ESTOPPEL



     Estoppel is nowhere defined in the EA. It is a Common Law heritage. Simply put, ‘estoppel’ is a bar or shield which prevents a party from making assertions contrary to his previous position. It simply prevents a party from adducing evidence contrary to agreed facts. Where a party is precluded from adducing contrary evidence, the fact in issue is deemed admitted and proved (Iga v Amakiri).
       One pertinent question raised by this doctrine is whether it is a shield or a sword. In other words, can a plaintiff make a case for estoppel? Basically, estoppel is a shield and can only be used by the defendant. In Salawu Yoye v Olubode, the court held that a plaintiff cannot plead estoppel or res judicata otherwise the case would be struck out. However, the court in Chinwendu v Mbanali, noted that a plaintiff may raise estoppel in his reply to the statement of defence where he is disputing certain averments in such a statement of defence, narrating the defence. See also Adomba v Odiese. Thus, the only way it can be adopted by a plaintiff is if a plaintiff is replying to the defence of the defendant, for example, where the defendant is counter-claiming, the plaintiff can raise estoppel. Aside this, it is used as a shield not a sword.
        Another issue raised is whether estoppel is a rule of evidence or substantive law. Essentially, the rule is one of evidence and the Evidence Act recognizes various estoppel from sections 169-174. The case of Ladeja v Durosimi is to the effect that estoppel is a rule of evidence. But the case of Ijale v A-G., Leventis suggests that estoppel is a rule of substantive law. In this wise, it can be argued that estoppel is a rule of both evidence and substantive law.  
Estoppel is a rule of evidence which precludes a person from denying the truth of some statement previously made by himself. It is a rule of law that when A, by act or words, gives  B reason to believe certain set of facts upon which B takes action,  A cannot later, to his benefit, deny those facts or say that his earlier act was improper.
          The principle was well defined by Belgore JSC in Oyerogba v Olaopa where he noted that:
“Where by clear and unequivocal representation of a fact either with knowledge of its falsehood or either the intent that it should be acted upon, or has so conducted himself that another person would as a reasonable man in his full faculties understand that a certain representation of and that the other person in fact did act upon that representation whereby his position was thereby altered to his detriment, an estoppel arises against that person who made the representation and he would not afterwards be allowed to aver that the representation was not what he presented it to be”

TYPES OF ESTOPPEL
1. Estoppel by Record (Estoppel parem judicatum):
When a person obtains a judgement against another, the case is forever so except for purpose of appeal but once the Supreme Court has made a pronouncement on the case, the respondent can’t bring an action in court in respect of the same case. In other words, the orders or judgements made in previous legal proceedings prevent the parties from re-litigating the same issues or cause of action. In Makun v Federal University of Technology `(Minna), the court noted that the essence of res judicata is to bring an end to litigation and to ensure that a party is not proceeded against a second time (see also Musa Iyaji v Eyigebe). In Hill v Hill, the wife sued the husband claiming divorce on the ground of cruelty, the court found that her complaint was frivolous and the case was therefore dismissed. She left the court and returned to her matrimonial home. After some time, the husband petitioned for divorce on the ground of desertion, the wife replied that she deserted because her husband was cruel to her. The husband raised the issue of estoppel. It was held that she was barred from raising the defence of cruelty which had been adjudicated on before. See also Standard bank of Nig ltd v Ikomi and Amos Aro v Salami Fabolude.
Estoppel by record manifests in two ways: a. Cause of action estoppel b. Issue estoppel. Where a cause of action has been litigated upon and finally determined by the court of competent jurisdiction, this will be a bar to all subsequent actions in respect of the said cause of action. Thus, if one party brings an action against another for a particular cause and judgement is given on it, there is a strict rule of law that he can’t bring another action against the same party for the same cause. Where an issue has been determined in a previous action, this will prevent the issue from being re-opened in a subsequent action. The parties to a suit are bound by the determination of the court on an issue in the suit. They can’t subsequently in the same or another suit advance argument(s) or adduce further evidence directed to showing that the issue was wrongly determined. Their only rememdy is by way of appeal against the determination and where appropriate an application to the appellate court to adduce further evidence of the issue. See Fidelitas Shipping v V/O Export-Chlet.
Under estoppel of record, the issues of fact must have been considered and determined finally between the parties. If the determination is by the court, it is called estoppel by record and if the determination is by a tribunal, it is called estoppel by quasi-record. S. 169-174, Evidence Act for instances of estoppel. See also S. 26, MCA preventing the court from granting a dissolution of marriage where the petitioner had condoned the act being complained of. See also S. 36(9) of the 1999 Constitution which provides against double jeopardy.

Conditions for the operation of estoppel by record (Alase v Olori-Ilu; UBA v Edionseri)
i. The parties, issues and subject-matter must be the same in the previous and subsequent case. The judgement prevails as an estoppel in favour of the successors in interest against the unsuccessful parties and their privies and successors in interest on the issues decided (Sonekan v Smith). But the addition of a nominal party can’t destroy the essence of a plea of estoppel (Permanent Secretary, Ministry of Works, Kwara State v Balogun). Ultimately, the parties must have served in the same capacity in the two actions (Ajogodo v Adegorida). When we say same issue and subject-matter, the question to be determined in whether estoppel would apply is whether the same evidence would support both cases.  See Hill v Hill.
ii. The previous judgement must be a ‘final judgement’ and the court must be of competent jurisdiction. For example, a magistrate court can’t be said to be competent if trying a criminal matter like murder or rape. Also, where the adjudication was made by a pastor or council of elders, res judicata will not apply. Furthermore, there will be no estoppel where the judgement in the previous case was merely interlocutory (Adebayo v Babalola). When we say the judgement must be a final decision, see Osendu v Nduka where the court noted that a case which is discontinued or struck out for want of diligent prosecution or non-suit order can’t be the basis of the plea of estoppel by record (see also Arugbo v Ayeleru).  
iii. The judgement must have been decided on merit and must not have been obtained by fraud or collusion. The fraud necessary to destroy a prima facie case of estoppel by Res Judicata includes every variety of mala fides and mala praxis whereby one of the parties misleads and deceives the judicial tribunal (Nwosu v Udeaja). In Yekorogha v Barakpali, after delivering a judgement a native court re-opened the case and invited a District Officer who had no power to decide a case in that court to give judgement. It was held that the judgement was irregular and incurably bad and could not sustain a plea of res judicata. 
There are two types of judgement:
a. Judgement in rem: This is an adjudication pronounced upon the status of some particular subject-matter, by a court/tribunal having competent authority for that purpose. It is a judgement against the whole world. An example is a declaration which remains binding on the parties. See sections 59 & 60 of the Evidence Act.
b. Judgement in personam: This means that a judgement can be enforceable against the person wherever he is. In personam is distinguished from in rem, which applies to property or “all the world” instead of a specific person.
It must also be noted that a consent judgement (where the parties agree between themselves) is judgement in personam and can’t operate by way of estoppel by a party that did not consent, that is, a third party to the agreement.
By res judicata, it is meant that a matter has been adjudicated by a competent court and therefore may not be pursued further by the same parties.
The doctrine of estoppel by res judicata has two principles: issue estoppel and cause of action estoppel. Each is defined in ARNOLD v NATIONAL WESTMINSTER BANK. The former may arise when a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen the issues. The latter applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject-matter.

