equitable remedies

The equitable remedies which developed from the Court of Chancery and which are available to a plaintiff in an action are:

• a. Injunction.
• b. Specific performance.
• c. Rescission.
• d. Rectification.

An injunction is an equitable remedy granted by the court compelling a party to do or to refrain from doing an act. The order is mandatory or positive where it compels a party to do an act; it is prohibitory or restrictive where it prohibits the doing of an act.

The different types of injunction are:

• a. Interlocutory injunction: An interlocutory injunction will be granted to restrain an apprehended or threatened injury where such injury is certain or very imminent, or mischief of an overwhelming nature is likely to be done. Mbonyi & Ors. v. Dadzie (1940) 6 WACA 125.
• b. Perpetual injunction: Perpetual injunction is based on a final determination of the rights of the parties, and is intended permanently to prevent infringement of a right, and obviate the necessity of bringing an action after every such infringement. Odunuwe v. Uduaga (1952) 14 W.A.C.A. 187.
• c. Prohibitory injunction: mandatory injunction is to compel a party to restore things to the condition in which they were at the time the plaintiff's complaint was made or before the defendant committed the act complained of.
• d. Ex Parte Injunction: An ex parte injunction is an injunction that is granted before the defendant has had time or opportunity to defend or oppose the application and, or before the notice of the motion is served upon the defendant.

The nature of the remedy of specific performance is to compel parties to a contract freely entered into, to perform their obligations according to the terms of the contract and to respect the sanctity of the contractual relationship created by their acts.

The remedy of specific performance is not decreed for every breach of contract. It is only ordered where the legal remedy is inadequate or defective for the breach of contract.

The circumstances which an order for specific performance may be granted or refused are as follows:

• a. Existence of a valid contract: Where it is clear from the evidence before the court that a contract between parties is non-existent, the court will not grant an order of specific performance. Also, the court will not grant an order of specific performance where the terms of a contract are inconclusive, uncertain or ambiguous. Ohiaeri v. Yussuf & Ors. (2009) 6 NWLR (Pt. 1137) 207.
• b. Consideration: Consideration is an essential requirement for the validity of a simple contract, absence of which renders a contract void at law and in equity. Inadequacy of consideration is not a bar to an action for specific performance under the rules of equity. However, the court will not grant an order for specific performance where the inadequacy of consideration is so gross as to prove or constitute evidence of fraud or lead to the inference that the parties could not have intended to execute the contract.
• c. Illegality: The court will not order specific performance of a contract which is void for illegality. However, where a party claiming specific performance relies on a document or memorandum which is merely unenforceable but not illegal, such unenforceability is not a bar to a decree of specific performance unless the invalidity or unenforceability is pleaded by the defendant.

Part performance refers to the act of fulfilling some, but not all, of the terms of a contract. It is a legal doctrine that allows a party to enforce a contract even if it has not been fully performed.

The following are the circumstances where the remedy of specific performance will be ordered where there has only be part performance of a contract:

• a. The act of part performance must be definite and refer exclusively to and denote the existence of the alleged contract.
• b. The act must be such as to render it a fraud on the part of the defendant to take advantage of the contract not being in writing.
• c. The contract to which the acts of part performance denote must be capable of being enforced by a decree of specific performance.
• d. The parol evidence which is let in by the act of part performance must establish a finally concluded contract.
• e. The act of part performance relied upon must have been done by the plaintiff and not by the defendant.

The grounds on which a party may rescind a contract are as follows:

• a. Mistake: Where both parties labored under a common or mutual mistake, rescission may be granted by the court. Abraham v. Oluwa (1944)17 N.L.R. 123.
• b. Non-disclosure: Where non-disclosure amounts to misrepresentation of material facts capable of inducing the other party to enter into the contract or where the circumstances of the particular transaction impose a duty to make disclosure and the defendant did not make such disclosure, order for rescission may be granted by the court. Oakes v. Turquand (1867) L.R. 2 H.L. 325. Also, non-disclosure in contracts uberrimae fidei is a ground for rescission of such contracts. A party to a contract of this class is under a duty to make full disclosure of all facts within his knowledge.
• c. Misrepresentation: Where a contract is induced by a material misrepresentation which is made either fraudulently or innocently, such misrepresentation constitutes a ground for rescission. Sule v. Aromire (1951) 20 N.L.R 20. Where rescission of a contract is claimed on the ground of innocent misrepresentation it is sufficient if the plaintiff can prove that there was misrepresentation which induced him to enter into the contract.
• d. Conditional terms in the contract: Where parties to a contract to include in the terms of the contract a provision empowering either of the parties to rescind the contract on the occurrence of certain events, the right to rescind becomes exercisable on the occurrence of the stipulated events.

