ARIORI & ORS. V. ELEMO & ORS.
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ARIORI & ORS. V. ELEMO & ORS.
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ARIORI & ORS. V. ELEMO & ORS.
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A. ARIORI AND ORS.
APPELLANTS
V
10 MURAINO B.O. ELEMO AND ORS.
RESPONDENTS
SUIT NO. SC 80/1981
SUPREME COURT OF NIGERIA
SOWEMIMO,
J.S.C.
IRIKEFE,
J.S.C.
15
OBASEKI,
J.S.C.
ESO,
J.S.C.
ANIAGOLU,
J.S.C.
UWAIS,
J.S.C.
21st January, 1983
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Practice and Procedure - Retrial - Whether an appropriate case for - Miscarriage
of Justice occasioned by misdirections and non - Directions resulting from trial
Judges delay in delivering judgment.
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Constitutional Law - Speedy trial - Waiver of constitutional right.
ISSUES:
1. Whether a person can waive his fundamental right as conferred by the
Constitution to a fair trial, a speedy trial or a retrial.
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2. What constitutes a waiver?
3.
To what extent can a person waive rights conferred upon him by law?
4.
What is the appropriate order for an appellate court to make where there was
an inordinate delay of the trial Judge between the close of the case and the time
of judgment?
35 FACTS:
This case was filed in October, 1960 but due to amendments of pleadings and
adjournments, did not come up till March, 1968 when it was mentioned
de novo.
The case was adjourned several times at the instance of the parties. In 1975, 15
months after the close of the case, the trial Judge delivered his judgment dismis-
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sing the Plaintiffs' claim. The Plaintiffs (Appellants) appealed to the Federal Court
of Appeal on the ground that the 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 po-
sition to appreciate the issues involved in the case or remember his impression of
witnesses. The Court of Appeal found there was inordinate delay and gave judg-
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ment in favour of the plaintiffs on the printed evidence before the court. The De-
fendants appealed to the Supreme Court.
HELD:
1. The inordinate delay by the trial Judge of the judgment in the case after he had
taken evidence was responsible for his losing the trend of evidence before him
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and 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 delay, a miscarriage of
justice.
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NIGERIAN SUPREME COURT CASES
[1983] N.S.C.C.
2.
Waiver of the constitutional right to a speedy trial is not permissible where the
delay in question is one likely to result in miscarriage of justice or one not
exclusively within the litigant's exclusive control.
3.
The Federal Court of Appeal was wrong in making its findings of fact solely on
the recorded evidence and then reversing the judgment. What the Federal Court
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of Appeal should have done was to order a retrial before another Judge. Both
the judgments of the High Court and Federal Court of Appeal are hereby set
aside and a fresh trial ordered before another Judge.
4.
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
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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. The
exercise has to be a voluntary act. Where a right is conferred solely on an
individual, there is no problem as to the extent to which he can waive such right,
since it is for his own benefit. A beneficiary under statute should have full
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competence to waive those rights once they are conferred solely for his benefit,
unless the statute forbids such waiver. If however, the right conferred involves
an element of public policy i.e. are of interest to the public, the individual might
not be entitled to waive the right.
5.
In the instant case, the trial Judge was responsible for the inordinate delay that
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resulted in the miscarriage of justice. Since the appellants had no control over
this act of the learned trial Judge, they were not in a position to waive what was
not within their competence or control. Thus the question of waiver did not
arise at all and the appellants could not be estopped.
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CASES REFERRED TO IN JUDGMENT.
1.
Salawu Lawani v. Jimo Adeniyi
SC.139/63 unreported of 30/10/64
2.
Attorney-General of Bendel State v. Attorney-General
of the Federation and 22 Ors. (1981) 10 S.C.1
3.
Nafiu Rabiu v. Kano State
(1980) 8 - 11 S.C.130
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4.
lsiyaku Mohammed v. Kano N.A.
(1968) 1 All N.L.R. 424
5.
Chief Justin/Atuedo Akpor v. lghoriguo & 2 Ors.
(1978) 2 S.C.115; 138.
6.
United States v. Gill
(1931; D.C.) 55F 2nd 399; 129 A.L.R. 574
7.
State v. McTagre
(1927) 173 Min.153
8.
State v. Test
(1922) 65 Mont. 134
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9.
Vyvyan v. Vyvyan
30 Bear 65 at 74; 54 E.R. 817
10.Smyth (Ross. T) & Co. Ltd. v. Bailey, Sons &
Co. (1940) 3 All E.R. 60 at 7.
11.
Smythe v. Wiles
12.
Papadopoulos v. Padopoulos 1929 31 Probate Division 55.
13.Oshodi v. Balogun
4 W.A.C.A.
40
14.Bearers v. Haubert
(1905) 198 U.S. 77; 25 U.S. Reporter 573, 576.
15.States v. Lester
(1931) 161 Wash. 227 at 296.
16.Zehrlaut v. State
(1951) 230 Ind. 175.
17. Ex parte Bracey
(1918) 82 W.Va. 69.
18.Basheshar Nath v. I.T. Commissioner of Income Tax
(1959) 46 A.I.R. 149.
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19.Behram Khurshid v. Bombay State
(1955) A.I.R. 123
20.Daniel v. Tearney
(1880) 102 U.S. 415
21.Brikom Investments Ltd. v. Carr and Others
(1979) Q.B. 467; (1979) 2 A.E.R.
753
22.Matthews v. Smallwood
(1910) 1 Ch. 777 at 786.
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23.Fuller's Theatre and Vaudeville
Co.
Ltd. v. Rofe
24.
Willmott v. Barber
(1880) 15 Ch. D. 97 at 105-6.
E.A. Molajo, S.A.N.
(with him
T.A. Molajo)
for 1st, 2nd and 3rd Appellants.
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