The morality of law continues to pose a labyrinth of seemingly unsettled questions in the field of law. Of more particular interest is the controversial and debated issue of the extent of the right to religion. The case of Amasa Firdaus, a graduate of the Nigerian Law School who was denied admission into the Nigerian Bar for not removing her hijab readily comes to mind. It is also not uncommon to see private universities mostly owned by churches require that prospective students sign agreements/undertakings of compliance with university regulations even if it contradicts their respective religious beliefs. Upon the signing of such agreements, a “waiver” is said to have legally come into existence.
In this article, Waiver of Rights shall be examined with particular focus on the practice of private universities. The article shows that by law, a person could waive their religious right. However, it shall be contended that such a waiver of rights is illegal and unconstitutional. Copious references shall be made to what obtains within and without the Nigerian legal system.
A Waiver refers to a person’s act or conduct, or a legal document indicating that a person would not be enforcing a right even though the law permits them to insist on it. This type of agreement to let go of one’s right has never been more needed than in the 21st Century. This is mainly because the underlying basis of constantly increasing trade deals and transactions is concession. In fact, the society maintains its order because everyone has technically agreed to concede some of their rights to the government. A waiver would thus mean that a person is conceding more rights asides the one they already conceded to the society for the purpose of making a contract or any other agreement possible.
Religious rights are a significant part of the major rights in this century. It is a right embedded in the right to freedom of thought, conscience and religion. A violation of this right is strictly forbidden by Section 38 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and several international treaties such as the International Covenant on Civil and Political Rights (ICCPR) among others.
NATURE AND SCOPE OF WAIVERS
It is important to examine the perception of the Courts to this vexed concept. In the case of MAMONU & ANOR v. DIKAT & ORS (2019) LPELR-SC.883/2015, the Supreme Court per Peter-Odili JSC adopted its definition rendered in the case of Ariori & Ors v Elemo & Ors (1983) LPELR-SC.80/1981 and stated thus:
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.”
From the above, it is safe to state that a waiver is where a party voluntarily (albeit it may be involuntary in some circumstances) elects to forgo some or all of his rights in certain instances. A waiver could be express or implied.
The Court of Appeal in EROKWU & ANOR v. EROKWU (2016) LPELR-CA/E/199/2012, while explaining the concept of laches and acquiescence stated that the doctrine operates on the basis of waiver. Furthermore, in the British case of Jude (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)  UKSC 55, the United Kingdom Supreme Court was tasked with answering the question – ‘whether there was a valid waiver by the Respondent?’. The brief facts of this case was that the Respondent had been arrested alongside some people and had been interrogated by the Police in the absence of a lawyer. He had waived his right to be interrogated in the presence of a lawyer and made unsolicited statements to the police. The respondent argued that his right to have a lawyer was breached on the basis that he waived that right in the absence of a lawyer. The Court held against the Respondent on the basis that there is no absolute rule that a waiver done by an accused person can only be valid in the presence of a lawyer.
It is important to add that waiver is only applicable to rights that can be exercised personally by the party seeking to waive same. In essence, the scope of waiver is limited to personal rights only. The Apex Court explained this in FASADE & ORS V. BABALOLA & ANOR (2003) LPELR-SC.190/1997, and held that: “The waiver must be in respect of a private right for the benefit of a particular person or party in contradistinction to a public right intended for the public good or affairs’’. Hence, it is clear that the rights that can be waived are rights that are personal to a person and must not contradict public policy or interest.
LIMITS ON THE DOCTRINE OF WAIVER
The issue to be addressed in this part of the discourse is whether there are limits to waiver of rights. In ABDULRAHEEM & ORS. V. OLUFEAGBA & ORS. (2006) LPELR-CA/IL/65/2005, the Court of Appeal stated that a person could waive all their personal legal rights. Also, in the case of GUINNESS (NIGERIA) PLC V. ONEGBEDAN (2011) LPELR-CA/B/198/2009, the Court of Appeal also held that a person who is under no legal disability and is aware of the existence of his rights can competently waive such right and cannot be heard complaining to enforce such rights.
From the foregoing, it is safe to conclude that a personal legal right can be waived. Thus, the next question to be answered is whether or not awareness of such rights is a necessary condition for the validity of a waiver.
