The principle of "condonation" in military law has been traced back to 1832 in the Memorandum on Corporal Punishment issued by the Duke of Wellington on 4/3/1832 (see Wikipedia), wherein he stated-
The performance of a duty of honour or of trust, after the knowledge of an offence, committed by a soldier, ought to convey a pardon for the offence.
In Nigeria, Section 171 (1) (c) of the Armed Forces Act provides that-
Where a person subject to service law under this Act
(c) Has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by a Court martial or to have the case dealt with summarily under this Act-
PML (NIGERIA)
All the same, I do agree with the Respondent that the Appellant used the terms "compounding" and "condonation" interchangeably, as if the one can replace the other or be used in place of each other, which is a misapprehension of the law regarding the two principles.
These are two different principles with two different outcomes. "Condonation" is "the voluntary overlooking or pardon of on offence" – see Merriam-webster.com, wherein condonation is also defined as "implied pardon of an offence by treating the offender as if it had not been committed". The difference between the two, therefore, is that while the compounding of an offence does not mean that the offence had not been committed, by condoning the offence, the offender is treated as if the offence had not been committed in the first place.
Condonation is, principally, used in canon law and military law. In canon law, condonation is a defence to an action for divorce that the "innocent spouse having forgiven the adulterous spouse cannot now take proceedings – see legal_dictionary.thefreedictionary.com. In Nigeria, Section 26 of the Matrimonial Causes Act provides that-
Except where Section 16(1) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based.
In his book, Nigerian Family law, Professor I. Sagay expounded thus-
In law, there is condonation when one spouse, with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her earlier marital position, with the intention that the spouse whose wrong is so condoned does not henceforth, commit any furthermatrimonial offence.
PML (NIGERIA)
Condonation has two essential ingredients;
1. Forgiveness of the wronged spouse, and
2. Reinstatement of the offending spouse to his former position."
It is pertinent to state, on the contention of the Appellant that this suit was commenced using a wrong procedure, that is, by Originating Summons rather than via a Writ of Summons, that a party who condoned an irregularity at the trial, waives his right to object or protest against the irregularity or process and cannot be heard to do so on appeal. See – Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 347-348 Para G-A per Eko JSC.
Furthermore, an issue, as in the instant case, which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. A fresh issue cannot be taken up on appeal without the leave of the Court. See Idufueko v. Pfizer Products Ltd (2014) 12 NWLR part 1420 Page 96 at 122 Para A per Galadima JSC; Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC .
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT Suffice it to say that where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge – Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC. As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court.
PER ADEFOPE-OKOJIE, J.C.A.
H aving 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 defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC). PER KEKERE-EKUN, J.S.C.
The law is fairly well settled that a party is not at liberty to take advantage of an irregularity to which he has acquiesced: NOIBI v FIKOLATI [1987] NWLR (PT 52) 619, AKHIWU v THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE & ANOR (1972) 1 All NLR (PT 1) 229 at 234 and ADEBAYO & ORS v SHONOWO & ORS (1969) 1 All NLR 176.
Indeed, matters procedural must be raised at the earliest opportunity (upon being served with the Court process) before taking any further steps in the proceedings, otherwise, the party alleging it will be foreclosed. See KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA). That is the scenario we are confronted with in the instant appeal. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it.
See UNITED BANK FOR AFRICA v DIKE NWORA [1978] 11 – 12 SC 1 and UNITED TECHNICAL COMPANY v PAMOTEI [1989] 2 NWLR (PT 103) 244 (1989) 3 SC (PT. 1) 79. PER AFFEN, J.C.A.
It is settled law that if a person with full knowledge of the rights, interest, profit or benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has suffered by his not having exercised his rights. See ARIORI VS. ELEMO (1983) 14 NSO PG 8. In the circumstances, just like ARIORI’S case, it is my view that the Appellant waived its rights to complain about the defective witnesses’ statements and consequently estopped from raising the issue on appeal. PER AKEJU, J.C.A.