The Court of Appeal in Lagos has held that a preliminary objection challenging the jurisdiction of a trial court, including an allegation of abuse of court process, must be determined before a defendant is arraigned in a criminal case.
The appellate court also ruled that a defendant does not have to be physically present when such an objection is being argued by counsel.
The lead judgment was delivered on Friday, February 6, 2026, in Victor Ukutt, Esq. v Federal Republic of Nigeria & 3 Ors, Appeal No. CA/LAG/CR/936/2025, reported as (2026) LPELR-83342(CA).
Justice Frederick Oziakpono Oho, JCA, who delivered the judgment, held that postponing a jurisdictional objection until after arraignment was unconstitutional and amounted to a breach of the defendant’s right to fair hearing.
Justices Olasumbo Olanrewaju Goodluck and Abdul-Azeez Waziri, who sat on the panel, concurred with the judgment.
The court consequently allowed the appeal and set aside the ruling of the Federal High Court in Lagos.
The appellant and the second to fourth respondents were charged with conspiracy, conversion, obtaining money by false pretence, forgery, failure to conduct due diligence and retention of proceeds of criminal conduct.
The case arose from a Joint Venture Agreement executed on July 7, 2006, between the nominal complainant, James Onyemenam, and the third respondent, under which Onyemenam became a director and shareholder of Woobs Resources Limited.
In 2006, the company obtained a 24-year concession to design, finance, construct and operate a modern market, the Nigerian Army Shopping Complex at the Lagos-Ikeja Cantonment, after which the facility was to be handed over to the Nigerian Army.
Woobs Resources Limited was established as a special purpose vehicle to protect the interests of the parties, with Onyemenam signing the concession agreement as project manager and director.
A board resolution dated July 3, 2006, made Onyemenam and the third respondent co-signatories to the company’s accounts, with Onyemenam designated as signature A and the third respondent as signature B. Other resolutions passed the same day incorporated the Joint Venture Agreement into the company’s memorandum and articles and replaced the third respondent’s sister on the board with Onyemenam.
The prosecution alleged that on October 21, 2011, the appellant and the third respondent conspired to forge a board resolution which was subsequently used to alter the company’s account mandate at the second respondent bank and remove Onyemenam as a co-signatory.
Onyemenam notified the bank that he remained the majority shareholder and chief executive officer and instructed it not to alter the mandate. He later published a caveat emptor notice in a national newspaper on February 16, 2016.
Despite the warning, the bank changed the account mandate and removed him as a signatory. It was alleged that this paved the way for funds in the company’s accounts to be converted.
Onyemenam subsequently approached the Federal High Court in Lagos to enforce a final arbitral award. The court declined to set aside the award or grant a stay of execution, while an appeal against the decision was dismissed.
He later petitioned the Economic and Financial Crimes Commission and subsequently the Inspector-General of Police and Deputy Inspector-General of Police.
According to the record, the third respondent and members of his family left Nigeria after the EFCC commenced its investigation and are now based in the United States.
The Federal High Court ordered the appellant and the second to fourth respondents to appear on the next adjourned date for arraignment. It directed that after the charge was read, but before pleas were taken, the defendants could then move their objection to the charge.
The appellant challenged that decision at the Court of Appeal.
One of the issues before the Court of Appeal was whether a motion on notice filed by the prosecution was competent after the process was signed with the prefix “f” before counsel’s name.
The appellate court held that the position of the law was settled.
It relied on Sections 2(1) and 24 of the Legal Practitioners Act, which prohibit persons who are not licensed to practise law in Nigeria from signing court processes.
The court cited decisions including Okafor v Nweke and SLB Consortium Ltd v NNPC, holding that a process signed by an unauthorised or unidentified person is fundamentally defective and deprives the court of jurisdiction.
According to the court, the prefix “f” is universally understood to mean “for” or “on behalf of”, but the disputed process gave no indication of who had actually signed it on behalf of the named counsel, M. B. Abubakar.