It is submitted that if the right is one created by a statute, the other party should not be bound to bring it to the attention of the other party as ignorance of law is not an excuse. If not a statutory right, as long as the innocent party has done everything within their capacity to bring it to the attention of the other party, the waiver should be held binding.
However, there is a limit to the operation of the doctrine of waiver. It is a notorious fact that parties to a suit cannot agree to waive or oust the jurisdiction of a Court. This principle finds judicial backing in the case of HOPE DEMOCRATIC PARTY (HDP) v. DR. GOODLUCK EBELE JONATHAN (2011) LPELR-CA/A/EPT/PRES/02/11 where the Court affirmed that the jurisdiction of a Court is one that cannot be competently waived by any of the parties to the suit.
Also, in the earlier cited Ariori & Ors. v. Elemo & Ors (supra), the Court held that an exception to the waiver of rights is when the statute that creates the right forbids a waiver. In such situation, a waiver would be enforced by the Court in all other circumstances. Hence, when a statute creates a right and further provides that the right cannot be waived, any purported waiver of such right would be held null and void by the Court.
WHETHER THE CONSTITUTIONAL RIGHT TO RELIGION CAN BE WAIVED?
The bone of contention in this discourse is whether the right to religion can be waived. The right to religion is a constitutional right which is guaranteed under Section 38 of the Constitution. It provides thus:
(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
This constitutional provision has been given judicial backing in a plethora of cases especially in the case of OKAFOR & ORS v. NTOKA & ORS (2017) LPELR-CA/E/380/2012, where the Court affirmed the right to freedom of thought, conscience and religion and stated that every person shall have the right to practise and change their religion. The most relevant part of the afore-cited provision is Subsection 2 & 3 which provides for the right of the student and the university respectively.
Many have argued that signing an agreement of compliance by the student constitutes a waiver of Section 38(2) of the Constitution. Equally, it has been argued that Section 38(3) grants the university the power to give religious instructions to its students. Though, it is conceded that a constitutional right can be waived, it is submitted that these arguments crumble in light of the decision of the Court in the case of AKINSANYA & ORS v. SHONEYE & ORS (2016) LPELR-41939(CA) where the Court held that a right of a public nature or a rule of public or constitutional policy cannot be waived.
The Black’s Law Dictionary defines public right as a right belonging to all citizens and usually vested in and exercised by a public office or political entity. There is no current Nigerian judicial authority expressly pronouncing that the practice of private universities in this regard is void. Neither is there any decision of the Court where public nature rights are listed. However, it is submitted that on the basis of logic, the right to freedom of thought, conscience and religion should fall into this category of rights.
Also, as earlier argued, Section 38(3) is usually alluded to by exponents of the school of thought that universities reserve the right to give any religious instruction to students even if it is against their religion. If this argument were valid, this could be a case of a clear contradiction between Section 38(2) & 38(3) of the Constitution. However, it is submitted that there is no contradiction whatsoever and both sections can be reconciled. The fact that universities have the rights to religion and educate their students in that regard should not be read to imply that they can force students with a different fate to comply with their religion. Universities should be permitted to exercise such rights only to the extent that it does not affect the rights of the students and any waiver of right in that regard should be adjudged void whenever our appellate court has the opportunity to address it.
The Canadian cases of Law Society of British Columbia v. Trinity Western University 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada 2018 SCC 33 are relied on as persuasive authorities for the arguments rendered in the immediate-preceding paragraph. In those cases, the Supreme Court of Canada ruled that the Law Societies of British Columbia and Ontario had the power to deny approval to a proposed law school that would have required students to follow a religiously-based code of conduct restricting sexual behaviour. The Supreme Court of Canada held that the Christian university had the right to freedom of religion. However, the denial of approval was proportionate to protecting public interest which included promoting equality of access to legal education. The Court therefore held that there was no breach of the institution’s right to religion as students who choose to follow the code are not barred from doing so; only that students shall not be forced to practise a particular religion.
The Nigerian appellate courts (the Supreme Court and the Court of Appeal) have not have been confronted with a case bordering on the subject of religious rights and waiver. Meanwhile, there are a number of High Court cases on the subject, either currently pending or unknown, owing to poor reportage of High Court cases in Nigeria. Courts are urged to adopt the approach of the Supreme Court of Canada when confronted with a similar issue. It is submitted that permitting a student to practise their religion does not breach the institution’s right in any manner.
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