Monday, 17 June 2013

THE PRINCIPLES OF LAW ON THE JURISDICTION OF COURTS OF LAW IN NIGERIA



BEING THE TEXT OF A PAPER PRESENTED
BY
AKINTUNDE ESAN, LL.B, BL, ChMC, ACMC.

TO MARK HIS FIRST DECADE AT THE BAR



1.0         INTRODUCTION:
1.1      This paper is an illumination on the principles of law on the jurisdiction of courts of law in Nigeria to hear and determine a case on the merit. The purpose of this piece is not to consider the jurisdiction of the courts in Nigeria as defined and spelt out by the Nigerian Constitution and statutes, but to exposit the principles of law on jurisdiction as expounded and propounded by the superior courts of record in Nigeria.
1.2      The paper explores judicial authorities on issues such as the definition, sources, importance, determinants, conditions precedent of jurisdiction of a court as well as how and when to raise an objection to jurisdiction of a court, the grounds upon which objection to jurisdiction could be raised and objection to the  jurisdiction of the court vis - a – vis demurrer, abuse of court process and waiver  and other relevant jurisprudence of jurisdiction as it relates to objecting to the jurisdiction of the court to hear and determine a case before it on the merit.
2.0       WHAT IS JURISDICTION:
2.1     The Black’s Law Dictionary[1] defines jurisdiction simply as “A court’s power to decide a case or issue”.
2.2       Judicially, the word jurisdiction has been held to mean the authority the court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision.[2] Per Adekeye, J.C.A (as he then was) re-affirmed the definition of jurisdiction in A.-G., Oyo State v. N.L.C.[3]thus:
"The word jurisdiction means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. Madukolu v.Nkemdilim (1962) 2 SCNLR 341, Ndaeyo v. Ogunnaya (1977) 1 SC 11, National Bank of Nigeria Ltd. v. Shoyoye (1977) 5 SC 181, A-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187.".

3.0       THE SOURCE OF JURISDICTION
3.1      The Jurisdiction of a court of law is a very hard matter of law which is donated by the Constitution and the enabling statute.[4] A court cannot confer or vest in itself jurisdiction not specifically conferred on it by a statute or the constitution[5]
3.2      ONNOGHEN J.S.C in the case of Gafar v. Govt., Kwara State[6], puts this way: 
 
"It is settled law that courts are creatures of statute based on the constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no court assumes jurisdiction except it is statutorily prescribed as jurisdiction cannot be implied nor can it be conferred by agreement of parties; see Ariyo v. Ogele (1968) 1 All NLR 1; Timitimi v. Amabebe (1953) 15 WACA 374; Osadebe v. A.-G., Bendel State (1991) 22 NSCC (Pt. 1) 137 at 160; (1991) 1 NWLR (Pt. 169) 525 at 572."

3.3    It is settled from the dictum of learned supreme court jurist that no court assumes jurisdiction except it is statutorily prescribed and that  jurisdiction cannot be implied nor can it be conferred by agreement of parties
4.0        WHAT DETERMINES JURISDICTION:
4.1    Two factors to examine when considering whether or not a court has jurisdiction are –
a.       The claim of the plaintiff; and
b.       The applicable law when the cause of action arose
4.1.1      THE CLAIM OF THE PLAINTIFF:
4.1.1.1     It is the claim of the plaintiff and not the defence that is to be consider in determining whether the court has jurisdiction or not. As it is the plaintiff who in the determination of his rights invokes the judicial powers of the Constitution vested in the courts.[7]
4.1.1.2      Thus, the relevant court processes to be considered by the court in determining a preliminary objection are the facts as deposed to in affidavit attached to the preliminary objection, the writ of summons and the statement of claim, where one has been filed and served. The statement of defence is not one of the relevant materials for that purpose. See   PDP v. Adeyemi[8]where Onnoghen, JCA (as he then was) in at 550,para. B –C  puts it thus:
“The relevant thing(s) to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, writ of summons and statement of claim (where one had been filed and served). The statement of defence is not one the relevant materials for that purpose.”

