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CONCEPT OF WAIVER OF RIGHT

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My lords, in law the concept of waiver is 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. Thus, if one party by his conduct leads another to believe that the strict rights arising under contract between himself and another will not be insisted upon, intending that the other person should act on that belief and does not act on it, then the first party has waived his right and will not afterwards be allowed to insist on the strict rights when it will be inequitable for him so to do. In Nigerian Bank of Commerce and Industry v. Integrated Gas (Nigeria) Limited (2005) 4 NWLR (Pt. 916) @ 642-643, the Supreme Court pronounced with finality on this issue inter alia thus: 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 right when it will be inequalities for him to do so. Thus where the defendant relied upon the failure of the plaintiff to perform a condition of the contract as to the precise time or mode of performance fixed by the contract as a ground for cancelling or repudiating the contract or as justifying his own refusal to perform his own obligation. The plaintiff may reply that the defendant has waived his right to insist that the contract should be or have been performed according to its original tenor. Waiver is not a cause of action, but a man may be debarred by the doctrine of waiver from asserting that an original condition precedent is still operative and binding waiver may be oral or written or inferred form conduct. See also United Calabar and Co v. Elder Dempster Lines Ltd (1972) All NLR 244; Tsvetan, Dimitrov v. Multichoice Nigeria Ltd (2005) 13 NWLR (Pt. 943) 391; Ariori v. Elemo (1983) 1 SCNLR: Total Nigeria Plc v. Chief Elijah Omoniyi Ajayi (2004) 3 NWLR (Pt. 869) @ pp. 285-286. In Nigeria Universal Bank Ltd v. Samba Petroleum Company Ltd (2006) 12 NWLR (Pt. 993) @ p. 122, it was reiterated inter alia thus: Waiver carries some element of abandonment of a known legal right. By his conduct the person has given impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right. See also Prince Sikiru Adebayo Sobamowo v. Prince Alhaji Waheed Elemuren (2008) 11 NWLR (PT. 1097) @ 31; Nigeria Bank of Commerce and Industry v. Integrated Gas (Nigeria) Ltd (2005) 4 NWLR (Pt. 916) @ 642-643. See B. Stabilin and Co. Ltd v. Nwabueze Obasi (1997) 9 NWLR (Pt. 520) 293 @ p. 305. See also Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42: Udochukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565. In Guinness (Nig.) Plc v. Onegbadan (2012) 15 NWLR (Pt. 1322) 33 @ p. 50, it was also held inter alia thus: It is trite law that a person who is not under 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.

— B.A. Georgewill JCA. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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PARTY TO AN ACTION IS BOUND – STANDBY & WATCH PARTY IS BOUND

Under our laws one reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action. See Amon v. Raphael Tuck ’26 Sons Ltd. (1969) 1 Q.B.D. 357 at p. 380 per Devlin, J. Under our law also a person whose interest is involved, or is in issue in an action and who knowingly chose to stand by and let others fight his battle for him is equally bound by the result in the same way as if he were a party: see In re Lart (1986) 2 Ch. D. 788; Leeds v, Amherst 16 L.J. Ch. 5; Esiaka v. Obiasogwu 14 W.A.C.A. 178; Abuakwa v. Adanse (1957) 3 All E.R. 559.

– Oputa, JSC. Green v. Green (1987)

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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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DEFINITION OF WAIVER – Halsbury’s Laws

Halsbury’s Laws of England 4th Edition, Vol. 16 stated in its way thus: – “The primary meaning of waiver has been said to be the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct, it may arise by virtue of a party making an election, for example whether or not to exercise a contractual right”.

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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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PROCEDURAL WAIVER

The law is very well settled that counsel may waive a defect in procedure which is procedural law. What is waiver and what are the consequences when counsel waives his right? Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105.

— O. Rhodes-Vivour, JSC. Bakari v. Ogundipe (2020) – SC.514/2015

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WAIVER IN EQUITY

Equity will not allow the respondents to hold the appellant to ransom. Waiver, a very loud principle of equity will certainly come to the rescue of the appellant. – Tobi JSC. Odedo v. INEC (2008)

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