LEGAL PRINCIPLE: CIVIL PROCEDURE – Consolidation of Suits – Consent of Parties Does Not Validate Wrongful Consolidation Where Miscarriage of Justice Occurs
PRINCIPLE STATEMENT
Where a party has consented to a wrong procedure at the trial and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was adopted or followed... The case in hand is different. First there was no consent by the parties... Secondly in my view it is shown clearly and visibly exceptional circumstances exist disclosing a radical mistake in law or procedure or a miscarriage of justice that the irregularity cannot be overlooked and defeated on the altar of lateness of making the complaint.
RATIO DECIDENDI (SOURCE)
Per Omosun, JCA, adopted by Ogundare, JSC, in Iloabuchi v. Ebigbo & Anor (2000) NLC-1061994(SC) at p. 20; Paras B–D.
"Where a party has consented to a wrong procedure at the trial and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was adopted or followed... The case in hand is different. First there was no consent by the parties... Secondly in my view it is shown clearly and visibly exceptional circumstances exist disclosing a radical mistake in law or procedure or a miscarriage of justice that the irregularity cannot be overlooked and defeated on the altar of lateness of making the complaint."
EXPLANATION / SCOPE
Consent to an irregular procedure may waive the right to complain on appeal if no injustice resulted. However, where there is no consent, and the irregularity constitutes a radical mistake resulting in miscarriage of justice, the appellate court must intervene despite the lateness of the complaint. Procedural consent cannot validate fundamental errors that undermine the integrity of proceedings. Courts distinguish between harmless irregularities that parties may waive and radical mistakes that strike at the heart of fair adjudication, which remain reviewable regardless of timing.