A. Ariori & Ors. V. Muraino B.O. Elemo & Ors. (1983)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

This case has a chequered history. But as only a few of the facts thereof are germane to the points to which the appeal before this court has resolved itself, I will not bother with setting out all the facts of the case, but will be content with such of the facts as are necessary for the purpose of bringing out the points in the appeal which are material to the issues discussed in the judgment.

The case itself was filed in the High Court of Lagos State on 15th October, 1960 and after all the preliminaries which included filing and settling of pleadings and substitution of parties for those that died during the pendency of the case, hearing was fixed before Kester, J. (as he then was) for 18th November, 1964. Kester, J. took some evidence in the case.

After this, the pleadings were amended and again hearing was adjourned till 10th June 1966. But the case did not come up until 8th March 1968 when it was mentioned de novo before Beckley, J. who was the Judge who eventually tried the case. From March 1966 until 1st March 1972, the case dragged on, beset with one application or another. However, on that day, that is 1st March 1972, hearing commenced before Beckley, J. By 3rd March, the 1st plaintiff’s witness had concluded his evidence and further hearing was adjourned till 16th May at the instance of the court. Further evidence was taken and by consent, the case was adjourned till 14th June 1972. After 14th June 1972, the next adjourned date for mention was on 16th October 1972 and the adjournment was at the instance of the learned counsel for the defendants.

These defendants are the appellants in this court. Further hearing did not continue until 12th February 1974 and adjournments up till that time had been mostly at the instance of parties and or their counsel who also came up with various applications.

The defence which opened on 12th February 1974 was concluded on 3rd July 1974 and the court took the addresses of learned counsel from 12th July 1974 to 18th July 1974 when the learned trial Judge adjourned judgment sine die.

Now, on 3rd October, 1975, fifteen months after the close of the case (and which was also three years and seven months after the court, [Beckley, J.] took the first evidence in the case), the learned trial Judge delivered his judgment. He dismissed the plaintiffs’ claim.

In the Federal Court of Appeal, one of the main complaints by the plaintiffs, who were the appellants in that court, was that the learned trial Judge took a long time after the conclusion of the case before he delivered judgment and by this reason, he was not in a position to appreciate the issues involved in the case in a proper focus or remember his own impressions of the witnesses. The gravity of this complaint would be more evident when it is realised that in all, up to twenty witnesses gave evidence before the learned trial Judge. In the judgment of the Federal Court of Appeal, delivered by Coker, J.C.A. the Court held –

“We think that grounds 1 and 2 must succeed. We have at the beginning of this judgment stated in detail the intervals between the hearing of evidence of the plaintiffs and their witnesses and those of the defendants and their witnesses.

We have also examined the interval between the completion of addresses of counsel and the date when judgment was delivered. We have also carefully read the record of proceedings and have come to the conclusion that there is merit in the argument of Professor Kasunmu on the two grounds. We shall give further consideration as to whether the mind of the learned trial Judge and his findings could have been affected by the unreasonable delay between the 1st March 1972 when the evidence of the 1st P.W. was commenced and the 14th June 1972 when the last of the nine plaintiffs witnesses gave evidence on the one hand, and the 12th February 1974 when the 11th D.W. testified on the second part, and finally between the 18th July 1974 when Ajose Adeogun (now a Judge) concluded his address and the 3rd October 1975 when judgment was delivered by the learned trial Judge.”

In regard to the question whether the mind of the learned trial Judge and his findings could have been affected by the unreasonable delay complained of, the learned Justice of the Court of Appeal listed several reasons why the inordinate delay by the learned trial Judge had caused mis-directions and non-directions on the part of the (trial) Judge. I will have to quote quite extensively from that judgment as, it would be seen anon, that, it would be difficult to separate this inordinate delay from the real complaints of the appellants even in this Court, notwithstanding the constitutional issue which has pervaded the whole appeal. The learned Justice of the Court of Appeal said –

“On the whole, it is quite clear that the learned trial Judge, with the lapse of time lost the trend of the evidence before him. In the first place, he lost sight of the fact that the onus of proving the grant was on the defendants and not the plaintiffs’ family, who were admittedly the original owners. The onus was also on the defendants to prove the extent and nature of the grant to them. On the evidence as a whole, they failed to discharge that onus.

Secondly, he never directed himself on the evidence that as late as 1910, the plaintiffs’ family were still granting part of the land to tenants under Yoruba customary law vide exhibits 2, 3, 11 and 12. The reason given by him that he could place no weight on Exhs. 2 and 3 because no plans were attached to them is untenable. He failed also to consider Exhs. 11 and 12 at all.

