Bamidele Kolawole
According to the Black’s Law Dictionary, Eighth Edition, jurisdiction is the Court’s power to decide a case or issue a decree. Jurisdiction is so important that it goes into the root of the matter and it can be raised at any time, may be raised for the first time even at the Supreme Court.
The Issue of Jurisdiction in litigations is a very serious matter, as it all about the Court’s powers. So, it is not safe for any Court to proceed with the business once it’s jurisdiction has been challenged for any reason, otherwise, whatever the court does in such situations is in nullity and wasted effort.
Under Order 13 of the Ondo State High Court (Civil Procedure) rules 2019, even though Demurrer is abolished, still provides that if there is application pending and bothering on jurisdiction, t has to be taken with the Preliminary Objection, so as to be on the safer side.
Even though the preliminary objection fails and the Court does not have the Jurisdiction of any kind to entertain the matter, it will over rule itself. From the foregoing, it shows that jurisdiction is more important Estoppel to a court than any other legal Doctrine or Principle.
If a Court’s Jurisdiction is in contention while an Application for Injunction or any other prayer is pending, the safest thing a Court must do first is, to determine whether or not it has the Jurisdiction, because if it granted any type of prayer when it does not have Jurisdiction, it will come to nullity.
A Court will not do anything concerning Application for Injunction or anything else when it’s jurisdiction is raised, untill it has cleared the Jurisdictional question first, because it knows that granting Injunction under such situations is risky should it turn out it does not have Jurisdiction (the POWER) and Legally,you cannot give what you don’t have. The finality of this is in the yoruba adage,that “ti igi ba wo lu igi, to ‘ke la a ko gbe kuro”, Hence the answer here is NO.
When an objection as to jurisdiction is raised, that is the first thing that the Court has to determine. It cannot take any legitimate step without first resolving the question of jurisdiction.
In the case of FAAN v. MAEVIS LTD (2018) LPELR-51108(CA), the question was whether an objection to the jurisdiction of the court must be taken first and the court held thus:
See OKONKWO & ORS V OKONKWO & ORS (2010) LPELR-9357(SC) wherein the Court held thus; “Usually when a Court’s jurisdiction is challenged in a suit, it is far pertinent to settle that issue of jurisdiction one way or the other before proceeding to hearing of the case on the merits.
In short, the Court in that situation must first assume jurisdiction to consider whether it has jurisdiction or lacks such.
Jurisdiction is a radical and crucial question of competence, and once there is a defect in competence, it is fatal and the proceedings are a nullity, however well conducted and decided.” Per ADEKEYE, J.S.C.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 21 – 21 Paras A – E).
In my opinion, I believe the court can grant an injunction even though there’s an objection as to it’s jurisdiction. This is because, first, if you apply the principle of priority of applications, objection on grounds of jurisdiction can only end the life of the case meanwhile injunction seeks to preserve the res.
Another argument may be that, an interim injunction is that, it is made exparte, a motion on notice for preliminary objection on the grounds of jurisdiction can only be made where there’s a substantive suit before the court.
Lastly, supreme Court cases like KOTOYE v CBN, OBEYA MEMORIAL HOSPITAL v AGF prescribed the requirements necessary for the grant of an injunction. Objection on the grounds of jurisdiction is not an impediment to both the hearing and granting an injunction.
Court cannot grant injunction when an Objection is raised to it’s jurisdiction.
The court will first of all consider the issue of jurisdiction raised except if the court discovered that the res in issue will be destroyed if injunction is not granted on time, it is only then the court can grant interim injunction pending the determination of the issue of jurisdiction.
In Nigeria, the Constitution of the Federal Republic of Nigeria provides explicitly for the jurisdiction of all courts in the federation. No court can assume jurisdiction except that which has been constitutionally or statutorily conferred on it. It is solely a matter of law for jurisdiction to be conferred on a court.
The subject matter of jurisdiction is considered as a preliminary consideration, it goes to the competence of a court to adjudicate on a matter. It is the authority a court has to decide matters that are litigated before it (PER. S.D BAGE, J.S.C).
The claim of the claimant or complainant usually determines the jurisdiction of the court. Thus, jurisdiction simply tells us which court to approach when the need arises in a suit. A party can plead objection that the writ of summons and the statement of claim be struck out on the ground that the Court has no jurisdiction to hear and determine the suit.
In the case of MINISTER OF WORKS & HOUSING V SHITTU (2008) ALL FWLR, MADOKOLU V NKEMDILIM, the court sets out the conditions precedent for a court to exercise jurisdiction.
