ESTOPPELS

Contents

1.0       Introduction

2.0       Objectives

• Main contents
• Doctrine of Estoppel
• Statutory Provision
• Nature of Estoppel
• Classification of Estoppel

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       Reference/Further Readings

INTRODUCTION

The doctrine of estoppels is a heritage from the English Criminal Law, which bars a party to a suit to renege from or doing the contrary of which he or she has led another to believe and the special case of relying on a previous judgment as conclusive of the issue or issues in dispute.

Statutory provision relating to Estoppels can be found in part X of the Evidence Act of 2011, the Matrimonial Causes Act, the Federal Republic of Nigeria Constitution, 1999 and the Rules of various High Courts of Justice. We shall refer to them in this unit.  By its nature, estoppel  is an admission – something which the law of evidence considers as conclusive and parties are not allowed to plead against  it  or  advance  contradictory evidence.  The court  considers it only fair that a person’s own act or acceptance should prevent him or her from alleging the contrary.

OBJECTIVES

At the end of this unit, the students should be able to have a full grasp of the concept of ‘’Estoppel’’ which they should be able to demonstrate on application to the law of evidence.

MAIN CONTENT

• Doctrine of Estoppels

“Estoppel”, says Lord Coke, “cometh of the French Word ‘estoupe’  from whence  the  English word stopped: It is called estoppel or conclusive because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth” (Littleton. 352a).

There are variances of estoppels ranging from estoppel by conduct, by deed, by larches, by misrepresentation, by negligence to estoppels by judgment. It is all a question  of  procedure.

Estoppel may be defined or explained in various ways as:

• A legal result or conclusion arising from an admission which has either  been  actually made, or  which  the  law  presumes  to  have  been  made,  and  which  is binding  on all persons whom it affects.
• A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as
• A bar that prevents the re-litigation of issues
• An affirmative defence alleging good  faith,  reliance  on  a  misleading representation and an injury or detrimental change in position resulting from that reliance
• A rule by which a party is stopped by some previous act to which he or she was a party or a privy from asserting or denying a fact. It is a rule of exclusion making admissible proof or dispute of relevant facts
• A rule by which a party to litigation is stopped from asserting on denying a fact. The doctrine of estoppels is the rule of evidence, which prevents a party from denying the truth of some statement, formerly made by him or her. Thus s person would be stopped from denying the existence of facts which he or she has by words or conduct led another to believe.

If X by a representation, induces Y to change his position, X cannot, on the face of it, be heard afterwards to deny the truth of his or her representation.

Belgore, JSC explained Estoppel as follows:

“Where a person by clear and unequivocal representation of a fact either with knowledge of its falsehood or with the intention that it should be acted upon or has so conducted himself that another would,  as  a  reasonable  man  in  his  full  faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that representation whereby his position was thereby altered to his detriment, an estoppel arises against that person who made the representation and will not be allowed to aver  that  the representation is not what he presented it to be” Oyerogba v Olaopa (1998)”

• Statutory Provision: (a) The Constitution

No person, who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for a criminal offence, having the same ingredients as that offence save upon the order of a superior court. Section 36 (9). (b) Evidence Act, 2011

• Section 173

Every judgment is conclusive proof, as against parties and privies, of facts directly on issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based;

• Section 174
• If a judgment is not pleaded by way of estoppel, it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was , or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding
• Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.
• Section 65

When any action is brought against any person for anything done by him in a judicial capacity, the judgment delivered, and the proceedings antecedent to it,  are  conclusive proof of the facts stated in such judgment, whether they are or are not necessary to give the defendant jurisdiction, if assuming them to be true, they show that he had jurisdiction.

• Section 169

When one person has either by virtue of an existing court judgment, deed or agreement or, 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 representatives in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.

• Matrimonial Causes Act, 2004. See Section 26 which deals with Condonation and Connivance.

Except where section 16(1) (g) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based.

• Rules of Court

Most High Court Rules contains provisions to the effect that:

An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any first step after becoming aware of the irregularity.

What the provisions seem to show is that estoppel is not static; but has continued to expand in different varieties according to the facts of each particular case, and at the same time, breeding a myriad of problems.

Each of the species may have its own peculiarity and what you find in one may not be in the other. For example estoppel by record or by deed does not bind the  statement,  but estoppel by conduct does.