The right to rescind a contract is not indefeasible and may be lost in the following circumstances:

• a. Where a party to the contract has knowledge of circumstances upon which he may rescind the contract and by express words or by unequivocal acts, affirmed the contract, his election to rescind the contract is determined. However, lapse of time without rescinding the contract may evince acquiescence and affirmation of the contract.
• b. Where a third party has acquired rights bona fide and for value under the contract, the right to rescind is lost. Clough v. London and North Western Railway Co. (1871) 7 Ex. Ch. 26.
• c. Rescission will not be granted where restitutio ad integrum is impossible, that is, the parties cannot be restored into their original state before the contract. Erlanger v. New Sombrero Phosphate (1878) 3 App. Cas. 1218.
• d. Completion of a contract constitutes a bar to the relief of rescission. This is however the case where a contract is voidable for misrepresentation which is not fraudulent. Long v. Lloyd (1958) 7 W.L.R. 75.

The effect of rescission is where the relief of rescission is granted, the contract is no longer in existence. The question of damages for breach of the contract does not arise since the full effect of rescission is to treat the contract as if it had never been entered into. A party who has elects to rescind a contract cannot at the same time obtain damages for breach of the contract. Barber v. Wolfe (1945) Ch. 187.

The remedy of rectification is to bring the document which was expressed and intended to be in the pursuance of a prior agreement into harmony with the prior agreement. The remedy of rectification presupposes the existence of an antecedent contract. There must be however be proof that by common mistake of the parties, the final completed instrument as executed failed to give proper effect to the antecedent contract.

The following must exist for the court to grant the remedy of rectification:

• a. The plaintiff must prove the existence of a finally concluded contract antecedent to the contract sought to be rectified. F.E. Rose Ltd. v. W. H Pim Ltd. (1953) 2 All E.R. 739.
• b. The concurrent intention of the parties must remain unaltered up till the moment of execution of the document which must have been intended to effect the antecedent agreement. The concurrent intention of the parties at the time of execution of the contract to which the document sought to be rectified is to be made, must be in conformity. Johnson v. Bragge (1901) 1 Ch. 28.
• c. Rectification will not be granted where owing to the common mistake of the parties as to the general law applicable to the transaction, the agreed terms of the contract operate differently from what the parties intended. The common mistake that will sustain an action for rectification must be mistake of facts and not mistake of law. Midland G.W. Rly. v. Johnson (1858) 10 E.R. 1509.
• d. Rectification will not be granted for a unilateral mistake. It is only granted where the mistake is common between parties Fowler v. Scottish Equitable Insurance Soc. (1858) 20 L.J. Ch. 225.

The instances where the court will grant the remedy of rectification where the mistake is unilateral are as follows:

• a. The court will grant the remedy of rectification where one of the parties to the transaction sought to be rectified is mistaken and the other party is fraudulent for equity will not allow a person to profit from his fraud.
• b. The court will grant the remedy of rectification where a party establishes beyond doubt that he believed a particular term to be included in the contract and the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed that term to be included.

The grant of the remedy of rectification will be refused by the court in the following circumstance:

• a. The court will not make an order for rectification where a contract has been fully performed as rectification becomes purposeless where an agreement sought to be rectified is no longer in existence. Caird v. Moss (1886) 33 Ch. D. 22.
• b. Where there is a more flexible and convenient way of ensuring that an instrument which is intended to give expression to the intention of the parties is in fact in conformity with that intention, the court may refuse rectification. Whiteside v. Whiteside (1950) Ch. 65.
• c. The court will not grant the remedy of rectification where a contract sought to be rectified is no longer capable of being performed. The remedy will also be refused where a bona fide purchaser for value without notice has acquired an interest in the subject matter of the contract. Smith v. Jones (1954) 2 All E.R. 823.

The essence of the remedy of delivery up and cancellation of documents is to prevent an improper or injurious use of a document which, on the face of it, is apparently valid, but which is latently void or voidable. The document must be either void or voidable but such defect must not appear on the face of the document. Cooper v. Joel (1859) 27 Beav. 317.

Relief by way of cancellation will not be granted where the document is void at law and the defect is patent on the face of the document. Simpson v. Lord Howden (1837) 3 My. & Cr. 97. The document sought to be delivered up and cancel must not be merely void against certain persons but completely and utterly void. Ideal Bedding Co. Ltd v. Holland (1907) 2 Ch. 157.