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

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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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preliminary objection

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. Where he fails to do so and allows appellant’s counsel to adopt his brief of argument first, it will be taken as an abandonment of the preliminary objection.

– Ekanem JCA. C.O.P. v. Doolor (2020) – CA/MK/182/2017

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PRELIMINARY OBJECTION WILL BE CONSIDERED FIRST

It is trite law now that where a Notice of Preliminary Objection is filed and moved before a court of law, the court is duty bound to consider the Preliminary Objection before venturing into the main or cross-appeal, as the case may be. See: AGBAREH and ANOR v. MIMRA and ORS, (2008) 1 SCNJ. 409, ONYEKWULUJE v. ANIMASHAUN and ANOR [1996] 3 SCNJ 24; ONYEMEH and ORS. v. EGBUCHULAM and ORS. [1996] 4 SCNJ 235 … The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nib it at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time, See: YARO v. AREWA CONSTRUCTION LTD. and ORS. [2007] 6 SCNJ 418.

— I.T. Muhammad, JSC. EFET v INEC (SC.207/2009, 28 January 2011)

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IF PRELIMINARY OBJECTION IS SUSTAINED, APPEAL COURT MAY PRONOUNCE ON THE OTHER ISSUES

This finding on the objection by the Respondent would appear to have taken out the bottom or foundation of the appeal, the grounds of which are predicated on the motion which was statute barred and incompetent. However, bearing in mind that the decision of the Court is subject to a further appeal and the exhortation that the Court even in situations such in this appeal, should make pronouncement on the other issues raised in the appeal, I would consider the other issues.

– Garba, JCA. Dunlop v. Gaslink (2018)

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PURPOSE OF A PRELIMINARY OBJECTION

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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IT IS A FUNDAMENTAL BREACH NOT TO DETERMINE A PRELIMINARY OBJECTION

per Rhodes-Vivour JSC in Isaac Obiuweubi v Central Bank (2011) 7 NWLR Part 1247 Page 465 at 494 Para D-F, and cited with approval in James v INEC Supra, “Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further steps taken in the proceedings a nullity”.

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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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