WHAT IS MEANT BY ESTOPPEL?

Estoppel is a doctrine that cuts across evidence law into all other legal discipline,
but for the purpose of this assignment, estoppel in the law of evidence will be
independently dealt with.

I commence my deliberation with a caption from an article about evidence law on

the subject of estoppel which says: “Estoppel is based on the maxim, allegans
contraria non est audiendus (a person alleging contradictory facts should not be
heard)1”. Estoppel, in its superficial meaning basically prevents or encumbers the
maker of a particular statement from negating it. Hence, the Black Law’s Dictionary
defines Estoppel as:

“a bar or impediment which precludes allegation or denial of a certain fact or

state of facts, in consequence of previous allegation or denial or conduct or
admission, or in consequence of a final adjudication of the matter in a court of
law”2

The above definition is straightforward, but it should be understood as a defence

and not a claim of any sort. It can only be invoked if someone denies a fact
previous made by him. It is also not an automatic defence that arises when there is
denial, it is up to the person in need of it to plead it and then await the decision of
the court. Where estoppel is not pleaded by the aggrieved party, he will not be
allowed to plead it at a subsequent stage in the trial.3

Section 157 of the Evidence Act of The Gambia gave a subtle and precise
definition regarding estoppel:

“When one person has, by his or her declaration, act or omission intentionally
or permitted another person to believe a thing to be true and to act upon that
belief, neither he or she nor his or her representative in interest shall be
allowed, in any proceedings between himself or herself and that person or that
person’s representative in interest, to deny the truth of that thing.”4

1
Yuvraj Rathore and Shaurya Singh Rathore, THE DOCTRINE OF ESTOPPEL AS A RULE OF EVIDENC: AN OVERVIEW
2
Black, Henry Campbell BLACK’S LAW DICTIONARY Revised 4th Edition
3
SPENCER-BOWER AND TURNER, ESTOPPEL BY REPRESENTATION 423 (2003); Jado Singh v. Bishunath LA, 1942 P
71.
4
Parliament of The Gambia, EVIDENCE ACT 1994
This above definition is more of an explanation. There are certain acts, according
to the above provision, that would necessitate the defence of estoppel:
There has to be a declaration to intentionally convince someone that a
certain fact is true.
The other person has to believe and then rely on that belief
The person who intentionally said the statement would not be allowed to
deny the truth of his earlier statement.
So it means that there has to be reliance on the promise of the promisor. If the
promisee didn’t have any reliance on the promise, he would not suffer any loss
whatsoever hence the defence of estoppel will not be evoked. It is very important
however, to note that estoppel is a rule of law in civil case and not criminal case
as it mostly exist in contract cases and the like.
This rule was based interest of public policy and fairness, simply because it would
be unfair for a party to make a promise and not fulfill it. If this was allowed, then
it would open a floodgates for all various forms of dishonesty in commercial
relations.

WHAT IS MEANT BY ESTOPPEL PER RES JUDICATA?

In an attempt to give a clear answer, it is firstly important to know what res
judicata is. The Oxford Dictionary of Law by Elizabeth A. Martin define res judicata
as:

“The principle that when a matter has been finally adjudicated upon by a court of
competent jurisdiction it may not be reopened or challenged by the original parties or
their successors in interest. It is also known as action estoppel. It does not preclude an
appeal or a challenge to the jurisdiction of the court. Its justification is the need for
finality in litigation.”

Simply put, it can be rephrased as estoppel by previous legal proceedings.5 It is in