Relying on the Supreme Court’s decision in SLB Consortium, the court held that where it cannot be established who signed a process, the defect is incurable.
It also held that the Nigerian Bar Association seal affixed to the process did not cure the defect because the identity of the person who signed it remained unknown.
The Court of Appeal then considered whether the allegation of abuse of court process constituted a jurisdictional issue.
The court described abuse of process as proceedings that are lacking in good faith and are frivolous, vexatious or oppressive, involving deliberate conduct aimed at misusing or perverting the course of justice.
It noted that the categories of abuse are not closed and may include multiple actions between the same parties concerning the same subject matter.
Relying on Dingyadi & Anor v INEC & Ors, Saleh & Ors v Mattawale & Ors and Usman v Baba, the court held that all issues of abuse of court process are jurisdictional.
It said that once a court is satisfied that proceedings before it amount to an abuse of process, it has both the power and duty to dismiss them.
However, the court stressed that the party alleging abuse bears the burden of establishing the allegation on the affidavit evidence and processes before the court.
Applying the principle to the facts of the case, the Court of Appeal found that the amended information had been filed despite valid and subsisting judgments and orders of the Federal High Court, the Court of Appeal and the Supreme Court.
The court also noted the existence of pending suits and appeals relating to ownership of shares in Woobs Resources Limited and funds held in its accounts.
Referring to orders made in an earlier Federal High Court case and affirmed on appeal, the court held that the orders remained effective and binding on the prosecution, which had been a party to the proceedings.
The court said the prosecution’s options were to await the determination of the pending suit or appeal against the order and seek to have it set aside.
It rejected the institution of a criminal amended information in defiance of the subsisting order simply because the order had been made in a civil case.
The court stressed that a court order remains binding regardless of whether it was made in civil or criminal proceedings.Nigeria Business Law
It held that instituting the criminal information in those circumstances amounted to an improper use of the judicial process capable of interfering with the administration of justice.
The court therefore found that the competence of the information was impaired by a factor preventing the trial court from exercising jurisdiction, applying the principle in Madukolu v Nkemdilim.
The appellate court also took note of proceedings before the Federal High Court in Abuja seeking to restrain the police and the Attorney-General of the Federation from investigating and prosecuting matters concerning the company’s finances, while the EFCC was conducting a related investigation.
The Court of Appeal rejected the argument that Sections 221 and 396(2) of the Administration of Criminal Justice Act, 2015, prevented the Federal High Court from considering the jurisdictional objection before arraignment.
The court held that the provisions did not prevent a trial court from determining whether it had jurisdiction to entertain a criminal information before arraignment.Consult Defense Attorneys
It stated that where an objection raises fundamental questions concerning the jurisdiction of the court, the court must first determine whether it has jurisdiction before proceeding with the case.
The court described the decision to defer the appellant’s jurisdictional objection until after arraignment as unconstitutional and a breach of his right to fair hearing.
In a concurring judgment, Justice Waziri similarly held that Sections 221 and 396(2) were concerned with objections relating to defects in a charge or information.
Where an objection challenges the jurisdiction of the court itself, he said, it must be determined at the earliest opportunity.
The court relied on Nanle v Federal Republic of Nigeria, where it was held that the specific reference to objections concerning defects in a charge excluded other forms of objection, including jurisdictional challenges.
It also relied on Shema v FRN, where a decision to defer an objection until judgment was set aside because the objection fell outside the scope of the statutory provisions, and Kanu v FRN, in which the court held that once jurisdiction is challenged, the issue must be resolved before further steps are taken.Consult Local Attorneys
The court warned that requiring the appellant to undergo arraignment and potentially an entire criminal trial before resolving the jurisdictional question could breach his right to fair hearing.
The appellate court also rejected the Federal High Court’s reliance on State v Amos.
According to the Court of Appeal, the lower court had quoted the decision out of context.
It explained that State v Amos was decided under the former Criminal Procedure Code applicable in Adamawa State, which permitted objections to be raised at arraignment.
