EVIDENCE 1.8 ESTOPPEL
ESTOPPEL. (Section 169-174).
ESTOPPEL PER RECORD
Estoppel per record simply precludes the parties from re-litigating the same cause of action. Section 173[1] and 174[2] EA deals with res judicata and issue estoppel. Formerly Section 54 of the Repealed EA. Galadima JSC in Makun V Federal University of Technology[3] noted that these sections seek to bring an end to litigations by ensuring that one is not proceeded against the second time for the same cause that has been decided by a court of competent jurisdiction.
Sections 173 and 174 provides for the conclusiveness of finding of the court and makes such previous judgment admissible as evidence to bar the second suit on a matter that has already been tried by the court.
A CTC of the previous suit or other admissible copies can be tendered in the present suit by him who asserts–Olukoga V Fatunde.
Further, in Ukaegbu V Ugoji (adopting Yoye V Olubode) it was noted that res judicata operates not only against the party whom it affects but also against the jurisdiction of the court itself. Same position maintained[4] in Faleye V Otapo; Bassil V Hanger.
In Ajakaiye V Military Governor of Bendel State, the court distinguished between issue estoppel and estoppel per rem judicatam. The former concerns only one or more issue(s) in the case while the latter applies to the whole case.
Preliminary discussions.
Judgment in Rem and Judgment in Personam:
Judgments in personam is binding as between the parties while Judgment in rem binds not only the parties but non-parties as well (the world)-Dike V Nzeka.
Judgment in rem usually determines the status of a thing or person e.g. matrimonial, admiral, insolvency, suits which usually determine status (married or single, solvent or insolvent…) while judgment in personam determines rights or interest of the parties. E.g. contract, tort, trespass to land. Section 50 of the repealed EA defines judgment in rem as that conferring or removing status-Dike V Nzeka.
Estoppel… A shield or sword?
Estoppel is usually raised by the defendant and therefore a shield rather than a sword therefore not available to the plaintiff-Ayuya V Yonrin. Although in Chiwendu V Mbamali, it was noted that estoppel can be used as a sword in certain deserving circumstances. Like when the plaintiff is replying to a defence.
ESTOPPEL PER RECORD/PAREM JUDICATUM
The conditions for the operation of estoppel by record/estoppel per rem judicatam were adumbrated in Alase and Ors V Olori Ilu and Ors similarly in Ayuya V Yonrin:
- The parties (or their privies) must be the same in the present case as well as in the previous one.
- The issues and subject matter in both suits must be the same.
- The decision in the previous suit must have been given by a court of competent jurisdiction.
- The previous decision must have finally decided the issues between the parties.
These requirements have also been listed in a host of other cases. The court in Makun V Federal University of Technology, noted that the court must study the pleadings of the parties to determine whether estoppel per rem judicatam should apply. In A.G Nasarawa State V A.G. Plateau State, it was noted that the court has the duty to examine carefully and determine whether the issues, subject matter and parties are the same… In Polyvalent (Nig) Ltd V Akinbote, it was noted that the court may also examine the reason for the judgment and other relevant facts. In Jimoh V Akande, the court noted that the plea of estoppel per rem judicatam must first be made by the defendant before he will be permitted to raise it.
- SAMENESS OF PARTIES (OR THEIR PRIVIES) IN THE TWO SUITS
In Balogun V Shorunbare, the Supreme Court admonished that the court should look at the whole proceedings[5] to determine whether the parties are the same.
In Shonekan V Smith it was held that since the plaintiff and defendant in the present case were not same in the former, the plea could not avail the defendant.
Mere addition of another party to the proceeding would not matter-Permanent Sec Ministry of Works Kwara State V Balogun, it was held that the permanent secretary added in the second case was just nominal and didn’t change the fact that the parties were the same in the former and instant case.
The parties must have sued in the same capacity. If A appeared in a representative capacity in the previous suit and is presently entering as plaintiff or in another capacity, the plea of res judicata would not avail the defendant-Ajogodo V Adegoriga. Commissioner of Lands V Abraham, in the former suit, the defendant was sued personally and in the present suit, he entered in a representative capacity (representative of his family)… the plea could not hold. Same point was reiterated in Shitta-Bay and Others V Lagos Executive Development Board. In Bankole V Pelu, the defendant was sued in his personal capacity in the former suit and in the present suit, he was appearing in a representative capacity. Held that the plea would not avail.
In D.T.T Enterprises (Nig) Co Ltd V Busari, the court noted that judgment obtained by a party in a representative capacity binds every member who falls within the group of persons so represented. E.g. family head representing members of the family.
The court has also noted that “parties” also includes persons who ought to have been parties in the suit because of their interest in the outcome of the suit. It also includes a person who knowingly stood by to watch his battle being fought by another. This position is referred to as estoppel by standing by. The doctrine of standing by was propounded in Whicherley V Andrews.
