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INCLUDING NOTICE OF PRELIMINARY OBJECTION IN BRIEF

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‘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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preliminary objection

IF PRELIMINARY OBJECTION IS UPHELD FURTHER PROCEEDINGS IS UNNECESSARY

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

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PRELIMINARY OBJECTION TAKEN FIRST

By its nature and necessary implications, the preliminary objection has to be taken first.

– Denton West JCA. Salaja v. Salaja (2013)

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WHERE AFFIDAVIT MAY OR MAY NOT BE NECESSARY TO ACCOMPANY A PRELIMINARY OBJECTION

Chief Hilary Ezugwu & Anor. v. IGP & 6 ors unreported Suit No. FCT/HC/CV/1168/2010, the ruling of which was delivered on 31 March 2010 per Affen J (now JCA) presents a similar scenario as the instant case. In Chief Hilary Ezugwu & Anor. v. IGP & 6 Ors., a preliminary objection was raised by the defendants on grounds of non-disclosure of reasonable cause of action, and abuse of court process. Although no affidavit in support was filed, a photocopy of the writ of summons, statement of claim and allied court processes of another case, suit No. FCT/ HC/CV/1959/2009, upon which the defendants relied as the basis for alleging abuse of court process, were annexed to the preliminary objection. On the propriety of annexing court processes (or indeed any other document) to a bare notice of preliminary objection, Affen J (now JCA) held thus: “… The law, as I have always understood it, is that a party raising a preliminary point of objection who intends to rely on facts ought to file a supporting affidavit deposing copiously to those facts. It is only where the objection is predicated on grounds of law and reliance is placed on documents already before the court that no need arises for the objector to file a supporting affidavit. Like pleadings, the object of a notice of preliminary objection is to give notice to the opposing side of the case to be made which enables each party to prepare for arguments upon the issues subject matter of the objection and this saves the opposing party from being taken by surprise. See CHIEF WILSON OKOI & ORS v CHIEF IBIANG & ORS [2002] 20 WRN 146 at 155.” It seems to me that there is no hard and fast rule that a preliminary objection need be supported by an affidavit so long as enough material is placed before the trial court on which it can judicially and judiciously pronounce on the preliminary objection. Where the alleged offending writ or petition ex facie contains the relevant information against which an objection is being raised, the necessity to rely on affidavit evidence does not arise.

— B.B. Kanyip J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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WHAT IS A PRELIMINARY OBJECTION?

A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort.

– Tukur JCA. Odulate v. FBN (2019)

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WHERE PRELIMINARY OBJECTION IS ARGUED IN THE BRIEF OF ARGUMENT

I shall now consider the Preliminary Objection. Order 2 Rule 9 of the Supreme Court Rules provides for the filing of Preliminary Objections. It enjoins a respondent who intends to rely on a Preliminary Objection to give the appellant three clear days notice before the hearing setting out in clear terms the grounds of objection. The purpose is to give the appellant enough time to address the respondents objection. It is also accepted practice for the respondent to argue his Preliminary Objection in his brief in which case the appellant would have to respond in a reply brief. In this appeal the respondents argued their Preliminary Objection in their brief. The procedure adopted by the respondents obviates the need to file a separate notice of preliminary objection.The appellants responded by filing an amended reply brief. The Preliminary Objection and the appellants response are thus properly before this court.

— O. Rhodes-Vivour, JSC. Wassah & Ors. v. Kara & Ors. (2014) – SC.309/2001

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PRELIMINARY OBJECTION IN RESPONDENT’S BRIEF

These days, preliminary objections are argued in the respondent’s brief thereby obviating the need to file a separate Notice of Preliminary Objection, and to save time. Absence of the required Notice makes the Preliminary objection incompetent. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

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