Thirdly, he was in error in rejecting the expert evidence called by the appellants, as a result of his misconceived view of the case of Oshodi v. Balogun, 4 WACA (sic), in the absence of any other evidence to the contrary.

Fourthly, the fact that a joint undivided and absolute grant could be made to three unrelated persons from different parts of Yoruba land, as alleged by the defendants, appears strange, unimpressive and difficult to accept.

Fifthly, there was the absence of any overt and inconsistent acts of possession by the defendants which could lead to the conclusion that the grant by Elemo’s descendants was an absolute grant. See S.C.139/63: Salawu Lawani etc. v. Jimo Adeniyi; unreported of 30.10.64.

Sixthly, the contradictory and inconsistent evidence of the defendants leaves no reasonable doubt that the defendants, after the unsuccessful 1956 case, started ganging up against the Elemo family by claiming the land under the erroneous impression that the land had been awarded to them because the three plaintiffs in the 1956 case lost the action against 1st to 3rd defendants.

We are of the view that these mis-directions and non-directions by the learned trial Judge resulted from the protracted and inordinately long period the proceedings took before him and in consequence, he lost the advantage which as a trial court it undoubtedly had of seeing and forming fair impressions of the witnesses and in the evaluation of their evidence; in addition, he failed to direct himself properly on the onus posed in the pleadings. The result, in our view, is that grounds 3 and 4 succeeded.” (Italics mine).

It is patent from these findings that the Federal Court of Appeal placed a lot of premium on the inordinate delay by the trial Judge but having so found, instead of sending the case back for retrial and for the Court of retrial to make findings on the evidence that might be presented before it, the court went on and examined by itself, in minute detail, the evidence before the learned trial Judge. Coker, J.C.A then gave a long consideration to that evidence, held that on the evidence on record, none of the defences could be sustained. Apparently, after this exercise, the Court became worried as to the nature of the order that should follow their finding of inordinate delay by the trial Judge, and so Coker, J.CA concluded –

“We have given very careful consideration to the proper order to make in the circumstances of this case. We bear in mind the protracted period and the ci-vissitude of the case in the trial court. We also bear in mind the evidence given by the parties and the conflicting claims of the defendants/respondents inter se. We have come to the conclusion that on the pleadings and the evidence before the trial court the plaintiffs’ case ought to have succeeded. We therefore allow the appeal” (Italics mine).

The learned Justice of the Federal Court of Appeal then proceeded to make orders entering judgment in favour of the plaintiffs – all on the printed evidence before the Court and no more!

It was against this judgment of, and order made by the Federal Court of Appeal that the defendants have appealed to this Court. Now there are three sets of defendants. The first, second and third defendants who are now first, second and third appellants in this Court constitute the first set and were represented by Mr. Molajo, SAN.; Mr. Awopeju represented the fourth defendant/appellant that is the second set, while Mr. Lardner, SAN. represented the 5th and 6th defendants/appellants, the third set of defendants.

In setting out the grounds of appeal filed by learned counsel, I will only concern myself with that part of their grounds that deals with delay as that is the only issue that has been argued in the appeal in this Court.

Mr. Molajo, on the issue of delay by the Judge, notwithstanding the stand he took in the trial court, filed the following grounds of appeal –

”The learned Justices of Appeal erred in law in allowing the appeal and giving judgment for the plaintiffs instead of sending the case back for a retrial:

1. When they found that there were misdirection and non- directions.
2. When they found that due to the protracted and inordinately long period the proceedings took before the trial Judge he lost the advantage which as a trial, court it undoubtedly had of seeing and forming fair impressions of the witnesses and in the evaluation of their evidence.
3. Because the court of appeal cannot pretend to have the same advantage of a court of first instance in the special circumstances of this case.”

He asked in the relief which he seeks in this Court inter alia that the case be sent back to the High Court for retrial. Mr. Awopeju’s ground of appeal, on that issue, reads –

”The appellate court erred in law in giving judgment in favour of the plaintiff instead of at worst ordering a retrial when it held that the trial Judge had delayed too long in giving judgment over the matter, and that he must have forgotten part of what happened in the proceeding.

Particulars of Error

a. The appellate court pretends to know more of the facts of the case than the trial Judge who took about a year to give judgment after conclusion of the case, and about 162 months after the 1st witness for plaintiff testified therein, whereas the appellate court itself gave judgment thereon about 47 months after the lower court’s own decision and almost twenty years after the matter was initiated ab origo.

b. The appellate court was itself at a greater disadvantage than the lower court in the matter of the finding of facts that it seeks to castigate the lower court whose finding on fact should rarely be disturbed (sic).

c. The appellate court failed to take cognisance of the submission of the appellants’ counsel to the effect that the delay by the Judge complained of, namely that the action was not heard within a reasonable time, vitiates the whole proceedings.”