fact understood from the above definition that estoppel per res judicata (which
was originally called estoppel by record) is precisely preventing parties to an
5
Allen, Christopher PRACTICAL GUIDE TO EVIDENCE 2nd Edition.
already decided case to revive and bring forth the same action. For example, If X
sues Y for breach of contract which arise out of careless or negligent, after which
damages are awarded to X. X cannot bring forth another claim against Y simply
because he didn’t bring it up in the previous case. One can argue that it is almost
like the rule against double jeopardy. The difference, however, is that estoppel,
like I have mentioned earlier will have to be pleaded before it is granted or
allowed. Cross said that “estoppel by record are Interest rei publicae ut sit finis
litium’- it is for the common good that there should be end to litigation” and as I
have opined above, he also added “Nemo debet bix vexari pro eadem causa’ –No
one should be sued twice on the same ground.”6
Cross also went further to classify estoppel by res judicata into two types, one of
which is called the cause of action estoppel7. As the name implies, of course,
there can be no revival of cause of action. Murphy argued that “If judgment was
given for the plaintiff in the earlier action, the cause of action no longer exists (and
so cannot be sued on again) because the judgment has taken its place8. In essence,
the judgement has defeated the cause of action so that entertaining the same cause
of action by a competent court of jurisdiction will be tantamount to the double
jeopardy itself. In the case of Fidelitas shipping Co ltd v. V/O Exportchleb, Lord
denning pontificates that “If a party brings an action against another for a
particular cause of judgement is given on it, there is a strict rule of law that he
cannot bring another action against the same party for the same cause.”9
The second type of Estoppel by res judicata is called issue estoppel, which
encumbers a party from raising an issue once again which has already been dealt
with and settled before. However, it doesn’t mean it is against practice to bring
forth the same issues or that are not allowed to do so, but if it ever happens it is
up to the lawyer, by virtue of his competence to raise an object. The famous Lord
Denning puts it very beautifully, hence he said “The rule is that once an issue has
been raised and distinctly determined between the parties, then, as a general rule,
neither party can be allowed to fight that issue all over again.”

6
Cross and Tapper, CROSS ON EVIDENCE 6th Edition
7
Ibid, Pg. 75
8
Murphy, Peter Murphy on Evidence 10th Edition Pg. 374
9
Fidelitas shipping Co ltd v. V/O Exportchleb [1966] 1QB
The Evidence Act of The Gambia is silent with regards to estoppel by res judicata,
its focus was on equitable estoppel that concerns immovable property10.

WHAT ARE THE CONDITIONS FOR THE APPLICATION OF

ESTOPPEL BY RECORD

What is meant by character evidence?

In attempt to do justice to the above heading, I believe it is important for to
explain character as single entity and then eventually link it with evidence law, so
that there can be a clear meaning as to what the heading is about.

The Black Law’s Dictionary defines Character as

“That moral predisposition or habit, or aggregate of ethical qualities, which
is believed to attach to a person, on the strength of the common opinion
and report concerning him. A person's fixed disposition or tendency, as
evidenced to others by his habits of life, through the manifestation of which
his general reputation for the possession of a character, good or otherwise,
is obtained.”11

This dictionary carefully defines character by making use of synonyms like habit,
reputation12 to draw our minds closer to what really constitutes character. So in
my deliberations I will be using the synonyms above similar ones (behavior or
personality) interchangeably to make the meaning more flexible to fathom.

10
Parliament of The Gambia, EVIDENCE ACT 1994, Section 157 (1) “A tenant of immovable property, or person
claiming through the tenant, shall not, during the continuance of the tenancy, be permitted to deny that the landlord of
the tenant had, at the beginning of the tenancy, a title to the immovable property”
11
ibid
12
This synonym is also used by the Evidence Act of Gambia do mean define character
Character is the acquired behavior of someone that is subjected to change. The
Exposure to different society and culture have a tendency to change our character
into good or bad. A character of a person is the summary of their past.13

Character evidence is not considered very importantly as in civil cases as it is in

criminal cases, nevertheless, in some rare cases they are considered and left to
the discretion of the court. Peter Murphy pontificates in his evidence book, that it
is because of the nature of civil cases that makes character evidence (which can
also be understood in a literal manner as evidence of someone’s character.,
behavior, mannerism or reputation) quite irrelevant. He said that “Most civil cases
are concerned with cases which do not involve intentional or reckless
wrongdoing, or even morally reprehensible conduct”. On that pretext he qualifies
it by asserting ‘the question of whether they (the parties) may have previous
convictions, is either completely irrelevant or so marginally relevant that a judge
is unlikely to admit evidence of it”. It is very much understood, in most
jurisdiction, that evidence of previous conviction is mostly relevant and
emphasized in criminal cases. So character evidence is not generally admissible in
a civil cases unless if it relevant to the issue before the court.
Even in contractual cases that are taken to the court on the basis of fraud, breach
of contract or theft, it is very possible that parties might want to adduce character
evidence to disprove the allegations against them, but this is not generally
admissible. In a divorce case of Narracott v Narracott, where the husband was
alleged to have maltreated his wife hence, the court did not allow the husband to
adduce evidence of his ‘general humanity’ so exonerate himself. The court in
Goodright d. Faro v Hicks, refused a character evidence by Hicks to suggest that it
was unlikely that he would be engaged in fraud. A clear line should be drawn
between a person’s natural behavior or reputation and the crime or tort they
committed. If, however, character evidence are greatly permissible it would cause
great injustice to aggrieved parties.
In defamation, the character or reputation of the claimant is the fact in issue, hence
he would have to tell the court what is reputation was before and after it was