Your consolation is several folds:

1. The varieties are all under one proof: “Someone is estopped  from  saying  something or other; or doing something  or other, continuing  or other”.  The rationale is that when a person, by words or conduct, has led another to believe in a particular state of affairs, that person will not be allowed to go back on it when it would be unjust or inequitable for him or her to do so
2. The doctrine, whether as a rule of evidence or a rule of substantive law or in whatever form of estoppel, is rooted on the principle of justice and equity that no man should be allowed to profit from his own act or omission, which the other side has relied upon to his detriment or be allowed to raise a second time, a matter decided in a previous case.

The notion of estoppel is a combination of several elements such as:

• A clear and unqualified statement, which must be acted on:
• The action must act on the faith of the statement to the detriment to the actor
• Nature of Estoppel
• Estoppel and Rule

Estoppel may be looked at as a rule of evidence because it is contained in the statute, e.g. the Evidence Act, Part X Section 62-64 and Section 169-172.

In LADEGA v DUROSIMI (1978) Eso, JSC (as he then was) confirmed that Estoppel “is essentially a rule of evidence; any relevant evidence  excluded  by  the  doctrine  of  estoppels is inadmissible.

It is also a rule of criminal Procedure. See the Constitution 1999, CPA Part 19 and CPC Sections 223-224.

Estoppel looks more like a rule because it is set up by statute and also exclusionary, but unlike a rule, estoppels may be pleaded.

• Estoppel and Substantive Law:

Is Estoppel a substantive Law? A substantive law may be a cause of action. Generally the Evidence Act provides for estoppels and its proof. The Evidence Act is a substantive law; it contains a substantive law. Estoppel is a defence. But estoppel per rem judicata can also  give rise to a cause of action.

Brett JSC in IJALE v AG LEVENTIS (1961) ALL NLR 752 said that “Estoppel is often described  as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law. See also HOYSTEAD v COMMISSIONER OF TAXATION (1926) AC 155.

• Estoppels and Pleadings

Estoppel, as well as the relevant and specific facts on which it relies, are required to be pleaded. Estoppel then is (though not entirely) a matter of pleading. Estoppel looks like a rule because it set up by statute and also exclusionary, but unlike a rule, an estoppel is pleaded.

• Classification of Estoppels Estoppel may be classified as follows:

 Estoppel in pais

Estoppel in writing

Estoppel by record

Per Lord Denning: West Midlands Police Force & Anor (1980)

 Estoppel by Representation

Promissory estoppels

Estoppel by deed Estoppel per rem Judicata (Iyaji v Eyigebe (1987) 3 NWLR (Pt. 61) 533

(c ).      Estoppel by record Estoppel by deed Estoppel by conduct Equitable estoppel

The various classes depend on the different ways estoppel may arise. The growing nature has made its typology difficult to put into watertight compartments. Hence Lord Denning likened estoppels to a big house with growing number of rooms; estoppels per  rem  judicata, issue estoppels, estoppels by deed, estoppel by representation , estoppel by conduct, estoppel by acquiescence, estoppel by election, or  waiver,  estoppel  by negligence, promissory estoppel, proprietary estoppel, etc. What you find in one may not be found in the others. What a complexity!

• Estoppel by Record Estoppel by record includes:

1. Judgments of the Courts of Record (i). Cause of action estoppels

This is where a cause of action which has been litigated upon between the parties and finally determined by a court of record, having jurisdiction in the matter is brought again in a subsequent proceeding between the same parties

• Issue estoppels:

Issue estoppels arises where a fact in issue in the first cause of action has previously been decided and the same fact comes again in question in a different subsequent suit between the same parties

As regards estoppels by judgment, the general principle is that:

1. it is for the common good that there should be an end to litigation and
2. no one should be sued twice on the same ground

In essence, every judgment is conclusive evidence for or against all persons, whether or not they are parties, of its own existence, date and legal effect, except as to the accuracy of the decision. To create estoppels, therefore, the judgment must be unimpeachable, final, decided on the merit, pronounced  by a competent  court and obtained  neither  by fraud nor by collusion.

