Absence of Jurisdiction by Court Paras. 1,2
1. Absence of jurisdiction on proceeding before court.
(1) “It seems to me that the fact that a matter appears to be fundamental to the
administration of justice will not by itself entitle a Judge to pronounce on it when the
matter in the first place should not have been before him.” - Per Akpata, J.S.C. in
Akinbinu v. Oseni Suit No. S.C. 131/87; (1992) 1 N.W.L.R. (Pt. 215) 97 at 110.
(2) “It must be pointed out that the provision of Section 242 of the 1979 Constitution
under which the appellant heavily relies in his submissions in favour of jurisdiction of
the lower Court is exercisable in an action to or subject to the jurisdiction conferred
on it by the law of a state. Thus, in the present case since the two laws have ex-
pressly ousted the jurisdiction of the said lower Court over rent claims or rent tribunal
and vested it over the Islamic personal law or Area Court, the provisions of the said
laws should be observed strictly without any breach. In other words, any purported
exercise of jurisdiction by the lower Court over the subject or the tribunal expressly
excluded from its jurisdiction by the statutes will be a breach of the law and any
proceedings conducted without the required jurisdiction will amount to a nullity no
matter how well conducted they may be - See: Madukolu v. Nkemdilim (supra);
Broniks Motors Ltd. v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296; Adefulu v.
Oyesile (1989) 5 N.W.L.R. (Pt. 122) 377.” - Per Adamu, J.C.A. in Abdulkadir v.
Musa Suit No. CA/J/185/97; (1999) 1 N.W.L.R. (Pt. 587) 348 at 357.
2. Order where Court holds it has no jurisdiction.
“I now turn to the question of whether the trial Court was right to have dismissed the
suits of the appellants or whether the majority decision of the Court of Appeal substi-
tuting an order striking out the suits was proper in the circumstance. Although Order
29 rule 3 state that the Court shall either dismiss the suit or order the defendant to
answer the plaintiff’s allegations of fact, I am in agreement with Oguntade and Uwaifo,
J.C.A. that the proper order to make in the circumstance was an order striking out
the plaintiffs’ suits for lack of jurisdiction. While rules 1 and 2 of Order 29 are appli-
cable to this case, rule 3 is inapplicable since the defence of the defendant was that,
the Court had a jurisdiction and Court so found, the reason is that, where a Court
holds that it has no jurisdiction to entertain an action it does not dismiss the action but
merely strikes it out. Striking it out will enable the plaintiff in certain cases to file his
action in the appropriate Court with jurisdiction. In the instant case, however, as
rightly pointed out by Uwaifo, J.C.A., as the suits stand, no Court has jurisdiction to
entertain them. The plaintiff’s can only validly react against the decision of Nwokedi,
J. by way of an appeal.” - Per Akpata, J.S.C. in Okoye & Ors v. Nigerian Cons. &
Furniture Co. Ltd. Suit No. S.C. 188/1989; (1991) 6 N.W.L.R. (Pt. 199) 501 at 534;
Paras. 2-4 Vol. 13: JURISDICTION 2
(1991) 22 N.S.C.C. (Pt. II) 422 at 441.
3. How to approach Court in the absence of rules of procedure.
(1) “The reasonable course is for the legislature to make provision under subsection
(2) for the matters in both (a) and (b) of subsection (1); and if it so happens that the
legislature, through inadvertence, has not made any provision on the question in, (b) a
member who asks the High Court to determine such a question, as it is within the
Court’s jurisdiction, ought not to “be driven from the judgment seat”, but should be
heard.” - Per Bairamian, F.J. in Fajinmi v. Speaker Suit No. FSC 454/1961; (1962)
2 N.S.C.C. 144 at 147.
(2) “The High Court has a duty to hear and determine the case in hand, and resolve
the question raised. The plaintiff has, in the absence of other provisions, brought his
case in the form of an action, which is the ordinary way of approaching the Court for
making a request to have a matter in difference decided and relief granted; and the
action should now proceed.” - Per Bairamian, F.J. in Fajinmi v. Speaker Suit No.
FSC 454/1961; (1962) 2 N.S.C.C. 144 at 149.
4. Court’s jurisdiction to order reversion to status quo where its process has
been abused.