4.1.2       THE APPLICABLE LAW WHEN THE CAUSE OF ACTION AROSE:
4.1.2.1     The applicable law is that which was in force at the time when the cause of action arose and not that which was in force when the issue of jurisdiction was raised.[9]
4.1.2.2       Thus, there is distinction between cause of action jurisdiction and adjudicatory jurisdiction. The law which supports a cause of action is not necessary to co exist with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action.


4.1.2.3     The cause of action jurisdiction arose, where the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard. See ANSA v. R.T.P.C.N. (2008) ALL FWLR (Pt.405) 1681 at 1700 A-B." Per DENTON-WEST, J.C.A. (P. 30, paras. B-D) [10]

5.0       THE IMPORTANCE AND RELEVANCE  OF JURISDICTION:
5.1      Jurisdiction is fundamental to adjudication as it is the special cord of a court of law, any decision taken by a court without jurisdiction is incompetent, and is subject to being nullified on appeal.[11] 
5.2     Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out.”[12]
5.3     Similarly, the Supreme Court  in Umannah v. Obong Victor Attah[13], per Tobi JSC held as follows:
Where the issue of jurisdiction is raised in a matter, once the court determines that it has no jurisdiction in the suit, it need not proceed further to consider any other issue since there is no longer the jurisdiction for doing so. It follows therefore that it is only after that that it can proceed to consider other issues raised by the party invoking its jurisdiction.”

6.0         CONDITIONS PRECEDENT TO JURIDICTION
6.1      In Nwankwo v. Yar’adua[14], the Supreme Court restated the time-honoured principle of jurisdiction  laid down in  the celebrated case of Madukolu v. Nkemdilim[15]thus:
“The law is indeed trite that a court is only competent to exercise jurisdiction        in      respect of any matter where-
1.    It is properly constituted as regards numbers and qualification of the members and no member is disqualified for one reason or the other.
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
3.  The case comes by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
                                  See Madukolu & Ors. V. Nkemdilim & Ors.(1962) 2 SCNLR  341.  


7.0         WHEN TO RAISE AN OBJECTION TO JURISDICTION OF THE COURT
7.1     The issue of jurisdiction can be raised at any time in a proceedingand whenever raised, it is to be decided when the point or issue is raised Daggash v. Bulama[16]


"To be borne in mind, is that issue or question of locus standi, relates to or deals with jurisdiction and the competence of the court to entertain and determine the action or petition. So, issue of jurisdiction can be raised at any stage of the proceedings and whenever raised, it is to be decided when the point or issue is raised. See Norwich v. Norwich Electric Tramway Co. (1906) 2K.B. 119; Adani v. Igwe (1956) 2 FSC 81 at 89 and recently, NDIC v. Central Bank of Nigeria & Anor. (2002) 7 NWLR (Pt. 766) 272, (2002) 3 SCNJ 75 at 89 and Afro-Continental (Nig.) Ltd. & Anor. v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 813) 303, (2003) 1 SCNJ 530 at 537,539."Per Ogbuagu, J.C.A. (P. 135, paras. C-G)

7.2       The issue of jurisdiction once raised must be determined first.[17] The Supreme Court in Drexel Energy and Natural Resources Ltd. v. Trans International Bank Ltd.[18]per Ogbuagu JSC, made an instructive pronouncement  that:
“Once the issue of jurisdiction is raised in any court the determination of that issue cannot and should not and ought not be deferred until the conclusion of the substantive suit.”

7.3       The law is trite that jurisdiction is a threshold issue and that once an objection is based on the issue of jurisdiction, it must be resolved first before further steps are and can be taken in the proceedings. Accordingly, in FRIN vs. Gold[19], the Supreme Court, per Mukhtar, JSC, held thus:
“Jurisdiction of court is very fundamental and lack of jurisdiction robs a court of the competence to hear and decide a matter. In other words, once a court has no jurisdiction to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate court.”

