LEGAL PRINCIPLE: CIVIL PROCEDURE — Non-Compliance with Rules — Nullity versus Irregularity — Current Judicial Trend
PRINCIPLE STATEMENT
The current judicial trend de-emphasises the distinction between nullity and mere irregularity in cases of non-compliance with rules of procedure, except where non-compliance is of a statutory requirement or fundamental nature.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Caribbean Trading & Fidelity Corporation v. NNPC & Ors (2002) NLC-741993(SC) at p. 9; Paras A–C.
"The current trend is towards de-emphasising the distinction between nullity and mere irregularity in cases of non-compliance with the requirement of rules of procedure, except in cases where such non-compliance is of a statutory requirement or is of a fundamental nature. In jurisdictions which have adopted the English Order 2 r 1, RSC, that distinction has disappeared. Lagos State, as the decision in Laibru's case shows, was one of such jurisdictions until it enacted its own non-compliance rules in the 1994 Rules. It is in consonance with the trend towards substantial justice that it has been stated that: the failure to obtain leave to serve out of the jurisdiction was an irregularity which could be cured by the exercise of the court's discretion under O 2 r 1 (RSC England)."
EXPLANATION / SCOPE
Courts now de-emphasise the distinction between nullity and irregularity. Non-compliance with rules of procedure is not automatically a nullity unless it involves a statutory requirement or fundamental defect. The trend is towards substantial justice. Procedural irregularities can be cured. The court has discretion to allow amendments or waive defects. The principle applies to non-compliance with rules of court, not statutory requirements. The rule promotes flexibility in procedure. The court will examine the nature of the defect. The party seeking to challenge must show prejudice. The principle reduces technical dismissals. The court will do substantial justice.
