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DEFENCE OF ESTOPPEL MUST BE PLEADED

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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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NATURE OF ISSUE ESTOPPEL

Issue estoppel applies when parties or their privies are prevented in a subsequent suit from relitigating an issue which had earlier on been adjudicated upon by a court of competent jurisdiction and which same issue comes incidentally in question in any subsequent proceedings. In other words issue estoppel applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him.

– Mohammed JCA. Rufukka v. Kurfi (1996)

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INGREDIENTS FOR ISSUE ESTOPPEL TO APPLY

It is trite law that for issue estoppel to apply the following ingredients must be present: 1. The parties must be the same in the previous and present actions; 2. The same question that was decided in the previous action must arise in the present action in respect of the same subject matter; and 3. That question must be a final decision of a competent court. See Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) S.C. 387.

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

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MAKING A PERSON BELIEVE IN A STATE OF THINGS CREATES ESTOPPEL

Joe Iga & Ors v. Ezekiel Amakiri & Ors. (1976) 11 S.C 1, this court stated at pp.12-13: “If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.”

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ESTOPPEL IS A SHIELD AND NOT A SWORD – NOTHING LIKE TITLE BY ESTOPPEL

The estoppel put an impediment on its way, Estoppel is thus a shield not a sword; it’s role is defensive not offensive. To use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper; it can never be a capital unit. There is nothing like title by estoppel as an estoppel gives no title to that which is the subject matter of the estoppel.

– Nnamani JSC. Gbadamosi v. Bello (1985)

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REQUIREMENT FOR ESTOPPEL PER REM JUDICATA

Now, for a judgment to constitute issue estoppel the following conditions must be satisfied: – 1. the same question must be for decision in both proceedings (i.e. the same question for decision in the current suit must have been decided in the previous suit); 2. the decision relied upon to support the plea of issue estoppel must be final; 3. the parties or their privies must be the same. The three elements must be present and co-exist for a plea of estoppel per rem judicata to apply. See Ito v. Ekpe & Ors (2000) 3 NWLR (pt. 650) 678; Oshoboja v. Amida & Ors (2009) LPELR-2803 (SC) and Oleksandr & Ors v. Lonestar Drilling Co. Ltd & Anor (2015) LPELR – 24614 (SC).

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

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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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