants to perform their duties as stipulated by the contract.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XVIII

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

Copyright © 2019 by Dyarne Jessica Ward

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Crime – Infanticide II

The situation is somewhat more complicated in developing countries because despite some official figures being released, I suspect that the figures in these countries are higher than what they are or what they are perceived to be because a lot of births go unreported especially in rural areas with little or no medical facilities (95% of infants who are killed before they reach the age of 1 are not born in hospitals).

Now a majority of these infants are killed by their mothers usually in the first week of birth but even if they survive the first week they are still at risk and many are killed before they reach their first birthday by either their fathers or their stepfathers.

Overall the figures are high in both developed and developing countries. While a majority of the infants under the age of 1 or below the age of 1 that are killed in developing countries are female the same cannot be said for infants the same age that are killed in developed countries and in the latter there seems to be no gender preference and if anything it is the reverse i.e. more boys than girls below the age of 1 are killed and it appears to be more prominent in some communities than others and once again I’m not going to pinpoint any community because our objective here is to merely learn more about the crime.

The difference in the gender of infants that are killed in developing countries and developed countries once again suggests that there are different factors that come into play but it would be fair to say or surmise that the inability to provide for oneself or the inability to satisfy the needs of the parents with a child in the family or an additional child in the family would be the prime factor that leads to the killing of infants below the age of 1 in developed countries.

The statistics are high and the figures are there for everyone to see and for those who are keen on finding out what the figures are and other salient features with regards to the killing of infants, the figures are normally tabulated under infant homicides.

In many developing countries female infants below the age of 1 are killed because social norms and cultural commitments place a financial strain on the families and the flow of thought may be that regardless of whether it is right or wrong, we are not judges and nor are we empowered in any way to judge anyone, it is better to kill the child than to let her suffer for the rest of her life or as some may see it or perceive it, the lesser of two evils. These are all signs and symptoms of abject poverty.

Overall the infanticide rates in developed countries seems to be dropping and that’s probably due to concentrated efforts by all parties concerned to stem the tide and the fact that parents with small incomes can still continue to raise their children with some help has played a big part in stopping infant homicides from spiraling out of control.

In addition to socio-economic factors, religion also plays a part and the stigma that is attached to children born out of wedlock doesn’t help matters.

Young unmarried mothers below the age of 19 have the highest propensity to commit infanticide and therefore we are dealing with some very young offenders and most of them are not mature enough to think or to reason and they might not even know where to go for help even if they wanted or needed to.

It is difficult to explain a baby for anyone in their teens and it is even more difficult if the parents come from broken or dysfunctional homes. With infanticide we’ve got to look at all these factors before we make up our minds.

A lot of us are most likely under the impression that a majority of people who commit infanticide are illiterate or don’t know any better or have never got past high school but that is sometimes just not the case.

You’d be surprised at who the offenders sometimes are and they commit the act simply because they want a second chance in life and doing away with the baby gives them the opportunity to do just that.

It’s difficult to point the finger at some of these people and say they’re cold blooded murderers just because they’ve fulfilled all the requirements that criminal law needs to convict for murder i.e. they had the intention to kill and having the intention to kill they went on to commit the act.

Copyright © 2018 by Dyarne Ward

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Crime – Infanticide I

Infanticide or infant homicide is defined as the act of killing a child within a year of the child’s birth. While it is a crime that is mostly associated to developing countries or third world countries or countries that are still lagging behind the rest of the world, it is not unusual to come across cases of infanticide in countries that do not fit the tag or label of developing countries and that tends to suggest that there are various other causes or factors that compels the offender to commit the crime other than just poverty.

Technically while it is murder, because the intention to kill is or was always there, in most of these cases it is clear that the parents or parent intended to kill the child, the accused may still have a defense under diminished responsibility because the intention to kill may have been brought on by a psychiatric illness.

Now it is worth remembering that diminished responsibility is different from insanity and despite what most people may or may not think, diminished responsibility is not insanity. The test for diminished responsibility is a “a preponderance of probability” and the M’Naghten rules are used to establish insanity.

I’m going to divide infanticide into two categories i.e. that which occur in developed countries and that which occur in developing countries and the reason I’ve done so is because the underlying factors that compel the offenders to commit the crime are different or rather the offenders are motivated by different factors.

In a leading case in a major European city for example and I don’t really want to go into the details of where and when because our objective here is to understand and appreciate what infanticide really is and to try and acquire some understanding of it and to also realize that it could occur anywhere in the world and not pinpoint any area or region, the offender and her partner were charged with killing up to 8 babies.

The babies were suffocated and wrapped in plastic before the remains were stashed away either is some part of the home or disposed of in garbage bags and at the trial the prosecution adduced evidence to show that the crimes were committed not because the children would place a financial burden on the parents but because the parents wanted to remain sexually active.

I’ve highlighted this because whatever we choose to label it egoistic, machoistic or sadistic, these crimes are motivated by some sort of a mental imbalance and these are the types of situations where we can bring in the defense of the offender not being mentally sound or diminished responsibility.

If we were to use the reasonable man’s test the offender or the accused would no doubt be found guilty but these are crimes or offences that the reasonable man cannot contemplate or offences that are beyond the contemplation of the reasonable man or the ordinary man and therefore it is to some degree pointless applying the test because the only verdict that is going to be returned is that of guilty of murder or guilty of multiple murders.

Sometimes we have no choice but to look into the accused’s state of mind and we do this because we want to prevent these types of crimes from happening again.