Mr. Awopeju, however, did not ask for a retrial. He only sought a dismissal of the plaintiffs’ claim and setting aside of the judgment and order of the Federal Court of Appeal. As for Mr. Lardner, SAN. learned counsel’s grounds of appeal read-

“1. The Court of Appeal erred in law and misdirected itself when, having arrived at the conclusion that the appeal ought to be allowed and the judgment appealed against set aside because of a breach of section 22 of the Constitution of the Federal Republic 1963, they nonetheless did not order a new trial but proceeded to make findings upon some issues and to reverse the judgment appealed against.

Particulars

1. The Learned Justice of Appeal failed to observe that it could not in the circumstances possibly have the advantage that the trial Court, dealing promptly with the matter, would have in appraising the evidence, oral and documentary in their proper foci.
2. The learned Justices in making findings of fact in favour of the plaintiffs did not adhere strictly to the material facts pleaded by the plaintiffs.
3. The learned Justices of Appeal failed to observe that in the circumstances of this case the interest of justice required that a new trial be ordered.
4. The Court of Appeal misdirected itself on the facts holding that a proper case had been made out for setting aside the judgment because of a breach of section 22 of the Constitution of the Federal Republic, 1963, when the matters relied upon by the Court for so holding are trivial and irrelevant and do not support such a conclusion.
5. The judgment of the Court of Appeal is wrong in law in that the learned Justice made findings of fact adverse to the appellants upon evidence the material facts of which were not pleaded.”

Learned counsel then sought as a relief from this Court

“An order setting aside the judgment of the Federal Court of Appeal and dismissing the plaintiffs’ case against the appellants or, alternatively, an order directing a new trial.”

It would be seen from the grounds of appeal filed, that all the three learned counsel, representing the three sets of appellants, complained about the inordinate delay of the learned trial Judge between the close of the case and the time he gave judgment therein. It is against the background of these grounds of appeal which form the main plank in this case that Chief Williams’ submissions on the constitutional issues he has raised, must be viewed. The issues which therefore rest for examination before this Court are –

1. the alleged inordinate delay by the learned trial Judge and the question as to whether the appellant had a fair trial as provided for by s.22 of the Constitution of the Federation of Nigeria 1963 No. 20 which was the Constitution applicable in this case;
2. waiver, if any, or if there could be, of the right to a fair trial by the appellants in this case having regard to their conduct of the case in the High Court, the stand they have taken in the Federal Court of Appeal and in this Court; and
3. the correct order which the Federal Court of Appeal should have made, having regard to its finding that the learned trial Judge was guilty of delay in giving judgment and that such delay did affect his consideration of the facts in the case.

I would like to start first with the submissions of Chief F.R.A Williams, SAN. learned counsel for the plaintiffs/respondents, he, being the one who has raised the constitutional issues. Chief Williams’ contention was that the appellants have waived their right to speedy trial in this case. He based his submission on the facts to be inferred from their conduct in the High Court, Federal Court of Appeal and this Court. The question therefore is whether a person could waive his fundamental right to a fair trial, a speedy trial or a retrial. The right to speedy trial, submitted learned counsel, is personal to the party, and unlike rights which involve public interests and which exist for the benefit of the public, can be waived.

Chief Williams further submitted that the rules relating to waiver are designed to promote public interest and public morality. Learned counsel referred us to other jurisdictions. In America the decisions postulate that parties could waive their rights while in India the original trend was that there could be no waiver; but this trend has changed with time and experience and there has now been a positive move, counsel submitted, from the original trend to one admitting the concept of waiver of fundamental rights. Chief Williams took us through a long line of American decisions in the State Courts and the Supreme Court, and also decisions of the Indian Supreme Court. He also referred us to learned authors, in both America and India, on the subject of waiver in the two countries.

Mr. Molajo, SAN on this issue, submitted that the right to a fair hearing involves public policy; and consequently judicial proceedings should not fall short of certain standard. No citizen has a right to waive this, counsel said, nor could anyone be permitted to compromise the rights to a fair decision. Mr. Awopeju agreed with Mr. Molajo and submitted that even if the right to speedy trial is a private right, it could still not be waived if waiver of it would be contrary to public policy or it would strike at the root of the administration of justice.

For his part, Mr. Lardner, SAN. preferred to deal with the facts of this case.

He submitted that the 5th and 6th appellants, (his clients) have not, in this Court, taken a point of view diametrically opposed to their stand in the court below; contrary to the submissions of Chief Williams, no question of waiver arises in this case, he said. Learned counsel drew our attention to his grounds of appeal which raised the provision of s.22 of the Constitution of the Federation 1963 No.20. He also referred us to the relief he has sought in this court which asked in the alternative for an order directing a new trial.

The issue raised in this appeal is of considerable constitutional importance as it deals broadly with the question as to whether there could be a waiver of fundamental rights. The particular fundamental right in this case is contained in s.22 of the Constitution of the Federation 1963, No. 20. One could treat this appeal in a narrow compass and limit the whole issue to the scope permitted in the submission of Mr. Lardner as to –

1. whether there was anything at all to waive in this case, and
2. whether there was in fact such waiver by the appellants,

but the arguments before us have extended, beyond that, and I respectfully think it would be necessary to examine the issue in its broad compass, and answer the question which has been posed by the profound submissions of learned counsel Chief Williams as to whether one could in fact waive any provision of fundamental rights as entrenched in the Constitution and in particular the right to speedy or fair trial. Learned counsel has dwelt so much on this broad issue and has rested his case on it. Justice demands that we examine the points he has raised, especially, as it was for this reason that this Constitutional Court was empanelled.

In the con of this appeal therefore, the first question that one asks is “what is waiver” Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, Waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both – see Vyvyan v. Vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue. See also Halsbury Laws of England 3rd Edn. Vol. 14 para. 1175.

The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right.

The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts. A simple example could be seen in a right which has been conferred by contract. A person who is a beneficiary to a contract, whereby the benefit is principally for him, has full competence to waive that right. What obtains in the case of a contract should go for benefits conferred by statute. A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit.

The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.

But, how about rights conferred by the Constitution Could these be waived

I do no think the question permits of a simple and summary answer and it would be of use to examine the attitude of the courts in other jurisdictions which operate Constitutions similar to ours especially the United States of America and India, if only by way of comparison, though not necessarily taking these judgments as serving as precedents to be followed in this country without a thorough examination of the implications of those judgments.

I had cause in the case of Attorney-General of Bendel State v. Attorney-General of the Federation and 22 Ors. (1981) 10 S.C.1 to warn as to the reliance to be placed by this Court, especially in constitutional matters, upon the decisions of the courts of other countries, which even operated the same type of Constitution as ours. I said in that judgment, and I am still of the same view that-

“Gone should be the days, if ever they were, when, the decisions of other countries in any common law country are to be accepted in this country as precedents in the like of the Delphic oracle. The decisions of any court, other than those of this Court, are only to be treated as the respected opinion of those courts, which were given in their wisdom, under given circumstances and given environmental and cultural background, and no more. They are, at best, to give a guidance of what those courts did in those circumstances, and the wisdom to be drawn from them by this Court would be reflected in its dealing with the peculiar problems of this country, to which the Constitution which this country operates, is peculiar.”

20 op cit pp. 187-188

One should also bear in mind the words of Sir Udo Udoma, J.S.C. in Nafiu Rabiu v. Kano State (1980) 8-11 SC.130 that –

25 ”foreign constitutions or statutes with identical provisions accepted as in pari materia with the relevant provisions of our Constitution will naturally carry some weight in their persuasive influence.”

– op cit. p.195

It is with the dicta I have referred to above in mind that I intend to approach this case and make reference to decisions in the courts in the United States of America and India, countries which have in their Constitutions provisions similar to the fundamental rights contained in the Constitutions of this country – to wit the Nigerian (Constitution) Order in Council 1960; the Constitution of the Federation of Nigeria 1963 No.20 which is the Constitution that is material to this case and the current Constitution, the Constitution of the Federal Republic of Nigeria 1979. And even though the right to a fair hearing or a fair trial is as fundamental in Nigeria as it is in both the United States of America and India, the precedents emanating from the courts of those countries should be treated with caution.

Now, in approaching the issue of waiver and in the course of referring to the decisions of the courts in the countries aforesaid, illustrations may not be limited to civil matters especially as it is in the field of criminal law that waiver of rights is more pronounced.

In the United States of America, there is a school of thought which tends to the view that the constitutional right (i.e. a right under the organic law) of a person is equated to a right which has been conferred by statute (not the organic law). As a person can waive a right conferred upon him by a statute so can he waive his constitutional right. Thus in the case of the United States v. Gill (1931; D.C.) 55F 2nd 399 reported also in 129 A.LA. p.574, it was held that a constitutional right to speedy trial should be equated with a right conferred by statute. It could be waived at any time and it is to be regarded as a right which is personal to the litigant alone, that is one in which the State should have no interest. See also State v. McTague (1927) 173 Min. 153, where the court held that though the right to a speedy trial is valuable and it will be zealously guarded by the courts with resolute courage, “it is the protection of personal rights, not to embarass the administration of the law nor to defeat public justice;” and it may also be waived.

It seems to me that the way it has been put by these courts in the United States leaves the matter a bit too loose. A more rational view, I think, was taken in the case of The State v. Test (1922) 65 Mont. 134 where the court in the State of Montana classified such rights into two. The classifications are –

a. those in which the State itself and the litigant are both interested; and

b. those in the nature of purely personal rights.

The court thus recognises the difference between purely private rights and rights, which though conferring benefits on litigants, are also of interest to the public.

Although the courts, after this classification, took the view that the right to speedy trial in the particular case is peculiar to the litigant alone and therefore one that could be waived, it is the classification that is of importance here.

It would appear, however, that the greatest problem in these matters would be to distinguish, in rights to speedy trial or fair hearing, those rights which are solely personal to litigants, from those of a mixed nature, to wit of interest to both the litigant and the public. When, for instance, a civil case is set down for hearing, and on, or before the hearing date, one of the parties seeks a long adjournment to which the other party to that case raises no objection, the right which is being sought to be waived here, a right to the speedy trial of the case, is personal to the litigants. They are entitled to waive the right.

However, when the adjournment which is sought by either or both parties is such that by the very nature of it, the trial will be so disjointed as to make the trial court lose its grip on the case, either by the Judge not being able to co-ordinate the evidence given before him or his inability to register accurately the demeanour of the witnesses in his mind, a different circumstance has arisen. There is now an element of public policy. Although the issue still concerns a right to speedy trial, the right cannot be waived since the public is interested. No one can, by agreement, jeopadise fair trial, for as Bello, J.S.C. said in the Attorney-General of Bendel State v. Attorney-General of the Federation and 22 Ors. (supra) at p.54, and I agree, “the law does not permit a person to contract himself out of or waive the effect of a rule of public policy.”

And so, the right to a speedy trial is necessarily relative. It depends on each circumstance. For a right to a speedy trial to be solely a right for the benefit of a party to a case, it must not preclude the right of public justice. See the dictum of McKenna, J. in Beavers v. Haubert (1905) 198 U.S. 77. reported also in 25 U.S. Reporter 573 when he said at p.576

“The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.”

It is to be realised that speed in trying any case is not of itself a primal and separate consideration. The idea of justice is that there should be justice to both the litigant and the public. This in fact is the prime consideration. Speedy trial therefore becomes just an important element or attribute of justice.

And, I think, the inquiry is therefore best put by asking whether the delay caused is detrimental to the course of justice or not. Or, in other words, whether the impression of a reasonable person who was present at and throughout the trial was that justice has been done. In this respect, I will respectfully adopt the words of Ademola, C.J.N. in this Court in the case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 – when he said –

“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing.

We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case.”……………………. see p.426. (Italics mine)

When therefore, as I said, an adjournment is compromised which is likely to jeopardise the Judge’s coming to a just decision the right thus compromised ceases to be exclusively private. It has become public and could, in my view, not be waived by parties.

I have so far discussed where a delay is caused by the exercise of the right to waive by one or both of the parties to a case, and come to the conclusion that even in those cases the rights cannot be waived in all cases. There are however situations where the delay is caused partly by the litigant and partly by the State. The point arose for decision in the case of the State v. Lester (1931) 161 Wash. 227 at p.296. There the court in the State of Washington took the view that in such a situation a litigant could not be held to have waived his right as he could not compromise public right, even though he can compromise his own right.

It seems to me therefore that to answer the question whether or not one could waive one’s fundamental right to a speedy or fair trial, it would be necessary to make an enquiry first as to whether the right to be waived is exclusively within one’s control for it is common sense that one could not compromise what is not within one’s control.

Once it is not within the full competence of a party to a case to waive the right concerned, or once the act is completely within the competence of either the State, or (like the instant case as it would be seen anon) the court, the party to the case has nothing to waive. See the Court of Appeal of the State of Indiana decision in Zehrlaut v. State (1951) 230 Ind. 175, see also the case of Ex parte Bracey (1918) 35 82 W.Va.69.

As a summary of the decisions in all these cases in the United States which I have discussed so far, it is safe to conclude that in that country the courts have accepted generally that one can waive one’s constitutional or statutory right to speedy or more broadly, fair trial as the right is in stricto sensu a personal privilege and not of a jurisdictional nature provided, and this is a strong proviso, such waiver does not constitute any limitation upon the power of the State or against the right of the public. In those latter cases, to waive such rights would be against public policy.

