NULL PROCEEDINGS

• Date: 06 February 2019

(1) "There is a vast difference between a proceeding, which is a nullity, and one, which is all an irregularity for non-compliance with the rules. While the former is null and void and without any effect, the latter is valid and subsisting until it is set aside. And it can only be set aside if the person affected by it acts timeously and before a fresh step in the proceedings on becoming aware of the irregularity. See Pontin v. Wood (1962) 1 Q.B. 594; also Tozier v. Hawkins (1885) 15 Q.B.D. 650. In the instant case, when the default was made by the appellant in the Court of Appeal. When the other party raised a preliminary objection on it, the appellant defended the step and that Court ruled against him. It is only here, on appeal, that he has asked for it to be over-looked because it is an irregularity. If he ever had a right for it to be waived, he has lost it by continuing with the proceedings till now." - Per Nnaemeka- Agu, J.S.C., in Kalu v. Odili Suit No. S.C. 9/1992; (1992) 23 N.S.C.C. (Pt. II) 38 at 58.

(2) "This Court has declared emphatically in several of its decisions that where the error relied upon by a party to set aside a proceeding is clearly excusable and is shown not to have misled the party complaining about the error, and it is clear that no injustice has been occasioned thereby the Court will in the interest of Justice not act to the prejudice of the party in error. This Court is wholly concerned and interested in the doing of justice between the parties before it. In Divisional Chief Gbogbololu of Vakpo Afeyi v. Head Chief Hodo (1941) W.A.C.A. 164 at p.165, the West African Court of Appeal declared: - "It is the duty of Courts to aim at doing substantial justice between the parties and not let that aim be turned aside by technicalities . " It seems to me unarguable that the appellant was not misled by the mis- description in the notice of motion of preliminary objection. Having opposed the motion for preliminary objection, it will be unreasonable for appellant to contend that he was objecting to a non-existent motion. If appellant had raised this point and made his observation in the Court below, the Court could have exercised the powers vested in it by section 16 of the Court of Appeal Act 1976. It is the duty of the Court of Appeal to invoke the powers under Order XXXIII Federal High Court (Civil Procedure) Rules, 1976. Under...