The other reason why I have mentioned the case is because infanticide is not always caused by the offender’s inability to financially cope with caring for a child. It is the most common reason but it is not always the sole reason.

There is also a distinction between infanticide and child abuse and unless there is evidence that the child has been abused prior to death, the accused or the offender should not be tried for child abuse. In most instances of infanticide, the child is killed soon after the child is born. Child abuse implies wickedness or cruelty towards another human being, infanticide often implies a sense of helplessness.

The second factor that we should take account of is the age of the offender. Sometimes the offender is just too young and as hard as it may be to believe, some of these offenders just don’t know any better. Many of them don’t know how to survive with a child. Some of them can barely make it on their own and a child is an additional burden that they just can’t cope with.

In most of these cases especially when it is splashed across the front-page that the remains of a baby were found somewhere, the mother is instantly to blame and nothing is ever said about the father. I think we all know that it takes two people of the opposite sex to make babies and infanticide is one of those crimes where we can look at making both the mother and the father responsible or accountable.

Copyright © 2018 by Dyarne Ward

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The Perfect Crime – II

In R v Thornton (1996) the victim was particularly abusive towards his wife and on the day in question he threw his wife out of the house after abusing her together with a suitcase filled with her clothes.

She returned later that day and tried to patch things up and the victim was even more abusive towards her. She then went into the kitchen and grabbed hold of a kitchen knife and she tried to patch things up again but her husband continued to be abusive and finally she stabbed him in the stomach with the kitchen knife and killed him.

She was charged with murder and at her trial she raised the defense of diminished responsibility but she did not raise the defense of provocation. The judge however did direct the jury on provocation. The jury convicted the accused for murder and the accused appeal. Her appeal was allowed on the grounds that she suffered from a syndrome called battered women’s syndrome.

From the decisions in the above cases we can come to the conclusion that provocation will most likely not be a valid defense for a charge of murder in cases involving battered women and the option of diminished responsibility looks to be the much better option. Therefore, in order for our fictional heroine to commit the perfect crime she has to play the role of an abused wife i.e. she has to be of timid disposition, there have to be some visible traces or evidence of abuse – if the neighbors can testify that they heard screaming and yelling coming from the house it would be better and it would go towards showing that the accused was for all intense and purposes subjected to repeated abuse. Even if the neighbors cannot testify that there was physical abuse they can at least testify that there was verbal abuse.

And the type of words and phrases that we are looking for? – well we are looking for sentences or phrases with foul language and were looking for sentences or phrases that suggest that the victim intended to do some type of harm to the accused i.e. phrases and sentences like “I’m going to hurt you” and “I’m going to kill you” etc. – anything for that matter that would instill fear in an ordinary person.

Moving on we’ll also try and prove that our heroine, because of the abuse she had been subjected to developed what is called Battered Women’s Syndrome (BWS). For starters Battered Women’s Syndrome is a mental disorder and that will allow us to go for the defense of diminished responsibility. It develops over a period of time after the wife has been subjected to repeated abuse, either verbal or physical, and it makes the wife feel helpless or defenseless.

That doesn’t however mean that the relationship is stormy all the time and there may be patches where the victim tries to make up for the abuse and smoothen things over and things appear fine for a certain time and then it starts all over again. So, it is a vicious repetitive cycle that the wife is subjected to and it eventually leads to her developing the syndrome. All of these factors are adduced by evidence and can be tailored with the exception of medical evidence.

Let’s say that our fictional heroine manages to play the role perfectly and that she can rely on the defense of diminished responsibility to have a conviction of murder reduced to manslaughter.

However, there is another defense available for our accused to escape liability and that is the defense of self-defense and we’ll rely on the decision in Beckford v R (1988) to establish that our accused acted in self-defense.

In Beckford v R (1988) the police received a phone call from someone claiming to be the victim’s sister stating that the victim was armed with a gun and was holding his mother hostage. The police in response sent an armed unit to investigate and as the police officers entered the house, the accused saw someone running out the back door.

The accused followed and the victim turned around holding what appeared to be a gun and pointed it at him. The accused retaliated by opening fire and the victim was killed. As it turned out the victim was not holding a gun and no gun was ever found. The accused was charged with murder.

At the trial, the judge directed the jury that the accused in instances of self-defense is only entitled to use reasonable force as opposed to excessive force and if the force that is used is excessive then the accused can be convicted for murder. The jury found that the force that was used was excessive and accordingly convicted the accused for murder.

The accused appealed. The conviction was quashed and it was decided that the jury were misdirected. The accused in cases of self-defense is entitled to use as much force as he or she honestly believes is appropriate in the given circumstances. In this particular instance because the accused honestly believed that the victim was holding a gun he was deemed to be acting in self-defense when he opened fire and therefore adjudged to be not guilty.

In order to commit the perfect crime our fictional heroine, who for all intense and purposes, is a battered wife and has played the part perfectly, despite suffering from a syndrome which gives her a defense, acts or reacts in self-defense i.e. she does something to make her husband attack her and in order to protect herself she unwittingly or unintentionally stabs him. Relying on Beckford v R (1988) our accused can use the force that she deems necessary to protect herself. Will it work or does it belong within the pages of a book? Well if our fictional heroine plays her role perfectly she should get away with a slap on the wrist and it is worth keeping in mind that in this work of fiction the intention to kill was always there.

Copyright © 2018 by Dyarne Ward

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