The Inherent Problems in wrongful Assumption of Jurisdiction
The issue of jurisdiction is the basic and fundamental thing to be considered by a court before proceeding to the adjudication of a matter, it is pertinent to note that wrongful assumption of jurisdiction by a court would invariably result to an exercise in futility, abuse of court process and the perversion of justice.
An Exercise in futility:
To commence and proceed in a trial where the Court which tries the matter does not have the power to do so would amount to doing same in vain. The reason for this is not farfetched because in as much as an issue of jurisdiction is considered very fundamental that it can be raised at any stage of proceeding, for where it is absent ab initio the entire case collapses, no matter how well conducted.
A court without power cannot preside or decide on a matter irrespective of whatever the subject matter may be or whatever the interest that parties may have, An Upper Area Court which proceeds to assume jurisdiction over a land matter wherein the plaintiff is asking for the declaration of title over the said land and finally delivers its judgment in one way or the other must have succeeded in carrying out an exercise in futility since the decision of the said court though binding on the parties, would be quashed on appeal for want of jurisdiction.
This must have amounted to an exercise in futility because the entire judicial proceeding has been explored and the time of the court and of the litigant and that of their legal representatives expended in an exercise that would not survive the slightest test of appeal.
Abuse of Court Process:
An abuse of judicial process means that the court has not been used bonafide and properly. Ordinarily, the wrongful assumption of jurisdiction by a court would amount to an abuse of court process, but for the fact that the issue of jurisdiction is statutorily settled, to do that which is outside what is statutorily provided amounted to an abuse of the process of the court.
This abuse of court process could be manifested in many ways like:
(i) the filing of a matter in a court, which does not have jurisdiction over the subject matter.
(ii) To refuse the doing of those things, which the law requires to be done before the commencement of a suit like the payment of the required fees, the proper endorsement of the court processes, proper services of the court processes on the parties to the suit and the proper entering of appearance by the defendant.
(iii) The court which assumes jurisdiction not being properly constituted as to the number of persons to constitute the bench.
(iv) The person(s) who constitute the bench not being qualified to do so where the subject matter of the suit is the kind that ought to be initiated in a superior court of record, and is wrongly initiated in an inferior court, it would be amount to be abuse of court process if the court assumes jurisdiction to hear the matter with utmost disregard to the statutory provision as to jurisdiction.
In practical court proceedings, the duly initiation of a case plays important role in the proper assumption of jurisdiction in a court matter. Where a suit is filed and the required filing fees are not paid, such documents are not properly filed and it would amount to an abuse of court process for the court to wrongfully assume jurisdiction. The court of Appeal in the case of Jimoh v Starco Nig. Ltd &Ors held that:
Abuse of court process is not a mere irregularity. It is a much more fundamental vice which is usually punished with a dismissal. The endorsement of the document filed in the court is very fundamental in the proper and duly initiation of a court proceeding and failure to have the document properly endorsed amounts to an abuse of court process.
The long established practice, is for appropriate court officials to endorse on documents filed in court registries, the receipt numbers against which they were filed together with the date of such filing. These endorsements ought to be at the time of filing such documents to ensure that suspicion of fraud or irregular filing are eliminated.
The proper service of the court process is exceedingly fundamental for a rightful assumption of jurisdiction by the court. Once an originating process of court has been issued, the next step is the proper service of such process.
Without the service of the process, the defendant has no way of knowing that he has been sued and for what. Thus the general purpose of requiring service of such process is to give notice to the defendant.
In First Bank of Nigeria Plc v. Opande it was held that failure to serve a process where service of process is required is a failure, which goes to the root of the proper procedure in litigation. Apart from proper expert proceeding the idea that an order can validly be made against a man who has no notification of any intention to apply for it is one, which has never been adopted.
Thus it has been held that where service is required, a person affected by the order of court but was not served with the process is entitled Ex Debito Justitate (a remedy which the applicant gets as of right) to have the order set-aside as a nullity because service of a writ is a condition precedent to the court assuming jurisdiction.
There is no doubt that all court takes firm stand concerning the abuse of the process of court. But before a party is admonished, it must be established that the erring party has abused the process of court by improper use of the process of court. Once a court is satisfied that any proceeding before it is an abuse of process it has the power, indeed the duty to dismiss it.
Action in the High Court may be commenced in four different ways namely; originating motion, Petition, originating summons and Writ of summons, and to commence an action by the wrong method, which is against the provisions of the rules of court, would amount to an abuse of the court process.
c) Perversion of Justice: –
Justice in its simple definition means the upholding of right, and the punishment of wrong, by the laws. The constant and perpetual wish to give each man his due. The right of individuals is entrenched in the constitution, and it is the court of law in the course of doing justice that can give each man his due based on the fact before it.
Where a court of law expected to give the individuals their due right which is enshrined in the constitution wrongfully exercises its power to do so it becomes a certitude that justice would invariably be perverted.
This perversion of justice could be seen where the fundamental requirements for the assumption of jurisdiction has not been satisfied, where the subject matter is commenced in a wrong court as shown above. In cases where the case is not duly initiated, rooms are created for litigants to cut corners and thereby the courts that is expected to dispense justice without fear or favour is constrained to breach procedures and justice being prevented on the long run.
The qualification of the members of the bench is very important because where an unqualified person is obliged to do what a qualified judge is to do, then the end product would be an unqualified decision which means crushed justice.