13
LawTeacher, UK. (November 2013). Character Evidence And The Role It Plays In Court Law Essay. Retrieved from
http://www.lawteacher.net/free-law-essays/judicial-law/character-evidence-and-the-role-it-plays-in-court-law-
essay.php?cref=1
damaged14, so it would be wrong to assert that the reputation of the claimant is the
evidence, when ipso facto, it only forms the fact in issue or the main topic of
discussion. Section 67 of the Evidence Act of 1994 asserts beautifully that

“In civil cases the fact that the character of a person concerned is such as to
render probable or improbable a conduct imputed to him or her is
irrelevant, except in so far as the character appears from facts otherwise
relevant.”

The idea conveyed in this provision negates the adducing of good or bad
character as evidence to disprove a particular allegation. Adducing as evidence a
history of honest character and principled reputation to prove or show the court
that the present illicit or dishonest offence that you are accused of is deemed
irrelevant by virtue of the above provision. Character evidences in civil cases is
generally inadmissible unless the person’s character forms the fact in issue e.g. a
case of defamation.
In Criminal cases, there is a particular type of character evidence that is
permissible. Criminal case, unlike civil cases, are very serious and technical in their
proceedings. So serious that the benchmark has been raised to a standard of
“proof beyond reasonable doubt” on the side of the prosecution. Criminal cases is
about the life and death of an individual (not his reputation, unlike in most civil
cases) hence the law have made it in such a way that the Prosecution has to
convinced with solid evidence which consequently will conform to all forms of
logic so as to find the accused guilty as charged. However, if the juries and/ or the
judge(s) have the slightest but reasonable doubt, the accused will be discharged.
The leading case with regards to the admissibility of bad character is Rowton
(1865). In this case, Rowton was the headmaster of a school and he was accused
of assault on a 14 year old boy. There were several witnesses who gave character
evidence about the character, behavior or personality of Rowton. The decision
which serve as a benchmark for all other character evidence case to come was the
evidence of ‘general reputation’. This was the general public opinion about him
that the court took into consideration and where convinced on that notion. So
evidence of general reputation was admissible and that of specific acts, and

14
Murphy, Peter Murphy on Evidence 10th Edition
witness’s own opinion were not admissible.15 Specific act that someone has
perpetrated does not necessarily prove their overall personality, albeit, it merely
shows that people can sometimes have a bad day. Witness’s own opinion is
speculation is subjected to prejudice which might consequently rendered that
opinion untrue or exaggerated.

IS EVIDENCE OF BAD CHARACTER GENERALLY ADMISSIBLE?

As far as the Gambian jurisdiction Is concerned, section 69(2) (a) and (b) of
Evidence Act of 1994 asserts that:
“The fact that an accused person is of bad character is relevant—
(a) when the bad character of the accused is in issue;
(b) when the accused person has given evidence of his or her good
Character

Hence, evidence of bad character can only be relevant when the accused person’s character
is in issue and that could be a case criminal libel for example. In a case of murder, the
character of the accused is not in issue but whether he killed the deceased. Hence, he
cannot adduce evidence of his kind nature so as to show the court that he is incapable of
killing.
The second subsection in the above provision is of the idea that, there is an open
opportunity for the prosecution counsel to give evidence of bad character, which is in line
with the general reputation rule of course, provided the accused has previously given
evidence of his good nature. The law is clearly affording fairness to both parties to the case.
In essence, the prosecution has been given a leeway, by virtue of subsection (c) to rebut the
good character evidence initially given by the accused.

