ESTOPPEL

ESTOPPEL:

Definition:

According to Art 114 of Q.S.O 1984. Estoppel is

“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such believe, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representatives, to deny the truth of that thing. ”

Halsbury Def:

In Halsbury law of England 4th Ed, 16 Vol. P. 1008 estopped is defined as:

Disability whereby a person is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability.

Car V. London and NW Ry Co.

In Carr V. London NW Ry Co-ltd Estoppel was described as:

If a man by his word or conduct willfully endeavours to cause another to believe in a certain state of thing which the first knows to be false, and if the second believes in such a state of thing and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things in fact did not exist.

10cp 307 44 LJCP

Governing Principle:

Estoppel is based on the maxim, allegans contraria non est audiendus (a party is not to be heard to allege the contrary) and is that specie of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true not as against all the world, but against a particular party, and that by reason of some act done; it is in truth a kind of argumentum ad huminem.

Representation {Declaration, Act or omission}:

In Art-114 the words used are declaration, act or omission and they mean what is embraced by the word representation, which has been generally used by English writers. Representation may be express or implied. It may be in any form; by words written or spoken or by conduct. The conduct may be an act, or omission or even neglect.  A man by omitting or neglecting to do a thing, which he is under an obligation to do, may bring about a state or things equivalent to declaration. Estoppel may be brought about by acquiescence. Silence may also amount to conduct where there is clear duty to speak. The main thing is whether the representation, in whatever form it may have been made, has caused the person to whom it has been made to believe in the state of things asserted or suggested and to act on the faith of it so to alter his own position.

Election – Approbate and Reprobate:

Lord AtKin observed: where a person has a choice of two rights either of which he is at liberty to adopt, but not both, and if he adopts one, he cannot afterwards asserts the other.

Lissenden V. C.A Bosch LTD. 1940 Act 412:

Lord Blackburn quoting from coke observed that when a man has an option to choose one or the other of two inconsistent things, when he has made his election, it cannot be retracted.

Scarf V. Jardine 1882 7 Ac 345:

Kinds of estoppel:

There are four kinds of estoppel

1. Estoppel by matters of record.
2. Estoppel by deed.
3. Estoppel in pats.
4. Promissory estoppel.

Estoppel of record:

Estoppel of record also known as estoppel per rem judicatem,

1. Where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter, and the same issue comes directly in question in subsequent proceedings between the parties.
2. Where the first determination was by court having exclusive jurisdiction, and the same issues comes incidentally in question in subsequent proceedings between the same parties.
3. In some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determinethat status, and the same issue comes directly in question in subsequent civil or criminal proceedings between any party whatever,

Estoppel by deed:

Where there is statement of fact in a deed made between parties and verified by their seals, an estoppel results, and is called estoppel by deed. If upon the true construction of the deed the statement is that of both parties, the estoppel is binding on each party; if otherwise, it is only binding on the party making it.

Estoppel by matter in pais:

Where a person has by words or conduct made to another a clear and unequivocal representation of 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 understands that a certain representation of fact was intended to be acted on, and that the other has acted on the representation and thereby altered his position to his prejudice, an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact its otherwise than he represented it to be.

Promissory estoppel:

When one party has, by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to effect the legal relationship between them and to be acted on 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 it their previous legal relation as if no such promise or assurance had been made by him, but he must accept their legal relation subject to the qualification which he himself has so introduced. This doctrine which is derived from the principle of equity was first enunciated in Hughes V. MetropolitanPly Co. 1877 has been the subject of considerable development and is still expanding.

Lord Denning View:

In the case of Central London Property Trust Ltd V. High Tress House Ltd. 1941 . Lord Denning held:

I prefer to apply the principle that a promise intended to be binding, intended to be acted on and in fact acted on is binding so far as it terms properly apply.

Importance of Estoppel:

If the parties in court were permitted to assume inconsistent position in the trial of their causes, the usefulness of court of justice would in most cases be paralyzed, and the coercive process of law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the  courts, and consistency of proceedings is therefore, required of all this who come or brought before them. It may according be laid down as a broad proposition that one who without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it. One cannot play fast and loose, to blow hot and cold to approbate and reprobate, to the detriment of his opponent.