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WHAT TO BE ESTABLISHED FOR ESTOPPEL PER REM JUDICATA

Dictum

In agreement with the learned Senior Counsel’s argument in respect of the rules/requirements for the doctrine of res judicata, it is necessary to outline the conditions for application of estoppel per rem judicatum. For the plea of estoppel per rem judicatum the following must be established: 1. The Parties or their privies are the same in both the previous and present proceedings; 2. The claim or issue in dispute in both actions is the same; 3. That the res or the subject matter of the litigation in the two cases is the same; 4. That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and 5. That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

– Nwaoma Uwa, JCA. NOGA v. NICON (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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PROMISSORY ESTOPPEL

Otto v. Mabamije (2004) 17 NWLR (Pt. 903) page 489 at page 504, (2005) All FWLR (Pt. 262) 597, this court held as follows:- “By virtue of section 51 of the Evidence Act, when one person by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act on such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such representative in interest to deny the truth of that thing.”

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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 A COURT DECIDES AN ISSUE, IT CREATES AN ISSUE ESTOPPEL

Para. 12: “On 27th October 2009, the court issued a ruling in an application for preliminary objection raised by the defence. These issues about the court’s jurisdiction in this matter as well as the exhaustion of local remedies were decided in that ruling. It is thus inappropriate for Counsel to raise the same issues again. The principle of law is clear that when a court has decided on some issues in the case, the decision creates issue estoppel as between the parties and/or their privies in the present and any subsequent proceedings in which same issue’s is/are raised. Besides, the decision of this court is final and can only be altered through a revision if the correct procedure is followed. In view of the foregoing, the court cannot re-open these two issues about its jurisdiction and exhaustion of local remedies.”

— SERAP v FRN (2010) – ECW/CCJ/JUD/07/10

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NATURE OF ESTOPPEL

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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ESTOPPEL: ISSUE & CAUSE OF ACTION ESTOPPEL

Two types of Estoppel by record are:- (a) Cause of Action Estoppel – which precludes a party to an action or his agents and privies from disputing as against the other party in any subsequent proceedings, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary and involving same issue. (b) Issue Estoppel which precludes a party his servant, agent or privy from re-opening or relitigating as against the other party or his agents and privies in any subsequent proceedings, issues which were distinctly raised in a cause of action and appropriately resolved or determined in any suit between the parties in a court of competent jurisdiction.

– ADEKEYE, JCA. NOGA v. NICON (2007)

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