Waiver

• Pages: 243-297

243

WAIVER.

(120) ACQUIESCENCE BY A PARTY.

Attitude of Court where a party is guilty of acquiescence.

“Equity aids the vigilant and not the indolent” and Secondly, ‘Delay defeats Equity “. InSmith v.

Clay(1767) Amb 645 Lord Camden stated that: “A Court of equity has always refused its aid to

stale demands where a party has slept upon his rights and acquiesced for a great length of time.

Nothing can call forth this Court into activity but conscience, good faith and reasonable

diligence.” – PerTur, J.C.A., in Babale v. Eze Suit No. CA/K/127/2008; (2011) 11 N.W.L.R. (Pt.

1257) 48 at 115.

Meaning and nature of “acquiescence”.

In the case ofAdedeji v. Oloso (2007) 5 N.W.L.R. (Pt. 1026) 133 at p. 173, paras. B-C the

Supreme Court agreed that“Acquiescence means conduct from which it can beinferred that a

person has agreed to a certain state ofaffairs affecting his legal right. If a person has agreedto his

right to be taken away, he should not afterwardscomplain about it. He would be estopped by the

factof having consented to the act complained of sinceacquiescence operates by way of estoppel,

it is aweapon of defence under which the respondent cantake refuge” – PerOwoade, J.C.A., in

Okunade v. Olawale Suit No. CA/I/373/2009; (2014) 10 N.W.L.R. (Pt. 1415) 207 at 266.

(121) APPEARANCE.

Can conditional appearance amount to waiver of complaint of competence of action?

“It is trite that where a party has filed conditional appearance, it does not amount to a waiver of

his complaint on the competence of the action even when he takes steps in the proceedings.” – Per

Ogunwumiju, J.C.A., in Adams v. Umar Suit No. CA/IL/EP/SH/11/2007; (2009) 5 N.W.L.R. (Pt.

1133) 41 at 145.

(122) ARBITRATION CLAUSE.

When party to agreement containing arbitration clause will be deemed to have waived his

right thereunder.

(1) “Both parties made the need to invite an arbitrator where the occasion calls for it an alternative

in their lease agreement. In the suit before the Court, both parties exchanged pleadings and the

matter was tried in their presence, while the trial Court delivered a considered judgment based on

the evidence before him. The appellant did not object at that stage to the trial on the ground of the

respondents’ failure to refer the matter to an arbitrator as a condition precedent to commencement

of the suit, and did not apply to the trial Court for stay of proceedings on the ground of the

respondents’ failure to refer the dispute to arbitration. In the circumstance, the appellant cannot

now complain on appeal about the respondents' default, as he is now deemed to have waived his

right under the arbitration clause. Osun State Governmentv.Dalami (Nig.) Ltd.(2003) 7 N.W.L.R

(Pt. 818) 72;Africa Insurance Development Corporation v. Nigeria Liquified Natural Gas

Ltd. (2000) 4 N.W.L.R (Pt. 653) 494;Ogun State Housing Corporationv.Ogunsola (2000) 14

N.W.L.R (Pt. 687) 431;Carlen (Nig.) Ltd. v. University of Jos(1994) 1 N.W.L.R (Pt.323)

631 Ariori v. Elemo(1983) 1 S.C.N.L.R. pg. 1.” – PerAdekeye, J.C.A., in Obienu v. OkekeSuit

No. CA/E/84/2003; (2006) 16 N.W.L.R. (Pt. 1005) 225 at 240 - 241.

(2) “It’s also a trite law that where a partyjumps the gun (of arbitration, as it were) and files an

actionin a Court of law, the defendant has the right to stay theproceedings. The Court shall stay

the proceedings if it’ssatisfied that there is no cogent reason why the mattershould not be referred

to arbitration in accordance with theprovisions of sections 4(1) and 5(1) of the Arbitration and

244

Conciliation Act(supra).See alsoKuburo v. Zach – Motison (Nig.) Ltd. (supra)at 117 paragraphs

G – H perNiki Tobi,J.C.A. (as he then was). Thus, where a party, as in the instant case,taken any

step beyond the formal appearance, hewould be deemed to have waived his right to go to

arbitration. He has by implication also waived hisright to challenge the competence or jurisdiction

of the Court.” – Per Saulawa, J.C.A., in Enyelike v. Ogoloma Suit No. CA/PH/235/2002; (2008)

14 N.W.L.R. (Pt. 1107) 247 at 258.

When to raise issue of arbitration clause.

“Where a defendant fails to raise the issue of arbitration clause and rely on same at the early stage

of the proceeding but rather takes positive step in the action he would be deemed to have waived

his right under the arbitration clause - seeCarlen (Nig.) Ltd. v. University of Jos &Anor.(1994) 1

N.W.L.R. (Pt. 323) 631 at 664 per Ogundare, J.S.C. see also Ariori v. Elemo(1983) 1 S.C.N.L.R.

1.” – Per Ubaezonu, J.C.A., in Akpaji v. Udemba Suit No. CA/E/47M/2000; (2003) 6 N.W.L.R.

(Pt. 815) 169 at 181.

(123) CAUSE OF ACTION

Can one waive a right the accrual of which he was not aware?

