COURT CANNOT BE SHACKLED BY PROCEDURE IRREGULARITY

CIRCUMSTANCES WHERE PROCEEDINGS WILL BE REGARDED AS AN IRREGULARITY

This court has spelt out in Madukolu v. Nkemdilim (supra) the circumstances where proceedings can be regarded as a nullity. These are where 1. The court is not properly constituted as regards numbers and qualification of the members of the bench 2. The subject matter of the action is not within the jurisdiction of the court 3. The case before the court is not initiated by due process of law, or that there is a condition precedent to the exercise of jurisdiction. The third of the conditions prescribed, and which is relied upon by the appellant in this appeal is where the action comes before the court of trial without due process of law. There is non-compliance with due process of law when the procedural requirements have not been complied with, or the preconditions for the exercise of jurisdiction have not been complied with. In such a circumstance, as in the other two cases, the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seised with jurisdiction in respect of the action.

— Karibe-Whyte, JSC. Saude v. Abdullahi (1989) – SC.197/1987

CANNOT COMPLAIN AGAINST IRREGULARITY PARTICIPATED IN

Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or 27 defect and cannot later be heard to complain about it.

– Kekere-Ekun JSC. Berende v. FRN (2021)

ADOPTION OF A WRONG PROCEDURE WAIVED WILL BECOME AN IRREGULARITY

In Adebayo & Ors. v. Chief Shonowo & Ors. (supra) Coker, J.S.C., observed as follows on p.190 thereof- “Even if the procedure adopted by the applicant Adebayo were wrong, we think that it is now much too late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case and sought unsuccessfully to get the Statement of Delinquencies filed by the applicant Adebayo struck out. Clearly in those circumstances the adoption of a wrong procedure would be no more than an irregularity, and would not render the entire proceedings a nullity as was submitted by learned counsel for the director Kamson: so unless a miscarriage of justice is thereby alleged and proved, the proceedings would not be struck out. See In re Kellock (1887) 56 T.L.R. 887; also Allen v. Oakey (1890) 62 T.E.R. 724.”

SITUATIONS WHERE IRREGULARITY WILL BE WAIVED

It is obvious from the foregoing that appellant has not brought his case within any of the consideration that will entitle him to set aside the proceedings on the alleged irregularity. Firstly, appellant did not complain about the irregularity until after the trial and judgment in the High Court. The issue was raised first as a ground of appeal in the Court of Appeal. Secondly, it is not the case of appellant that he had by the irregularity suffered a miscarriage of justice. Thirdly, the nature of the non-compliance which is by the court is not fundamental and therefore insufficient to vitiate the action; it is a mere irregularity which has been cured by the acquiescence of the appellant in the proceedings. Appellant can therefore not be allowed to rely on the fact that the originating summons was not signed by a High Court judge to set aside the proceedings.

— Karibe-Whyte, JSC. Saude v. Abdullahi (1989) – SC.197/1987