A judgment is not evidence of a fact, which was not directly decided; e.g. Collateral matters or matters that were incidental or merely inferable from arguments. Accordingly, objections may be raised when the other party seeks to tender a judgment as evidence of the facts decided on the ground that:

1. It is not a formal judgment. It is only a final judgment when the rights of the parties have been determined, even though an appeal is possible
2. It was not decided on merits; e.g. if it was dismissed for want of prosecution

• It is collusive, fraudulent or forged

A judgment in rem is adjudication as to the status or condition of some particular subject matter of a Tribunal, having competent authority for that purpose. Such judgment is in rem juidicata e.g a divorce, declaration of legitimacy, condemnation of a prize court, or adjudications in bankruptcy. The estoppel that arises in subsequent proceeding  on the  same subject is estoppel per rem judicatum – a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings, matters which have been adjudicated upon previously by a competent court between him and his opponent.

A judgment is a conclusion for or against all persons, of whatever matter it settles, as to the status of persons or property, the rights or title to property or whatever disposition of property or proceeds of sale it makes or other matters actually decided. The reason is that public policy demands that questions of status and the like should not be left in doubt.

For example, A decree of dissolution or nullity of marriage on the  ground  that  the  marriage has broken down irretrievably, alters the status of the erstwhile spouses, and the ground of divorce binds the parties and privies but not strangers. Thus in Hill v Hill (1954)  PD 291 W petitioned for divorce on grounds of cruelty, alleging several acts of violence against H. Dismissing the petition, the court held that the acts as  were complained about  did not amount to cruelty.   H later petitioned for divorce on the ground of W’s desertion.   W pleaded justification based on acts of violence she had alleged on the previous proceedings. Held W is estopped. Also in EZENWANI v ONWORDI  (1987) the Supreme  Court held that since the issue of traditional history has been decided in an earlier case between parties on the same land in dispute, it has become issue estoppel and inadmissible in a subsequent suit between the same parties.

Res Judicata operates not only against the party whom it affects but also against the jurisdiction of the court itself. The party affected is stopped per rem judicatam  from  bringing a fresh action before the court or from proving anything, which contradicts his previous acts or declarations to the prejudice of a  party.  The  plea  of  res  judicata  prohibits the Court from inquiring into a matter already adjudicated upon. Its effect is to oust the jurisdiction of the Court.

• Parties

The term ‘Party’ means not only a person named as such but also one, who,  being  cognizant of the proceedings and of the facts that a party thereto is professing to act in his interest, allows his battle to be fought by that party intending to take the benefit of the championship in the success.

• Privies

In this context, Privy means Privity in blood: (e.g. ancestors and heirs), privy in Law (e.g. Bankrupt and trustee in bankruptcy), privy in Estate (e.g. Lessor and Lessee). For Privies to bind the party, the party or privies must sue or defend in the same right and character. An action in a personal capacity cannot create estoppels in a subsequent action in a representative capacity or as an administrator.

Hence a civil action will not create estoppel in a criminal proceeding and vice versa for the obvious reason that parties are different.

1. Judgment does not create estoppels for or against a stranger unless he or she knowingly stood by and did nothing to intervene in proceedings in which he or she has an interest
2. Judgments are admissible to prove facts and can be used to corroborate other evidence even though the judgment does not amount to an estoppel. Examples can be found in cases of:
   • Bankruptcy (Ex.Parte Anderson, re Tollemache (1885)

• Divorce (Parrington V Parrington and Atkinson (1925).

The following judgment would not constitute estoppels:

• Judgments obtained by consent;
• Judgment in default of appearance to the writ;
• Judgment of dismissal for want of persecution, not being dismissal on the merit;
• Consent orders, though obtained by fraud, do estoppel the parties until it is set aside;

Aniagolu JSC explained the consequence as follows:

“A party to civil proceedings is not allowed to make an assertion against the other party, whether of facts or legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence, in a previous suit between the same parties or their predecessors in title, and was determined by a court of competent jurisdiction unless further material be found, which was not available, and could not, by reasonable diligence, have been available, in the  previous proceedings”.

“So established is issue estoppels in the laws of the common law countries that it has been held that where a final decision of an issue has been made by a criminal court of competent jurisdiction, it was a general rule of public policy that the use of a civil action to initiate a collateral attack on the decision was an abuse of the process of  the court, unless there was fresh evidence”.

• Judgment in Personam

A judgment in personam is conclusive evidence only so far as the parties to the suit and their privies are concerned not only as the matters actually decided but also as to the grounds of its decision when these again come in controversy between the same parties and privies. Examples  are ordinary judgment  between parties in cases of contract,  tort and crime,  being against a person and not against a thing. The reason is that the public policy does not encourage litigation. The principle – nemo bis vexare debet – forbids a person to be vexed twice over.

