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ACQUIESCENCE VS WAIVER, DISTINCTION

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Dictum

Acquiescence imports tacit consent. It is the giving of an implied consent to a transaction, to the accrual of a right, or to any act, by one’s mere silence or without express assent or acknowledgment. Waiver, on the other hand, is the intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right or when one dispenses with the performance of something one is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts does or forebears to do something, the doing of which or the failure or forbearance to do which is in consistent with the right or his intention to rely upon it. The party against whom the doctrine of waiver is raised must: (a) be aware of the act or omission; and (b) do some equivocal act adopting or recognising the act or omission.
In this case, the trial court was right in holding that the mere refusal or failure of the appellant to protest the alteration in the rate of interest when he received his statement of account could not amount to a waiver of his right to challenge same by action. [Ariori v. Elemo (1983) 1 SCNI,It 1 at 27; Adio v. A. G, 0yo State (1990) 7 NWLR (Pt. 163) 448; Odu’a Investment Co. Ltd v. Talabi (1991) 1 NWLR (Pt. 170) 761]

– L.A. Ayanlere v. Federal Mortgage Bank of Nig. Ltd. (1998) – CA/K/186/96

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LASPE OF TIME IS EVIDENCE OF ACQUIESCENCE

Lapse of time is generally evidence of acquiescence but acquiescence is not just mere lapse of time. – Oputa JSC. Gbadamosi v. Bello (1985)

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ACQUIESCENCE TO DEPRIVE A MAN MUST BE FRAUDULENT TO HOLD SWAY

Willmott v. Barber (1880) 15 Ch.D 96 at p. 105 viz: “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.”

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RIGHT SLEPT ON IS WAIVED

In this instance the appellants having slept on their rights are deemed to have waived them and this Court is bound to give effect to the law, harsh as it may seem to the appellants.

– M. Peter-Odili, JSC. Oko v. Ebonyi State (2021)

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A PERSON HAS FULL COMPETENCE TO WAIVE HIS RIGHTS

ARIORI v. ELEMO (1983) 14 N.S.0 8, particularly the opinion of Eso, JSC at page 37 thereof: “The next enquiry is to what extent to which a person could waive rights conferred on 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 longer disability. He should be able to forego the right; in otherwords waive it either completely or partially, depending on his choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. A beneficiary under statute should have full competence to waive those right 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”.

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ACQUIESCENCE MUST HAVE LED THE OTHER PARTY TO ALTER HIS POSITION

In Taiwo v. Taiwo (1958) SCNLR 244 particularly at 247 – 248, this court in dealing with the equitable defences of acquiescence and laches, stated as follows:- “Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies upon his opponent’s acquiescence must have been led by it to expend money or otherwise alter his position. There is nothing to show here that the plaintiffs or their predecessor in title, Rebecca, have been led to do anything of the sort by the defendants’ failure to assert their claim. However, the plaintiffs here do not rely, upon bare acquiescence, but upon acquiescence over a long period; I should prefer to say that they rely on the defendants’ laches. Laches is not delay alone; some other factor must exist, or at least the delay must be such that the existence of some other factors may be inferred. Laches may be evidence of the waiver of a party’s right, but waiver is incomplete without consideration in some shape or form proceeding from the other party. There is no evidence of that here; neither the plaintiffs nor their predecessor in title here acted in any way upon the defendants’ failure to assert a claim to Rosannah’s share of the rents which they were taking. Counsel for the plaintiffs speaks of the defendants’ case as a stale claim. There is a stale claim when laches has brought about the destruction or loss of evidence which might have supported or rebutted it. In the present case the rights of the parties depend on native law and custom, not on any dealings between individuals giving rise to private rights which the passage of time might have made more difficult to establish. Evidence relevant to the native law and custom governing the case is as available now as it was 14 years ago. In my view, the defendants’ inactivity, by itself and unaccompanied by any other circumstance which would make it a fraud or unconscionable on their part to maintain whatever rights they may have to a share in Rosannah’s estate, has not relieved the plaintiffs from the burden of showing positively that the native law and custom in this matter is what they assert it to be. It still rests with the plaintiffs to show that native law entitled them to succeed to Rosannah’s share to the exclusion of Fredrick’s children.” See also Solomon v. Mogaji (1982) 11 SC 1.

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