ESTOPPEL

According to the black laws dictionary estoppel was defined as 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 true. The general rule as to estoppel Is dealt with in the Evidence Act under

section 114 that provides that “when a person has, by his or her declaration, act or omission,

intentionally caused another person to believe a thing to be true and to act upon that belief,

neither he or his representatives shall be allowed to deny the truth of that thing” and it was

further upheld in the case of Nurdin Bandali v Lombank where it was Held that It is a primary

rule of evidence whereby a party to litigation in certain circumstances is prevented from denying

something which he had previously asserted to be true. In the case of Ubed Toshobya v DFCU,

it provided that the general rule of estoppel requires making representation to the party, the party

himself and to note that the one who is at representation is not at fault.

According to Ernest Cockle in ‘Cases & Materials on the Law of Evidence,’ it happens where

a man has done some act or executed some deed which estops or precludes him from averring

anything to the contrary. It is so called because a man’s own act or acceptance stops or closes up

his mouth to allege or plead other wise

This principle was seen in the case of pickard vs sears, (1837) 6 Ad and El 469 which

involved two primary parties: the mortgagee (Pickard) and the purchaser of the

mortgaged property (Sears). The dispute arose when the property, subject to a

mortgage held by Pickard, was seized and later sold to Sears. Crucially, during the

seizure and sale process, Pickard did not disclose his mortgage interest in the property.

The court held in favour of Sears. It was determined that Pickard, by failing to disclose
his mortgage interest during the property’s seizure and sale, had effectively represented

that he had no such interest. As Sears had relied on this assumption to his detriment,

the court ruled that Pickard was estopped from later asserting his mortgage interest.

The rationale for this rule is to provide certain means by which a man may be precluded, not

from saying the truth, but from saying that which, by the intervention of himself

or his representatives or privies has once become accredited for truth, is false

Characteristics of estoppel

1. It must be reciprocal and mutual, i.e. must bind both parties to the litigation;

02. It must be certain. This is especially so with regard to estoppel by conduct which must be

clear, precise and unambiguous;

3. It cannot be used to circumvent the law, i.e. to evade statutory and legal provisions, this was

seen in the case Leslie v Sheill where it was held that the contractual capacity of a minor cannot

be evaded by any estoppel against him preventing him from asserting his infancy even

though he has obtained a loan through a false representation that he was an adult. Likewise,

the statutory rights of an individual cannot be lost through an estoppel, e.g. if a

tenant fails to raise a defence that his rent is in excess of the standard rent prescribed by

statute, he is not estopped from making a subsequent application to determine the lawful

rent. This was considered in the case of Griffith v Davis [1943] KB 118

4. Conflicting estoppels cancel each other. It has also been said that if such a situation were to

occur, there might be no operative estoppel,.

5. Estoppel can only be used as a shield and not a sword, i.e. you cannot instigate an action on

estoppel, or rather, estoppel cannot be a cause of action, but a defense. Dawson Bank Ltd. V

Japan Trading Cotton Co. [1935] AIRPC 79 it was held that Estoppel is not a cause of action,

however, it may assist a plaintiff in enforcing a cause of action by preventing the

defendant from denying the existence of some fact which is essential to establish the cause of

action or by preventing the defendant from asserting the existence of some fact, the

existence of which, if proved, would destroy the cause of action. Combe vs Combe [1951] 2 KB

215 Issue: Whether estoppel is a sword or defense?

6. Estoppel only arises on a matter of fact, not of law, i.e. every person is presumed to know

the law therefore no misrepresentation can be claimed on a question of law. This was seen in

Allgar v Middlesex where Humphreys J stated ,“One realizes, of course, that in dealing with the

doctrine of estoppel, one must always be careful to see that the court is not saying that a man is

stopped from that. If all that happened was that a certain view of the law was taken by the

defendants and they made a mistake in what after all, on the part of anybody, even a judge, can

only by an expression of opinion as to what the law is if all that happened, was that somebody

said, well, in my view of the law, this result follows, then no law of estoppel can prevent him

from asserting what the law is.” It should be noted, however, that sometimes, questions of

fact arise out of questions of law.

CATEGORIES OF ESTOPPEL

There are three recognized categories of estoppel:

1. Estoppel by conduct

2. Estoppel by deed;
 3. Estoppel by judgment/ record

Sometimes however, estoppels are created by law, e.g. sectio.115 which provides for

estoppel of tenant or of licensee of person in possession and section 116 which provides for

estoppel of acceptor of bill of exchange, bailee or licensee.

Estoppel by conduct:

This occurs when a person represents that a particular fact exists and thereby induces another to

enter into a transaction and courts have been held, in such cases, that it shall be as represented,

i.e. that person cannot turn around and claim anything to the contrary. This category of estoppel

has also been referred to as equitable estoppel by virtue of its original deriving from principles

of equity.

In Century auto mobiles V hutching Beemer 1965 EA 304; it was held that three elements are

required for this estoppel to arise namely;

1. A clear and an un-equivocal representation

2. An intention that it should be acted upon

3. Action upon it in the belief of its truth

This doctrine does not extent to statements of law or future intentions. It must relate to existing

of past facts and they must not be ambiguous.

