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

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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ESSENCE OF PRELIMINARY OBJECTION

This is more so as the whole essence of preliminary objection is to foreclose hearing the appeal. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007) Was this dictum helpful? Yes 0 No 0...

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

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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...

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FILING A PRELIMINARY OBJECTION – WHAT TO DO?

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...

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