It held “A Court is generally competent to adjudicate over a matter only when all the conditions precedent for its having jurisdiction are fulfilled. A court will be competent when:
(i) It is properly constituted as regards number and qualifications of the member of the bench and no member is disqualified for one reason or another.
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. (iii) The case comes before the court initiated by the process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction”.
These conditions are symbiotic such that where any of it is absent, the court cannot assume jurisdiction. The issue of jurisdiction can be raised anytime in the proceeding and even on appeal.
It is encouraged that the issue of jurisdiction should be raised and decided at the early stage of the proceedings in order to save time and cost. Once the defendant raises an objection to the jurisdiction of the court, the court can make an order that the action be struck out. It will be filed in the appropriate court with the jurisdiction and the matter commences afresh (de novo).
The court can also suo motu (by itself) raise the issue of jurisdiction and allow parties to address it, which would prevent the court from stepping into the arena.
Jurisdiction of a court is a fundamental and threshold issue which goes to the power of the court to adjudicate on a matter. According to Black’s Law Dictionary 8th Edition, jurisdiction is “a court’s power to decide a case or issue a decree”.
It should be noted that the jurisdiction of a Court of law cannot be assumed or implied. It is generally donated by the Constitution or the enabling statute that established the court.
Jurisdiction of a court is a fundamental and threshold issue in a proceeding and as such, it can be challenged at any time or stage even for the first time at the Supreme Court. Jurisdiction of a court can come in various forms to wit: “.…where:- (a) the court is properly constituted as regards number and qualification of the members of the bench; (b) the subject matter of the action is within the jurisdiction of the court; and (c) the case before the court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with.” See the case of *Madukolu v Nkemdilim (1962) 2 SCNLR 341*
What then is the effect of any action taken by a Court ultra vires its jurisdiction? Once it is shown, by a party usually the Defendant, that a court of law or tribunal either before, during or after a proceeding, lacks the jurisdiction to entertain or adjudicate on a matter the whole proceeding no matter how brilliantly conducted will be null, void and of no legal effect whatsoever.
It therefore connotes that when a court lacks jurisdiction to entertain a matter, any step taken in respect of the matter goes to no issue as such step which includes but not limited to granting an injunction is null, void and of no effect.
The answer to this poser is “Yes”. This is premised on the fact that “Injunction” and an “Objection to the Jurisdiction of a court” are two different things. Although, the concept of “Injunction” and “Jurisdiction” is broader than one imagine, the discussion however would be restricted to some peculiar forms of injunction and jurisdiction as it relates to the present topic.
Furthermore, injunction relates to preliminary stage where there is an urgency aimed at keeping the res from being depleted pending the hearing and determination of the substantive suit, while the issue of raising an Objection to the jurisdiction of the court touches on the substantive suit, where all the facts are looked into by the court to ascertain whether the court lacks the jurisdiction to entertain a suit or not.
Courts have laid down the guiding principles for granting of an injunction.
In the case of UMEJURU & ORS v. IMORDI & ORS
(2009) LPELR-8744, the Court of Appeal at Pp 18 – 19 Paras E – B held as follows:
“One of the important considerations and guiding principles guiding grant of interim injunction is that once an applicant shows that he has a prima facie case on a claim of right or in other words, that prima facie, the case he has made out is one which opposing party would be called upon to answer, and that it is just and correct for the Court to intervene, and that unless the Court so intervenes at that stage, the other party’s action or conduct would irreparably alter the status quo or render ineffective any subsequent decision of the Court he is entitled to an interim injunction.
In distinguishing further between Injunction and jurisdiction the Black’s Law Dictionary, Ninth Edition at Page 855 defines Injunction as “A Court Order commanding or preventing an action”, while it defines Jurisdiction at Page 927 as “A Court’s power to decide a case or issue a decree”
Similarly, the Court of Appeal while making reference to the Black’s Law Dictionary in MBAJI v. AMOBI
(2011) LPELR-3988 held as follows:
“Now, it must be understood that an “injunction” is a Court Order commanding or preventing an action, and the party applying for one “must show that there is no plain, adequate and complete remedy at law and that an irreparable damage would be occasioned.
Suffice it then to say that in granting an injunction, what the court mostly consider is the peripheral of a case to keep and/or preserve the “res” (that is, the subject of litigation).
However, when an Objection to a Court’s jurisdiction is raised by a party, what the court looks at is the entirety of a case to determine if it has jurisdiction or not to adjudicate over a matter or not.