It should be noted that the person who is under the duty to do something may make a

representation by not doing that thing as was in the case of Greenhood V ST martins bank

(1933) AC 51 where The plaintiff sued the defendant bank, for the amount removed from his

account using forged cheques by his wife. The plaintiff knew about these cheques but be had
opted to keep quiet. At some point the wife became so ashamed of her deeds that she committed

suicide It was held that he was estopped from alleging the forgery because as a customer of the

bank he owned a duty to disclose his knowledge and therefore his deliberate abstention from

speaking amounted to represent to the bank that the forged cheques were in order.

Estoppel by conduct can also arises under the subtopic estoppel by negligence Negligence of one

person may enable another to perpetrate the fraud on the third party. The one who is negligent

may be estopped as against the victim of the fraud from denying the facts by which owing to his

negligence the fraud was successful

Estoppel by deed

Under this category, a party who has executed a deed or his privies is estopped from denying the

truth of the facts stated in the deed or in its recitals. This estoppel arises only when the cause of

action is founded or brought on the deed itself. This was seen in the case of carpenter vs Butler

(1841)8 M&W 209, it was held that the doctrine of estoppel by deed is of limited scope as it only

arises where there is a written document signed by the two parties, if one party acted in reliance

of the deed, then the other party will not be allowed to challenge the deed or document.

One can get out from this estoppel if he is able to establish illegality, mistake, fraud. In the case

of greener V cattle 1938 ac p.100- it was stated that if you sign, execute a deed, you bound by the

deed

Estoppel by record.

It is also referred to as estoppel by judgment. Because it arises out of judgments of the courts of

competent jurisdiction. This based on two important principles;

1. That it is the public interest that there must be finality to litigation

2. No one should be harassed twice on the same grounds or for the same cause.

Under this estoppel therefore the judgment of the court which has acted within its jurisdiction

is largely conclusive and estoppes the parties from acting in the manner that contradicts the

position in that judgment. That party is also barred from raising that issue again unless it can

be shown that that judgment was obtained through fraud or through collusion [res judicata

derived from S.7 of the civil procedure act]

If a defendant fails to defend an action so that judgment iis given against him in

default or if he consents to judgment, the judgment stops him from subsequently raising a

defense which was decided by the previous judgment. However If the action does not

proceed to judgment, or discontinued before hearing there is no estoppels. There is no

estoppel in respect of matters or issues not directly raised by the former judgment.

The judgment must have been pronounced by a competent court and a judgment obtained

by fraud or collusion raises no estoppels.

The case of **El Nofli v Mnyamwezi [1957] EA 189** involved a dispute over land

ownership in Tanganyika (present-day Tanzania). The plaintiff, El Nofli, claimed ownership

of a piece of land and sought to evict the defendant, Mnyamwezi, who was residing on it.

**Background:**
* El Nofli had previously filed a similar lawsuit against Mnyamwezi in 1948, claiming

ownership of the same land.

* In the 1948 case, the court dismissed El Nofli’s claim, finding that he had failed to prove

ownership.

**Key Issue:**

The central legal question in the 1957 case was whether the decision in the 1948 case

**prevented El Nofli from bringing a new action based on the same claim** (ownership of

the land).

**Judgment:**

The court in El Nofli v Mnyamwezi [1957] EA 189 applied the principle of **estoppel by

judgment (res judicata)** and ruled in favor of the defendant, Mnyamwezi. The court held

that:

* **Ensure finality of judgments:** Once a court has issued a final judgment on an issue

between the same parties, it prevents the parties from relitigating the same issue in a

subsequent case.

There are broadly two types of judgments;

1. A judgments in Rem

2. Judgments in personam

Judgments in Rem affect the whole world and are conclusive on the state of affairs which

they affect. Judgments in personam are largely conclusive regarding the facts on which they

are based. Therefore judgments in Rem settle the legal position as against the whole world

while judgments in personam settle the private rights of the parties

PROMISSORY ESTOPPEL.

This arises where a person by his words or conduct makes un ambiguous representations as

to his or her future conduct with the intention that it will be relied on by another party to

affect the legal relations between them and as a result that other person alter his or her

position in reliance on that representation. This doctrine was established in the case of central

london property trust Ltd vs high trees house Ltd [1947] KB 130 whose facts were that In

1937, Central London Property Trust Ltd (CLPT) leased a block of flats in London to High

Trees House Ltd (HTH) at £2,500 per year for 99 years. Due to the impact of World War II,

there was a drastic under-occupancy of the flats in 1940. CLPT agreed to reduce the rent to

£1,250. This halved rent was paid until the end of 1945. By then, London had largely

recovered from the war and the flats were again fully occupied. CLPT then claimed for the

full rent for the last 2 quarters of 1945. The court held that CLPT could not go back on its

promise to accept reduced rent for the period when the flats were not fully occupied

The first person is prevented from acting inconsistently with that representation if the other

person would be prejudiced thereby

Requirements of Promissory Estoppel

There are three key ingredients for a legal case involving promissory estoppel: In order to

seek damages based on promissory estoppel, a plaintiff must show that:

The promisor made a promise, with the intention that a reasonable person would act on it;

The promisee believed the promisor, and acted on that promise in good faith;

The promisor later reneged on that promise causing financial harm to the promisee; and

The nature of the promise is such that the only way to avoid injustice is by enforcing the

promise.

It should be used as a shield and not a sword as seen in the case of Combe vs combe