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APPROPRIATE TIME TO RAISE AN OBJECTION AS TO PROCEDURAL IRREGULARITY

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Dictum

It has since been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings- See C.F.A.O. v. The Onitsha Industries Ltd. 11 N.L.R. 102 at p.103; Johnson v. Aderemi & Ors. 13 W.A.C.A. 297; Adebayo & Ors. v. Chief Shonowo & Ors. (1969) 1 All N.L.R. 176 at p.190; Ashiru Noibi v. Fikolati & Anor. (1987) 1 N.W.L.R. (Part 52) 619 at p. 632 and Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Part 2) 195 at pp.202-203. The only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity.

— Uwais, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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BREACH OF PROCEDURE IS MERE IRREGULARITY

Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors. (2009) 3 NWLR 378 SC: “Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity.”

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WHERE RULES OF COURT MUST BE COMPLIED WITH

Rules of Court are purposely made to be obeyed and followed, therefore all procedure set by the rules must be complied with. However, where in the course of following the rules some errors or mistakes are committed or omitted, such error or mistakes would not out rightly render the proceedings a nullity. Depending on the circumstance of each particular case, where the noncompliance has occasioned miscarriage of justice or where the right of the adverse party will be affected, the Court shall not treat the non-compliance as a mere irregularity and as such mandate the rules to be followed or nullify the proceedings as the case may be. But in a situation where it has not occasioned miscarriage of justice it shall be treated as a mere irregularity and should not vitiate the proceedings. This is because all rules of Court are made in aid of justice and that being so, the interest of justice will have to be given priority over any rule, compliance of which will lead to outright injustice. The Rules are not sine quo non in the determination of a case and therefore not immutable.

– Abba Aji JCA. Usman v. Tamadena (2015) – CA/K/95/2009

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DISTINCTION BETWEEN SUBSTANTIVE & PROCEDURAL LAW

“24, Mr, Onuora rightly set out the distinction between substantive and procedural laws when he said that ‘as a general rule, laws which fix duties, establish rights and responsibilities among and for persons natural or otherwise are substantive laws in character while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a Court are procedural law.’”

— Ukor v Laleye (2005) – ECW/CCJ/APP/01/04

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LAWS ARE MADE TO BE OBEYED

In the interpretation of the above provision, it must be borne in mind that prima facie the Laws are made to be obeyed. All persons, authorities, agencies of government and government must obey the laws of the land. It is the degree of obedience accorded to the laws of the land that distinguishes the state of development in a given country. When laws are not obeyed, anarchy sets in.

— Oguntade, JSC. Buhari v. INEC (2008) – SC 51/2008

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ACQUIESCENCE TO IRREGULARITY

Sonuga and Ors v. Anadein (1967) NMLR 77 at 79, the Supreme Court per Lewis, J.S.C. said: “In the appeal before us, the question appears to be, is it right for the defendant to take advantage of an irregularity he had himself accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection.”

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WRONG PROCEDURE ROBS THE COURT OF JURISDICTION

In essence therefore, initiating an action on a wrong procedure robs the court of its jurisdiction to adjudicate over such matter. The issue of jurisdiction of a court to adjudicate over a matter before it is a threshold issue that goes to the root or foundation of adjudication. This stems from the trite position of the law, that once it is discovered that a court has no jurisdiction to adjudicate over a matter, any decision/proceedings emanating from such a court regarding that matter, no matter how well rendered or conducted, is a nullity.

– Bage JCA. Ayetobi v. Taiwo (2014)

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