Estoppel by standing by was defined in GB Amanco Santos V Ikosi Industries Ltd and Another as where a person allows his battle to be fought by another party intending to take the benefit of the championship in the event of success. In Marbell V Akwei and Akwei V Cofie the courts noted that in such a situation, the person who stood by is bound by the result of the suit and is estopped from re-opening the issue determined in it. In Syntax V Kale, the court noted that estoppel by standing by is one of conduct. Similar position was maintained in Kamalu V Umunna since the party did not intervene in the suit. E.g. in Balogun V Adejobi, the plaintiff knew all along about the case but stood by as a counsel. Held; he was estopped from reopening the matter. If a family member knows of the suit and did not involve the family in litigation. Standing by may be applied to the family as in Clay Industries V Aina, the court held that the family should apply to be joined.
On the interpretation of “privies”, the Supreme Court in Agbogunleri V Depo noted that “a privy is a person whose title is derived from and claims through a party to the suit”. These may include, privy in blood[6], privy in law[7], and privy in estate[8]–Dike-Ogu V Amadi.
- THE ISSUES AND SUBJECT MATTER MUST BE THE SAME. In the previous case and in the present (subsequent) case. Once the issues and subject matter are not the same, the plea would not avail-A.G Nasarawa V A.G. Plateau State.
In Madukolu V Nkemdilim, the court noted that it would look at substance rather than form in ascertaining the subject matter. Same was noted in Nwosu V Udeaja. The question is; would the same evidence used in the previous case support the instant one? Is the same question substantially in issue?
In Chiekwe V Obiora, the plea failed as it was not shown that it was the same land in the former case that is adjudicated upon in the present case. Similarly, in Ikoku V Ekeukwu, although the parties were the same, the land in dispute in the present suit was not the same. Therefore the plea did not avail. In Amos Ogbesusi Aro V Salami Fabolude, in the earlier suit, the decision was in respect of a portion of the total land, the court held that the plea only applied to that portion (that was decided in the earlier suit) and not the whole land. Same conclusion was reached in Adesina V Commissioner, where the land in the earlier litigation was bigger than the one in the present suit. Also Aro V Fabolude. In Odutola V Oderinde, the size of the land in the instant case was 70.487 acres while the one in the previous suit was 3 acres. No plea over the whole land. In Oyah V Ikalide, the previous suit was with respect to a chieftaincy dispute and the present one was a land dispute. The plea did not avail[9]. In Adesina V Commissioner, the court noted that the survey plans could be compared to determine the nature and size of the lands in question.
In Aladegbemi V Fasanmade, the court noted that res judicata can apply to issues/points which ought to have been raised by the parties. For example, in Nelson Udo V Chief Essien Udo Etok the plaintiff collided with a tree felled by the defendants. First, he sued for the damages and cost of repairs to his car. Then instituted another suit for bodily injury. The court held that he ought to have claimed both remedies in one action. In Savage V Uwaechia, the plaintiff loaned Rotimi who promised to pay within 3 months or convey blackacre. He first sued for specific performance of the conveyance. Then instituted another suit to enforce repayment of the loan. Court held: Res Judicata. Same point noted in Gafari V UAC. However, in Agbonmagbe Bank Ltd V C.F.A.O, the plaintiff had sued one of its customers for issuing bounced cheques. Then instituted another action against the bank in tort for failing to return the bounced cheques on time. The court decided to distinguish the case. Holding that the first suit was in contract and the second suit was in tort. Also in Olukoga V Fatunde, the court noted that the previous litigation was in relation to compensation over land and the second was in relation to declaration of title over the same land. Held that they were not the same and the plea could not hold. Although in Dauda V A.G Lagos State, the Supreme Court noted that it can look into the substance of the suit and determine if both suits are essentially seeking to achieve the same end.
Thus, the views of the court appear to be at variance. One thing remains certain, the issues and subject matter should be the same in the previous and present case.
- THE COURT MUST BE ONE OF COMPETENT JURISDICTION.
Note that judgments of courts are presumed to be correct and binding until the contrary is proved[10]. As was noted in Ajao V Alao; the validity of a judgment may be challenged in an appeal against it… but it is certain that a judgment of a competent court subsists and is binding till set aside on appeal or by other judicial proceeding. Also Chapman V CFAO.
The court must be properly constituted, substantively capable and correct procedure followed in instituting, handling and determining the suit-Madukolu V Nkemdilim.
The case must have been decided on its merit and must not have been obtained by fraud or collusion-Agbasi V Obi. Fraud or collusion vitiates the judgment-Girdlestone V Brighton Aqurium. As a party cannot enjoy the plea of estoppel as a result of his own fraud-Nwosu V Udeaja, Section 64 EA.
