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

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Dictum

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 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) Was this dictum helpful? Yes 0 No 0...

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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....

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COUNSEL MUST SEEK TO ARGUE PRELIMINARY OBJECTION FIRST

It was after appellants’ counsel had argued his appeal that respondent’s counsel argued his preliminary objection. Where respondent gives notice of preliminary objection to an appeal and incorporates argument thereon in his brief of argument, he is required to seek leave of Court to argue the objection before appellant’s counsel adopts his brief of argument....

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