ESTOPPEL

ESTOPPEL <!--[if gte mso 10]> ESTOPPEL By Ch. Manzoor Hussain, Advocate, Rawalpindi The doctrine of 'estoppel' as laid down in Articles Nos. 114, 115 and 116 of Qanun-e-Shahadat (10 of 1984), is a verbatim reproduction of sections 115, 116 and 117 of the Law of Evidence, 1872. The vicissitudes of time and tide has not whittled down the force of simple, vigorous and lucid styles in which these Articles are drafted. It is a specimen of superb drafting which has stood the test of one and quarter century. Unlike enactments drafted in 'anti-quarian rubbish, wardour-street English', the Act itself is not only free from circumlocative expressions, but is a unique instance of positive literary virtues. 2. The principle of estoppel is founded on the maxim, "allegan contraria non est audiendus". In the words of Lord Kenyon: "A man shall not be permitted to 'blow hot and cold' with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to his promptings of his private interests". It was applied in Cave v. Mills and the Courts have adopted it down to the present time. The word 'estop' is an archaic English which has fallen in disuse now, whereas 'Estoppel' has assumed a special technical connotation in our jurisprudence. According to Lord Cock, who is the greatest authority on the subject, it is called Estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. It would be highly inequitable if a man should be allowed to deny or repudiate a farmer statement to the injury of another person who acted on it. It would amount to frustrate the settled issues resulting in the multiplicity of litigation. 3. The following elements must concur in order to constitute, a valid estoppel by representation: (a) That the party sought to be estopped or some person for whose representation such party is in law responsible, made a representation. (b) That the case which the party is sought to be estopped from making, setting up or attempting to prove, contradicts in substance his original representation. (c) That such original representation was of a nature to induce, and was made with the intention of inducing, the party raising the estoppel alters his position to his detriment. (d) That the party raising the 'estoppel' actually altered his position to his detriment on the faith of such original representation. (e) That the original representation was made to the party setting up the estoppel, or to some person in right of whom he claims [1]. According to another authority, the essential elements of 'estoppel' are: (i) A representation in any form, a declaration, act or omission. (ii) The representation must have been of the existence of a fact and not of promises de futuro or intention which might or might, not be enforceable in contract. (iii) That the representation must have been made under the circumstances which amounted to an intentional causing or permitting belief in another. The proof of the intent may be direct or circumstantial e.g. by conduct. It is not necessary that there should be a design to mislead or any fraudulent intention. Representation even when made innocently or mistakingly may operate as an estoppel. (iv) Some person must have believed the representation to be true. (v) The person must have acted on the belief so induced and been thus led to change his former position thereby to his prejudice. (vi) The misrepresentation, conduct or negligence must have been the proximate and not the remote cause of leading the other party to act to his prejudice. (vii) The person claiming the benefit of an estoppel must show that he was not aware of the true state of affairs or had means of knowledge, there can be no estoppel [2]. 4. Promissory Estoppel.--'Promissory Estoppel' is an equitable principle evolved by the Courts for doing justice and the same should be given only a limited application by way of defence, furthermore, the principle is available as a cause of action. Following are the principles to elaborate doctrine of promissory estoppel: (i) Doctrine of Promissory Estoppel cannot be invoked against the legislation or the Laws formed by it because the legislation cannot make a representation. (ii) Promissory Estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out. (iii) No agency or authority can be held bound by a promise or representation not lawfully extended or given. (iv) Doctrine of Promissory Estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or representation of the party invoking it. (v) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promises [3]. The rules of promissory estoppel cannot be taken as defence by a party who has indulged in fraud or collusion for obtaining some benefit under the representation, and he cannot be rewarded by enforcement of the promises. Such rules shall help the persons equipped with the "Legal Right" who have not smeared their hands with malice[4]. Where the Government Departments, Ministries, while issuing the NOC had promised and given undertaking that machinery imported would be exempted from custom duty and sales tax Government could not turn round [5]. It cannot be invoked against the Legislature or the laws formed by it, for Legislature can not make a promise [6]. 5. Kinds of Estoppel.--It is classified into three kinds, viz. (i) Estoppel by matter of records; (ii) estoppel by matter in writing; and (iii) estoppel by matter in pais. The first two are called technical estoppels while the third is distinguished as equitable estoppel. The estoppel by record is dealt with by Code of Civil Procedure, .sections 11 to 14 and by Articles 54 to 58 of Qanun-e-Shahadat (10 of 1984). The estoppel of record is of great importance. A person is not permitted to dispute final judgment pronounced against him. An estoppel by deed is preclusion against the competent parties to a valid sealed contract, and their privies to deny its force and effect by any evidence of inferior solemnity 17]. Estoppel by matters in pals is defined by Blackstone as "as an assurance transacted between two or more private persons in pais, in the country, that is, upon the very spot to he transferred"[8]. Estoppel in pais is an equitable one. Sale of land by the petitioner to the respondent and getting mutation thereof attested. The petitioner was estopped not by acquiescence but also by his conduct from challenging such a sale/mutation. Lease was refused in the circumstances [9]. 