In Board of Customs and Excise V Kalu, the defendant had been prosecuted and fined in a magistrate in relation to a customs offence. Court held it was not within the jurisdiction of the Magistrate under the Customs and Excise Management Act to entertain the suit. The Supreme Court then went further to note that an order made without jurisdiction cannot amount to res judicata. Similar conclusion reached in Edet V Board of Customs and Excise. See Section 64 EA. In Udofe V Aquaisua, the previous judgment of a Native Court obtained in the absence of the other party without evidence being called in support of the claim was held to be a nullity incapable of creating estoppel.
- THE PREVIOUS JUDGMENT MUST HAVE BEEN FINALLY DECIDED.
A judgment liable to appeal remains final until it is set aside on appeal-Chukwunta V Chukwu. Same point was noted in Agbogunleri V Depo, as the plea of res judicata can still be grounded on such.
What finality means is that the judgment must have determined the issues between the parties and confer rights that are capable of enforcement-Ezenwa V Kareem. In Azazi V Adhekegba, the Supreme Court noted that a judicial decision is final when it “leaves nothing to be judicially determined or ascertained thereafter”. Similar point noted in Honda Place Limited V Globe Motors Limited.
The Judgment must not have been struck out or discontinued-Commerce Assurance V Alli. The suit must not be pending-Toriola V Williams. In Omnia (Nig) Ltd V Dyktrade, an interlocutory ruling was held incapable of creating res judicata.
A judgment given per incuriam would not constitute res judicata.
With respect to inconsistent/conflicting judgments on the same matter between the same parties, it is the latest in time that constitutes res judicata-Seriki V Solaru. Ikeakwu V Nwankpa. In Ikeni V Efamo the court further stated that it does not matter if the said latest judgment was delivered by a court of inferior jurisdiction.
Once evidence is led that the previous judgment was nullified, the plea cannot apply/be sustained-Olukoga V Fatunde.
Default judgments[11] can still create this plea-Ekpe V Antia: Odu V John Holt and Co. In Ajakaiye V Military Governor of Bendel State, (relying on Odu V John Holt), the Supreme Court was of the opinion that default judgment can substantiate the plea. However in Afribank Limited V Fadlallah Textiles (Nigeria) Limited, the court held that consent judgment cannot support the plea of estoppel. Sebastine Tar Hon. Supports Ajakaiye’s case… especially where the appellant delays in taking steps to have the judgment set aside
A consent judgment also creates estoppel against parties to it only-Talabi V Adeseye. In Ebeky V Amola, the court noted that a party that did not consent to it cannot be bound by the consent judgment.
Decisions of family meeting, elders, friends, etc. may not create this. In Agbogunleri V Depo, the court noted that the judgment of a “kangaroo’s court” would not be recognised.
The plea of estoppel should be raised in the pleadings-Udeze V Chidebe. In customary and area courts where pleadings are not filed, the court would have to look at the totality of evidence-Ajuwon V Adeoti.
Estoppel by record extends to decisions by administrative tribunals set up under statutes. In Adebona V Amao, the decision of the registrar of titles under the Registration of Titles Act was held to be capable of constituting res judicata.
Customary law arbitration/tribunals may amount to an estoppel-Josep Larbi V Opanin Kwasi. In Agala V Egwere[12], the court noted that such decisions may still amount to estoppel. Provided that the parties voluntarily submitted to the jurisdiction of the tribunal and agreed to be bound by its decisions. The decision must also be in accordance with the custom of the people or their trade or business. The arbitrators must have reached a decision and published their award.
Other reconciliations by family, friends, community would not amount to res judicata. In Inyang V Essien, a decision by a council which was not a native Court was held incapable of constituting res judicata. Similarly in Osu V Igiri, village settlement arrangement could not suffice.
ISSUE ESTOPPEL: As was noted by the Supreme Court in Adebayo V Babalola; within one cause of action, there might be several issues raised which are necessary for the determination of the whole cause of action. Some issues may be determined in favour of one party and the others decided in favour of the other party. Neither party is allowed to contest the issue all over again. In this (Adebayo’s) case, (though the former case related to Chieftaincy and the present case related to title to land) the Supreme Court noted that the issue of whether the Agbonbifa family is the ruling family had been determined in the previous case and should not be brought up in the present case.
Issue estoppel relates to baring a party from re litigating an issue which has been determined in an earlier proceeding. The parties can only appeal. In other words, issue estoppel prevents a party from re-litigating the same issue in a subsequent suit-Adigun V The Secretary, Iwo Local Government.
Issue estoppel may be used where the plea of res judicata cannot be fully established. In Adedayo V Babalola, the court noted that
- The same question must have been decided in the earlier proceeding.
- Between the same parties/privies.