In section 69(4); the same Act talks about a situation where the is bad character
evidence which proves a previous about an accused in a previous case then that
bad character evidence is relevant.
The heading of this section is not about whether bad character evidence is
relevant or not, but it is about whether it is admissible as evidence.
Section 3 of Evidence Act talks about relevant Relation of relevant facts:

15
Murphy, Peter Murphy on Evidence 10th Edition
(l) As a general rule and except as otherwise prescribed by an Act of the National Assembly all
evidence which is sufficiently relevant to an issue before the court is admissible, while evidence
which is irrelevant or insufficiently relevant is not admissible.

Hence by virtue of this fact, since those above-mentioned bad character are sufficiently relevant then
according to section 3 of the evidence act they are admissible.

WHAT IS MEANT BY PRESUMPTION?

The Essential Law Dictionary defines Presumption as:

“The act of presuming; the use of existing facts to infer other facts that are assumed to be
true until they are rebutted; an assumption that must be made by a court if certain facts are
shown and that will stand until other facts are presented to rebut.”16

The Oxford Law Dictionary defines it as: “A supposition that the law allows or requires to
be made”17

The above definitions have given a clear and precise idea of presumption. However, the
‘presumption’ in law is very diverse. Peter Murphy gave the legal elements that
constitutes presumption:

Presumption is

 A rule of law which provides that if a party proves a certain fact (known as the
primary fact) then another fact (the presumed fact) will also be taken to be proved,
unless evidence is adduced by the opponent to ‘rebut’ the presumption, or, in other
words contradict the presumed fact.

For example, the criminal code in section 12(3) asserts that “A male under the age of
twelve years is presumed to be incapable of having carnal knowledge.” Hence, when a
boy of 11 years of age is charged with a sexual offence and brought before the children’s
court, there is already a presumption created by the criminal code upon which the court
will rely on. According to the elements highlighted above by Peter Murphy which says
the presumed fact will be taken to be proved, thus the fact that the boy is incapable of
having carnal knowledge have already been proved until someone else adduces evidences
to rebut the presumption.

Another pertinent example was given by one David Kaiser in his article:

16
Blackwell, Amy Hackney THE ESSENTIAL LAW DICTIONARY 1st Edition.
17 Martin, A Elizabeth, OXFORD LAW DICTIONARY 5TH Edition.
“A classic example of a presumption of law is the presumption of death that arises when a person is
shown to have been continually absent from his home for seven years and has not been heard from
during such period by persons who would naturally have heard from him had he been alive”18

He further added that legal presumptions usually arise out of consideration of the
public.19

Presumption at law are of different type:

Presumption of Marriage: In common law, there is presumption of marriage, even in the

absence of marital ceremony, between two individual of opposite sex who cohabitate and
are involved in continuous sexual intercourse after which they actions towards are similar
to that of married couples. This presumption is rebuttable with a clear and concise proof
of absence of marriage.

Presumption of Innocence: This is a rule of law at common law which asserts that a
person that is alleged to have commit a crime is innocent like everybody else until
someone proves that they are in fact guilty of the alleged crime. Criticism arises about the
reasoning of this rule of law; if someone is really innocent according to the law why do
they have to stay in prison awaiting bail. The law is trying to protect the reputation of
people and also restricting their liberty for an alleged crime.

Presumption of Legitimacy: The law has a presumption regarding the birth of a child as
legitimate. The English Family Law reform act states that “The presumption of legitimacy
may be rebutted by evidence which shows that it is more probable than not that the person in
question is legitimate or illegitimate, as the case may be.” The purpose for this, according to
Christopher Allen, is that the law contemplates spouses as fulfilling their marital duties to each
other unless there has been an actual order of the court dispensing with the performance of such
duties”20

18
David Kaiser, Presumptions of Law and of Fact, 38 Marq. L. Rev. 253 (1955).
Available at: http://scholarship.law.marquette.edu/mulr/vol38/iss4/5
19 ibid
20
Allen, Christopher PRACTICAL GUIDE TO EVIDENCE 2nd Edition.