7.4    Also, in Cotecna International Ltd vs. Ivory Merchant Bank Ltd[20], Mohammed, JSC, stated the law thus:

“The validity velnon of the jurisdiction of the court touches on the competence of the court to hear and determine a cause or matter before it, and is fundamental to its exercise of jurisdiction and of adjudication and determination of the cause before it. In this respect, the existence or absence of jurisdiction in the court goes to the root of the matter and sustains or nullifies the decision of the court in respect of the relevant subject matter.”

8.0         HOW TO RAISE OBJECTION TO JURISDICTION
8.1      It is no longer a recondite issue of law that, the issue of jurisdiction can be raised at any time and/or stage by a party even on appeal at the Supreme Court for the first time. See NDIC vs. CBN[21]
“Objection to the jurisdiction of  Court can be taken at any time depending on what material are available.It could be taken in any of the following situations  :
a)   on the basis of the statement of claim; or
b)   on the basis of evidence received;
c)   by motion supported by affidavit setting out the facts         relied on;
d)   on the face of Writ of Summons where appropriate as to the capacity in  which the action was brought, or against who the action was brought.”
8.2      Thus objection to jurisdiction can be raised by motion where not raised in the pleadings. The procedure whereby an objection is raisedby motion on notice though not stated in the statement of defence is allowed depending on the nature of the issue.
8.3      Where there is a pending motion challenging the jurisdiction of a trial court, it would be wrong for the court to proceed to try and determine the case without first determining the motion challenging its jurisdiction.[22]
8.4   The Court of Appeal in Rockshell Int. Ltd v. Best Quality Service Ltd[23],per Nwodo,JCA
“The respondent raised this objection on several issues by way of motion on notice and not by stating it in the statement of defence. This procedure is allowed depending on the nature of the issue. See Shipping v. Tigris International (1999) 6 NWLR (Pt. 608) 701; Odive v. Obor (1974) NSCC 103,(1974) 2 SC 21, (1974) 1 ALL NLR (Pt.1) 436; Okafor v. Attorney General,Anambra State (2005) All FWLR (Pt.274) 252, (2005) 14 NWLR (945) 210”  

8.5    Thus, where the issue bothers on jurisdiction objection to jurisdiction can be raisedby motion on notice though not pleaded or stated in the statement of defence as required by a rule of court.
8.6     In considering Order 24 of the Kano State Civil Procedure Rule which states that  “No demurrer shall be allowed”,  the Supreme Court in  Nasir v. Kano State Civil Service Commission[24], in the lead judgment per Mukhtar, JSC made the following instructive pronouncement:

The purpose of pleading and raising  any point therein, as is require in Rule (2) supra is to avoid spring surprises on parties, and this elementary law of practice and procedure which does not require the interpretation of the said Rule (2) supra to understand.See George v. Domimion Flour Mills Limited (1965) 1 ALL NLR page 71,AniemekaEmegokwu v. JameOkadigbo 1973 4 SC 113 and Umoffia v. Ndem 1973 12 SC 69.If the function of pleadings is to put the other party on notice of what to expect at the trial, then a motion on notice, (as was in the instant case)  to dismiss a case on point of law precludes element of surprises. The appellant cannot feign ignorance of the point of law before the motion was moved.The appellant was very much aware of what the respondents were seeking from the court, and had the opportunity to meet it headlong. The appellant cannot say that he was prejudiced, for I believe even if that point of law on statute of limitation was raised in the statement of  defence, he could not have preferred  more argument than he did in the course of the proceedings in respect of  the motion. As I have stated earlier in the judgment in the treatment  of issue (1),the Statute of Limitation is a matter of jurisdiction which can be raised at  any stage of litigation, and I will add here, even in the Supreme Court”


