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MOTION ON NOTICE, NOT PRELIMINARY OBJECTION, IS THE PROPER PROCESS TO CHALLENGE SOME GROUNDS OF APPEAL

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The emphasis is that a preliminary objection can only be issued against the hearing of the appeal, and not against a selection of grounds of appeal, which even if it is upheld cannot terminate the appeal in limine. In KLM Royal Dutch Airlines v. Aloma (2017) LPELR- 42588 (SC), this Court, per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC at pages 6-7, paras D-B, held:- The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Courts jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404 at 423 C-F, Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314; N.E.P.A. v. Ango (2001) 15 NWLR (Pt. 734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183. See also the case of Adejumo v. Olawaiye (2014) 12 NWLR(Pt.1421) 252 at 279 where this Court, per Rhodes-Vivour said:- ‘A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice.’ From the authorities I have highlighted above, it is clear that the preliminary objection in the instant case is inappropriate and same is liable to be struck out. Accordingly, same is hereby struck out.

— P.A. Galumje, JSC. Compact Manifold v Pazan Ltd. (2019) – SC.361/2017

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motion on notice, preliminary objection

WHEN CHALLENGING ALL GROUNDS OF APPEAL, USE PRELIMINARY OBJECTION

HEYDEN PETROLEUM LIMITED v. TOP LEADER SHIPPING INC (2018) LPELR-46680 (CA) stated: “A preliminary objection that an appeal should not be heard and determined on the merit is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other since without competence there is really no basis for adjudication and decision on the merit by a Court. Thus an issue bordering on the competence or incompetence of the entire grounds of appeal in an appeal is one which can validly be raised by means of a notice of preliminary objection and not by way of motion of notice.”

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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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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 (Pt.29) 416 at 418.

— Iguh, JSC. Onamade v ACB (1997) – SC.199/1990

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WHERE A PRELIMINARY OBJECTION SUCCEEDS, NO NEED TO CONSIDER THE ISSUE ON MERIT

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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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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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)

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