County & City Bricks Dev. Co. Ltd. v. Hon. Minister of Environment Housing & Urban Dev. & Anor [2019] 5 NWLR (Pt. 1666) 484 at 504, paras. F-G, per Eko, JSC:

“The incumbents of the office of the Attorney-General of the Federation are men of honour who should be seen to be so. Like Caesar’s wife, those men who occupy that hallowed seat since its inception in England in 1461, should be seen to live above board. These persons are expected to be men who should, like Thomas More–King Henry VIII’s Attorney-General (who at the pain of death resisted every effort by the King to break the law of the realm) not be seen to publicly lick their own sputum. They should be men of candour and valour. The prevarications, the hallmark of the instant case, created the unfortunate impression that those incumbents occupying the seat of the 2nd Respondent who succumbed to the cajolerly of the 3rd – 8th Defendants had failed, in their courage, to be fair to all concerned.”

Notes:

The facts of this case are that the Appellant, County & City Bricks Dev. Co. Ltd., (who was the Plaintiff at the High Court) entered into a contract with the Federal Ministry of Environment, Housing and Urban Development wherein the Ministry agreed to convey to the Appellant, 16 Hectares of land at lkoyi, Lagos. However, the Ministry breached the contract and conveyed the said land to some third parties. The Appellant consequently sued the Honourable Minister of Environment, Housing and Urban Development (1^st Respondent), the Attorney-General of the Federation (2^nd Respondent) and the third parties at the Federal High Court. The Office of the Attorney-General defended the suit on its behalf and on behalf of the Federal Ministry. In its Judgment delivered on 8th June, 2009, the trial Court nullified the conveyance to the third parties, declaring that the Appellant was entitled to the grant of a Statutory Right of Occupancy over the 16 Hectares of Land in question.

Waiver of Right to Appeal

After the Judgment was delivered, the then Acting Chief State Counsel in the office of the Attorney-General of the Federation advised the Federal Ministry and all the parties that, given the overwhelming evidence in support of the Appellant’s case, an appeal will not likely succeed and that a negotiation with the Appellant was a more viable alternative. This advice was accepted by the Federal Ministry. Together, the Respondents communicated their decision not to appeal the Judgment to the Appellant sometime in August, 2009. Having received direct communication of the decision not to appeal against the Judgment, the Appellant altered their position by entering into negotiation with some of the persons affected by the Judgment of the trial Court.

The Twist

Following the appointment of a new Attorney-General, the Office of the 2^nd Respondent took a different turn and decided to appeal the Judgment of the Federal High Court. Thus, more than a year after the Judgment was delivered, the Respondents decided to appeal by filing an application for extension of time within which to appeal at the Court of Appeal. On 24th May, 2011, the Court of Appeal granted the application. The Appellant appealed to the Supreme Court. Delano SAN argued that the Respondents had waived their right of appeal.

Battle at the Supreme Court

Right of Appeal can be waived.

At the apex Court, the question arose as to what extent could a person waive rights conferred on him by law? The Supreme Court, in answering, restated the principle that a person can waive a right conferred on him by law for his individual benefit. This include the right of appeal. Learned Senior Counsel for the Respondents, Paul Usoro, SAN had argued that the right of appeal in question was a constitutional right which cannot be waived, same not being a “right conferred solely for the benefit of the individual” as decided in Ariori v. Elemo (1983) (1983) 1 SCNLR 1. In other words, that the right of appeal vested in the State or public officials are not such right that such State or public officers can waive.

The Supreme Court was not persuaded. Eko, JSC took the position that the Respondents can waive the right of appeal conferred on them just like all other litigants; and the fact that the Respondents are public officers makes no difference. His Lordship explained:

“The decision of this Court in Ariori v. Elemo (1983) 14 NSCC 8; (1983) 1 SC 81; (1983) 1 SCNLR 1 at 18, particularly the opinion of Eso, JSC at page 37 thereof, puts the question beyond doubt thus: “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 other words, 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”. In the peculiar circumstance of this case, it is my considered view that “a right conferred solely for the benefit of an individual” means the right of appeal conferred on the litigant who may be aggrieved by a decision given or rendered in a suit against him. There is nothing I can find in either the Constitution or the Court of Appeal Act that forbids waiver by the Respondents herein of their right of appeal.”

No sufficient reason for extension; Estoppel applies.

The Supreme Court was of the view that the Respondents did not supply any justifiable reason to entitle them to a favourable exercise of discretion by the Court of Appeal in granting the extension of time to appeal. More so, that the Respondents were estopped from resiling from their decision not to appeal. Eko, JSC expressed the view thus:

“The delay in the instant case is inordinate and wilful. In addition, the Respondents, as the Applicants, had clearly waived their right of appeal, a fact that not only estops them from resiling from their decision which they communicated to the Appellant, but also makes it inequitable for the Lower Court to indulge them in their toxic prevarication.”

The Rule of “Caveat Client”

The Respondents also pleaded that sin of counsel (i.e., the Acting Chief State Counsel in this case) should not be visited on the clients (the Respondents). The Supreme Court applied the rule of “Caveat Client” in holding that the Respondents must sink with the professional advice of the Counsel acting for the Respondents, which advice the Respondents duly accepted. The conduct of a case lies wholly with counsel within his professional ability.

One excuse supplied by the Respondents for their decision to now appeal was that the successor in office of the 2nd Respondent was of a different view or that the former Attorney General of the Federation was inept.  The Supreme Court dismissed this as lacking in substance and ought not to have been accepted by the lower Court. According to the apex Court, “The 2nd Respondent is the Chief Law Officer of the land, presumed to be endowed with all the knowledge and erudition associated with such an office. The Office is also staffed with competent legal officers well versed in the law.” The decision not to appeal which was duly communicated to the Appellant was an informed decision taken after thorough examination of the issues. The Court relied on a similar case of Ikenta Best (Nig.) Ltd v A.G. Rivers State [2008] 6 NWLR (Pt.1084) 612.

Equity will not allow injustice

According to Eko, JSC, it would be inequitable to allow the Respondent exercise any further right of appeal after waiving same. His Lordship reasoned:

“I agree with the Appellant that the Respondents could not waive their right of appeal and still want or expect to exercise it. They cannot have both in the circumstances. In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other.”

For the avoidance of doubt, His Lordship described the true character of Equity, quoting the statement by Nweze, JCA (as he then was) in Standard Chartered Bank Nigeria Ltd v. Dr. Tunji Braithwaite (2013) LPELR 20814 (CA) thus:

“Equity like an immaculate garment, abhors the company of those who are likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since it does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt that may be detestable and impeachable.”

Indeed, the Office of the Attorney-General did not uphold the honour bestowed on it. The Supreme Court is commended for restoring so much confidence in the system.

Featured Image Credit: Ancient Origins.