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

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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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preliminary objection

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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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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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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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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INCLUDING NOTICE OF PRELIMINARY OBJECTION IN BRIEF

‘Thus, a respondent who has any application to make in respect of a pending appeal, can without the leave of this court, raise the objection in a Respondents’ notice in his brief of argument, and proffer argument in support of the objection, in his brief of argument, without necessarily filing a Notice of Preliminary objection, formally. The essence of indicating in the respondents’ brief of argument, a notice of Preliminary objection is to enable the appellant to respond to it in a Reply brief of argument, upon the service of the respondents’ brief of argument on the appellant. The supreme court in Charles Chikwendu Odedo v. Independent National Electoral Commission (INEC) (2008) 7 SCNJ 1 at pg.25, provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading of “PRELIMINARY OBJECTION” followed by the grounds of the objection and supported with the argument thereon. Further see. Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua and Ors (2008) 5 SCNJ 1; Ralph Uwazurike v. Attorney General of the Federation (2007) 2 SCNJ 369 at P.380; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. I have perused the Respondents’ briefs of argument dated 14th March, 2011 and at page 3: paragraph 3.00, the NOTICE OF PRELIMINARY OBJECTION was conspicuously given therein; the grounds for the objection were also stated and thereafter the arguments on the preliminary objection were proffered by learned to the respondents. I am therefore satisfied that the notice of preliminary objection, by the respondents, is competent and I shall proceed to consider and determine it.’

— T.S. YAKUBU, JCA. Fayose v ICN (2012) – CA/AE/58/2010

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