By Oseini Bamigbaiye
The issue of jurisdiction is a very important factor in any justice system. It is the basis upon which the court or tribunal derives its power to hear and determine any matter at all in the first place. If the court does not have jurisdiction, whatever decision, no matter how beautiful, fair, well-conducted the trial was, and how good the decision is, it is a complete nullity. This is hinged on the principle that you cannot place something on nothing and expect it to stand.
In the Nigerian justice system, jurisdiction is the legal authority of a court to hear and determine a case. It is considered the “lifeblood” of an action; if a court lacks jurisdiction, any proceedings it conducts are a nullity. The landmark principle established in Madukolu v. Nkemdilim remains the standard for determining a court’s competence. A court is only considered to have jurisdiction if:
It is properly constituted in terms of the number and qualifications of its members.
The subject matter of the case falls within its constitutional or statutory authority.
The matter is properly brought before the court.
The Supreme Court in the 2022 case of Manomi v. Dakat (2022) 15 NWLR Pt. 1853, explained clearly the position of the principles guiding issues of jurisdiction and how and when it can be challenged.
Justice Nweze JSC, on the fundamental nature of issues of jurisdiction, held that:
“The issue of jurisdiction is so radical that it forms the foundation of adjudication; it also lacks the necessary competence to try the case at all. A defect in competence is fatal, for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be. Due to its fundamental nature, it can never be too late in law to raise the issue of jurisdiction. Indeed, leave of the appellant court is unnecessary since the court can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so.” (Pp. 261 -262)
His lordship on the need to determine the issue of jurisdiction before determination of substantive matter at paragraphs A-B of page 262 held that further that:
“The court must first of all be competent, that is has jurisdiction before it can proceed on any adjudication, as it is a fruitless venture to decide the merit of a case without jurisdiction. If a court or tribunal is not competent to entertain a matter, claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the substantive matter. Therefore, it is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of substantive matter.”
From the position of the learned honourable justice of the apex court, the following principles on jurisdiction in our justice system stand out:
The issue of jurisdiction is radical and fundamental and forms the foundation for adjudication.
If the court or tribunal lacks jurisdiction, it also lacks the necessary competence to try the case at all.
A defect in competence is fatal.
Any proceedings conducted without the necessary competence are null and void ab initio, however well conducted and well decided they may otherwise be.
Due to its fundamental nature, it can never be too late in law to raise the issue of jurisdiction.
Leave of the appellant court is not necessary to raise the issue of jurisdiction.
The court can itself raise the issue of jurisdiction suo motu as soon as sufficient facts or materials are available for it to do so.
The court must first of all be competent, that is, have jurisdiction, before it can proceed on any adjudication.
It is a fruitless venture to decide the merit of a case without jurisdiction.
If a court or tribunal is not competent to entertain a matter, claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the substantive matter.
It is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of a substantive matter.
The apex court also went further to state when a court is competent to exercise jurisdiction on a matter, and that includes:
“When it is properly constituted as regards the number and qualifications of the members of the bench, and no member is disqualified for one reason or another.
When the subject matter of the case is within the jurisdiction of the court, and there is no feature in the case which prevents the Court from exercising its jurisdiction
When the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The jurisdiction of any court is granted aliunde from without and not from within. Courts are creatures of statutes, and it is the statute or law creating the court that determines and defines its jurisdiction.” (Quoting the words of Honourable Justice Nweze JSC).
The jurisdictions of the courts in Nigeria, especially courts of records, are clearly defined in the Constitution of the Federal Republic of Nigeria as amended, especially as regards courts of records.
A court of law can only have and properly exercise its jurisdiction to hear and to determine a case before it where it is satisfied that:
The proper parties are before the court
The court is properly constituted
The subject matter of the case falls within the subject matter jurisdiction of the court
The matter is within the appropriate venue
The originating proceedings and processes are properly commenced before the court, both in form and procedure
Any condition precedent for the institution of the matter before the court is duly complied with
The court can suo motu address the issue of jurisdiction at any time and confirm or deny jurisdiction or demand that the parties address the court on jurisdiction. A claimant, petitioner, complainant, plaintiff, prosecutor, whatever case it may be, may at any time withdraw or discontinue the matter before the court if it finds that the court has no jurisdiction to adjudicate on the matter as it is or as it is constituted. Also, a defendant or respondent may at any time challenge the jurisdiction of the court to hear the matter at any time, even for the first time on appeal and even at the apex court, even on issues as little as failure to sign an originating process.
