EQUITY WILL NOT SUFFER A WRONG WITHOUT A REMEDY

Q)    Equity will not suffer a wrong without a remedy. Discuss ?

Q)    Explain the maxim of the equity "ubi jus ibi remedium." ?

Answer

1. INTRODUCTION:    Where there is a right, there is a remedy. This idea is expressed in the Latin maxim "ubi jus ibi remedium." While it has been stated that the maxim of the common law that wherever there is a right there is a remedy for its infraction has never been adopted by courts of equity, it has been frequently stated that equity will not suffer a wrong, or, as sometimes stated, a right, to be without a remedy.

2. MEANING OF THE MAXIM:    Equity will not suffer a wrong, to be without a remedy means no wrong should be allowed to remain unrepressed if it is capable of being remedied by the court of justice.

3. EXPLANATION:    In accordance with the maxim, where a statute creates a new right which cannot be adequately enforced at law, equity will contrive remedies and orders to enforce it unless the statutory remedy is exclusive.

4. APPLICATIONS OF THE MAXIM:

    (i) Right to Vote/Franchise:    As stated in Smith's Leading cases: 

    In Ashby v. White, wherein a qualified voter was not allowed to vote and who therefore used the returning officer, it was held that if the law gives a man a right, he must have "a means to vindicate and maintain it, and a remedy, if he is injured in the exercise of an enjoyment of it. "If man will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense."

    (ii) Uses and Trusts:    As noted by Snell, it was on this maxim that the Court of Chancery based its interference to enforce uses and trusts. Where A conveyed land to B for the use of and in trust for C, and B claimed to keep the benefit of the land to himself, C had no remedy at law. But this was an abuse of confidence, which was a wrong capable of redress in a Chancery Court.

    (iii) Mortgagor's Equity:    A mortgager was allowed in equity to sue the mortgagee for land and for the rent thereof even though the latter was possessed of the legal estate.

    (iv) Action Against Trustee:    A trustee for the breach of a trust could be used in equity because it was a wrong and no wrong should go underdressed.

    (v) Other Matters:    Where a defamatory matter is published or where a document is not produced or where there is a breach of right regarding water, light or air, there also the equity courts ordered either for arrest or grant an injunction as was suitable.

    (vi) Condition: 

            (a) It will not apply where the rights and remedies fell within the exclusive domain of law.

            (b) It will not apply if there is a moral infringement being incapable of enforcement.

5. LIMITATIONS OF THE MAXIM:

    (i) Breach of a Moral Right: The equity courts could not help where there was breach of a moral right only. Thus, only breach of the legal rights and equitable rights were capable of being redressed.

    (ii) Jurisprudence of Common Law Courts: The Equity courts afforded no relief where the right and its remedy both were within the jurisdiction of the Common Law Courts. 

    (iii) Negligence: The equity courts afforded no relief, where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favors or waived his right to an equitable remedy.

6. RECOGNITION IN PAKISTAN:

    (i) The Trust Act.

    (ii) Section 9 of the Code of Civil Procedure.

    (iii) The Specific Relief Act provides for equitable remedies like specific performance of contracts,             rectification of instruments, injunctions and declaratory suits.

    (iv) It can be said that the writ provisions in the Constitution, the Administrative Law and the Public Interest Litigation devices have now extended the scope and effective working of this maxim. 

7. CONCLUSION: The maxim is necessarily subordinate to positive principles and cannot be applied either to subvert established rules of law or to give the courts a jurisdiction either to unknown, and it is only in a general, and not in a literal sense that the maxim has force.

    The maxim applies only to those who have not had their day in court, and it does not afford a second remedy to one who has lost the remedy provided by law through failing to invoke it in time, even though such failure accrued without fault or negligence on his part. The maxim is sometimes vindicated by denying that a wrong exists when no remedy can be afforded.