(1) “The jurisdiction of the Court to undo what has been done by a party in abuse of
the Court in an attempt to over-reach and present the Court with a fait accompli is
undoubted. Such jurisdiction was asserted by the Supreme Court in Vaswani Trad-
ing Co. v. Savalakh & Co. (1972) All N.L.R. (Pt. 2) 483, 491.” - Per Ayoola ,
J.C.A. in Ivory Merchant Bank v. Partnership Inv. Ltd. & Anor. Suit No. CA/L/
46M/95; (1996) 5 N.W.L.R. (Pt. 448) 362 at 367.
(2) “The jurisdiction exercised by the appellate Court to restore the parties to the
position they would have been at the date the offending party became aware of the
pending application is often described as a disciplinary jurisdiction. The jurisdiction
can be exercised as appropriate either to stay execution of the judgment obtained in
defiance of the pending application or to set aside such of the proceedings as have
taken place in defiance of the pending application. It is however not a jurisdiction
exercised as of right but is discretionary. The appellate Court must retain a discretion
to do what is best in the circumstances of each case. The nature of the conduct of
the offending party is a relevant consideration.
The appellate Court may readily consider it necessary to stay execution of a
judgment obtained in discharged of pending application for stay of proceedings pend-
ing the hearing and determination of an interlocutory appeal where the outcome of
the appeal may affect the validity of the judgment itself. However, counsel on behalf
3 Abuse of Court process Paras. 4,5
of the applicant argued that the Court should, as a matter of obligation, exercise a
disciplinary jurisdiction to stay of execution of a judgment obtained in disregard of a
pending application for a stay proceedings. There are indeed passages in the judg-
ments in an old English case, Daniel v. Ferguson (1891) 2 Ch. 27, which tend, at
first blush, to support the view even that a judgment obtained in disregard of a pend-
ing application for a stay of proceedings should itself be set aside or at least execution
therefore stayed. In that case, the defendant had rushed on to build a wall upon
receiving notice that an injunction was going to be applied for, but before he received
notice that an injunction had been granted. In an interlocutory order the trial Judge
restrained the defendant from building on the land and from permitting the wall or
building which he had erected to remain on his land.
On appeal, it was by the argued counsel on behalf of the defendant that the
mandatory injunction should not have been granted because, it was argued, “it is
against the practice to order a building to be pulled down in an interlocutory applica-
tion.” The appeal was dismissed. In the course of his judgment (p. 30) Lindley, L.J.
said: - “It is right that buildings thus run should be pulled down at once, without regard
to what result of the trial may be.” Kay, L.J. also said at p. 30: - “Whether he turns
out at the trial to be right or wrong, a building which he has erected under such
circumstances ought to be at once pulled down, on the ground that the erection of it
was an attempt to anticipate the order of the Court. To vary the order under appeal
would hold out an encouragement to other people to hurry on their buildings in the
hope that when they were once up the Court might decline to order them to be pulled
down. I think that this wall ought to be pulled down now without regard to what the
result of the trial may be.”
A similar view was expressed in Von Joel v. Hornsey (1985) 2 Ch. 774 the
facts of which I need not rehearse in which Lindley, L.J. confirmed his previous view
in Daniel v. Ferguson (supra) supported by Lopes and Rigby, L.JJ. these two cases,
were taken note of in the case of Military Government of Lagos State v. Ojukwu
(1986) 2 S.C.227; (1986) 1 N.W.L.R. (Pt. 18) 621; Vaswanis case (supra) and
Ojukwu’s (supra) were cases in which the defendant defied the pedency of the
applications in order to steal a match on the opponent or to get into position of advan-
tage. In those cases, the Court asserted its jurisdiction to frustrate such efforts.” -
Per Ayoola, J.C.A. in Ivory Merchant Bank v. Partnership & Anor. Suit No. CA/
L/46M/95; (1996) 5 N.W.L.R. (Pt. 448) 362 at 368-369.
5. Exclusive jurisdiction of Federal High Court over actions against Federal
Government Agencies.
“The Decree of the Federal Government by Decree 107 of 1993 vested exclusive
jurisdiction in the Federal High Court to adjudicate on any matter that involves the
Federal Government and its agent, therefore the recognition, installation and election

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT