➥ CASE SUMMARY OF:
A. Ariori & Ors. V. Muraino B.O. Elemo & Ors. (21 Jan 1983, SC.80/1981)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Long time before delivering judgement;
Speedy trial;
Order of retrial.
➥ CASE FACT/HISTORY
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.
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.”
➥ ISSUE(S)
I. 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?
II. Whether the Learned Appeal Court justices ought to order a retrial?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THERE WAS NO RIGHT WITHIN THE APPELLANT TO WAIVE
‘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.’]
.
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE APPEAL COURT OUGHT TO ORDER A RETRIAL
‘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 and 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.’]
.
.
.
✓ DECISION:
‘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 ₦2,500.00 Costs in the Federal Court of Appeal ₦1,000.00 Costs in this Court ₦417.00’
➥ FURTHER DICTA:
⦿ WHAT IS WAIVER?
In the context 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 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. — Eso JSC.
⦿ THE COURT HAS A DUTY TO SAFEGUARD FUNDAMENTAL RIGHTS
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. — Eso JSC.
⦿ CLASSIFICATION OF FUNDAMENTAL RIGHTS VIS-A-VIS WAIVER
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. — Eso JSC.
⦿ WHAT OBTAINS IN UNITED STATES DEMOCRACY WILL NOT NECESSARILY OBTAIN IN OURS
What obtains in the United States democracy will not necessarily obtain in our nascent democracy. — Eso JSC.
⦿ RIGHT TO LIFE … CANNOT BE WAIVED
The right to life, right to personal liberty, right to freedom of expression, thought, conscience and religion, right to lawful and peaceful assembly and association which are vital to the human existence and democracy in this nation cannot in my view, be waived. — Obaseki JSC.
⦿ FAIR HEARING WITHIN A REASONABLE TIME
The meanings of “fair hearing” and “reasonable time” are not given in the 1963 Constitution nor in our new 1979 Constitution but they have however received judicial interpretation. In my view, ”fair hearing within a reasonable time” accords with the demands of justice and a waiver of this right amounts to a waiver of justice. Hearing has been defined in the Pocket Law Lexicon 8th ed. by A. W. Motion as ”the trial of a suit”. Trial, on the other hand, is defined in the same pocket Law Lexicon as ”the hearing of a cause, civil or criminal, by a competent tribunal, the decision of the issues of law or fact in an action. It may be by a Judge or Judges with or without jury or assessors.” Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. “Reasonable time” must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done. — Obaseki JSC.
⦿ WHEN EVIDENCE AND ADDRESSES HAS BEEN HEARD JUDGEMENT SHOULD BE GIVEN QUICK
When evidence and addresses have been heard, the duty of the Judge to consider the evidence and addresses and deliver his judgment falls to be performed. If possible, the duty ought to be performed immediately upon the conclusion of counsel’s addresses if there were counsel in the case and if no counsel appeared upon the end of the testimony of the parties and their witnesses. The reasonable time for the consideration and delivery by the court of the judgment depends only on the time an active, healthy and mentally alert Judge takes to read and consider the evidence and write his judgment with full and complete consciousness of all the impressions of witnesses at the trial. A period of time which dims or loses the memory of impressions of the witnesses is certainly too long and is unreasonable. Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage of justice, contravenes the fair trial provision of our Constitution and vitiates the whole proceedings. — Obaseki JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Eso, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Molajo, SAN,
Mr. Awopeju,
Mr. Lardner, SAN.
⦿ FOR THE RESPONDENT(S)
Chief F.R.A Williams, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ ACQUIESCENCE WHICH WILL DEPRIVE A MAN OF HIS LEGAL RIGHT MUST AMOUNT TO FRAUD
Fry, J. in Willimott v. Barber (1880) 15 Ch. D. 97 at 105 – 6 where he said: “It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.”
➥ REFERENCED (OTHERS)
