DANIEL IBANGA V. THE STATE
July 24, 2025GANIYU KALE V MADAM T. COKER AND ORS
July 24, 2025Legalpedia Citation: (1983-01) Legalpedia 78553 (SC)
In the Supreme Court of Nigeria
ABUJA
Fri Jan 21, 1983
Suit Number: SC.80/1981
CORAM
GEORGE SODEINDE SOWEMIMO JSC
AYO GABRIEL IRIKEFE JSC
CHUKWUNWEIKE IDIGBE JSC
ANDREWS OTUTU OBASEK JSC
KAYODE ESO JSC
ANTHONY NNAEMEZIE ANIAGOLU JSC
MUHAMMADU LAWAL UWAIS JSC
PARTIES
A. ARIORI AND ORS
APPELLANTS
MURAINO B.O. ELEMO AND ORS
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, FUNDAMENTAL RIGHTS, CIVIL PROCEDURE, FAIR HEARING, JUDICIAL DELAY, WAIVER, APPEAL, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This case has a lengthy history, dating back to its filing in the Lagos State High Court on October 15, 1960. After numerous preliminary matters, including pleadings and substitution of parties, hearings commenced before Kester, J. in 1964. The case was later transferred to Beckley, J. in 1968, who began taking evidence on March 1, 1972. The proceedings were plagued by various applications and adjournments until the final addresses of counsel were completed on July 18, 1974, after which the judge adjourned judgment sine die.
The learned trial judge, Beckley J., did not deliver judgment until October 3, 1975—fifteen months after the close of the case and three years and seven months after the first evidence was taken. In his judgment, he dismissed the plaintiffs’ claim. The plaintiffs appealed to the Federal Court of Appeal, with one of their main complaints being that the inordinate delay in delivering judgment had affected the trial judge’s ability to properly evaluate the evidence and recall his impressions of the witnesses.
The Federal Court of Appeal, through Coker JCA, agreed with the plaintiffs’ contention, finding that the delay had caused the trial judge to lose the trend of the evidence, resulting in several misdirections and non-directions. However, instead of ordering a retrial, the Court of Appeal proceeded to examine the evidence in detail and entered judgment in favor of the plaintiffs. The defendants appealed to the Supreme Court against this decision.
HELD
1. The appeal was allowed.
2. The judgment of the Lagos High Court (Beckley, J.) delivered on October 3, 1975, together with its order as to costs, was set aside.
3. The judgment of the Federal Court of Appeal dated September 26, 1979, together with its order as to costs, was also set aside.
4. The Supreme Court ordered a retrial of the case before another judge.
5. The appellants were awarded costs in the High Court, Federal Court of Appeal, and the Supreme Court.
ISSUES
1. Whether the inordinate delay by the learned trial judge in delivering judgment constituted a breach of the fair trial provision of Section 22 of the Constitution of the Federation of Nigeria, 1963 No. 20, and, if so, whether this vitiated the entire proceedings?
2.Whether there could be a waiver of the right to fair trial by the appellants in this case, having regard to their conduct during the proceedings?
3.What is the correct order that should have been made by the Federal Court of Appeal, given its finding that the trial judge’s delay had affected his proper consideration of the facts and caused him to lose his impressions of the witnesses?
RATIONES DECIDENDI
WAIVER OF FUNDAMENTAL RIGHTS – CLASSIFICATION OF FUNDAMENTAL RIGHTS AND ABILITY TO WAIVE THEM:
“Fundamental rights are classifiable:
a. Fundamental rights that are for the sole benefit of the private individual. An example is the right to a speedy trial, which a litigant can waive by asking for an adjournment of the case. As long 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 both the litigant and the public. Again, consider the example of a speedy trial and a litigant seeking an adjournment in the case, or, in other words, waiving the right. However, if the adjournment is of a nature that the Court will lose its advantage of accurately assessing the witnesses it had observed during the trial, waiver is not permissible. To permit this would lead to injustice. It is against public policy to compromise illegality, whether manifest or latent.
c. Where the question of waiver relates to a right in the control of the State or solely within the 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 that it lost control over the case. In such cases, the parties have nothing to waive. It is not within their competence to waive anything.”
– Per KAYODE ESO, J.S.C.
DUTY OF COURTS TO SAFEGUARD FUNDAMENTAL RIGHTS – CONSIDERATION OF NIGERIA’S NASCENT DEMOCRACY:
“Having regard to the nascence of our Constitution, the comparative educational backwardness, the socio-economic and cultural background of the people of this country, and the reliance that is being placed—and necessarily must be placed—on the Courts, and finally, the general atmosphere in the country, I think the Supreme Court has a duty to safeguard the fundamental rights in this country, which, due to its age and the problems that are bound to associate with it, is still undergoing an experiment in democracy.”