“A person who has a cause of action is not expected to pursue his case unless and until he is aware

of the accrual of the cause of action. It is my view that in spiteof the wording of S. 1 of the Law,

the period of 7 day prescribed would be strictly determined from the date the appellants became

aware or were reasonably expected to be awareof the approval resulting in the completion of the

process of appointment under S. 3 of the Law. On the facts before the Court, one cannot say the

appellants waived their right under S. 1 of the Law, for no one can waive a right the accrual to him

of whichhe is not aware.It cannot be said that they acquiesced in the violation of their right under

the restrictive and disabling provision of S. 1 of the Law.See Nwakobi & Ors. v. Nzekwu (1961)

A.N.L.R. (Pt. 111) 445 at 450, (1961) 2 S.C.N.L.R. 138; Jinadu & Ors. v. Oloyede(1967) L.L.R.

22 at 32.” – PerNgwuta, J.C.A., in Adedolapo v. Mil. Adm., Ondo State Suit No. CA/B/239/2001;

(2005) 17 N.W.L.R. (Pt. 955) 487 at 501 - 502.

(124) COMPETENCE OF COURT

Can competence of Court be waived?

“It is true that the competence of a Court or of the proceedings in Court is a fundamental issue

which cannot be waived even if the reason for seeking the waiver is based on the argument that it

is in the interest of substantial justice. Once the incompetence is established, the consent of the

parties cannot validate what took place under it and preclude the inevitable result of nullity.

SeeMenakaya v. Menakaya (2001) 16 N.W.L.R. (Pt. 738) 203 at 263;Odofin v. Agu(1992) 3

N.W.L.R. (Pt. 229) 350;Olanrewaju v. Government of Oyo State (1992) 9 N.W.L.R. (Pt. 265)

335.” – Per Peter-Odili, J.C.A., in Nkwocha v. MTN (Nig.) Comm. Ltd. Suit No. CA/A/207/05;

(2008) 11 N.W.L.R. (Pt. 1099) 439 at 461.

(125) COMPETENCE OF SUIT

Can unconditional appearance amount to waiver of right to challenge competence of suit?

“I would like to comment on one of the submissions of the appellant, indeed the last point taken,

that the defendant/respondent having entered unconditional appearance must be taken to have

voluntarily waived its right to challenge the competence of the suit. With due respect, I am of the

firm view that the appellant is mistaken in this view. A party who is contending that an action is

caught by statute of limitation must plead it or in the alternative he must plead the facts in support

245

specifically. See - Ketu v. Onikoro (1984) 10 S.C 265. It therefore follows that a defendant who

intends to rely on this defence must file a statement of defence which contains the averment.” –

Per Aderemi, J.C.A., in Ogoh v. ENPEE Ind. Ltd. Suit No. CA/L/468/97; (2004) 17 N.W.L.R. (Pt.

903) 449 at 463.

(126) COMPLANCE WITH RULES OF COURT.

Power of Court of Appeal to waive compliance with rules of Court.

“The prescription of Order 20 rule 3(1) of the Rules is handy. It reads: 3-(1) The Court may, in

exceptional circumstances, and where it considers it in the interest of justice so to do, waive

compliance by the parties with these Rules or any part thereof. This clear provision gives this Court

the unbridled licence to condone and accommodate wide range of acts of non-conformity with the

Rules under the canopy of overriding interest of justice, see Dingyadi v. I.N.E.C.

(No.1) (supra);Zamfara State v. Gyalange(supra);Ukachukwu v. P.D.P.(2014)17 N.W.L.R. (Pt

1435) 134.” ‒ PerOgbuinya, J.C.A., in Ediru v. F.R.S.C. Suit No. CA/J/227/2010; (2016) 4

N.W.L.R (Pt. 1502) 209 at 234.

(127) CONCEPT OF WAIVER.

Application of concept of waiver.

(1) “It is trite law that a person who is not under any legal disability should be the best judge of

his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred

upon him by statute or accorded to him under a statute and intentionally yet interestingly decided

to give up all or some of these statutory rights, he therefore cannot be heard to complain afterwards.

He should be held to have waived such rights. See Ariori & Ors v. Elemo & Ors (1983) 1 S.C 13,

(1983) 1 S.C.N.L.R. 1;Ajibola v. Sogeke(2003) 9 N.W.L.R. (Pt. 826) 494; Ezomo v. Oyakhire

(supra). 15 N.W.L.R. (Pt. 1322) 31 at 50.

(2)“See Fasade v. Babalola (2003) 11 N.W.L.R. (Pt. 830) 26 at P. 48, paras. C-G: “The concept

of waiver presupposes that the person who is to enjoy a benefit or who has 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 ... The exercise

hasto 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,

interest, 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 had not been permitted to exercise his right 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 another

way, estopped from raising the issue” See alsoAbalogu v. S.P.D.C. Ltd.(2003) 13 N.W.L.R. (Pt

837) 308” –PerBulkachuwa, J.C.A., in A.E. Consulting v. Yobe State Govt. Suit No.

CA/J/180/2007; (2011) 1 N.W.L.R. (Pt. 1228) 331 at 342.

Application of doctrine of waiver and whether incapacity of party to defend action can be

waived.

“If one party, by his conduct leads another to believe that the strict rights arising under the contract

will not be insisted upon, intending that the other should act on that belief, and he does act on it,

then the first party will not afterwards be allowed to insist on the strict rights when it would be

inequitable for him to do so. But what is the right said to have been waived here? The answer to

that question is that it is the right defend an action in a representative capacity where the names of