I have made all this reference to the decisions in the various courts in different parts of the United States of America to see how the issues have been resolved in that country. It is to be noted however that that country has gone through two hundred years of democracy, and the fundamental rights guaranteed through the first ten amendments to the Constitution of the United States Bill of Rights are almost equally old. The courts in the United States have adopted what I will term this liberal but sensible stance through an experience of two hundred years, but even then, the whole thing is not free from trouble for in the various interpretations of the scope of “public policy” the courts in that country are able to justify some irreconcilable decisions, like in other constitutional decisions, by a shift, from time to time, in the interpretation of what is public policy depending on the times and circumstances.

So far for the American courts.

The Indian Courts for their part interprete a very young Constitution and this may account for the hard line taken by these courts on the issue of waiver of fundamental rights. In Basheshar Nath v. I. T. Commissioner of Income Tax (1959) 46 A.I.R. (Sup. Crt) at 149 the Indian Supreme Court had an opportunity to discuss its stand. The Court went a long way to indicate the feeling of the Supreme Court of India on this important question.

Because of the comparative young age of the Indian and Nigerian Constitutions vis-a-vis the American Constitution (the Indian Constitution was assented to by the President of India and declared as passed on 14th November 1949), I think the pronouncements of some of the Judges of the Supreme Court are worthy of consideration in determining the issue of waiver raised in the instant case. I will take the opinion of Bhagwatti, J. first. The learned Judge of the Supreme Court of India dwelt on the nascence of the Indian Constitution. He said –

“Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution” (Italics mine)

Another Judge, Subba Rao, J. in the same case did not even believe that any limitation should be placed on fundamental rights.

He declared –

“A large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights It is the duty of the Court to protect their rights against themselves.”

Hard as it may sound, I think there is a lot of wisdom in these pronouncements of the learned Judges. One can easily compare the situation in this country with that of India. In this country, the people are largely illiterate, the advent of a code of fundamental rights can be traced to as recent as 1960. Prior to the Nigerian (Constitution) Order in Council 1960 which gave this country its independence, the second schedule to which Order became the Constitution of the Federation of Nigeria, which I will hereinafter refer to briefly as the Independence Constitution, Nigeria was under Colonial rule and had been, up till then, governed by what may be termed Colonial “Constitutions,” the last being the Nigeria (Constitution) Order in Council 1954 S.1.1954/146. It was under the Independence Constitution that the country first received a code of fundamental rights (see section 17 to 32 of the Independence Constitution). Right to fair hearing and speedy trial (which is the material one here) was guaranteed by section 21 of that Constitution. The right, as well as other fundamental rights, has been repeated in the Constitution of the Federation 1963 No.20 (that is the Republic Constitution and which is the Constitution material to the determination of this case). The current Constitution is the Constitution of the Federal Republic of Nigeria, 1979, (the 1979 Constitution); it repeats this right in section 33 thereof.

Having regard to the nascence of our constitution, the comparative educational backwardness, the socio-economic and cultural background of the people of this country and the reliance that is being placed and necessarily have to be placed, as a result of this background on the courts, and finally, the general atmosphere in the country, I think the Supreme Court has a duty to safeguard the fundamental rights in this country which, from its age and problems that are bound to associate with it, is still having an experiment in democracy.

To this extent, I will adopt the views of Bhagwatti, J. in the case of Basheshar Nath (supra)

However, I will not go with the learned Judge when he declared summarily that –

“It is not open to a citizen to waive his fundamental rights”

nor do I share the opinion of an Indian Chief Justice Mahajan, C.J. about the neo-sanctity of fundamental rights when in Behram Khurshid v. Bombay State (1955) A.I.R. 123 he said –

”These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.”

Having examined the opinions of the courts in these two common law countries which have fundamental rights similar to ours inserted in their Constitutions, I am of the firm view that fundamental rights are classifiable.

a. Fundamental rights that are for the sale benefit of the private individual. Example is right to speedy trial which a litigant can waive by asking for an adjournment of the case. So far as the adjournment does not give rise to a miscarriage of justice the waiver is permissible.

b. Fundamental rights that are for the benefit of the litigant and the public.

Again give the example of a speedy trial and a litigant seeking an adjournment in the case, or in other words waiver of the right, but the adjournment sought is of a nature that the court will lose the advantage it has of accurate assessment of the witnesses it had observed in the course of trial. In such a case waiver is not permissible. To permit it will lead to injustice. It is against public policy to compromise illegality (manifest or latent).

c. Where the question of waiver relates to a right in the control of the State or, in the sole control of the court. A good example is the instant case where the court, after the close of the case for both parties adjourned for such a long time for judgment as to make it lose control over the case. In such cases the parties have nothing to waive. It is not within their competence to waive anything.

