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PRELIMINARY OBJECTION IN RESPONDENT’S BRIEF

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These days, preliminary objections are argued in the respondent’s brief thereby obviating the need to file a separate Notice of Preliminary Objection, and to save time. Absence of the required Notice makes the Preliminary objection incompetent. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

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

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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OBJECTION TO JURISDICTION CAN BE TAKEN BEFORE THE FILING OF A STATEMENT OF DEFENSE

In Elebanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76 at 116—117 of the report it was held that: ‘It is a misconception to hold that objection to jurisdiction should be taken after filing of a statement of defense. When objection can be taken depends entirely on what materials are available. The objection to jurisdiction could be taken on the basis of the statement of claim. It could be taken or evidence received or by a motion on notice supported by affidavit giving the facts upon which reliance is placed. In fact it could be taken even in the face of the writ of summons before filing statement of claim.’

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WHERE AFFIDAVIT MAY OR MAY NOT BE NECESSARY TO ACCOMPANY A PRELIMINARY OBJECTION

Chief Hilary Ezugwu & Anor. v. IGP & 6 ors unreported Suit No. FCT/HC/CV/1168/2010, the ruling of which was delivered on 31 March 2010 per Affen J (now JCA) presents a similar scenario as the instant case. In Chief Hilary Ezugwu & Anor. v. IGP & 6 Ors., a preliminary objection was raised by the defendants on grounds of non-disclosure of reasonable cause of action, and abuse of court process. Although no affidavit in support was filed, a photocopy of the writ of summons, statement of claim and allied court processes of another case, suit No. FCT/ HC/CV/1959/2009, upon which the defendants relied as the basis for alleging abuse of court process, were annexed to the preliminary objection. On the propriety of annexing court processes (or indeed any other document) to a bare notice of preliminary objection, Affen J (now JCA) held thus: “… The law, as I have always understood it, is that a party raising a preliminary point of objection who intends to rely on facts ought to file a supporting affidavit deposing copiously to those facts. It is only where the objection is predicated on grounds of law and reliance is placed on documents already before the court that no need arises for the objector to file a supporting affidavit. Like pleadings, the object of a notice of preliminary objection is to give notice to the opposing side of the case to be made which enables each party to prepare for arguments upon the issues subject matter of the objection and this saves the opposing party from being taken by surprise. See CHIEF WILSON OKOI & ORS v CHIEF IBIANG & ORS [2002] 20 WRN 146 at 155.” It seems to me that there is no hard and fast rule that a preliminary objection need be supported by an affidavit so long as enough material is placed before the trial court on which it can judicially and judiciously pronounce on the preliminary objection. Where the alleged offending writ or petition ex facie contains the relevant information against which an objection is being raised, the necessity to rely on affidavit evidence does not arise.

— B.B. Kanyip J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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A PRELIMINARY OBJECTION RENDERS FURTHER PROCEEDINGS UNNECESSARY

A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held – An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.

— A.A. Augie, JSC. Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)

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

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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