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

Dictum

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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AN APPLICANT IS BOUND BY HIS PRAYERS IN HIS MOTION

It is an elementary but fundamental principle of our adversary system that an applicant is bound by the prayers in his motion. See A.C.B. Ltd. v. A.G. Northern Nigeria (1969) N.M.L.R. 231. — Karibi-Whyte JSC. Okoya & Ors. V. S. Santilli & Ors. ( SC.206/1989, 23 MAR 1990)

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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)

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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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PRELIMINARY OBJECTION NOT ARGUED IS DEEMED ABANDONED

It is on record that on the day of hearing this appeal, both the Respondent and Appellant’s Counsel were absent. Thus, the preliminary objection stands abated and unused. 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 Per IGUH, JSC in ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC) (PP. 17-18, PARAS. F-A). See also 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. The preliminary objection is hereby discountenanced and struck out.

— U.M. Abba Aji, JSC. Cappa v NDIC (2021) – SC.147/2006

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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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PRELIMINARY OBJECTION IS RAISED TO THE HEARING OF AN APPEAL AND NOT A FEW GROUNDS

A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal. See Per EKO, JSC, in AJUWON & ORS V. GOVERNOR OF OYO STATE & ORS (2021) LPELR-55339(SC) (PP. 4-5 PARAS. D).

— Uwani Abba Aji JSC. Peter Obi & Anor. v. INEC & Ors. (SC/CV/937/2023, Thursday the 26th day of October 2023)

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