– Per KAYODE ESO, J.S.C.
PUBLIC POLICY AND WAIVER – INABILITY TO WAIVE RIGHTS THAT INVOLVE PUBLIC INTEREST:
“No one can, by agreement, jeopardize a fair trial, for as Bello, J.S.C. said in the Attorney-General of Bendel State v. Attorney-General of the Federation and 22 Ors. (supra) at p. 54, and I agree, ‘the law does not permit a person to contract himself out of or waive the effect of a rule of public policy.'”
– Per KAYODE ESO, J.S.C.
SPEEDY TRIAL – RELATIVE NATURE AND RELATIONSHIP TO JUSTICE:
“I realized that speed in trying any case is not, of itself, a primal and separate consideration. The idea of justice is that there should be justice to both the litigant and the public. This, in fact, is the prime consideration. Speedy trial, therefore, becomes just an important element or attribute of justice.”
– Per KAYODE ESO, J.S.C.
DELAY AND MISCARRIAGE OF JUSTICE – EFFECT OF INORDINATE DELAY BY JUDGE:
“The inquiry is therefore best put by asking whether the delay caused is detrimental to the course of justice or not. Or, in other words, whether the impression of a reasonable person who was present at and throughout the trial is that justice has been done.”
– Per KAYODE ESO, J.S.C
JUDICIAL CONTROL OVER DELAY – INABILITY OF PARTIES TO WAIVE RIGHTS NOT WITHIN THEIR CONTROL:
“The appellants had no control over 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.”
– Per KAYODE ESO, J.S.C.
APPROPRIATE REMEDY FOR JUDICIAL DELAY – ORDER FOR RETRIAL RATHER THAN SUBSTITUTING JUDGMENT:
“The Federal Court of Appeal, which heard the appeal and found that there was such a miscarriage of justice, should have set aside the judgment and ordered a retrial. See Chief Justin/Atuedo v. Ighoriguo & 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.”
– Per KAYODE ESO, J.S.C.
IMPACT OF DELAY ON JUDICIAL EVALUATION – LOSS OF ADVANTAGE OF ASSESSING WITNESSES:
“The Court of Appeal was of the view that, owing to the inordinate delay in recording his judgment in this case, the learned trial Judge (Beckley, J.) had placed himself in a position where his impressions, both on the evidence and the demeanor of witnesses, would have been placed in serious doubt. Consequently, the said judgment ought to, and was in fact, set aside.”
– Per AYO GABRIEL IRIKEFE, J.S.C.
NON-NEGOTIABLE NATURE OF CONSTITUTIONAL RIGHTS – DISTINCTION BETWEEN CONSTITUTIONAL AND PROCEDURAL REQUIREMENTS:
“It seems to me that one’s entitlement to a fair hearing under the above-cited provisions of the 1963 Constitution is not negotiable, and waiver thereof in any circumstance would be an infraction of the Constitution itself, capable of rendering the hearing invalid. There is, thus, in my view, a distinction between a mandatory constitutional provision such as the one being considered here, which cannot be waived, and a mere procedural requirement in the course of a trial, which can be waived.”
– Per AYO GABRIEL IRIKEFE, J.S.C.
CONCEPT OF WAIVER – REQUIREMENTS FOR VALID WAIVER:
“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. However, 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 (also reported in 54 E.R. 817). The exercise has to be a voluntary act.”
– Per KAYODE ESO, J.S.C.
MEANING OF FAIR HEARING – DEFINITION AND ESSENTIAL ELEMENTS:
“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.”
– Per ANDREWS OTUTU OBASEKI, J.S.C.
FAIR HEARING AS AN ASPECT OF PUBLIC JUSTICE – STANDARD FIXED BY LAW AND SOCIETY:
“Speedy trial and fair hearing, therefore, become an aspect of public justice which sets a standard fixed by law and society, which a Judge must attain in the determination of cases before him, and in respect of which no person in society is allowed to compromise.”
– Per ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.
ELEMENTS REQUIRED FOR WAIVER – KNOWLEDGE AND UNEQUIVOCAL ACT:
“Whether the waiver be express or implied, the party against whom the doctrine is raised (i) must be aware of the act or omission and (ii) must do some unequivocal act adopting or recognizing the act or omission. Both elements must be present to constitute a waiver.”
– Per ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.
CASES CITED
STATUTES REFERRED TO
1.Constitution of the Federation of Nigeria 1963 No. 20
2.Nigerian (Constitution) Order in Council 1960
3.Nigerian (Constitution) Order in Council 1954 S.I.1954/146
4.Constitution of the Federal Republic of Nigeria 1979
