Defendant is being called upon to give an account as to how he has utilised some funds entrusted to him etc.  when the suit is filed for an account, the defendant has certain defences,

The defendant can say they have agreed, struck a balance etc.  that defence of settled account can be rebutted and the defendant will still be required to account.  The court can order a re-opening of the account if there is fraud or a mistake that is so fundamental to the process.

On the other hand instead of the court giving an order that the settled accounts be opened, the crux is when the court says surcharge or falsify.

Reopening of settled accounts

This is ordered if there is fraud.  But note that even if there is no fraud but there is something else, there is a fiduciary relationship between the plaintiff and defendant the court will reopen the account.  When there is a fiduciary relationship the standard of very high.

Liberty to surcharge or falsify will be ordered where there is no fraud and there is no fiduciary relationship but there is a mistake which suggests that the standard is a bit lower.   Here we are saying that there was a credit due to the plaintiff’s favour which was not taken into an account and so it should be surcharged and given to him.

On the other hand, where the defendant was erroneously given some money that he was not supposed to have the court will say that the account was falsified and will order a refund.

Delay is a rule that applies across the board in equity. 

When talking about justiciable issues, or the kind of rights that will be recognised by the court of equity for a remedy to be granted equity will not suffer a wrong to be without a remedy, ibis jus ibis remedium.

In the case of Matalinga, this kind of assumption is unwelcome, there is not share for this kind of claim in equity.  Matalinga is saying that not all wrongs can be remedied.  There is technical equity that determines when a remedy is to be granted.


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