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ACQUIESCENCE VS WAIVER, DISTINCTION

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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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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ACQUIESCENCE WHICH AMOUNT TO FRAUD

The appellants have not denied that the respondent had been on the land since the Shagari administration and when they met him prior to 2002, a fence of three coaches of blocks, a gate which they removed and a Mosque were on the land. The appellants have shown a high degree of acquiescence which may amount to fraud. It was either they had voided absolutely the first sale to the respondent or they had chosen to revalidate it. They cannot approbate and reprobate. Equity will not allow it. The appellants have lost their reversionary right to title in the land through their conduct of revalidating the 20 years or more possession of the respondent.

– Ogunwumiju JCA. Awure v. Iledu (2007)

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ACQUIESCENCE CANNOT SUCCEED WHERE PARTY ON LAND WITH LEAVE OF LANDLORD

The defence of acquiescence presupposes adverse possession. Such a plea cannot succeed where, as in this case, the appellants were on the land with the leave and licences of the respondents. They ought to know that their root of title derived from the respondents. In putting up those 5 buildings, they could not be acting in the bona fide belief that they were owners. Since laches and acquiescence are equitable reliefs, the bona fides of the possessor becomes material.

– Oputa JSC. Gbadamosi v. Bello (1985)

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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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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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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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