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)
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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.”
In the case of Chief Okumagba Eboh and Six ors. v. Ogbotemi Akpotu (1968) 1 All NLR 220 at 221 this court held: “It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity.”
In Federal Government of Nigeria V. Zebra Energy Ltd (2002) 18 NWLR (pt 798) 162 Belgore JSC (as he then was) again stated at pages 204 – 205 thus: “… Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the Court to arrive at the justice of a case… The Court shall never be shackled by procedure; case is not made for procedure, it is the other was round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities … what is relevant in a case of this nature is the question of justice of the case.”
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
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
As to issue 7, that the lower Court conducted the trial under the 1987 Adamawa State High Court Civil Procedure Rules, while the 2013 Rules came into effect before the trial was concluded, it is important to note that Order 3 Rules (2) and (3) of the 2013 Rules provides that non-compliance with the Rules shall be treated as a mere irregularity and does not render the proceedings null and void.
— A.M. Bayero, JCA. Atume v. Bakodo (2020) – CA/YL/85/2017
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