9.0    RULES OF COURT CANNOT DICTATE WHEN AND HOW TO RAISE THE ISSUE OF JURISDICTION:
9.1   The rules of court cannot override statutory provisions:In Societe Bics A. CompagnieMoulages& Anor v. Charzin Ind. Ltd[25], per Muhammad JCA (as he then was)
“In the instant case, Appellants has not filed their Statement of Defence. In spite of the fact that the Appellants had chosen to raised their preliminary objection in a manner unknown to law, it must be appreciated that had it been manifest from Respondent’s Writ and claim that the action against the Appellants was fundamentally defective and untenable, it would have been proper for the Court to dismiss the action without waiting for the Appellants to file their pleadings. It has been held that where the point of law raised is founded on lack of jurisdiction, it is possible to apply for dismissal of the action even before the fulfilment of the conditions stipulated by the rules of Court for raising the objection. The Court falls back, at such moments, to its inherent jurisdiction which persists in spite of the rules of Court. This must be so because the Court could only assume jurisdiction, anyway, if same had existed. See: Adejumo v. Military Governor, Lagos State (1972) 1 All NLR (Pt.1) 159 and Enwesor v. Onyejiewe (1964) 1 All NLR14  “

9.2      In Nasir v. Kano State Civil Service Commission[26], per Ogbuagu, JSC[27] in his concurring judgment held as follows:
It is now firmly settled that issue of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of court, cannot dictate when and how, such point of law, can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court. An Appellant Court can even raise it suo motu. See the case of Anya v. Iyayi (1993) 7 NWLR (Pt. 305) and Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 466. I need emphasize as it is also settled that mandatory Rules of Court, are not as sacrosanct as mandatory statutory provisions and therefore, a rule of court, cannot override a statutory provision of the law,See the case of Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.212) 126. I therefore, that the objection of the Respondents, was rightly and properly upheld by the two lower courts.”


10.0      OBJECTION TO JURISDICTION AND ABUSE OF COURT PROCESS:
10.1    10.1        The Court of Appeal in Salvador v. I.N.E.C.[28], per Saulawa, JCA, held:

A typical example of an abuse of court processes is where, as in the instant case, two or more processes of similar nature are filed and issued against the same parties in respect of the same subject matter, and praying the same reliefs. See Iwuagolu v. Azyka (2007) 5 NWLR (Pt. 1028) 613; Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt.1006) 608;Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251; Dapianlong v. Dariye (No.2) (2007) 8 NWLR (Pt. 1036) 332 respectively.

10.2     Consequently, where a defendant is confronted with a suit which is        apparently an abuse of court process, he does not need to wait until he files a statement of defence in the matter before raising a preliminary objection on the jurisdiction of the court.[29]
10.3   Where the court concludes that its process is abused, the appropriate order to  make is that of dismissal of the process.See Arubo v. Aiyeleru,[30] and Per Ariwoola ,JSC in T.S.A. Ind. Ltd v. F.B.N. Plc[31]

11.0      OBJECTION TO JURISDICTION AND DEMURRER.
11.1     An application or preliminary objection seeking an order to strike out a suit for being incompetent on ground of absence of jurisdiction is not demurrer and therefore can be filed and taken before the defendant files his statement of defence or without the defendant filing a statement of defence. This is because the issue of jurisdiction can be raised at any time. In addition, the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavit, the writ of summons and the statement of claim, where one has been filed and served. The statement of defence is not one of the relevant materials for that purpose.[32]
11.2     In Nnonye v. Anyichie[33], Oguntade JSC  held:
‘It seems to me therefore that cases to the effect that jurisdiction can be raised before service of statement of defence are those in which it is ex facie apparent from the writ of summons and statement of claim that there is no jurisdiction in the Court. Where it is still necessary to call evidence in proof of matters which may lead the court to decline its jurisdiction, it is inevitable that the fact be clearly pleaded”