The Supreme Court, as recently as 2022, held in Aya v. Nkanu [1] (2022)11 NWLR (Pt. 1840) page 157 at 184 paras G-A per Justice Abba Aji JSC that:
A defect in the competence of a court process is fatal, and the proceeding arising therefrom is a nullity, no matter how well conducted. It follows, therefore, that the present case, initiated and commenced by an unsigned writ of summons, was not initiated by due process of law and upon fulfilment of all conditions precedent for the exercise of jurisdiction. The issue being one of jurisdiction could be raised at any time, even in the Supreme Court after judgment had been delivered by the Court of first instance.” In this case, the respondents instituted against the appellant at the trial court. The respondent’s writ of summons was, however, not signed at all by either the legal practitioner or any of the parties in accordance with the provisions of the law, though signed by the registrar. The trial court granted the relief of the respondents against the appellant. On appeal by the appellant to the Court of Appeal, the judgment of the trial court was upheld, and the appeal of the appellant was dismissed. The appellant was aggrieved and appealed to the Supreme Court.
In resolving the appeal, the Supreme Court considered the provisions of the High Courts of Cross River State Civil Procedure Rules 2008 and held that the filling was incompetent and dead on arrival and that the trial Court and the Court of Appeal proceeded on that invalid and incompetent writ of summons to adjudicate on the suit. The concomitant effect was that the instant appeal must be struck out for incompetence, and it was accordingly struck out. The whole proceedings from the onset were a nullity. Time, money and resources wasted.
The suit leading to the appeal was filed on October 31, 2012. Litigation in the matter lasted for over nine years from the date of commencement at the trial court through the Court of Appeal to the Supreme Court. This is one of the shortest time lapses of cases of this nature, probably because of the reforms in the justice system over the years and concerted efforts made to decongest the dockets of the Court of Appeal and the Supreme Court to ensure speedy trial of cases. Ordinarily, cases can take up to 20 years litigating from the trial court through the Appeal Court to the trial court.
This case is a clear demonstration of time, money and resources wasted and all these losses suffered by the plaintiff for the shortcomings and failure of both the registrar of the trial court, the judge of the trial court and the respondents and their counsels. If the registrar of the trial court were meticulous and vigilant enough in the performance of his duties, he would have noticed the incompetence in the writs and would have refused to register it until it was corrected, thereby saving the wasted nine years of litigation. The court has the power to suo motu raise the issue of the non-signing of the writ as it is connected to the writ not being properly before the court and hence a matter of jurisdiction, in which case it can ask the litigants to address it or decide on it suo motu, thereby safe a wasted nine years of litigation. The respondents and their counsel either did not notice the error or deliberately decided to weaponise it against the claimant and pull it out as an ace at the Supreme Court.
Like in all similar cases, it is the claimant, petitioner or complainant that suffers the most when the issue of jurisdiction is not raised timeously. It is the claimant who suffers the bulk of the wasted time, money and resources and not the court, nor the defendant, the petitioner or the complainant, who, even after the wasted cost and time, still end up with no result at all. The question is, is this justice? Can these be called substantive justice, which should be the ultimate objective of the justice system? The answer is definitely no. Can these also be described as justice seen to have been done to the claimant? The answer definitely is no. It’s not even justice for the court either, because valuable time, resources and energy of the Courts and judges have been expended and wasted.
It is my humble submission and opinion that the long-standing principle under our jurisprudence is that the issue of jurisdiction can be raised at any time, and even at the Supreme Court for the first time, is a little bit too harsh, does not truly serve the cause of justice and should be reviewed and restricted only to matters that can occasion miscarriage of justice.
I think it is largely unfair and unjust to a litigant who run to court for redress to litigate a matter from the trial court through the Court of Appeal to the Supreme Court, for a long number of years, expending time, money, resources, emotions and faith, and have all those wasted because the judge who has not just the opportunity to see and identify the issue of jurisdiction but to also have the power to suo motu raise it and decide on it failed or omitted to do so and the defendant missed or deliberately failed to raise it, especially on mundane issues like failure to sign an originating processes.
