Jurisdiction as a tool for the delay of Justice
Once the issue of jurisdiction is raised the court has to stop every other thing it is doing and settle the question, and that even if each issue of jurisdiction is not raised and settle at the trial court, such issue could still be raised on appeal and yet would be considered.
A defendant who intends to frustrate the course of justice and thereby become a cloy in the wheel of smooth administration of justice would not challenge the jurisdiction of the court which was wrongfully assumed, but would raise it at the court of Appeal or worst still at the Supreme court where if he succeeds the entire proceeding of the court becomes a nullity. This is a typical case of jurisdiction serving as a tool for the delay of justice.
The tripartite conditions which the Supreme Court set out in the case of Madukolum v Nkedilim which must always be satisfied before a court would assume jurisdiction now becomes a thing which a mischievous litigant would exploit in ensuring that the course of justice is ultimately frustrated. This frustration could come in many ways, but we shall discuss only 2 ways which are: –
(a) Issue of Jurisdiction being raised even on Appeal
(b) Issue and Services of Process as Constituting Impediment of the Dispensation of Justices
(a) It is a trite law that issue of jurisdiction can be raised at any stage in a proceeding before judgment and also even on appeal. This is because where an objection to jurisdiction succeeds; it disposes of the matter without the necessity of further proceeding.
To allow this to be the position of the law, a defendant who loses a case at the trial court or who does not have any defense to a case would anchor his defense on the point that the trial court lacked jurisdiction to entertain the suit. This also applies to other causes of action where there is a wrongful assumption of jurisdiction.
(b) The issuance of court processes and the service of court processes has become the bone of most judicial proceedings. It is the position of the law that for a court to assume jurisdiction, the case must have been duly initiated, and this entails proper issuance and service of court processes.
For a court process like writ of summons or originating summons to be properly issued, after all the endorsements have been made by the plaintiff or his legal practitioner, the writ is taken to the court registry where appropriate fees are paid and the writ signed and sealed by the registrar.
A writ may be defective either as to its issue, for e.g. no leave was obtained before it was issued outside the state or it may be that it contains insufficient endorsement or the service of the writ itself may be defective. Where there are such fundamental flaws in the commencement of the suit, the adverse party may challenge the jurisdiction of the court to entertain the suit as the case was not duly initiated.
The service of processes of court especially originating processes has always been a problem in the adjudication of matters in our court. This is because the law requires that originating processes must have to be served personally on the defendant (s) before there could be proper service.
Nevertheless, the rules of court provide that where it is made to appear to the court or judge in chambers that prompt personal service cannot be effected, the court or judge in chamber may make an order for substituted service, and once the writ is served as ordered by substituted means it is as effective as personal service.
Where there is a defective service or improper service, this becomes a problem, as the court cannot rightly assume jurisdiction to hear the suit, the question of jurisdiction comes up at that stage. This issue of proper or improper service becomes a tool for the delay of justice because the sole essence of service of court processes is to bring to the notice of the other party of the pending suit. The major thing here is the defendant being aware that a suit is pending against him.
A Practical and Pragmatic Approach to Prevent a Delay of Justice on Issue of Jurisdiction:
Now it has been shown that the issue of jurisdiction is not only being abused, but has become an instrument of mischief in the hands of mischievous litigants, it becomes imperative that measures to prevent this abuse has to be put in place.
In a situation where a litigant who wants to challenge the issue of the jurisdiction of the court does not do anything but allows the case to be heard and concluded, only to go to the appellate court and raise the issue of jurisdiction derides the concerted effort in ensuring a speedy dispensation of justice.
More so, where a defendant who has been notified of the pendency of a suit against him and becomes aware of all the facts and issues in contention would challenge the jurisdiction of the court to entertain the suit on the ground that he was not personally served with the originating processes of the court becomes disgusting.
Furthermore, to disqualify a court from hearing a case because the writ is not properly issued calls for serious consideration. Based on the foregoing, the practical approaches, which are suggestible, are
(a) Issues of jurisdiction are to be raised timeously.
(b) Issuance and services of court processes to be regularized upon being notified of the pendency of suit Though the law allows the question of jurisdiction to be raised at any time before judgment and even on appeal, but such latitude in the interest of justice should be at the early stage of the proceeding when the court can easily consider it and take a decision one way or the other.
If at that early stage the court is convinced that it lacks jurisdiction to entertain the suit, it would strike out the suit without doing more, and if it has jurisdiction it would proceed to hear the entire suit. There is no doubt that in our adversary system of adjudication, the question of jurisdiction is very fundamental.
In fact, it is so fundamental that adjudicating court should determine the issue first before starting any proceedings. If the court proceeded and it was found that the court had no jurisdiction in the matter, all the proceedings however, well conducted amount to nothing but a nullity.
Raising the issue that a court which is hearing a case is not properly constituted or that the subject matter is such that the court cannot adjudicate on or that the matter is not duly initiated at a stage when much time has not been wasted in hearing witnesses is such that would serve the interest of justice, and the rights of parties if any would be decided or settled timeously.
The reason for this position of timeous challenge of jurisdiction is that a proceeding which would end as a nullity; what is the essence of allowing it to go through the required procedure of adjudication which would take time to conclude.
Worthy of note is the fact that justice delay is justice denied. Secondly, having the courts being congested with cases which has no future would not only consume the time of the court, but would on the long run wear down the sanctity of the judiciary and the judicial system.
The other approach which would workout solution for the abysmal use of jurisdiction is that the issuance of court process being regularized if any error. In situations where there is no proper endorsement on the originating court processes which the adverse party would contest in the course of trial as a basis for challenging court’s jurisdiction, it would serve the interest of justice if such procedural irregularities would be regularized by way of amendment and the said court which has assumed jurisdiction be allowed to continue.
Where the required filing fees have not paid by the plaintiff, the court should not decline jurisdiction for such mere irregularity which does not go to the roots of the substantive matter. This also applies to the situation where there is no proper appearance by the defendant. In all these circumstances though it constitutes procedural irregularity, but there could still be the opportunity of its jurisdiction to entertain the suit.
Furthermore, where the issuance of the process is at a place outside the jurisdiction of the court, the law required that the leave of court must be obtained before the originating process could be issued from the registry and also before service could be effected.
A writ for service outside Lagos State must be endorsed by the registrar with the following notice. For- service of a writ of summons on a defendant who is outside jurisdiction of the court to be valid, leave of the court to serve same must be obtained and at least 30 days must be allowed before the appearance of the defendant. Failure to observe these 2 conditions will render service of a writ a nullity. This is the purport of section 97 and 99 of the Sheriff and Civil Process Act.
It is clear that signing or sealing a writ for service outside the jurisdiction without leave of the court or judge is a fundamental breach of statutory requirement which renders not only the service but the issuance of the writ itself a nullity.