11.3     In Arjay Ltd V. Airline Management Support Ltd.[34] (2003) 5 MJSC 1
The respondent had argued that the preliminary objection raised by the appellants in the trial court (see pages 11-13 of its brief) did not comply with the provisions of Order XXVII of the Federal High Court Rules, Cap. 134 Laws of the Federation of Nigeria, 1990, in that there was no Statement of Claim in place. It contended that the filing of the Statement of Claim was a condition precedent to be fulfilled under the said Order XXVII before the appellants could bring their preliminary objection challenging the jurisdiction of the Court. In answer to this objection,

11.4     Ogundare JSC   at   32  -33,paras. A-G held that:
 I agree with the appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts of which the appellants would be required to admit before bringing their objection.  I agree with the appellants' submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed and that a party raising such an objection need not bring the application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand.

11.5     In Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria & Anor[35], per Uwaifo, JSC
“The tendency to equate demurer with objection to jurisdiction could be misleading. It is a standing principle that in demurer,  the plaintiff must  plead  and it is upon that pleading that the  defendant will contend that accepting all the facts  pleaded,  to be true, the  plaintiff has no cause of action, or where  appropriate, no  locus  standi: see' Federal Capital Development  Authority V. Naibi (1990)  3  NWLR (pt.  138)  270; WilllamsV  Williams (I995)  2  NWLR (pt.  375)  1;  Akpan V. Utin  (1996) 7 NWLR (pt.  463) 634;  Brawal Shipping (Nig.) Ltd. V. F. I.  Onwadike Co. Ltd. (2000) 11 NWLR (pt. 678) 387.But as   already shown the issue of jurisdiction is not a matter for demurer proceedings.  It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is  what will enable  the plaintiff  to seek a  hearing'  in court over  this grievance, and get it resolved because he is able to  show that the court is empowered to entertain the subject matter; It  does not always follow that he must plead first in order to  raise the issue of jurisdiction.”
11.6     In Microsoft Corporation v. Franike Associates Ltd[36]., Pemu JCA relying on the NDIC v. CBN case (supra.) held that :
“The filing of a preliminary objection by the respondent at the lower court challenging  the court’s jurisdiction without filing a defence does not amount to a demurrer”
12.0   GROUND FOR RAISING OBJECTION TO JURISDICTION
12.1                                 The major grounds for raising an objection to jurisdiction are
a.   Mode of commencement of an action
b.   Lack or improper service
c.   Lack of reasonable cause of action
d.   Locus standi
e.   Limitation of action
f.     Abuse of court process
g.   Non fulfillment of condition precedent :
                                                         i.    Rules of Court
                                                        ii.    Statute e.g pre-action notice
h.   Estoppel per rem judicatam
i.     Improper Parties to an action
j.     Venue or place of institution of action
k.    Ouster clause in statute

