Where any person having an interest may make himself a party to a suit by intervening and knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case.
– Iguh, JSC. Clay v. Aina (1997)
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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)
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)
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
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.”
By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him.
– Nnaemeka-agu, JSC. Ude v. Nwara (1993)
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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