LEGAL PRINCIPLE: JURISDICTION – Competence of Proceedings – Nullity – Cannot Be Cured by Consent or Waiver
PRINCIPLE STATEMENT
The competence of a court or of the proceedings in court is a fundamental issue which cannot be waived even if the reason for seeking the waiver is based on the argument that it is in the interest of substantial justice. Once the incompetence is established, the consent of the parties cannot validate what took place under it and preclude the inevitable result of nullity. Similarly, waiver cannot be successfully raised in connection with a person discharging a public duty which the law prescribes shall be done in a particular manner but he adopts another inconsistent with the relevant statutory provisions.
RATIO DECIDENDI (SOURCE)
Per Samson Odemwingie Uwaifo, JSC, in Menakaya v. Menakaya (2001) NLC-1691996(SC) at p. 45; Paras B–D.
"The competence of a court or of the proceedings in court is a fundamental issue which cannot be waived even if the reason for seeking the waiver is based on the argument that it is in the interest of substantial justice. Once the incompetence is established, the consent of the parties cannot validate what took place under it and preclude the inevitable result of nullity. Similarly, waiver cannot be successfully raised in connection with a person discharging a public duty which the law prescribes shall be done in a particular manner but he adopts another inconsistent with the relevant statutory provisions."
EXPLANATION / SCOPE
Competence of proceedings is fundamental and cannot be waived, even in the interest of substantial justice. Once incompetence is established, consent cannot validate the proceedings—the result is nullity. Waiver cannot cure a public officer’s failure to follow mandatory statutory procedures. The principle distinguishes between personal rights (waivable) and public duties (non-waivable). Parties cannot confer jurisdiction by consent where none exists. The nullity is inherent and incurable. The court must enforce statutory mandates regardless of party agreement. This protects the rule of law and ensures that public duties are performed as prescribed. Substantial justice cannot override fundamental competence.