Conditions precedent for estoppel in personam to operate:

1. The parties and privies against whom the judgment is tendered must be suing in the same right or same capacity as in the former proceedings
2. The matter in dispute must be the same in both proceedings

The judge decides on the question of identity of issues and the test is whether the same evidence would support both actions.

What this means is that an action in tort will not estoppel an action in contract arising from the same faults. The duty of care owed by one driver to another differs from duty of care owed the passengers by the driver.

Estoppel also applies in Administration Actions.  Consequently,  a  party  who  has  acquiesced in the distribution of funds is stopped from a subsequent application to revoke the letters of administration. However, the fact of a conviction is admissible in civil proceedings.

• Foreign Judgment

A party who obtains a foreign judgment in his favour is at liberty to sue again in the domestic courts.  However, there are occasions when a foreign judgment may estoppel a party  against whom judgment has been given. It is ineffectual against a party in whose favour the foreign judgment was given. The foreign judgment acts as an estoppel, it is conclusive against the defendant and the domestic courts will not go into its merits or sit over it as an appellate court.

But it is impeachable on the ground of:

• Fraud, collusion, or forgery
• Want of jurisdiction in the foreign court
• That it is not a final judgment decided on the merits of the case
• That it is contrary to natural justice
• That it is contrary to the rules if Private International Law
• Judgment in rem and judgment in personam

The distinction between judgments in rem and in personam is explained in DIKE v NZEKA (1986) 4 NWLR 144. Here the Court said:

A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a tribunal having the  jurisdiction  and competence to pronounce on that status. Such a judgment is usually and  invariably  founded in proceedings instituted against something or subject matter whose status or conditions is to be determined. It is thus a solemn declaration on the status of  some  persons or things. It is therefore binding on all persons in so far as their interests in the status of the person or thing are concerned. That is why a judgment in rem is binding on the whole world – parties as well as non-parties.

A judgment in personam, on the other hand, is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam is a judgment inter parties. It creates a personal obligation as it determines the rights of parties inter se to or in the subject – matter in dispute whether it is land or other corporeal property damaged, but does not affect the status of either of the parties to the dispute or the thing in dispute.

• Estoppel by Deed

Estoppel by deed prevents a party to a deed from denying anything recited in that deed if the party has induced another to accept or act under the deed. Indeed, every recital and description in the deed which is unambiguous, material and conceded to be binding, binds both parties to the deed and anyone claiming through them, but only in an action on the deed.

Hence, parties to a deed and those claiming under them cannot deny the statements of fact contained in the deeds in an action between the actual parties to it and in an action on the deed.    The particular statements of facts must be material and intended to be binding on the parties. This type of estoppels may be challenged on the ground that:

1. The deed itself is tainted by fraud or illegality
2. It was executed under duress

• It was executed under a mistake

A recital in a deed acknowledging that one of the parties received some money is merely an evidence of payment, does not create an estoppel.

Self-Assessment Exercise

What is the effect of the deed so far as estoppel is concerned?

• Estoppel by Conduct

When one person has either by virtue of an existing court judgment, deed or agreement or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true or to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or said person’s representative in interest, to deny the truth of  that  thing. Except  for the additional phrase “either by virtue of an existing court judgment, deed or agreement or” estoppel means essentially the same as it was prior to 2011.

Whereas Section 151 Evidence act 2004 refers to “declarations, act or omission” Section 169 of Evidence Act 2011 has  expanded  this  to  include  court  judgement,  deed  or  agreement.

Estoppel by conduct implies that when a person, by his or her conduct induces another to alter his position upon some representation made, the law precludes him or her from denying the fact which he does represent to exist.