The courts in this country especially this court, being a court of last resort has a duty to safeguard fundamental rights. They have that duty for the reasons I have already given, and in particular the reason relating to the stage of development of the country. The Court in my view is in duty bound to scrutinize every case of waiver of fundamental rights to see that the right being waived falls within the first category of the classification above.

In Daniel v. Teamey (1880) 102 U.S. 415 the Supreme Court of the United States declared –

“A nascent democracy begins ill if it begins by countenancing bad faith and disregarding the pledged word given after full knowledge and if it upholds claims which involve a mockery in judicial administration and a violation of the plainest principle of reason and justice” – see p.422 (see also 26 L.ed 187),

With respect, I do not think that for the court to scrutinize the waiver of fundamental right for the reasons I have given is to countenance bad faith. What obtains in the United States democracy will not necessarily obtain in our nascent democracy.

I have so far dealt with the issues of waiver of the right to speedy or fair trial generally. It now remains for me to relate these principles to the facts of the instant case.

I have already stated the facts at the beginning of this judgment. I have also set out the finding of the Federal Court of Appeal that the inordinate delay by the learned trial Judge of the judgment in the case after he had taken evidence was responsible for his losing the trend of the evidence before him and his lack of adequate consideration of the principles of law relating to the shifting of the onus of proof. There was, as a result of this inordinate delay, a miscarriage of justice.

The appellants had no control on this act of the learned trial Judge. They were, therefore, not in a position to waive what was not within their competence or control, Here we are not faced with the question of adjournment of the case at the instance of the parties to the case. It is a question of proven miscarriage of justice caused by the act of the trial Judge – an act over which neither party to the case had control. I am of the view therefore that, as Mr. Lardner has rightly submitted, no question of waiver could arise nor has actually arisen in this case. That being the case the parties could not be estopped.

For it is when the question of waiver arises at all that the point could be examined as to whether the parties took a point of view diametrically opposed to their stand in the court below or in this Court.

But assuming that the question of waiver does arise, I have set out the grounds of appeal of the three sets of defendants/appellants and they all raise the issue of the inordinate delay of the learned trial Judge resulting in a mis- carriage of justice.

The Federal Court of Appeal which heard the appeal and which found that there was such miscarriage of justice should have set aside the judgment and ordered a retrial. See Chief Justin/Atuedo v. Ighoriguo & 2 Ors. {1978} 2 S.C.115; 138. Rather than do that it went on and tried the issues which to my mind could only be tried by a court that has heard evidence and seen the witnesses. With great respect to their Lordships in that court, rather than help, they have compounded the issue.

The court fell into a deep error. After rightly finding fault with the action of the learned trial Judge, who, having lost his appreciation of the evidence before him continued to make findings in the case, the learned Justices of the Federal Court of Appeal misdirected themselves by falling into the same error of making findings on the evidence of the witnesses they neither saw nor heard. What is involved in this case has gone beyond an action that would be tried on the printed record.

In any event, Chief Williams has rested his case on the constitutional issue of fundamental right. Having found that there could not be and there was no waiver in this case the appeal must succeed and it is hereby allowed. As the learned trial Judge had failed to make use of the opportunity he had in giving the case a proper trial, the order must be that there should be a retrial before another Judge. It is most unfortunate that a case that has been litigated through a space of twenty two years is still not brought to an end and has to be reopened again due to the avoidable fault of the trial Judge especially when some of the witnesses might have died or perhaps cannot now be traced. Indeed the trial Judge himself has retired from the service. If it is possible to make an order other than a retrial I would have readily acceded to it. But to my mind the course of justice can only be satisfied by a retrial and I do hope the Chief Judge of Lagos State will look into the issue of speedy trial and assign a Judge to this case who would attend to the trial from day to day and complete it with utmost dispatch.

The appeal is allowed. The following orders are made –

a. The judgment of the Lagos High Court (Beckley, J.) given on 3rd October 1975 together with its order as to costs is hereby set aside.

b. The judgment of the Federal Court of Appeal dated 26th September 1979 is also set aside together with its order as to costs.

c. There will be a retrial of the case before another Judge.

d. Each set of appellants shall be entitled to costs assessed as follows –

Cost in the High Court N2,500.00

Costs in the Federal Court of Appeal N1,000.00

Costs in this Court N 417.00

SOWEMIMO, J.S.C.: I have had the privilege of a preview of the judgment just read by my learned brother Kayode Eso, J.S.C.