13.0      THE RIGHT PARTY TO RAISE OBJECTION TO JURISDICTION
13.1      On the question  whether the duty to raise absence of Jurisdiction in a Court is placed upon a particular party, the Supreme Court in Omokhafe v. Elugbe[37],  per Katsina-Alu, JSC held:
“I must stress here that the duty to raise absence of jurisdiction in a court to hear a case is not placed upon a particular party, or defendants in a proceeding. It is of course from experience that it is always the defendant who raises it. The court itself can and often raises the question. See Adesanya V. President (1981) 1NCLR 388. Indeed it is settled law that the issue of jurisdiction could be raised at any stage of the proceedings up to the Supreme Court. See Federal Republic of Nigeria V. Ifeagwu (2003) 15 NWLR (Pt. 842) 113: Pan Asian Co. Ltd V. NICON (1982) 9 S.C.: Tukur V. Gongola State (1989) 4 NWLR (Pt. 117) 57. When it is successfully raised the suit is terminated by a striking out order. An order striking out a case effectively brings the proceedings to an end unless and until an appellate court rules otherwise. Therefore it is erroneous to think or argue as the respondent has done by his preliminary objection that the 4th defendant could not contest before this court correctness of the decision of the court below on jurisdiction just because it was the 1st to 3rd defendants alone that had raised the issue before the court below. If the court below had struck out the suit on the ground that the court has no jurisdiction to hear it by virtue of Decrees 1 and 13 of 1984, the order would have enured to the benefit or advantage of the 4th defendant notwithstanding that the issue was raised by the 1st to 3rd defendants. It seems to me that the 4th defendant by the same parity of reason is clearly entitled to contest on appeal before this court the correctness of the decision of the court below on the point.The court below heard the objection as raised by the 1st to 3rd defendants. The Court took the view that the objection was not properly raised. It therefore discountenanced it. The question of jurisdiction of the court to hear the suit therefore legitimately becomes a point decided by the court below which could be challenged on appeal before this court irrespective of the party that had first raised the objection before the court below. I therefore overrule the objection by the respondent on the point.”

14.0      WHETHER THE ISSUE OF JURISDICTION CAN BE WAIVED
14.1   In the case of Bello v. Yakubu[38], it was held that the issues of jurisdiction cannot be waived by a party to a suit. Similarly, in S.P.D.C.N. Ltd. V. Esowe (supra)[39], the court held thus:
“The issue of jurisdiction cannot be waived by the parties or by the court. The competence of a court to adjudicate on matter is a legal and constitutional prerequisite. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. Once the court is held for any reason to lack jurisdiction, no matter how well the proceedings are conducted, they are void.”

14.2   It is well settled that, where there is an objection to jurisdiction of an inferior court a party who consents to the exercise of jurisdiction is not thereby estopped from afterward raising the objection since the jurisdiction cannot be enlarged by estoppel.[40]

14.3  In Mobil Producing Nigeria Unlimited v. Monokpo[41], Tobi, JSC graphically puts it thus:
Jurisdiction being the forerunner of judicial process, cannot by acquiescence, collusion , compromise, or as in this case, waiver, confer jurisdiction on a court that lacks it.  Parties do not have the legal right to donate jurisdiction on a court that lacks it.
Non - compliance with the rules which affect the very foundation, or props of the case, cannot be treated by the court as an irregularity but as a nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of any assistance to the adverse party. The defence of waiver lacks merit and so I do hold.”

15.0      SUBSTANTIVE AND PROCEDURAL JURISDICTION
15.1      In Kossen (Nig.) Ltd. v. Savannah Bank(Nig.) Ltd[42]., it was that :

 “In reply to the above submissions learned counsel for the respondent, quite correctly, pointed out that there is difference between jurisdiction over subject matter which is unlimited and covered by the 1997 Constitution and procedural jurisdiction. The former cannot be expanded or compromised. But procedural jurisdiction could be waived or acquiesced in by the affected party Thus where wrong procedure was adopted in commencing a suit or an action, and no objection was raised by the adverse party, then the proceedings based on such wrong procedure is valid”

15.2      In Mobil Producing Nig. Ultd V LASEPA& Ors.[43] ,per Ayoola, JSC held:


That an irregularity in the exercise of jurisdiction should  not be confused with a total lack of jurisdiction takes  cognizance of the general meaning of the word "jurisdiction"  as "the authority which a court has to decide matters that  are litigated before it or take cognizance of matters presented  in a formal way for its decision". (See Halsbury's (op cit)  paragraph 715) Procedure for invoking the jurisdiction of  the court should not be confused with the authority of the court to decide matters which on the face of the proceedings  have been properly presented in the formal way for its  decision and which are within its jurisdiction.
15.3  On the question whether Service of a pre-action notice are matters of substance or procedural.  In Mobil Producing Nig. Ultd V LASEPA& Ors.(supra) Ayoola,JSC  held that:

 Service of a pre-action notice on the party intended to be sued pursuant. to a statute is, at best, a procedural  requirement and not an issue of substantive law on which  the rights of the plaintiff depend. It is not an integral part of the process for initiating proceedings. A party who has  served a pre-action notice is not obliged to commence  proceedings at all or, barring any limitation period, to  commence one within any time after the time prescribe for  pre-action notices. That is why in section 29(2) of the Act  he is referred to as an "intended plaintiff'. The argument  that a pre-action notice forms part of the cause of action of  the plaintiff is misconceived and untenable as it ignores the  distinction between matters of substance and matters of  procedure. Notwithstanding that, sometimes, the distinction  between substance and procedure is blurred, it is generally  accepted that matters (including facts) which define the  rights and obligations of the parties in controversy are  matters of substance defined by substantive law; whereas  matters which are mere vehicles which assist the court or  tribunal in going into matters in controversy or litigated before  it are matters of procedure regulated by procedural law.  Facts which constitute the cause of action are matters of  substance and should be pleaded, whereas facts which  relate to how a party is to invoke the jurisdiction of the  court for a remedy pursuant to his cause of action is a  matter of procedure outside the realms of pleadings. The  distinction was stated thus in Halsbury's Law of England, Volume 8( 1), 4th Edition, paragraph 1066:  " ... generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and  procedural rules govern the mode or machinery by which  the right is enforced."

16.0      WHETHER A PRELIMINARY OBJECTION COULD BE RAISED EVEN AFTER THE FILING AND EXCHANGE OF PLEADINGS.
16.1         A preliminary objection could be raised even after the filing and exchange of pleadings.

"It is firmly settled that a preliminary objection or preliminary point of law, could be raised even after the filing and exchange of pleadings See Fadare& Ors. v. Att.-Gen. of Oyo State (1982) 1ANLR (Pt. 1) 24; (1982) 4 S.C. 1 at 21 & 22. Thus, a preliminary objection on point of law challenging the validity of the institution of a suit or petition as in the instant case leading to the appeals, it is now firmly settled, could only be determined at the initial stage by reference to the pleadings, particularly, the statement of claim or the petition as in the instant case. So, once the issue, cannot be determined on the pleadings or petition or in respect of the exhibit attached to the petition, the trial court or tribunal, is entitled to and indeed ought to proceed with/to full trial of the case and decide the point after evidence have been proffered at the trial. See Akinbi v.The Military Governor, Ondo State & Anor.(1990) 3 NWLR (Pt.140) 525 at 531 - 532 C.A."Per Ogbuagu, J.C.A. (Pp. 134-135, paras. D-A)[44]
17.0      CONCLUSION
17.1  The essence of this paper is to enable litigation lawyers have a proper perspective of the dynamics of raising objection to the jurisdiction of a court or tribunal to hear and determine a case brought before it on the merit.
17.2  The raising of objection to jurisdiction of a court should be taken as a preemptive strike to prevent the court to determine a case on the merit when you know you cannot win the case on the merit.
17.3     It could also be deployed to buy time while you prepare your defence.
17.4  Where you have a strong case on the merit, employing an objection to jurisdiction may be counterproductive, in such a case it is better to proceed to get judgment that, would settle the dispute once and for all. 
ENDNOTES

1.     Ninth Edition, at page 927
2.     See Ndaeyo v. Ogunnaya (1977) 1 SC 11; National Bank v. Shoyoye (1977) 5 SC 181; Attorney General Federation v. A.G. Abia State (2001) 7 SC (Pt.1) 100
3.     [2003] 8NWLR (Pt.821) 1
4.     Yusuf v. Obasanjo (2004)
5.     KLM Airlines v. Kumzhi (2004) 8 NWLR (Pt. 875) 231 (CA)
6.     (2007) 4 NWLR (Pt.1024) 375
7.     Adeyemi v. Opeyori (1976) 9-10 SC 3, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117)517,Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29, Okulate v. Awosanya (2000) 2 NWLR(Pt.646)530.

