I have had the benefit of a preview of the lead Ruling of my lord, S. D. BAGE, JCA, and I must stress that it is well settled that where a preliminary objection succeeds, there will be no need to consider the arguments in support of the issue or issues for determination.
— M.A. Danjuma, JCA. Portland Paints v Olaghere (2012) – CA/L/1046M/11
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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
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
In law therefore, it is only when a Respondent is challenging the one or more grounds of appeal but not the entire appeal that resort must be had to motion by notice to strike out the incompetent ground(s) of appeal. However, where it is the competence of the entire appeal that is being challenged the proper method is by means of a notice of preliminary objection as rightly employed by the Respondent in this appeal. The Respondent’s notice of preliminary objection was filed on 23/2/2017, that way beyond the three clear days requirement of the rules of this Court, was served and duly responded to by the Appellant in their Appellants’ Reply brief and therefore, the contention by the Appellants’ counsel in this regards is misconceived and hereby discountenanced. I shall say no more! See Clement Odunukwe v. Dennis Ofomata(2010) 18 NWLR (Pt. 1225) 404 per Rhodes-Vivour, JSC. See also Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator of Plateau State (2001) 16 NWLR (Pt. 740) 524; NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183.
— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016
It is on record that on the day of hearing this appeal, both the Respondent and Appellant’s Counsel were absent. Thus, the preliminary objection stands abated and unused. 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 Per IGUH, JSC in ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC) (PP. 17-18, PARAS. F-A). See also 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. The preliminary objection is hereby discountenanced and struck out.
— U.M. Abba Aji, JSC. Cappa v NDIC (2021) – SC.147/2006
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
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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