Whether a party can waive Jurisdiction when he submits to it
It is obvious that the issue of jurisdiction forms a solid bedrock of our legal system, and as such it becomes a matter of commonsense that the statutory provisions and also the long established rules of practice cannot give way for the whims of the parties who decided to consent to the jurisdiction of a court when the court does not have same.
The question whether jurisdiction could be waived where a party submits to it can only be properly answered by having recourse to the decisions of our court on the issue. The Supreme Court in the case of Ijebu – Ode L.G. v. Balogun held that where the court has no jurisdiction with respect to the matter before it, the active support or ignorance or silence of the parties to the fact cannot vest the court with the requisite jurisdiction which is the essential precondition to the exercise of judicial powers.
Where a court lacks jurisdiction or competence to entertain a proceeding the parties to the suit cannot by acquiescence, waiver, or even agreement confer jurisdiction or competence upon the court. It follows from the principle that jurisdiction cannot be acquired by consent of the parties nor can it be enlarged by estoppels. Submission to jurisdiction could be in any of the following ways.
(i) The plaintiff commencing the suit in a Court that has no jurisdiction to entertain same.
(ii) The defendant entering appearance or taking further steps.
(iii) The court overruling the objection as to jurisdiction raised by the defendant.
Where an action is commenced in a court, which does not have jurisdiction, and the same court wrongfully assumes jurisdiction, the said submission to jurisdiction by the plaintiff and the wrongful assumption of jurisdiction by the court cannot regularize the proceeding, which is incurably bad. The court suo moto has a duty to decline to exercise its jurisdiction in situations where it lacks jurisdiction ab initio.
The challenge of jurisdiction is a constitutional matter, which can be considered under inherent jurisdiction of the court by virtue of section 6 (6) (a) of 1999 CFRN at any state of the proceedings before any court of law independently of any rules of court.
On the second issue where the defendant enters appearance or takes further steps where the court does not have jurisdiction, it must be noted that the step taken by the defendant does not in any way change the position of the law.
Though the defendant enters appearance either conditional or unconditional, it only makes the proceeding to be voidable i.e. it can proceed to a conclusion, but subject to being quashed whenever the issue of jurisdiction is raised and canvassed.
Submission to jurisdiction is as a result of entering appearance does not apply where there is total want of jurisdiction. Where issue of jurisdiction is raise, it is immaterial that the defendant enters conditional or unconditional appearance.
One cannot submit to a jurisdiction which does not exist. A plea of lack of jurisdiction may be raised at any stage of the proceedings or even for the first time on appeal. The court has power to set aside its own decision made without jurisdiction.
On the third issue where the court overrules an objection of the defendant as to the jurisdiction of the court and proceeds to trial, this does not in any way confer jurisdiction on the court where fundamentally it lacks same.
The issue of jurisdiction is settled by the statute, such that a court cannot unilaterally declare itself as having jurisdiction and proceed to hear and determine issues, which ought not to. Any decision that is a product of wrongful assumption of jurisdiction by the court is such that could be quashed on appeal.
It is the position of the law that issue of jurisdiction can be raised at any stage of judicial proceeding even on appeal. A trial court which succeeds in wrongfully conferring jurisdiction on itself cannot have the final decision on the matter because the appellate court being convinced on the lack of jurisdiction would not hesitate to quash the trial court’s decision.
An objection to the jurisdiction of a court to try a case goes beyond mere irregularity which can be cured by mere procedural amendment and correction, but touches on the competence and legality of the court.