2. Estoppel by Conduct (Equitable Estoppel):
      Estoppel by conduct is a rule of evidence which precludes a person from denying the truth of some statement previously made by himself. It is a rule of law that when A, by act or words, gives  B reason to believe certain set of facts upon which B takes action,  A cannot later, to his benefit, deny those facts or say that his earlier act was improper.
      The principle was well defined by Belgore JSC in Oyerogba v Olaopa where he noted that:
“Where by clear and unequivocal representation of a fact either with knowledge of its falsehood or either the intent that it should be acted upon, or has so conducted himself that another person would as a reasonable man in his full faculties understand that a certain representation of and that the other person in fact did act upon that representation whereby his position was thereby altered to his detriment, an estoppel arises against that person who made the representation and he would not afterwards be allowed to aver that the representation was not what he presented it to be.”
        It seems from the above case, the ff are the conditions: a. there is a clear and unequivocal representation of a fact b. the maker of the statement has knowledge of its falsity or with the intent that it should be acted upon c. the other party has placed reliance on the statement d. the other party alters his position or acts to his detriment as a result of the reliance placed on the statement.
When someone has misrepresented a material fact to another and that other has relied on such representation, the person who made the representation is estopped from saying otherwise. The locus classicus on this subject is the case of Central London Property Trust v High Trees House. Here, High Trees leased a block of flats from CLP at a ground rent of 2,500 pounds. It was a new block of flats at the time the lease was taken out in 1937. Due to the conditions during the beginning of World War II, occupancy rates were drastically lower than normal. In January 1940, to ameliorate the situation, the parties made an agreement in writing to reduce rent by half. However, neither party stipulated the period for which this reduced rental was to apply. Over the next five years, High Trees paid the reduced rate while the flats began to fill, and by 1945, the flats were back at full occupancy. Central London sued for payment of the full rental costs from June 1945 onwards (i.e. for last two quarters of 1945). The court held that the full rent was payable from the time that the flats became fully occupied not including the five years where the lessee paid the reduced price. In A-G., RIVERS v A-G., AKWA-IBOM, the court noted that when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person's representative in interest to deny the truth of that thing. This common law principle, which as shown above has gained statutory acceptance in Nigeria; it forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act or omission. In the instant case, there was an agreement between the plaintiff and the defendants where the defendants made the plaintiff believe certain facts existed upon which the plaintiff altered his position and acted to his detriment. The court held that the defendants were bound by the agreement entered into with the plaintiff and could not resile from the terms of the agreement.
       The elements include: Representation, Reliance and Alteration. There is however a limit to estoppel by conduct: it can only be invoked by the defendant (Ude v Osuji).
       See also the cases of Iga v Amakiri, Tika Tori Press v Abina, Bassil v Hanger.

3. Estoppel by standing by:
       This usually arises where a party who is aware that a court litigation involving his own interest, ignores the case and allows or stands by while the case is fought by another person in the hope of reaping the fruits of successful litigation. Put in another way, it arises where in a suit between parties the interest of another person in the subject-matter is so bound up with that of one of the parties but that person “being cognisant of the proceedings and of the facts that a party thereto is professing to act inhis interest, allows his battle to be fought by the party intending to take the benefit of the championship in the event of success. In short, a person can’t stand by and allow others fight his battle. This applies mostly in land disputes. See Nigerian Air Force v Akukalia. But a party intending to rely on estoppel by standing, must plead it otherwise the court would not entertain it (Bello v Fayose).
       The correct and proper thing for a party who is aware that a case which affects his own interest is being fought in court is for him to apply to be joined as a party in that suit. Alternatively, he may commence a fresh action during the pendency of that proceeding to assert his right. Where he fails to exercise any of the two options, he would be estopped from bringing a fresh action in respect of the same cause of action after the determination of the suit. However, as noted by the court in Balogun v Agboola, whether a whole people can stand by and watch a person fight their battle is essentially a matter of fact. In Marbell v Akwei, there was a land dispute between A and C. A traced his title to his vendors. B relied on C as his root of title. In proof of his claim, B called C as his witness. C gave evidence in support of B’s case. A won the case after which C brought an action against A in respect of the same land. A pleaded estoppel by standing by. The plea was upheld on the basis that though C was not a party in the previous proceeding, he has the same interest as B and might, if he had chosen taken necessary steps and applied to be joined as a party in that litigation which was likely to affect his interest. Consequently, he was prevented from re-litigating in the case. In fact, this estoppel is supported by the equitable maxim Equity aids the vigilant and not the indolent (Vigilantibus Et Non Dormientibus Jura Subveniunt).
      See also the case of Adenle v Oyegbade where the court noted that the doctrine of estoppel by standing by doesn’t apply where a person becomes aware of an action going on between other parties on a subject-matter in which he is interested and during the pendency of that action and before judgement is given in it, he brings his own action against these parties.

4. Estoppel by Agreement (S. 170 Evidence Act):
            When someone enters into an agreement, he is estopped from denying the content of the agreement. Thus, where there is a landlord-tenant relationship, the tenant cannot deny the title of the landlord since the agreement can be offered as evidence. Doede Bristow v Pegge. However where the landlord’s interest has been validly determined or defeated by a person with superior title in court of competent jurisdiction, the tenant will not be estopped from denying the title of the landlord.

5. Estoppel by Deed:
            Where any party has entered into an agreement by Deed, he and or his privies are not entitled to deny same (Bowman v Taylor). However, for this estoppel to arise, the Deed must be valid in the eyes of the law. Where the Deed was procured through fraud and or misrepresentation, it can’t form the basis of estoppel in the hands of or in favour of the party who is guilty of the fraud or misrepresentation. Also, it must be signed, sealed and delivered whether or not consideration was furnished.

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