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WHEN TO USE A PRELIMINARY OBJECTION OR A MOTION ON NOTICE

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In BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus: “This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “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. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.

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motion on notice, preliminary objection

IF PRELIMINARY OBJECTION IS UPHELD FURTHER PROCEEDINGS IS UNNECESSARY

A preliminary objection to the competence of an appeal, is an objection, if upheld, renders further proceedings before the Court or tribunal unnecessary. Therefore, when it is raised, it must be resolved before venturing into the appeal.

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

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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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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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WHERE SOME GROUNDS OF APPEAL ARE TO BE CHALLENGED, NOT A PO, BUT A MOTION ON NOTICE

It is now trite law that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812(SC), (2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 14 175; Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403. I have married the meat of the objection with the inelastic position of the law displayed above. The wisdom behind the comparison is not far-fetched. It is to ascertain if the objection is obedient to the law or desecrates it. An in-depth study of the objector’s objection, discernible from its arguments thereon, clearly, reveals that it mainly chastises the appellant’s grounds 2, 3, 7 and 11 of the notice of appeal. It is obvious that the objector’s objection spared grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 of the notice of appeal. In other words, those grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19, the objector ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of those grounds.

— O.F. Ogbuinya JCA. Stanbic IBTC Bank Plc v. Longterm Global Cap. Ltd. & Ors. (September 20 2021, ca/l/1093/2017)

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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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SUBMISSION NOT BASED ON GROUND OF MOTION AND AFFIDAVIT WILL BE AT LARGE

The appellant’s learned senior counsel argued the application on the basis of the issues formulated by him and seemed to have abandoned the supporting affidavit. This is clearly not correct. Parties to a motion are bound to restrict their submissions within the confines of the grounds upon which the application is predicated and the affidavits in support of the application. Where issues formulated by parties do not arise from the grounds and the affidavit in support, any argument thereon will certainly be at large and is of no effect.

— P.A. Galinje JSC. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

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