Procedurally, a party only files a motion on notice or motion ex parte as the case maybe with a supporting affidavit stating briefly facts that will persuade the court to grant an injunction and not necessarily all the facts already contained in the pleadings of the parties and a written address pursuant to the relevant provisions of the rules of court made to guide the conduct of proceedings within that jurisdiction as opposed to it that of an Objection to the jurisdiction of the court wherein the court looks at the entire facts pleaded in the Claimant’s Writ of Summons, Statement of Claim and all other accompanying processes in order to ascertain whether it lacks jurisdiction or not.
The Court of Appeal emphasized this in the case of
MUTUAL BENEFIT ASSURANCE PLC v. ACCESS BANK PLC
(2021) LPELR-52746
when it held as follows:
“I have, though the position of the law on this issue remains, in my view, fairly well settled, taken time to review the plethora of decided cases relied upon by the parties.
In a nutshell, a court can still grant injunction whether or not it has jurisdiction to adjudicate on a matter since the grant of an injunction by the court precedes the determination of jurisdiction.
According to the Black’s Law Dictionary, Eighth Edition, jurisdiction is the Court’s power to decide a case or issue a decree. Jurisdiction is so important that it goes into the root of the matter and it can be raised at any time, may be raised for the first time even at the Supreme Court.
Jurisdiction is a person’s area of operation as given by someone, law, persons or the constitution.
The word “Jurisdiction is really synonymous to the word power”.
Therefore, this may be defined as the power of the Court/ Judge to entertain an action, petition or proceedings and issue orders, although sometimes may be used interchangeably, jurisdiction and venue do not mean the same thing.
It is so fundamental that any decision reached without jurisdiction goes to no issue or nothing, hence, it is an exercise in futility. This is so because Jurisdiction is the “life wire” of any court on a particular matter.
Jurisdiction borders on three major areas viz: the venue – which talks about where the cause of action takes place. Jurisdiction can also be over the subject matter (res) and whether the court is properly constituted – that is the number of judges to preside over the case is correct; in Court of Appeal – three Justices of the court must seat on any matter, Supreme Court it’s five except on Constitutional matters that seven must seat to determine any issue bordering on the constitution.
In determining Jurisdiction, the court will most often place reliance on the statement of claim of the Plaintiff’s (the person who institutes the action) and not on the statement of defence.
Jurisdiction therefore cannot be a procedural issue and cannot be conferred by the agreement of parties and by their mere acquiescence, it is determined by Statutes, may also be ousted by statutes as well.
It is therefore, a display of wisdom to have the issue of jurisdiction determined before embarking on the substantive matter before the court, otherwise, it may end up becoming a waste of the previous time of the court if it lacks jurisdiction. Jurisdiction being a very important, foundational issue can be raised by the court suo moto when parties are not talking about it.
On the other hand, an injunction is a restraining order of the court preventing someone from doing or carrying out or less commonly to do one thing or the other. Any attempt to do otherwise is a contempt of the court and the person may suffer the consequences because the court will frown at this conterminous act.
Conditions for granting injunction:They are:
(1) existence of legal right; (2) substantial issue to be tried; (3) balance of convenience; (4) irreparable damage or injury; (5) conduct of the parties and (6) Undertaking as to damages.
Therefore, when the question of jurisdiction is raised, the court must determine that first before doing any other thing in relation to the matter before it, so injunction cannot be given when the question of jurisdiction is yet to be determined.
The first question that must be answered is what injunction means.
Meaning of Injunction: Injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrongs or injuries. It is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act. See ADENUGA V. ODUMERU (2001) 2NWLR (pt. 696)184
There are different types of injunctive reliefs that can be sought by a party and each injunctive relief has its own principles before it can be either granted or refused by the court but there are some factors that cut across boards in all the types of Injunction and such factors include but not limited to an irreparable injury that would be suffered by the Applicant if the injunctive relief is not granted.
Some of the types of Injunction includes Interlocutory Injunction, Interim Injunction, _Mareva_Injunction, Perpetual Injunction, Anton Piller Injunction.
The Court has a duty to either grant or refuse an application for injunction but where the jurisdiction of the Court is challenged, the Court must first determine if it has jurisdiction to adjudicate on the subject matter/case before him and it is after the determination of the Court’s jurisdiction that the Court can rule on the Application for injunction.
Challenge of Court’s jurisdiction can be raised at any stage and where it is raised, it is apposite and wiser to determine whether the Court has jurisdiction before adjudicating on the case because any proceedings conducted without jurisdiction are a nullity and liable to be struck out, no matter how well conducted.
Jurisdiction of the Court is extrinsic to adjudication of a case. See EDISION AUTOMATIVE V. NERFUND(2022) 4NWLR (pt. 1821) 419.
It is submitted that the Court can’t grant an injunction where the jurisdiction of the Court is challenged unless it has been determined by the Court that he has jurisdiction to adjudicate on the case.
