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

Dictum

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 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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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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WHAT IS A PRELIMINARY OBJECTION?

A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort.

– Tukur JCA. Odulate v. FBN (2019)

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HOW TO FILE A PRELIMINARY OBJECTION

In response to the submissions of the learned counsel to the Appellant, the learned counsel to the Respondent in his brief of argument, argued at length what he termed a preliminary objection. It is noted that it was not headed as such and there was no Notice of the preliminary objection filed with the grounds upon which it was brought. It was argued as a preliminary point/preliminary objection under the background facts. When the appeal was argued the learned counsel to the Respondent did not argue the supposed preliminary objection before the main appeal was argued. No wonder then that the learned counsel to the Appellant did not respond to it but, only responded to the substantive appeal. It is taken that the supposed preliminary objection was abandoned by the learned counsel to the Respondent. The Court of Appeal Rules, 2016 outlined the mode of raising a preliminary objection on appeal in Order 10 Rule (1) thus: 10:(1) “A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.” The requirements for reliance on a preliminary objection to the hearing of an appeal as provided for by Order 10 Rule (1) are three fold. These are: (1) Three clear days’ notice must be given by the Appellant before the hearing of the appeal. (2) The grounds of the objection must be clearly set out in the preliminary objection. (3) Twenty copies of the preliminary objection shall be filed with the Registrar within the same time. The Respondent did not comply with any of the requirements. No doubt, a Notice of objection can be given in the brief of argument, it does not dispense with the need for the Respondent to move the court at the hearing for the reliefs prayed for. Where a preliminary objection to an appeal is set out in the brief of argument, the Respondent cannot merely adopt his brief of argument in respect of the preliminary objection; which is what the learned counsel to the Respondent did in this case when the appeal was argued. Learned counsel is required to proffer oral argument in support of the grounds which are incorporated in the preliminary objection. The Notice of preliminary objection can be given in the Respondent’s brief, but, learned counsel must ask the court for leave to move the Notice of objection before the oral hearing of the appeal commences, otherwise it would be deemed to have been waived and therefore abandoned. The Respondent clearly failed to comply with the Rules of this court in raising and arguing a preliminary objection challenging the competence of this appeal.

— C.N. Uwa, JCA. FRN v Ozekhome (2021) – CA/L/174/19

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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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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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