All that a Respondent intending to rely upon a preliminary objection challenging the hearing of an appeal on the ground that it is incompetent need do is to file a notice of preliminary objection giving notice of the ground of objection to the Appellant and incorporating the arguments thereon in the Respondent’s brief to afford the Appellant the opportunity of responding to the arguments in his reply brief.
— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016
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In Ama v. Nwankwo [2007] 12 NWLR (Pt. 1049) 552 at 578, Rhodes-Vivour, JCA (as he then was) stated the position of the law relating to preliminary objection vis-à-vis the necessity of filing a supporting affidavit thusly: Preliminary objection strictly speaking deals with law. Consequently there is no need for supporting affidavit, but the grounds of the objection must be clearly stated. For example, objection that court process has not been complied with, suit/process is an abuse of process. When, as often happens a preliminary objection strays from law to facts of the case, the onus is on the party relying on the preliminary objection to justify the facts, and this can only be done by filing an affidavit. A preliminary objection may be supported by affidavit depending on what is being objected to. If the preliminary objection is on law, an affidavit is unnecessary, but if on facts an affidavit is mandatory (emphasis is this Court’s).
— B.B. Kanyip J. FG v. ASUU (2023) – NICN/ABJ/270/2022
It was after appellants’ counsel had argued his appeal that respondent’s counsel argued his preliminary objection. Where respondent gives notice of preliminary objection to an appeal and incorporates argument thereon in his brief of argument, he is required to seek leave of Court to argue the objection before appellant’s counsel adopts his brief of argument. Where he fails to do so and allows appellant’s counsel to adopt his brief of argument first, it will be taken as an abandonment of the preliminary objection.
– Ekanem JCA. C.O.P. v. Doolor (2020) – CA/MK/182/2017
A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held – An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.
— A.A. Augie, JSC. Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)
A preliminary objection to the competence of an appeal, is an objection, if upheld, renders further proceedings before the Court or tribunal unnecessary. Therefore, when it is raised, it must be resolved before venturing into the appeal.
— P.A. Galumje, JSC. Compact Manifold v Pazan Ltd. (2019) – SC.361/2017
‘Thus, a respondent who has any application to make in respect of a pending appeal, can without the leave of this court, raise the objection in a Respondents’ notice in his brief of argument, and proffer argument in support of the objection, in his brief of argument, without necessarily filing a Notice of Preliminary objection, formally. The essence of indicating in the respondents’ brief of argument, a notice of Preliminary objection is to enable the appellant to respond to it in a Reply brief of argument, upon the service of the respondents’ brief of argument on the appellant. The supreme court in Charles Chikwendu Odedo v. Independent National Electoral Commission (INEC) (2008) 7 SCNJ 1 at pg.25, provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading of “PRELIMINARY OBJECTION” followed by the grounds of the objection and supported with the argument thereon. Further see. Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua and Ors (2008) 5 SCNJ 1; Ralph Uwazurike v. Attorney General of the Federation (2007) 2 SCNJ 369 at P.380; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. I have perused the Respondents’ briefs of argument dated 14th March, 2011 and at page 3: paragraph 3.00, the NOTICE OF PRELIMINARY OBJECTION was conspicuously given therein; the grounds for the objection were also stated and thereafter the arguments on the preliminary objection were proffered by learned to the respondents. I am therefore satisfied that the notice of preliminary objection, by the respondents, is competent and I shall proceed to consider and determine it.’
— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010
A preliminary objection is the procedure adopted where a respondent objects to the hearing of an appeal. Its purpose is to terminate the appeal in limine.
– PER M.L. SHUAIBU, J.C.A. Cross & Star v. Government of Cross River State (2022)
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