Estoppel by conduct arises in a contractual relationship between parties e. g. between a mortgagee and mortgagor, lessor and lessee, bailor and bailee, licensor and  licensee.  Where this relationship exists, estoppel would operate in situation where:

• A mortgagee allows a mortgagor of property to remain in possession and sell in execution to satisfy mortgagor’s judgment debt with knowledge of seizure and intention to sell
• Lessee or bailee denies title of licensor or bailor respectively
• Estoppels in pais operates under the following conditions:
• These must be a representation by words (spoken or written) or conduct of some existing fact. In this context, conduct includes silence when there is a duty to speak. A statement or promise as to the statement of law, or of intention in future is ineffectual : Kelsen v Imperial Tobacco Co (1957), Jorden v Money (1854)
• The representation must be clear, precise, and unqualified. Territorial and Auxiliary Forces v. Nicholas (1949), Canadian and Dominon Sugar Co v Canadian West Indies Steamships Ltd (1947) (Lower v. Combank Ltd (1960).
• It must be a representation of fact not Law. Territorial and Auxiliary forces V. Nicholas (1949), Leslie v Shiell (1914).
• The representation must be such that a reasonable man would believe it and act upon it. Freeman v Cooke (1848) However, a “reasonable man” is not credited with the knowledge of the intricacies of modern hire purchase finance (Lowe v Lambank Ltd. 1960). It suffices that the representation meant the statement to be acted upon or at least have so conducted himself that a reasonable man in the position of the representee would take the representation to be true and believe that it was meant that he should act upon it.
• The representation must have been made with intent that the other party shall act on it. Mere negligent statement in an atmosphere where there is no duty of care is not sufficient: Seton v Lafone (1887), Henderson v Williams (1895).
• The party to whom the representation was made must have acted on it to his or her detriment Caroline Morayo V Okiode and others (1942); Conpaye Ado V Musa (1938).
• He or she must also have suffered damages, and the representation must have been proximate cause of such damage
  • Estoppel and Bills of Exchange

Estoppel operates on favour of a holder in due course and those who claim through him or her. Consequently:

• The drawer is stopped from denying the existence of the payee of a negotiable instrument and his capacity to endorse
• The acceptor of a bill of exchange is stopped from denying the existence of the drawer, the genuineness of the drawer’s signature, and his capacity and authority to draw the bill
• The endorser is stopped from denying the genuineness of the drawer’s signature, and any previous endorsements
• Standing By

Amancio Santis v Ikosi Industries Ltd & Anor (1942) Merbill v Akiwei (1952)

The conduct of ‘standing by’ is omission to take actions, which ought to have been taken. It arises, for instance, where there is a pending action in Court and a person who has the same interest in the subject matter of litigation as one of the parties, stands by, sees his battle fought by somebody else in the same interest, (and fails, omits or neglects to apply to be made a party in addition to that party). In a situation like that the person is bound by the result and would not be allowed to reopen the case.

The doctrine would not apply to:

I A decision against a person in his/her personal capacity and the person to be stopped is  not privy or cannot be held to be a party.

2. A person, who during the pendency of an action brought his own action before judgement in the earlier or pending
   • Innocent Misrepresentation

Generally, no damage is recoverable for an innocent or negligent mis-statement of fact; (DERRY v PECK, (1889) Negligence creates estoppels where the person alleged to be estopped owes a duty of care to the person setting up the estoppel. (CAMPBELL VISCOUNT CO v GOLD (1961).

Under the Companies and Allied Matters Act, 1990-2004, directors may be liable for mis- statement in the prospectus of a company unless they had  reasonable  grounds  for believing their statements to be true.

Damages may be recovered from a breach of contract or breach of warranty in which there has been an innocent misrepresentation of fact.

This is based on “a principle of universal application that if a person makes a false representation to another and that other acts upon that false representation, the person who has made it shall not afterwards be allowed to set up that what he or she said was false and to assert the real truth in place of the falsehood which has so misled the other” – Per Lord McNaughton.

Misrepresentation is a cause of action, but the doctrine of Estoppels is not. Rather it is a rule of evidence. On how estoppel operates in relation to misinterpretation, read the following cases: Balkie Consolidated Co Ltd v Tomkinson (1893) Burrowes v Lock (1805); Robertson v Minister of Pension (1949); Combe v Combe (1951) 2 KB 215.

NOTE: There must be in independent cause of action for estoppels to operate in favour of the plaintiff seeking damages, estoppels being part of his or her evidence.

You own a car or other articles; you allow another to treat the car or goods as his or her own; you do not object, whereby a third person is induced to buy the car bona fide: By your laches and acquiescence, you are stopped from claiming the ownership to the car.

• Equitable Estoppel or Promissory Estoppel.

This is a defensive doctrine, which prevents one party from taking an unfair advantage of another, when, through a false language, or conduct, the person to be estopped has  induced another person to act in a certain way, with the result that the other person has been injured in some way. The doctrine is founded on the principle of fraud.

