One of the basic principles in our procedural law over the years is to always treat the issue of jurisdiction first whenever it is raised. It is quite elementary. Once an issue of jurisdiction has been raised, the general principle is that it ought to be resolved first before anything else in the proceedings.
It is thus mandatory that courts decide the issue of jurisdiction before proceeding to
consider any other matter. Authorities are well abound on this score; Bronik Motors Ltd and another v Wema Bank Ltd. (1983) 1 SCNLR p.296: Okoya v Santilli (1990) 2 NWLR (Pt131) 172: Madukolu v Nkemdilim (1962) 1 ANLR (Pt4) 587... I could go on.
The procedure is even well entrenched in situations where a court of law has the discretion to roll over the determination of its jurisdiction alongside the substantive suit. Deserving cases predicated on the originating summons procedure for instance allows for this position. In this wise, a court is expected, as a matter of discretion though, to hear the substantive case alongside any challenge to its jurisdiction. The Court in DAPLANLONG V. DARIYE
(2007) LPELR – SC.39/200 (2007) 8 NWLR (PT.1036) OR (2007) 4 S.C.
(PT. III) 118 OR (2007) 4 FWLR PT. 390 stated the correct position as follows:
“It is settled law that where an objection is raised to the jurisdiction of the court in a matter commenced by originating summons where the evidence required is in the form of affidavit as in the instant case, it may be prudent to hear together the arguments as to jurisdiction and the merits of the case”. PER ONNOGHEN, J.S.C (P.47, PARAS. G-B).
See also SENATE PRESIDENT V.
NZERIBE (2004) 9 NWLR (PT.878) 251. INAKOJU V. ADELEKE
(2007) 4 NWLR (PT. 1025) 423 AT 611-618
Quite apart from the
foregoing settled principles however, there might be a situation
where a court would not want to decide the issue of jurisdiction
first. This is quite in the realm of the decision hearing the motion
to save the case first and see whether the motion has merit before
throwing it out.... Nalsa & Team Associates Vs NNPC (19910 8 NWLR
(pt 212) 652. It is a situation where a party has to decide who represents him in court!
The court court in FAGBOLA VS. KCCIM & A (2006) ALL FWLR (PT. 324) 1911 AT 1922 places a situation where a party has to chose who represents him in court over the issue of jurisdictions of the court. It could appeal to common sense that a party needs to decide who 'argues the issue for jurisdiction for him'. The court held in the following words:
"The well settled procedure for considering pending applications is to take applications on jurisdictions first. See Funduk Eng. Ltd vs. McArthur (1995) 4 NWLR (Pt. 396) 498.Nowadays, instances of litigants not being able to make up their minds as to who their counsel is occurs often. where such scenario presents itself, it should be resolved first before the issue of jurisdiction is heard and determined. Representation of counsel would thus take precedence over jurisdiction in such a situation"
Kindly drop your comments below
Thanks, you have cleared a grey area for me. My thought has always been that the court has the discretion to either resolve the issue of jurisdiction first before anything else in the proceeding or decide the issue of jurisdiction alongside the substantive case notwithstanding the mode of commencement of the suit. Plus the last part of the write-up is new to me, I have added that to my storage. Na gode
ReplyDeleteI think your position is quite correct. I didn't mean to say something new. Some state rules of court make it a matter of discretion, notwithstanding the mode of commencement of proceedings. The essential thing is to avoid demurrer. The peculiarity with suits commenced under originating summons is in its use of affidavit evidence. Some deserving cases also come with urgency..eg. electoral matters. So I agree with you.
DeleteI enjoyed more the fact that authorities were used to explain, using the courts' holdings. Thank you for making these another area now clarified for me.
ReplyDeleteThanks for your comments
DeleteThis is a very interesting aspect of law, but I will object to this because especially in criminal proceedings where at times some suspecs usually want to change their counsel so as to delay court proceedings will be detrimental to our legal system except if once such litigant choose his counsel he wont or be allowed to further change.am still of the opinon that jurisdiction should be determine first to allow speedy trial and avoid unnecessary,frivolous and dubious attitude of suspect.
ReplyDeleteI agree with you. The issue will be mainly based on the discretion of the court. Discretion is not and can never be an authority over another case. The case under review is a civil case and not criminal. We should just be guided by the facts of each case. That was why I insisted on 'deserving cases' in the post.
DeleteKudos Oniguguru
ReplyDeleteThanks a lot. I'll put this in my practice note verbatim right away.
ReplyDeleteI'm curious as to what the consequence of not conforming will be. Will the Appeal court treat it as a procedural jurisdiction issue and bat it away as an irregularity or will it be treated as a substantive issue so fundamental it can't be waived? What did the court decided in the Fagbola's case?
Oh wow. Thanks for your comment. The court in Fagbola's case was mainly dealing with the issue of jurisdiction of Federal High Court relating to Companies and Allied Matters Act. The trial court had dismissed the objection on jurisdiction while the Court of appeal sustained the objection on appeal. The issue of choice of counsel did not really feature in the case. It would, in the circumstances fall within an obiter dicta. Thanks again, I will review the post to clear this point. My opinion though, I do not think issue of choice of counsel should go to the root of the case. It is only important to avoid a wrong lawyer appearing for client when he was not briefed. Thanks again.
Delete@ Mahmoud, I think the issue of cousel representation may be fatal to a case in deserving circumstances. The reason is simple; litigant choice to counsel is a fundamental right ( Abiola v FRN (1997) 2 Nwlr (pt. 488) p. 439). For instance in situation ( like PDP recent leadership tussle)where two group of counsel with conflicting interest claim to be appearing for PDP. In fact, a faction file Notice of Appeal and the other file intention to withdraw same. What will happen if a court continues with one of the them without resolving first who is actually representing the party?
ReplyDelete