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Senate President, F.R.N. v. Nzeribe

THE SENATE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA

THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA

V

SENATOR FRANCIS ARTHUR NZERIBE

COURT OF APPEAL

( ABUJA DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA ( Read the Lead Judgment )

CA/A/49/M/2003

THURSDAY, 1ST APRIL, 2004

COURT - Discretion of court - How exercised

COURT - Exercise of discretion of - Need for to be determined by the facts of each case

COURT - Issue of jurisdiction - Decision to hear same separate from that of merit of the case - Whether within the discretion of the Judge

COURT - Jurisdiction - Duty of court when issue of is raised

JURISDICTION - Importance of issue of

JURISDICTION - Issue of - Duty of court when raised

JURISDICTION - Issue of - Importance of taking same along with argument on merit of the case

JURISDICTION - Issue of - What to consider in determining JURISDICTION - Issue of - When and who can raise

JURISDICTION - Issue of - Whether court can raise suo motu

JURISDICTION - Issue of jurisdiction - Decision to hear same separate from that of merit of the case or not - Whether within the discretion of the Judge

PRACTICE AND PROCEDURE - Discretion of court - How exercised

PRACTICE AND PROCEDURE - Exercise of discretion of - Need for to be determined by the facts of each case

PRACTICE AND PROCEDURE - Issue of jurisdiction -  Decision to hear same separate from that of merit of the case or not - Whether within the discretion of the Judge

PRACTICE AND PROCEDURE - Jurisdiction - Issue of - Importance of taking same along with argument on merit of the case WORDS AND PHRASES - ‘Judicial and legal discretion’ - Meaning of

Issue:

Whether the lower court has judiciously exercised the discretion which he was called upon to exercise as to whether the preliminary objection of defendants should be heard and determined independently of the plaintiff’s claim.

Facts:

Respondent as plaintiff filed an originating summons in the Abuja Judicial Division of the Federal High Court and claimed certain reliefs. There was also filed with the processes an affidavit of urgency. Defendant filed a conditional memorandum of appearance. Subsequently, the defendant filed a notice of objection praying the honourable court for an order striking out the suit for want of jurisdiction.

Subsequently, plaintiff filed an application praying the court for leave to amend the originating summons earlier filed, an order to file an amended originating summons and an order to deem the amended originating summons as duly filed and served. The court granted the application as prayed.

Plaintiff however requested the court to hear the summons along with the preliminary objection of the defendant. Defendant raised an objection to that request. The court went ahead to adjourn the case for hearing of both the originating summons and the preliminary objection.

Defendant/applicant was aggrieved by the ruling and appealed to the Court of Appeal.