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PURPOSE OF A PRELIMINARY OBJECTION

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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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preliminary objection

PRELIMINARY OBJECTION IS TO BE TAKEN FIRST BEFORE ANY STEP IN THE PROCEEDING

Generally, the rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of the objection is to bring the appeal to an end after being discovered to be incompetent and or fundamentally deceptive. In either case, it will be unnecessary to continue with the appeal once an objection is raised, without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal. See; General Electric Company Vs. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96; Lamidi Rabiu Vs. Tola Adebajo (2012) 6 SCNM 201; Udenwa & 1 Ors Vs Uzodinma & 1 Ors (2012) 12 (Pt.2) 472 at 483.

— O. Ariwoola, JSC. Galadima v. State (2017) – SC.70/2013

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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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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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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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MOTION ON NOTICE, NOT PRELIMINARY OBJECTION, IS THE PROPER PROCESS TO CHALLENGE SOME GROUNDS OF APPEAL

The emphasis is that a preliminary objection can only be issued against the hearing of the appeal, and not against a selection of grounds of appeal, which even if it is upheld cannot terminate the appeal in limine. In KLM Royal Dutch Airlines v. Aloma (2017) LPELR- 42588 (SC), this Court, per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC at pages 6-7, paras D-B, held:- The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Courts jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404 at 423 C-F, Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314; N.E.P.A. v. Ango (2001) 15 NWLR (Pt. 734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183. See also the case of Adejumo v. Olawaiye (2014) 12 NWLR(Pt.1421) 252 at 279 where this Court, per Rhodes-Vivour said:- ‘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… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice.’ From the authorities I have highlighted above, it is clear that the preliminary objection in the instant case is inappropriate and same is liable to be struck out. Accordingly, same is hereby struck out.

— P.A. Galumje, JSC. Compact Manifold v Pazan Ltd. (2019) – SC.361/2017

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