This explained the dissenting opinion of AGIM JSC in Aya v. Nkanu at page 196-197 paras H-E, where his lordship held that:
The suit leading to this appeal was filed on 31-10-2012. Litigation in the case has lasted for over nine years from the date, from the trial court through the Court of Appeal to this court. The judgment of the trial court was affirmed by the Court of Appeal. If the appellant has raised the issue of non –compliance with Order 8 Rule 2(3) of the Cross River State (Civil Procedure) Rules within the time limited by Order II Rule 2(2), it would have been determined in limine before the appellant filed its statement of defence or at the trial. Without appealing against the holding of the court that the objection is belatedly made, raising it in the court is an abuse of the court process. If the objection is upheld, it would frustrate the respondent`s nine-year quest for justice in the courts and make a mockery of the courts. It would disrepute the court to, after nine years of litigating in three courts, to tell the claimant that an originating process they filed nine years ago is incompetent for non-compliance with the rules of courts and for that reason all the proceedings and the judgment of the two courts in their favour are nullified. It is obvious that at this stage, the respondents who would have exhausted much of their resources would have become litigation weary and too exhausted to commence another case. Raising such an issue at this stage smacks of bad faith. To uphold such an objection would elevate technicality over the pursuit of the justice of the case. The appellant should not be allowed to benefit from his failure to comply with Order II Rule 2(2) in making the objections to the Writ for non –compliance with Order 8 Rule 2(2) of the same rules.”
Sadly, the majority decision is the law and the opinion of Justice Agim JSC, as laudable as it is still remains an opinion and does not represent the laws as they are today. Jurisprudence in jurisdictions like the United Kingdom and the United States of America reflects a drift from the position of our laws on the issue of challenges to jurisdiction to reflect the position of Justice Agim JSC.
The Justice Agim tacitly suggested an ideal solution when he went further at pages 195 -196, paras F-D and stated that:
“The issue of non-signing of the originating summons by the registrar of the trial court or an officer of the court duly authorised to sign the same is a mere lapse on the side of the registrar of the trial court. It is non-compliance with the court rules of procedure, which regulate the exercise of jurisdiction conferred on a court by a statute. It has nothing to do with the jurisdiction of that court. In cases where the filed originating process was not signed by the officer authorised by the rules to sign and issue it, the originating process remains valid and competent. Such failure to sign the originating process is a mere procedural irregularity. A procedural irregularity should not vitiate a suit once it can be shown that no party suffered miscarriage of justice.”
This position is similar and follows in the line of the position of the law in the United Kingdom and the United States of America on the issue, where the point at which the application to challenge the jurisdiction of the court is restricted only to non-subject matter jurisdiction and not procedural and other forms of jurisdictions whose effects are not likely to occasion miscarriage of justice.
In the United Kingdom, jurisdiction is primarily territorial, meaning courts generally only exercise authority over acts committed within their respective legal systems (England and Wales, Scotland, or Northern Ireland). However, this is supplemented by common law and specific statutes that allow for extra-territorial reach. Jurisdiction also includes subject matter jurisdiction, common law baselines for jurisdiction and specific acts of parliament that create jurisdiction, such as the International Criminal Court Act 2001 for genocide.
In the UK justice system, challenging jurisdiction is a formal procedural step where a party disputes the court’s legal authority to hear a case. For 2025, these challenges are governed primarily by Civil Procedure Rule Part 11 and recent legislative updates like the Arbitration Act 2025. The grounds for Challenging Jurisdiction fall into two categories:
Lack of substantive jurisdiction: The argument that the court has no legal power over the defendant or the subject matter (e.g., the defendant has no “minimum contacts” or residency in the UK).
Forum non-convenient: The court has jurisdiction, but another country’s court is “clearly and distinctly” more appropriate for the trial.
Procedural irregularity: Challenges based on defective service of the claim form or the expiration of time limits for service.
Exclusive jurisdiction clauses: The parties previously agreed in a contract that a different country’s courts would handle disputes.
Under the UK Civil Procedure (CPR Part 11), a defendant wishing to challenge jurisdiction must follow a strict timeline to avoid “submitting” to the court’s authority by default:
Acknowledgement of Service: The defendant must file an Acknowledgement of Service form and specifically tick the box indicating their intention to contest jurisdiction.
14-day deadline: Within 14 days of filing that acknowledgement, the defendant must make a formal application to the court for a declaration that it lacks jurisdiction.