It is also called quasi estoppels or promissory estoppels. It is a shield, not a sword; a  defence, not a cause of action. The principle of equitable estoppel was expressed by Lord Cairns in the important case of HUGHES v METROPOLITAN  RAILWAY  CO  (1877)  as  follows.

“If parties, who have entered into  definite  and distinct  terms  involving  certain  legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of a negotiation, which has the affect 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 , 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 thus taken place between the parties.”

In the case, a tenant failed to comply with his landlord’s notice to repair the premises, because he was negotiating for the purchase of these premises. When the negotiation  failed, the landlord ought to forfeit the lease because of the tenant’s failure to comply with the notice. The House of Lords held that there is an implied promise that the notice would not be enforced as long as the negotiations continued. The tenant was therefore entitled to a reasonable time after their termination to comply with the notice.

The principle was re-affirmed by Denning in CENTRAL LONDON PROPERTY TRUST LTD v HIGH TREES HOUSE LTD (1947) KB 130 and COMBE v COMBE (1951) 2 KB 215 OR [1951] ALL

ER 767 where Denning L.J explained that:

The principle stated in the High Trees Case does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal right, when it would be unjust to allow him or her to enforce them, having regard to the dealing which have taken place between the parties. The principle is that:

Where one party has, by his words or conduct made to the other a promise or assurance which was intended to affect  the legal  relations  between  them and to  be acted upon accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promises or assurance had been made by him, but he must accept their legal relations, subject to the qualification, which he  himself  has  so introduced, even though it is not supported on points of law by any consideration but only by his (or her) word.

Equitable estoppel is not limited to representation of fact. It extends to:

• Representation of Intention (oral or written)
• Representation by Conduct
• Representation by legal relations

Equitable Estoppel does not bind promisor ad infinitium; it endures only until such time as the promisee should have been restored to the  position  he  or  she was  immediately before the representation.

If estoppel is based on conduct, the other would have acted to his detriment. (See Lord Denning: 15 M.L.R. pages 1-10).

CONCLUSION

If a man by his words or conduct wilfully endeavours to cause another to believe in a certain state of things which the first knows to be false and 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 that 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 such way to his damage, the first is estopped from denying the facts of representation (See the case of JOE IGA AND OTHERS v EZEKIEL AMAKIRI AND OTHERS (1976)11S.C.1) especially pages 12 – 13).

Thus an Estoppel is a rule of evidence which precludes a person from denying the truth of some statement formerly made by him or her or the existence of facts upon which a judgment against him or her is based. Estoppel is a shield, not a sword, a defence; not a cause of action. A party who wishes to avail such estoppels, whilst there cannot be cause of action stopped as between a criminal and a civil action, there can be issue estoppels. Estoppel is based on the rule of public policy that there should be an end to all litigations  and no one should be sued twice on the same ground(s).

SUMMARY

	TUTOR	MARKED ASSIGNMENT
1.	(a) (b) (c)	In what circumstances can an estoppels by conduct arise? What do you understand by the term: “Equitable Estoppel? Give examples of Estoppel by agreement

 

• REFERENCES/FURTHER READING

1. Aguda T, (2007) The Law of Evidence, Spectrum Law Series,
2. Aguda T. (1998) Law and Practice relating to Evidence in Nigeria, 2nd ed, MIJ Professional Publishers, Lagos
3. Afe B (2001) Law and Practice of Evidence in Nigeria, Intec Printers,
4. Evidence Act,2011.
5. Nwadialo, F Modern Nigerian Law of Evidence, second edition, University of Lagos Press.

In the unit, you learnt about Estoppels in the law of Evidence  – its definition,  nature,  classes and effects. You made reference to the Evidence Act, 2011, section 62 -64, 169- 174 and to the 1999 Constitution, section 36(9). Each class was explained in some detail and illustrated with examples. Its pitfalls were also indicated. Even where there is none, the judge may, in the interest of  public  policy  demand  proof  of  facts  in  issue. Specifically, you learnt Estoppel per rem judicata, estoppel in personam and estoppels by conduct among other estoppels. You would have noted that the doctrine of stand by applies (with certain exceptions) in estoppels such that if a person is content to stand by and see his battle fought by someone else with the same interest, he is bound by the result and should not be allowed to reopen the case.