I entirely agree with the reasoning of the conclusion reached by my learned brother in the said judgment.

IRIKEFE, J.S.C.: I had the advantage of a preview of the judgment just read by my learned brother, Eso, J.S.C. and I am in entire agreement with his conclusions both on matters of law and fact. I also would allow this appeal and adopt the orders made in the lead judgment aforesaid.

The main issue canvassed by the respondents was that the appellants should be deemed to have waived their constitutional right to a fair hearing. This contention is founded on the premise that the appellants had acquiesced in the several adjournments which had characterised the proceedings at the court of trial. Now Section 22 of the 1963 Constitution of the Federation of Nigeria which is relevant to these proceedings provides “inter-alia” as follows:-

22(1) “In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. (Italics mine).

The Court of Appeal was of the view that owing to the inordinate delay in recording his judgment in this case, the learned trial Judge (Beckley, J.) had placed himself in a position where his impressions both on the evidence and the demeanour of witnesses would have been placed in serious doubt and consequently, the said judgment ought to, and was in fact, set aside. I am unable to hold as contended for the respondents that there was a waiver of the appellants’ right to a fair trial in this case. All the adjournments made in the course of the trial were such as would be expected in any trial and the parties (both appellants and respondents) had their fair share of them. The great interval between the end of evidence and the delivery of judgment was the sole act of the learned trial Judge and it would be strange indeed to attempt to visit this lapse on the appellants.

It seems to me that one’s entitlement to a fair hearing under the above cited provisions of the 1963 Constitution is not negotiable, and waiver thereof in any circumstance’ would be an infraction of the Constitution itself, capable of rendering the hearing invalid. There is thus, in my view, a distinction between a mandatory constitutional provision such as the one being considered here which cannot be waived and a mere procedural requirement in the course of a trial which can be waived. See Smythe vs. Wiles 1921 – 2 K.B. p.66. In Papadopoulos vs. Papadopoulos – 1929 – .31 Probate Division – p.55 it was held that parties cannot by consent confer jurisdiction upon a tribunal, which by law has no such jurisdiction.

On the order made by the Court of Appeal, I have not the slightest doubt that it was unsupportable. If the basis for setting aside the original judgment, that is, the excessive delay leading to a blurring of the impressions of the court of trial on the evidence was valid, I fail to comprehend how the Court of Appeal can, in the same breath, proceed to make findings of fact in favour of the respondents on the printed record, without the advantage of seeing the witnesses while testifying.

IDIGBE, J.S.C.: I am in entire agreement with the judgment just delivered by my learned brother Kayode Eso, J.S.C. of which I had a preview and for the reasons therein stated by him I also would allow this appeal. However, I would like to add a very short comment of my own on waiver (in so far as it is relevant to the main point for our consideration in the appeal in hand) by way of emphasis on the points so lucidly made by my learned brother on the subject. By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right; it, therefore, implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option, he could have insisted upon.

The major point for our consideration in this appeal is the submission that the appellant waived his fundamental right to a fair hearing of his case in the court below when he consented to lengthy adjournments in the course of hearing by the trial court. This appeal concerns, in particular, the adjournment by the learned trial Judge of the judgment at the close of address of counsel. That is a matter entirely in the control of the court; it is, indeed, a matter outside the control of the appellant. Therefore, no question of waiver by the appellant arises in the circumstances.

With great respect to learned counsel for the respondents, it is my view that his submission to the contrary is not well founded.

On the issue of fundamental right to “speedy trial”, I share the view of my learned brother that this court has a general duty to safeguard the fundamental rights of the subject; and this is more so having regard (in the language of my brother Eso, J.S.C.) to the “nascence of our Constitution, the comparative backwardness, the socio-economic ……………………………..background” of the majority of our people in whose favour the various fundamental rights has been written into the Constitution. More than that, however, is the fact that the right to a fair trial is, to my mind, much more than a personal right of the subject; public policy demands that every subject is entitled to a ”fair trial” and that trials in courts must conform with settled principles of justice. So that although the right to a “speedy trial” (which, really, is an aspect of ”fair trial”) enures primarily for the benefit of a party to a suit in court, the courts ought not to hold that such a party has waived that right where such a waiver results in a miscarriage of justice or in the trial not conforming with settled principles of justice (i.e. trial according to accepted principles of the law).

As already stated, for the reasons so adequately set out in the judgment just read by my Lord, Eso, J.S.C. I would allow this appeal and I also endorse the orders proposed in his judgment.

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Other Citation: (1983) LCN/2202(SC)