8.     (2002) 10 NWLR (Pt. 776) 524
9.     A.-G., Oyo State v. N.L.C. [supra]
10.  United Bank for Africa Plc v. Mr. Abbas Issa Mohammed & Anor. ( 2009 )
11.  A.-G., Oyo State v. N.L.C. [supra]
12.  Per Tobi, JSC in Umanah  v. Obong Victor Attah (2006) 17 NWLR (Pt. 1009) 503 at 525 paras. D-F
13.  (2006) 17 NWLR (Pt.1009) 503 at 525 paras D-F
14.  (2010) 12 NWLR (Pt. 1209) p. 518, at p. 560, paras. E-H
15.  (1962) 2 SCNLR 341
16.  (2004) 14 NWLR (Pt. 892)Per OBADINA, J.C.A .See also (2003) LPELR-CA/J/152/2003
17.  Oloba v. Akereja (1986) 3 NWLR (Pt.84) 508
18.  (2008) 18 NWLR (Pt.1119) 388. At pages 424 – 426 paras H-E
19.  (2007) 11 NWLR (Pt.1044) 1 at 18-19 paras H-D
20.  (2006) 9 NWLR (Pt.985) 275 at 297 paras C-E
21.  (2002) 7 NWLR (Pt. 766) 272 at 294, para. H;296,paras B-E
22.  F.M.B.N  v. Uwadiak (2004) 10 NWLR (Pt. 882) 626 (CA)
23.  (2010) All FWLR (Pt. 508) 234 at 256 – 257, Paras. H-C
24.    (2010) 2 KLR (Pt.277) 651 at 661- 662,para H-C  OR (2010) 6 NWLR (PT 1190) 253 at  269-270, paras. H-C
25.  (2003-2007) 5 I.P.L.R 203 at 226, paras. A-F
26.  (Supra) at page 276 paras. C-D
27.  At page 276 paras. C-D
28.  (2012) 7 NWLR (Pt.1300) 417 at 449 -450,Paras. H – C
29.  See: Usman v. Baba (2005) 5 NWLR (Pt. 917) 113 at 133-134, H-A (CA)
30.  (1993) 3 NWLR (Pt.703) 392
31.  (No.1) (2012) 14 NWLR (Pt. 1320) 326 at  349 para. C
32.  See   PDP v. Adeyemi (2002) 10 NWLR (Pt. 776) 524 (supra)
33.  (2005) 2 NWLR (Pt. 910) 623 at 659
34.  (2003) 5 MJSC 1
35.  (2002) 7 NWLR (Part 766) 272 at 296 – 297,paras. D-H
36.  (2010) 5 CLRN 145 at 158, para 40
37.  ( 2004) 11-12SC 60 at 65
38.  (2008) 14 NWLR (Pt. 1106) p. 104, at p. 119, paras. E
39.  at p. 90, paras. A-B
40.    See Jadesimi v. Okotie – Eboh (No. 1) (1986) 1 NWLR (Pt. 16) 264 and Osibamowo v. Osibamowo (1991) 3 NWLR (Pt.177) 85
41.  (2004) 9 WRN at 84-85, paras. 35-25 or (2003) 18 NWLR (Pt. 852) 346 at 434 – 435, paras E-B
42.  (1995) 9 NWLR (Pt. 420) 439 at 451,para. D
43.  (2002) 12 SC. (Pt.1) 26 at 37 -38
44.  Daggash v. Bulama (2004) 14 NWLR (Pt.892)


Akintunde Esan is a litigation lawyer and a chartered mediator, he is the Managing Partner at Ase Olodumare Chambers, a Lagos based commercial and dispute resolution law firm.















































1 comment:

  1. Thanx for sharing information. This blog is very informative.


    Banking Dispute lawyer

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