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NATURE OF ESTOPPEL

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It is trite law that where a court of competent Jurisdiction has settled an issue by a final decision, in respect of matters in dispute between the parties neither party may re-litigate on that issue again by raising same in any proceedings except on appeal. This issue of relitigation falls within the ambit of estoppel. There are two kinds of estoppels; the first is called cause of action estoppel which occurs where the cause of action is merged in the Judgment which can be described as transit in rem judicatam either party is precluded from litigating on the same cause of action. See Fadiora Gbadebo (1978) 3 SC 219, Ebba v. Ogodo (2000) 10 NWLR (Pt.675) 387. The second kind of estoppel inter parties usually occurs where an issue has earlier on been adjudicated upon by a court of competent Jurisdiction and the same issue comes in question in any subsequent proceedings between the same parties. Idigbe JSC distinguished the two types of estoppel by record of inter parties in Fadiora v. Gbadebo Supra where he held: “Now, there are two kinds of estoppel by record inter parties or per rem judicatam, as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatam – See King v. Hoare (1844) 13 M.& W 495 at 504. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter they are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (ie., he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See Cutram v. Morewood (1803) 3 East 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per remjudicatam must apply, that. (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceedings), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)”. See also Ladega v. Durosimi (1978) 3 S.C. 91, 102-103where Eso, J.S.C. said: “The doctrine of res judicata, which finds expression in the maxim ‘nemo debet his vexari pro una et eadem causa, lays emphasis on the ‘causa. It is the cause of action that would have been determined and nay suit, brought to relitigate such action, which has been determined, would be dismissed. Where, however, what is raised in an issue estoppel, then, it is only in regard to that issue, that has been raised that the parties to an action, shall be bound, and the proper course to take would be one of striking out all the paragraphs in the pleadings raising that issue”. Though the whole concept of ‘estoppel’ is viewed as a substantive rule of law (see Haustead v. Commissioner of Taxation (1926) A.C. 155 at pp. 165.166 and also Canada and Dominion Sugar Coy. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) A.C. 46 at p.56, it is essentially a rule of evidence.

— R.O. Nwodo, JCA. Teleglobe v 21st Century Tech. (2008) – CA/L/694/2006

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WHERE A CREDITOR HAS AGREED TO COLLECT A LESSER SUM, EQUITY WILL NOT ALLOW HIM DO OTHERWISE WHERE INEQUITABLE

Lord Denning, M.R., in D & C Builders Ltd. v. Rees (1965) 3 All ER 837 at 840: “In point of law, payment of a lesser sum, whether by cash or cheque, is no discharge of a greater sum. This doctrine of the common law has come under heavy fire. It was ridiculed by Sir George Jessel, MR., in Couldery v. Bartrum (1881) 19 Ch. D. 394 at p. 399. It was held to be mistaken by Lord Blackburn in Foakes v. Beer (1884) 9 App. Cas at p. 622. It was condemned by the Law Revision Committee in their Sixth Interim Report (Cmnd 5449) paragraph 20 and 22. But a remedy has been found. Equity has stretched out a merciful hand to help the debtor. The courts have invoked the broad principle stated by Lord Cairns L.C., in Hughes v. Metropolitan Railway Co. (1877) 2 App. Cas 439 at p. 448: ‘…….it is the first principle upon which all courts of equity proceed if parties, who have entered into definite and distinct terms involving certain legal results………afterwards by their own act, or with their own consent, enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, that the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable, having regard to the dealings which have taken place between the parties.’ It is worth noting that the principle may be applied, not only so as to suspend strict legal rights, but also so as to preclude the enforcement of them. This principle has been applied to cases where a creditor agrees to accept a lesser sum in discharge of a greater. So much so that we can now say that, when a creditor and a debtor enter on a course of negotiation, which leads the debtor to suppose that, on payment of the lesser sum, the creditor will not enforce payment of the balance, and on the faith thereof the debtor pays the lesser sum and the creditor accepts it as satisfaction; then the creditor will not be allowed to enforce payment of the balance when it would be inequitable to do so. In applying this principle, however, we must note the qualification. The creditor is barred from his legal rights only when it would be inequitable for him to insist on them. Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts on that accord by paying the lesser sum and the creditor accepts it, then is is inequitable for the creditor afterwards to insist on the balance.”