The Court of Appeal said the position under the Administration of Criminal Justice Act, 2015, was different, particularly where the objection concerned jurisdiction.
It further held that even under the repealed Criminal Procedure Code, there was no specific provision prescribing when a defendant could file and argue an application challenging jurisdiction.
The court therefore distinguished State v Amos and State v Boniface, describing them as cases decided under the repealed procedural regime rather than under the 2015 Act.Nigerian Law Library
On the issue of whether the defendants were required to personally attend court for the hearing of the preliminary objection, the Court of Appeal held that they were not.
The court relied on Fawehinmi v Attorney General of Lagos State (No. 1), which established that an accused person does not have to be physically present when an objection challenging the jurisdiction of a trial court is being heard.
The court drew a distinction between preliminary proceedings before a plea is taken and criminal proceedings after arraignment.
It held that once a plea has been taken, a defendant must ordinarily be physically present throughout the proceedings unless the court excuses the defendant for a legally recognised reason.
Before plea, however, where the matter concerns a preliminary objection to the jurisdiction of the court, counsel may argue the objection without the defendant being physically present.
The court also relied on Moradayo v FRN.
The appellate court further restated that a court must decline jurisdiction where it becomes apparent from the proceedings that it is incompetent to hear the matter.
Citing Uzoho & Ors v National Council on Privatisation & Anor, the court said a court should recognise its own lack of jurisdiction even where the parties have not raised the issue.
It warned that proceeding without jurisdiction would leave an indelible defect on the proceedings.
The court said jurisdictional objections should be resolved as early as possible to prevent unnecessary expenditure of judicial time and resources and to avoid subjecting parties to the physical and mental demands of a trial that may ultimately be found to have been incompetent from the outset.
Justice Waziri, in his concurring judgment, said the Federal High Court had failed to properly apply the doctrine of stare decisis and should have declined jurisdiction.
He noted that lower courts had repeatedly been cautioned by the Supreme Court and Court of Appeal against assuming jurisdiction where none existed.
The Court of Appeal consequently allowed the appeal and set aside the ruling of the Federal High Court in Lagos.
The judgment clarifies the distinction between an objection challenging the contents or defects of a criminal charge and one challenging the jurisdiction of the court to hear the case.
Under Section 396(2) of the Administration of Criminal Justice Act, objections relating to defects in a charge are generally dealt with within the statutory framework requiring the objection to be raised after plea, with the ruling delivered at judgment.
The Court of Appeal’s decision, however, holds that the provision does not prevent an earlier challenge where the complaint goes to the court’s jurisdiction.
The court’s treatment of abuse of process as a jurisdictional question is also significant, particularly where related arbitration proceedings, civil suits, appeals and criminal investigations arise from the same commercial dispute.
The judgment further emphasises that parties bound by subsisting court orders must comply with them or challenge them through appropriate legal procedures rather than seek to circumvent them through fresh proceedings.Consult Defense Attorneys
The ruling also settles, at least at the Court of Appeal level, an important procedural question concerning the presence of defendants. A defendant challenging the jurisdiction of a criminal court before plea need not personally appear while counsel argues the preliminary objection.
At the same time, the decision does not remove the statutory restriction on objections concerning defects in a charge. The distinction between a genuine jurisdictional challenge and an objection merely presented as one is likely to remain an issue for determination by trial courts.
The court’s ruling on the defective prosecution motion also serves as a reminder that court processes must be properly signed by identifiable legal practitioners. The presence of a Nigerian Bar Association seal does not cure a fundamental defect where the identity of the person who signed the process cannot be established.
Dr. A. I. Layonu, SAN, appeared with Chief Nelson O. Imoh, F. O. Akpuogwu and U. K. Williams for the appellant.
M. B. Abubakar, Director of Public Prosecutions of the Federation, appeared with E. T. C. Emezina, Assistant Chief State Counsel, for the first respondent.
Ayodele Akintunde, SAN, appeared for the second respondent, while Femi Falana, SAN, appeared with Modupe Omo Ekpadi for the third and fourth respondents.