Zakirai v. Muhammad  17 NWLR (Pt. 1594) 181 at 230-231, paras. G-D, per Augie, JSC:
“His [The Appellant’s] objection was a complaint against the competence of the trial court to entertain the suit because the originating summons was not endorsed or marked as required by the said Act and Rules, which touches on the procedural rules that got parties to the court, and nothing whatsoever on the facts that led to the cause of action or substance of the suit filed by the first respondent. Any defect amounted to a mere irregularity that can be waived by the parties… In this case, the Appellant entered a conditional appearance and also filed a counter-affidavit [to the Originating Summons], which means he waived the irregularity that he complained of, and had submitted to the jurisdiction of the court.”
The Court reasoned that while substantive jurisdiction of the court cannot be waived, a party can waive an issue relating to procedural jurisdiction of the court. In effect, the Court was of the view that the issue relating to the endorsement and marking of an originating process for service outside jurisdiction as provided for by the Sheriffs and Civil Process Act is an issue touching on the procedural jurisdiction of the court and thus can be waived.
The above position appears to run contrary to the Supreme Court position in the case of Owners of MV “Arabella” v. N.A.I.C.  11 NWLR (Pt. 1097) 182 where the Court held that such irregularity is not a mere one that can be waived and that it is immaterial that the defendant had taken steps. It was held there that failure to comply with the Act is fatal as it robs the court of jurisdiction to determine the suit.
Continue reading Failure to comply with section 97 of the Sheriffs and Civil Process Act is a mere irregularity that can be waived.
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Oko v. State  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.”
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.
Continue reading It is improper to raise issues of jurisdiction in piecemeal fashion.
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U.B.A. Plc v. BTL Ind. Ltd.  19 NWLR (Pt. 1013) 61 at 104, paras. B-C, per Onu, JSC:
“As the claim has nothing to do with monetary or fiscal policy of the Federal Government of Nigeria in the pleadings and evidence before the court, the mere fact that the unit of account is foreign currency for which the respondent paid the Naira equivalent does not make it a foreign exchange matter.”
The facts of the above case would enable us digest the above quoted statement of law by the Supreme Court. The Respondent, a Nigerian company, was involved in the business of importation and distribution of building materials, industrial chemicals, and raw materials. The Respondent imports items on credit from its overseas suppliers and the items were usually sent with bills of exchange, or bills for collection or by letter of credit denoted in various foreign currencies. The Respondent maintained a current account with the Appellant. The role of the Appellant in relation to the Respondent’s transactions with its overseas suppliers was that, based on agreement and for the settlement of these bills, the Appellant appropriated the relevant sums by debiting the current account of the Respondent (with the Naira equivalent) and was expected to apply to the Central Bank of Nigeria (CBN) for approval and foreign exchange allocation for onward remittance of the foreign currencies to the Respondent’s overseas suppliers, being payment for the goods supplied. It however turned out that the Respondent cleared the goods supplied but the Appellant was unable to effect payment on behalf of the Respondent to its foreign suppliers/creditors. The reason was that although the Appellant duly transferred the money (Naira equivalent) it drew from the Respondent’s account to CBN to procure foreign exchange, the application was unsuccessful. Consequently, CBN returned the money to the Appellant. However, the Appellant failed to disclose this fact and also failed to return the money to the Respondent but kept making empty and deceitful assurances to the Respondent that the money would be transmitted. The Respondent, upon discovering through a circular that CBN had returned the money to the Appellant, sued the Appellant principally for the refund of the money it paid to the Appellant for remittance to its overseas suppliers. The trial Court (Lagos High Court) delivered judgment in favour of the Respondent and same was affirmed by the Court of Appeal.
The Appellant appealed to the Supreme Court. Continue reading The mere fact that a contract is in foreign currency does not make a dispute arising a foreign exchange matter.
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