- A court of competent jurisdiction determined the issue in a final manner-
Similar proposition was adumbrated in UBA V Edionseri: Ebba V Ogodo: Mohammed V Olawunmi. In Ogbogu V Ugwuegbu, the court noted that where issue estoppel is successfully pleaded, the court ought to stop or disallow such evidence (caught by the doctrine of issue estoppel) from being admitted.
In Ikoku V Ekeukwu, the court noted that the issue must have been averred in the statement of claim and traversed in the statement of defence in the action. Therefore we are to look at the pleadings of the parties to determine issues raised
Hill V Hill Where the wife petitioned the court for divorce on the ground of cruelty, the court held that the ground was frivolous. The divorce did not succeed but an issue was upheld as to whether there was cruelty between the two parties. In the subsequent case the husband brought a case for divorce on the ground of desertion. The wife in reply to that tried to raise the issue of cruelty. The court held that the issue of cruelty had been determined in the previous case and should not be raised again..
Issue estoppel has recently been extended to include issues which ought to have been brought up (by a diligent party) in the former case. A party would not be allowed to split the issues and bring in different actions if a reasonable/prudent/diligent person would have brought all the issues under one action- Dagaci of Dere V Dagaci of Ebwa: Lawal V Dawodu.
Issue estoppel was extended to criminal matters in Umar V Ahungwa where the court noted that the previous conviction of the Driver for reckless driving creates an issue estoppel against him as to the manner in which he drove the vehicle on the day of the accident. See also U.B.N Ltd V Edionseri.
Also extended to the fact that a court should not (in its final judgment) take a stand contrary to its earlier interlocutory ruling. However, in Inakoju V Adeleke, the court noted that issue estoppel cannot be raised/invoked in the same case to compel a court to stand by its interlocutory ruling.
Others
LIZ PENDES: That something is the subject matter of a pending suit. E.g. a land. This doctrine prevents a vendor from transferring any effective title while a suit in relation to the land (or other property) is pending-Clay Industries V Aina. During litigation the property should not be transferred to a third party. A third party should not acquire an interest in the subject matter. This would not apply where the interest was acquired before the suit commenced. In Akande V Alaga, the interest was acquired before the suit therefore no lis pendes.
ESTOPPEL BY CONDUCT: Section 169 EA 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 representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
See also the High Trees V Central London Property (Development) Trust Co Ltd where the landlord was estopped from increasing the rent even when during the war the tenant did not move out, since he promised not to increase the rent.
In Pickard V Sears the court noted that if a man by his words or conduct wilfully allows someone to alter his position while relying on the representation, he is estopped from denying the state of things. This point was reiterated in Lawal V Union Bank; Onmade V ACB. Except the person is in a position to have found out the truth-Morayo V Okiade. No estoppel where the defendant had notice… actual, implied or constructive.
In Bassil V Hanger, the court noted that the other party must alter/change his position. This provision cannot be used to circumvent positive rules. E.g. where an infant misrepresents that he is up to age, the legal imposition that only contracts of necessaries would be enforced still stands-Leslie V Sheill.
The fact that a plaintiff has submitted to court’s jurisdiction does not prevent him from raising this defence-Solle V Butcher.
ESTOPPEL OF A TENANT: Section 170. Not to deny that his landlord/licensor had (at the beginning of the tenancy or when the license was given) title/possession (respectively) to the property-Doe De Bristow V Pegge. Except the landlord’s title has been determined.
ESTOPPEL OF BAILEE/AGENT/LICENSEE: Section 171 EA. Bailee should not deny that the bailor is entitled to the goods he kept in his possession. Except he was compelled to deliver possession of the goods to another who had a right to them-Clark V Aide.
AGREEMENT OF THE PARTIES: Ogundiran V Balogun, the parties agreed that the transaction would be based on native law and customs. Parties were estopped from urging the application of English law.
ESTOPPEL BY DEED: neither the party to the agreement by deed nor his privies should deny the obligation and relationship created by the deed. Provided the deed is valid-Bowman V Taylor. A deed procured by fraud, duress or misrepresentation cannot raise estoppel-Greer V Kettle
[1] Section 173 Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.
[2] 174.(1) 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.
(2) 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.
[3] 2011 6-7 Section (pt v) 32 at 85
[4] That estoppel per rem judicatam robs the court of jurisdiction and estops the party.
[5] Not just the heading-Ayeni V Elepo
[6] Like ancestors and heir, and ancestor.
[7] Like testator/executor or intestate administrator.
[8] Like vendour/purchaser.
[9] Note that the plea of issue estoppel may avail the defendant where it was the same issue that was raised in the former case.
[10] See Oloriegbe V Omotesho (1993) 1 NWLR (Pt. 270) 386 S.C
[11] Judgment obtained in the absence of the appellant. Provided he has been given notice and fails to appear.
[12] (2010) All FWLR (Pt. 532) 1609 SC.