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PRINCIPLE OF ESTOPPEL BY CONDUCT – WAIVER OF RIGHT

The principle of estoppel by conduct is based on the public policy that says that there must be an end to litigation. Its aim is, not only to hold a party to his undertaking that he will no longer insist on either his right to appeal or the accrued right or obligation from the judgment, but also not to allow a person benefit from his prevarication. Equity, generally abhors subterfuge, deception and some other unconscienable conduct. Equity acts in personam … It operates thus: if a person with full knowledge of the rights, interest, profits or benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his right, or that he has suffered by his not having exercised his rights. In the circumstance, just like in the instant case, he should be held to have waived his rights and consequently estopped from raising the issue subsequently.

— Ejembi Eko, JSC. County Dev. Co. v Hon. Min. Env. Housing Urban Dev. (2019) – SC.239/2011

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WHERE BY WORDS OR CONDUCT A PARTY HAS MADE THE OTHER PARTY CHANGE HIS STANCE

The position of the law still remains the same. It is that where by words or conduct, a party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them and the former acts upon it by altering his position to his detriment, the party making the promise of assurance will not be permitted to act inconsistently with it. This is as pronounced in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) K.B. 130. It has remained good law for a long time now. I approve same without any reservation.

— J.A. Fabiyi, JSC. BFI v. Bureau PE (2012) – SC.12/2008

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FIVE CONDITIONS FOR ESTOPPEL PER REM JUDICATAM TO SUCCEED

I would first refer to the case of Oshodi & 2 ors v. Eyifunmi (2000) 3 NSCQR 320 at 338 – 340, 339 wherein Iguh JSC had proffered five conditions which must be present for the plea of Estoppel per rem judicatam to succeed. These are:- 1. That the parties or their privies are the same that is to say that the parties involved in both the previous and the present proceedings are the same. 2. That the claims or the issues in dispute in both the previous and present actions are the same. 3. The res, that is to say the subject matter of the litigation in the two cases is the same. 4. The decision relied upon to support the plea of Estoppel per rem judicatam must be valid subsisting and final. 5. The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.

— M.U. Peter-Odili, JSC. Ugo v. Ugo (2007) – CA/A/110/2007

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WHEN DOES ISSUE ESTOPPEL ARISES

Issue estoppel arises when the issue has been decided upon to finality by a Court of competent jurisdiction. In other words, once an issue has been raised and distinctively determined between the parties, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either party again in the same or subsequent proceedings except in special circumstances. See Adone & Ors v. Ikebudu & Ors (2001) LPELR 191 (SC) and Tukur v. Uba & Ors (2012) LPELR 9337 (SC). For issue estoppel to apply, the following conditions must be satisfied: (a) The same question was decided in both proceedings; (b) The decision which creates the estoppel must be final; and (c) The parties to the judicial decision or their privies to the proceedings in which the estoppel is raised. To determine whether the above three elements exist (they must co exist), the Court will closely examine the reasons for the judgment and other relevant facts that were actually in issue in the proceeding. See Oyekola & Ors v. Amodu (2017) LPELR-42391 (CA); OSPM Ltd v. Nibel Co. Nig. Ltd (2017) 3 NWLR (pt.1552) 207 at 234 and Dasuki (Rtd) v. F.R.N. (2018) LPELR-43969 (CA).

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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DEFENCE OF ESTOPPEL MUST BE PLEADED

It is trite law in Nigeria on the authorities I have earlier cited in this judgment that the defence of estoppel, whether founded on admissions or not, must be pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected: Ogboda v. Adulugha (1971) 1 All N.L.R. 86. This is a general statement of the law. Let us see if the High Court of Lagos (Civil Procedure) Rules, 1972, which is the applicable law, make provision for an exception.

— M. Bello, JSC. Salawu Ajide V. Kadiri Kelani (SC.76/1984, 29 Nov 1985)

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