Oko v. State [2017] 17 NWLR (Pt. 1593) 24 at 65-66, paras. H-A, per Peter-Odili, JSC:

“Clearly, this partition or fragmentation of the jurisdictional question is one to which the appellant is estopped from embracing. It is all the more foreclosed as counsel had the time and opportunity of raising the issue of the lack of consent in the trial court and failed to do so. He lost his chance which he cannot call up as the fancy takes him.”

Notes:

The pronouncement of the Supreme Court above is significant in addressing the practice of some counsel who might have observed some objectionable points touching on jurisdiction but would rather elect to raise the points piecemeal. That is to say, as a matter of tactics, counsel may observe 3 jurisdictional questions but would file a preliminary objection or motion raising one or two grounds only; leaving the third as a ‘spare bullet’ to be used (either at the court of first instance or on appeal) should the earlier application fail.

The apex Court has moved against such practice holding that it is not proper to split jurisdictional questions piecemeal and in different courts. The reasoning of the Supreme Court is that ‘a party cannot be allowed to partition his course of action in bits and pieces’ as such runs contrary to the principle that there must be an end to litigation. The Court relied on the earlier case of Ejiofodomi v. Okonkwo (1982) 12 NSCC 422 where the Supreme Court observed that challenge to court’s jurisdiction could be based on diverse points; nevertheless, it is wrong for a party to argue a particular issue of jurisdiction up to appeal court and then jettison the issue, only to raise a new jurisdictional issue for the appellate court to consider.

At a glance, it would appear like the foregoing runs against the principle that an issue of jurisdiction can be raised at any time even for the first time on appeal and without leave. See Nasir v. Kano State Civil Service Commission [2010] 6 NWLR (Pt 1190) 253 at 276.

However, one is persuaded by the ‘mischief’ which the Supreme Court seeks to cure and that is to avoid needless delay and put an end to litigation. It is incumbent on counsel to ensure a prior thorough review of a case and to raise any issue of jurisdiction in good time. After all, it is trite that an issue of jurisdiction, though a threshold issue, should be raised at the earliest opportunity. See Nonye v. Anyichie [2005] 2 NWLR (Pt. 910) 623.

It is important to point out that the foregoing principle cannot be reasonably said to be restricted to criminal cases. It is a principle of practice and procedure meant to cover civil cases as well.

Indeed, in deserving cases, the courts are inclined to determine an issue of issue of jurisdiction raised for the first time even on appeal. Put simply, the apex Court did not consider the instant case (Oko v. State) as falling under one of those deserving cases. Why? In the case, a charge was before the Chief Magistrate, Yala, Cross River State against the Appellant and others. Subsequently, Information was preferred before the Cross River State High Court against them. The Appellant challenged the jurisdiction of the High Court on the ground that the charge was earlier on before the Chief Magistrate. The High Court Judge presiding considered the objection in the light of all that transpired and ruled that it had jurisdiction and proceeded with the trial. At the close of the prosecution’s case, the Defendant made a no case submission which was overruled by the learned trial Judge and the Court of Appeal. On a further appeal to the Supreme Court, the Appellant contended for the first time that the prior consent or direction of the High Court was not obtained before the Information was preferred and so, the trial Court lacked jurisdiction to try the case. The Supreme Court held that the Appellant cannot be allowed to challenge the jurisdiction of court in a fragmented style. The apex Court however had no difficulty in holding that the failure to obtain the said consent did not invalidate the trial. The no case submission was also overruled upon due consideration and appeal consequently dismissed.