Do You Know That Estoppel Can Also Be Used As A Sword? By O. G. Chukkol

Though estoppel is generally a shield (defense), it can also be
used as a sword (a basis for a suit).

In Chinwendu v. Mbamali & anor (1980) 3-4 S.C. 31 at
p.48 Aniagolu JSC said.

“It has been a long established practice in our Courts in
this Court try for a defendant to plead a judgment given against a
plaintiff where the plaintiff re-litigates the subject matter
against him, but the practice is not often employed by a plaintiff
against a defendant who raises issues already decided upon in a
previous litigation. Nothing however prevents a plaintiff from
raising, in the original or further pleadings, estoppel against a
defendant who makes assertions in his pleadings contrary to what
had been solemnly declared in a previous judgment against
him.”

The above decision was followed in the case of
Odhevwedje v. Umurhurhuvwe (1987) NWLR (Pt. 52)
633. Here it was held thus:

“The defence of issue estoppel had been pronounced upon by
this Court in quite a number of cases… But one common feature of
these cases is that generally it is always the defendant that
raises the defence of issue estoppel against the plaintiff. The
reverse is hardly come by. However it has since been settled that
although the plea of estoppel is a shield for the protection of a
defendant, it can also validly be employed as sword by a
plaintiff…” (underlined for emphasis)

In Abalogu v. S.P.D.C. Ltd. [2003] 13 NWLR
(Pt.837)309 it was held as follows:

“Although the plea of estoppel, generally, is a shield for
the protection of a defendant, it has since been settled that… it
can validly be employed as a sword by a plaintiff* but this, as
above stated, must be confined to appropriate cases only.” Per
Iguh, J.S.C. (P. 30, paras. D-F)”

See also Ukaegbu v. Ugoji (1991) 6 NWLR
(Pt.196)127

RAJI v. OBAFEMI AWOLOWO UNIVERSITY (2014)
LPELR-22088(CA) is also a case where estoppel was used as
a sword. The case in summary is that OAU appointed the appellant as
a reader (associate professor) but on the condition that he will
work for three years only as a probation after which they can
retain or dismiss him base on his performance. But after three
years he continued working with OAU and OAU continued paying him
his salary but after sometime OAU unilaterally disengaged the
service of the Appellant on the ground that his appointment was not
confirmed. The Appellant raised an issue for determination inter
alia:

“Whether the Appellant’s appointment was not confirmed by the
Respondent after the 3 years probationary period since he was
encouraged to keep on working and paid for his continuous
service?”

The court held that by allowing the appellant to continue
working after the probatory period and paying him during that
probatory period is an implied confirmation of his appointment. The
case of the Appellant succeeded based on estoppel.

Furthermore, In OGUNDARE & ANOR v. EXECUTIVE GOVERNOR OF
LAGOS STATE & ORS (2017) LPELR-41859(CA) it was held
that:

“… it is also settled that the principle of promissory
estoppel can be used as a sword depending on the peculiar facts of
the case because it is a principle of justice and equity”

Lastly, In the recent ADAMS & ANOR v. FASASI & ORS
(2018) LPELR-44379(CA) the Appellants use a previous court
judgement as a sword (estoppel) and it succeeded. The Court of
Appeal held that:

“The plea of estoppel is generally employed as a shield for
the protection of a defendant, but it can also be employed as a
sword by a plaintiff in appropriate cases”

O. G. Chukkol is a student, Faculty of Law,
ABU, Zaria. oliverchukkol@gmail.com^[1]
08032470318

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