The application must be supported by written evidence, usually a witness statement, outlining why the UK is not the proper forum and crucially, the defendant should not file a defence on the merits of the case before this challenge is resolved, as doing so may be treated as accepting the court’s jurisdiction.
Arbitration Act 2025 updates: The Arbitration Act 2025, which came into force in August 2025, changed how jurisdictional challenges work for arbitral awards:
Review, not rehearing: If an arbitral tribunal has already ruled on its own jurisdiction and a party participated in that process, any subsequent court challenge under Section 67 is now a “review” of the tribunal’s decision rather than a full new hearing (rehearing).
Exceptional evidence: New evidence or arguments can only be introduced in “exceptional situations” to prevent wasteful repetition of the arbitration proceedings.
In criminal and extradition contexts, a “forum bar” can be raised. This allows a defendant to argue that they should be prosecuted in the UK rather than extradited, provided a “substantial measure” of the alleged criminal activity occurred in the UK.
As can be seen above, challenging jurisdiction under the UK justice system is not an open ticket as we have in Nigeria. For the purpose of challenging jurisdiction, jurisdictions are categorised into territorial jurisdiction, subject matter jurisdiction, common law baseline jurisdiction and jurisdictions created by specific Acts. The mode of challenging these jurisdictions is specifically provided, in ways which are not open-ended and mostly within a specific time limit; otherwise, they are taken to have been waived.
Under the Civil Procedure Rule Part 11, the defendant must file an Acknowledgement of Service form and specifically tick the box indicating their intention to contest jurisdiction, and this must be done within 14 days, which is a formal application to the court for a declaration that it lacks jurisdiction, supported by a written witness statement as evidence. The defendant must not file a defence before bringing the application; otherwise, it will be taken to have been waived.
The UK Arbitration Act 2025 has an in-built mechanical provision on challenging jurisdiction that restricts the timeline for doing so and prevents repetition of Arbitral proceedings, in the sense that a review of a decision on jurisdiction is what is allowed as against a rehearing. In criminal matters, the ‘Forum Bar’ is a device used to ensure that issues of jurisdiction are discussed and decided once and for all at the beginning of the matter and not left hanging to be raised at any point during the life of the matter.
In the United States justice system, jurisdiction is the legal power of a court to hear a case and render a binding judgment. To exercise this power, a court must satisfy two primary constitutional requirements: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction refers to a court’s authority to hear the specific type of legal issue in dispute.
Federal courts have limited jurisdiction in the sense that they can only hear cases specifically authorised by the U.S. Constitution or federal statutes. These generally fall into two categories, federal question which are cases involving the U.S. Constitution, federal laws, or treaties, and diversity of citizenship, which are civil disputes between citizens of different states where the amount in controversy exceeds $75,000.
State courts have general jurisdiction. State courts handle the vast majority of cases (over 95 per cent), including family law, contracts, and most criminal matters (e.g., murder, theft). They are presumed to have power over any claim unless federal law grants exclusive jurisdiction to federal courts (e.g., bankruptcy, patents).
Personal Jurisdiction (The Power Over the Parties), also known as personam jurisdiction. This is the court’s authority over the specific individuals or entities being sued. Personal jurisdiction is typically established if the defendant is a resident of the state, was served with a summons while physically present in the state, or has voluntarily consented to the court’s authority. Under the 14th Amendment, a court cannot bind a defendant unless they have “minimum contacts” with the forum state, ensuring the lawsuit does not offend “traditional notions of fair play and substantial justice”.
Under the dual Sovereignty policy, because the U.S. is a federalist system, both the federal government and state governments are considered independent “sovereigns”. A person can be prosecuted by both a state and the federal government for the same act if it violates both sets of laws, without violating the double jeopardy clause. Often, both state and federal courts have the authority to hear the same case. In these instances, the plaintiff may choose where to file, though the defendant may sometimes “remove” a state case to federal court. While parties can waive (give up) an objection to personal jurisdiction, they cannot waive subject matter jurisdiction. If a court lacks the authority to hear the type of case, it must dismiss it immediately, even if neither party objects. In other words, in the US, the court not only has the power to suo motu decide on the issue of jurisdiction, but it is obligated to; it is a must.
