OPINION

Preliminary Objections (Contesting Jurisdiction Of A Court And Substantive Suits), A Battle Of Priority By Olamide Owolegbon

At the commencement of a suit and upon the service of the writ, a defendant’s counsel should first consider the crucial question of competence (likelihood of raising a preliminary objection contesting the jurisdiction of the court) , if upon careful perusal of the originating processes and statement of claim, it is clear that the objection would be granted. This is pertinent, as it prevents a situation where parties embark on an exercise in futility.

The supreme court in the case of “Abubakar & ors V. Nasamu and ors [2012] 5 SCM, 1” held that jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding with the suit, the reason behind this being that issue one in the briefs of all the parties in the four consolidated appeals is jurisdictional in nature, it is mandatory to first and foremost resolve it one way or the other before proceeding to considering other issue in the appeals on the merit. The reason being that jurisdiction is a radical and crucial question of competence. Once there is a defect in competence, it is fatal and the proceedings are a nullity.

In A.-G, Adamawa State v. A.-G., Fed. [2014] 14 NWLR (Pt.1428) 570 per OGUNBIYI J.S.C. rightly alluded to Order 29 Rule 1 of the Federal High Court Rules, 2009 which provides thus:

  1. where a defendant wishes to –

(a) dispute the Court’s jurisdiction to try the claim; or

(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.

The position aforementioned leaves the consideration of the hearing of the application for preliminary objection solely or jointly with substantive suit at the mercy of the court.

Then in Lafia L.G. V. Exec. Govt. Nasarawa State [2013] ALL FWLR (pt 668) 956 S.C. @982 para H per Rhode- Vivour JSC pointed out that  jurisdiction is fundamental in every suit. It is a threshold matter, so once raised,  must be decided quickly before anything else. This is so because if a court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to a nullity. It is the life and soul of a case. It is so important that it can be raised at anytime in the court of first instance, on appeal, and even in the Supreme Court for the first time. It can also be raised suo motu provided counsels are given the opportunity to address the court on it before a decision is taken.

Also in Ajayi V. Adebiyi [2012] ALL FWLR (pt 634) 1 S.C. @30 para C per Adekeye JSC mentioned inter alia, it is noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime. In addition, the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.

In the case of National Deposit Insurance Corporation V. Central Bank of Nigeria (2002) FWLR (pt 99) 1021, the court identified the difference between demurrer and objection to jurisdiction by holding that “there is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon the pleading that the defendant will contend that accepting all facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standi. The issue of jurisdiction is not a matter for demurrer 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 his 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”

It is true that once an issue of jurisdiction is raised in any suit, the court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction, locus standi of the plaintiff / respondent and limitation law.

In the case of  Petrojessica Enterprises Ltd v. Leventis Technical co ltd (1992) 5 NWLR (pt.244) 675 at 693, it was held that jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial.

Wrapping up, I submit that where preliminary objection touches upon the competence of the action or on the jurisdiction of the court to entertain same, it would be impulsive and reckless for any court to proceed with a suit which is deficient in that respect, as any proceedings or decision taken without jurisdiction, no matter how brilliantly or fussily conducted, would amount to nullity. As you cannot place something on nothing and expect it to stand. It will simply crumple like a pack of cards.

 

Olamide Owolegbon Esq.

@olamide_kaka

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