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IF PRELIMINARY OBJECTION IS SUSTAINED, APPEAL COURT MAY PRONOUNCE ON THE OTHER ISSUES

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This finding on the objection by the Respondent would appear to have taken out the bottom or foundation of the appeal, the grounds of which are predicated on the motion which was statute barred and incompetent. However, bearing in mind that the decision of the Court is subject to a further appeal and the exhortation that the Court even in situations such in this appeal, should make pronouncement on the other issues raised in the appeal, I would consider the other issues.

– Garba, JCA. Dunlop v. Gaslink (2018)

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preliminary objection

HOW TO FILE A PRELIMINARY OBJECTION

In response to the submissions of the learned counsel to the Appellant, the learned counsel to the Respondent in his brief of argument, argued at length what he termed a preliminary objection. It is noted that it was not headed as such and there was no Notice of the preliminary objection filed with the grounds upon which it was brought. It was argued as a preliminary point/preliminary objection under the background facts. When the appeal was argued the learned counsel to the Respondent did not argue the supposed preliminary objection before the main appeal was argued. No wonder then that the learned counsel to the Appellant did not respond to it but, only responded to the substantive appeal. It is taken that the supposed preliminary objection was abandoned by the learned counsel to the Respondent. The Court of Appeal Rules, 2016 outlined the mode of raising a preliminary objection on appeal in Order 10 Rule (1) thus: 10:(1) “A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.” The requirements for reliance on a preliminary objection to the hearing of an appeal as provided for by Order 10 Rule (1) are three fold. These are: (1) Three clear days’ notice must be given by the Appellant before the hearing of the appeal. (2) The grounds of the objection must be clearly set out in the preliminary objection. (3) Twenty copies of the preliminary objection shall be filed with the Registrar within the same time. The Respondent did not comply with any of the requirements. No doubt, a Notice of objection can be given in the brief of argument, it does not dispense with the need for the Respondent to move the court at the hearing for the reliefs prayed for. Where a preliminary objection to an appeal is set out in the brief of argument, the Respondent cannot merely adopt his brief of argument in respect of the preliminary objection; which is what the learned counsel to the Respondent did in this case when the appeal was argued. Learned counsel is required to proffer oral argument in support of the grounds which are incorporated in the preliminary objection. The Notice of preliminary objection can be given in the Respondent’s brief, but, learned counsel must ask the court for leave to move the Notice of objection before the oral hearing of the appeal commences, otherwise it would be deemed to have been waived and therefore abandoned. The Respondent clearly failed to comply with the Rules of this court in raising and arguing a preliminary objection challenging the competence of this appeal.

— C.N. Uwa, JCA. FRN v Ozekhome (2021) – CA/L/174/19

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A PRELIMINARY OBJECTION RENDERS FURTHER PROCEEDINGS UNNECESSARY

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)

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INCLUDING NOTICE OF PRELIMINARY OBJECTION IN BRIEF

‘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

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WHEN TO USE A PRELIMINARY OBJECTION OR A MOTION ON NOTICE

In BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus: “This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.

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ESSENCE OF PRELIMINARY OBJECTION

This is more so as the whole essence of preliminary objection is to foreclose hearing the appeal. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

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IT IS A FUNDAMENTAL BREACH NOT TO DETERMINE A PRELIMINARY OBJECTION

per Rhodes-Vivour JSC in Isaac Obiuweubi v Central Bank (2011) 7 NWLR Part 1247 Page 465 at 494 Para D-F, and cited with approval in James v INEC Supra, “Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further steps taken in the proceedings a nullity”.

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