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WHEN CHALLENGING ALL GROUNDS OF APPEAL, USE PRELIMINARY OBJECTION

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HEYDEN PETROLEUM LIMITED v. TOP LEADER SHIPPING INC (2018) LPELR-46680 (CA) stated: “A preliminary objection that an appeal should not be heard and determined on the merit is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other since without competence there is really no basis for adjudication and decision on the merit by a Court. Thus an issue bordering on the competence or incompetence of the entire grounds of appeal in an appeal is one which can validly be raised by means of a notice of preliminary objection and not by way of motion of notice.”

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preliminary objection

AFFIDAVIT SHOULD BE FILED WHERE THERE ARE ISSUES OF FACTS IN PRELIMINARY OBJECTION

Grounds (v), (vi) and (vii) of the preliminary objection themselves raise issues of facts, at best issues of mixed law and facts, for which the defendant ought to have filed a supporting affidavit. The defendant did not. Grounds (v), (vi) and (vii) are respectively stated to be thus: (v) The Plaintiffs’ Suit does not disclose a reasonable cause of action against the Defendants. (vi) The Plaintiffs’ Suit is lacking in bona fide, as it was filed to harass, irritate and embarrass the Defendant, which constitutes an abuse of judicial process. (vii) The ministers (sic) Referral offends the twin pillar of Justice – nemo judex in causa sua and audi alterem partem. These are not grounds that can be resolved without the facts upon which they are based — facts that ought to come by way of an affidavit from the defendant.

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

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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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COURT IS OBLIGED TO CONSIDER PRELIMINARY OBJECTIONS AS FAILURE AMOUNTS TO DENIAL OF FAIR HEARING

It is glaring that the Tribunal lumped several preliminary objections together, without considering each of them and the issues raised in each, dismissed them. The exact text of its decision reads thusly – “the several preliminary objections to the competence of the 1st petitioner as a candidate in the election and the jurisdiction of this Tribunal to determine the said petition are hereby dismissed.” This amounts to sweeping aside the objections without hearing or determining them. The dismissal of the objections did not proceed from the determination of any of the objections. It violates the fair trial of the objections and the entire petition and the right of the parties to fair hearing. This feature renders Tribunal’s judgment a nullity.

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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IF FACTS ARE RAISED IN PRELIMINARY OBJECTION, AN AFFIDAVIT MUST BE FILED

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

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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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A PRELIMINARY OBJECTION WHICH IS NOT PURSUED IS ABANDONED

An issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the court must be deemed abandoned. see Lemboye v. Ogunsiji (1990) 6 NWLR (Pt.155) 210 at 232; Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257; Are v. Ipaye (1986) 3 NWLR (Pt.29) 416 at 418.

— Iguh, JSC. Onamade v ACB (1997) – SC.199/1990

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