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PRELIMINARY OBJECTION WILL BE CONSIDERED FIRST

Dictum

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

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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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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IT IS A FUNDAMENTAL BREACH NOT TO DETERMINE A PRELIMINARY OBJECTION

per Rhodes-Vivour JSC in Isaac Obiuweubi v Central Bank (2011) 7 NWLR Part 1247 Page 465 at 494 Para D-F, and cited with approval in James v INEC Supra, “Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further steps taken in the proceedings a nullity”.

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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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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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