In the U.S. justice system, challenging jurisdiction is a critical procedural step handled primarily through Rule 12 of the Federal Rules of Civil Procedure (and equivalent state rules). These challenges focus on the court’s authority over either the legal topic or the parties involved.
The major provisions of the Rules as regards challenging jurisdiction are:
Core Jurisdictional Defences (Rule 12(b)):
A defendant can move to dismiss a case at the outset based on several jurisdictional grounds:
Lack of subject matter jurisdiction (12(b)(1)): Arguing the court does not have the authority to hear this type of case (e.g., a state law claim filed in federal court without a federal question or diversity of citizenship).
Lack of personal jurisdiction (12(b)(2): Asserting the court has no power over the defendant specifically, often because the defendant lacks “minimum contacts” with the state where the court sits.
Improper venue (12(b) (3): Arguing that while the court might have power, it is the wrong geographical location for the trial.
Insufficiency of process or service (12(b)(4)-(5): Challenging the technical form of the summons or the method by which it was delivered.
The principle of waiver (Rule 12(h): One of the most rigid aspects of the U.S. system is the requirement to raise certain defences immediately or lose them forever:
Waivable defences: Objections to personal jurisdiction, venue, and service of process must be raised in the very first filing (either a pre-answer motion or the formal answer). If a defendant engages in the merits of the case (like filing a counterclaim) before objecting, these defences are generally waived.
Non-waivable defence: A challenge to subject matter jurisdiction can be raised at any time—even after a trial has ended or during an appeal. If a court discovers it lacks subject matter jurisdiction, it must dismiss the case sua sponte (on its own).
For cases in 2025, several practical standards apply:
21-day deadline: In federal court, a defendant typically has 21 days after service to either file an answer or a Rule 12 motion to dismiss.
Special vs. general appearances: Modern federal rules have largely abolished the old distinction between “special” and “general” appearances. Simply appearing in court no longer automatically waives jurisdiction, provided the objection is included in the first responsive pleading.
Factual vs. facial challenges: Defendants can make a “facial” challenge (arguing the complaint’s allegations don’t support jurisdiction) or a “factual” challenge (introducing outside evidence to prove the court lacks authority).
In summary, under the US justice system, like the UK system, challenges to jurisdiction are not an open-ended ticket that can be used at will, and any time, even for the first time at the apex court. The courts not only have the power to suo motu raise and decide issues of jurisdiction, but they are under an obligation to do so. For the purpose of challenging jurisdiction, defences are classified into waivable and non-waivable defences. The challenges to personal, venue and service of processes jurisdiction are waivable; they must be raised at the very first filing. Otherwise, if the defendant engages in any merit of the case without objecting to the challenge to jurisdiction is deemed waived.
It is only in cases of challenges to subject matter jurisdiction that the challenge is not waivable and can be raised at any time, even after the decision has been given and even at appeal. But unlike in the case of Nigeria, there are still checks on the ticket. For example. In federal court, a defendant typically has 21 days after service to either file an answer or a Rule 12 motion to dismiss. Also, under the modern US Federal law, unless an objection is raised in the first responsive pleading, appearance in court will operate as a waiver of the challenge to jurisdiction. And unlike under the Nigerian justice system, challenges to jurisdiction can be made orally or factually, introducing outside evidence.
It seems obvious and clear that the world has moved away from the strict traditional position where the issue or defence of the court lacking in jurisdiction is been allowed to linger on and hanging from the trial court and allowed to be raised even for the first at the Supreme Court with its attendance miscarriage of justice is no more fashionable, and it is high time we amend our rules and laws to reflect the global trend in the matter.
It is my humble submission and suggestion that:
The rules of court, especially courts of first instances, should provide that matters of the jurisdiction of the court must be settled by all parties before the court, and the court must issue a certificate of clearance on it if it is settled and resolved that the court has jurisdiction, and that will and should put to rest the issue of jurisdiction in the matter. This should be a baseline procedure.
Just like under the US justice system, personal, venue, originating process and service of process-based jurisdiction should be waivable and treated as minor procedural irregularities.
The National Judicial Council and the Rules of Courts, as well as the laws of courts, should not only give judges the powers to suo motu raise the issue of jurisdiction but must also make it obligatory, before they can take any step in the matter.
Bamigbaiye, Esq., the principal partner at Corporate Legal Consulting, writes via bamigbaiye@yahoo.com
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