JURISDICTION- DIFFERENCE BETWEEN ALLEGED IRREGULARITY IN THE EXERCISE OF JURISDICTION AND A TOTAL LACK OF JURISDICTION
Topic starter September 13, 2019 8:50 am
"The non-compliance with statutory provisions that stipulate for pre-action notices to be given before the commencement of proceedings in court is usually touted as jurisdictional matters. However this Court in Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1 explained the difference between alleged irregularity in the exercise of jurisdiction and total lack of jurisdiction and the incidents that attach to each. In the lead judgement by Ayoola JSC he explained the correct position of the law at pages 31-32 as follows:-
"Much stress has been placed on the argument that non-compliance with provisions such as section 29(2) of the Act (Federal Environmental Protection Agency Act) leads to a question of jurisdiction which can be raised at any time and which if resolved against the appellant renders the entire proceedings a nullity. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. When the competence of the court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of facts if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence. Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court's incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons. A judgement given in proceedings which appear ex facie regular is valid".
PER K.B. AKAAHS, J.S.C IN YHE CASE OF AKAHALL & SONS LIMITED V NIGERIAN DEPOSIT INSURANCE CORPORATION (RECEIVER/LIQUIDATOR OF ALLIED BANK OF NIGERIA PLC; LER(2017): SC. 302/2006