6. Essence of the rule of estoppel lies in the inconsistency between the previous conduct of the party and the course a party wants to pursue. The rules of estoppel is a rule which debars a party on account of its conduct from taking a plea or adopting a particular course of action[10]. Where a party persuaded a tribunal to adopt a particular course or determining the issue in question and accepted benefits of such arrangement, he cannot be allowed to repudiate when it comes to the liabilities and obligations thereunder [11]. It is a rule which stands in the way of a pre-emptor seeking aid of the Court or redressal of his grievances [12]. If a person was not a party, then a judgment of a competent Court as a plea is a bar or an evidence conclusive between the same parties upon the same matters directly in question in another Court or in another between the same parties in the same Courts. In legal parlance, this bar is known as estoppel by judgment [13]. Compromise arrived at between the parties and reflected in the order of tribunal, a party accepting benefit under the order passed on such compromise was estopped from questioning the transaction [14]. It can be applied in case, it is found that person, by his unambiguous and unequivocal declaration, act or omission intentionally caused or permitted another to believe a thing to be true to act upon such belief [15]. 7. In order to attract the provision of section 115 of the Evidence Act (now Article 114 of Qanun-e-Shahadat (10 of 1984) and apply the principle of estoppel, it is necessary that it may be established that a representation was made to the other side and the basis of such representation, the other side had altered his position [16]. Similarly, abandonment of an obligation by a party, would constitute estoppel and debar such party from raising such objection subsequently, [17] and litigant himself choosing a forum for redress of his grievances, would be estopped to challenge jurisdiction of, that forum, if ultimately decision is rendered against him [18]. Person invoking jurisdiction of a particular tribunal cannot be permitted to challenge to orders passed against being without jurisdiction [19]. 8. Tenancy.--During the existence of relationship of Landlord and Tenant, the tenant is estopped from his landlord's title or from asserting that another person has a better title than landlord. However, this principle is not applicable where the landlord's title is no more or stands extinguished [20]. A tenant of immovable property or a person claiming through such a tenant is estopped from denying the title of his landlord to such property during the continuance of such a tenancy [21]. The rule of estoppel comes into operation after the relationship of tenant and landlord is established and the later is estopped from denying the authority and title of the former [22]. Two conditions are essential to the existence of the estoppel: (i) possession, (ii) permission. Where these conditions are present, the estoppel arises. However, no agency or authority can be held bound by a promise or representation not lawfully extended or given. A lease like other contracts is binding only on parties sui juris; and persons under disability, not bound by the contract, are not estopped to deny its liability. 9. No estoppel against law.--The principle of estoppel cannot be applied to the Acts of Legislature, and it is not competent to parties to a contract to establish themselves or anybody else in the face of such Act. The law imposes fetters and obligation on the capacity of a category of persons which invalidate certain transactions, being illegal. The general law is in way altered by the doctrine of estoppel. Again, there can be no estoppel against the Constitution [23] nor it can be given against statutory provision [24] or against law [25]. No estoppel can be pleaded against the directions and prohibitions enacted by the Statute Law and against the rights accruing to any party by reason of such directions/prohibitions. Where a statute imposes a positive duty to do a particular act, the doctrine of estoppel cannot be set up to prevent the person under that duty performing it. Thus, where a statute imposed upon a public utility company a duty to supply electricity and to charge for it with particular rate, the company could not be estopped from recovering the amount properly due by its conduct in charging a commission, owing to a mistake, for only one-tenth of the electricity supplied [26]: The principle of estoppel, being a rule of evidence, is founded on logic and reason. It provides a shield not a sword. It cannot create a cause of action. Its application in our realm of law will continue to receive due recognition from the Bench and bar alike with usual sagacity and acumen. REFERENCES [1] Monir on the "Law of Evidence'"; [2] PLD 1981 Lah. 433; [3] PLD 2002 SC 208; [4] PLD 2002 Lah. 290; [5] PLD 2001 Pesh. 7; [6] PLD 1994 Kar. 60; [7] Monir on the "Law of Evidence"; [8] Spencer Bower on "Estoppel"; [9] PLD 1997 SC 304; [10] PLD 1993 Kar. 237; [11] PLD 1992 Lah. 305; [12] PLD 1990 Lah. 365; [13] PLD 1987 SC 145; [14] PLD 1987 SC 107; [15] PLD 1983 Quetta 110; [16] PLD 1983 Kar. 99; [17] 1994 MLD 1235; [18] 1993 CLC 2519; [19] PLD 1984 Lah. 139; [20] PLD 1987 Kar. 159; [21] PLD 1980 Kar. 317; [22] PLD 1980 Lah. 316; [23] PLD 1997 Lah. 38; [24] PLD 1997 Pesh. 69; [25] PLD 2001 Lah. 245; [26] Legal Maxims by Broom, 10th Edn., p.105