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WHERE PRELIMINARY OBJECTION IS ARGUED IN THE BRIEF OF ARGUMENT

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Dictum

I shall now consider the Preliminary Objection. Order 2 Rule 9 of the Supreme Court Rules provides for the filing of Preliminary Objections. It enjoins a respondent who intends to rely on a Preliminary Objection to give the appellant three clear days notice before the hearing setting out in clear terms the grounds of objection. The purpose is to give the appellant enough time to address the respondents objection. It is also accepted practice for the respondent to argue his Preliminary Objection in his brief in which case the appellant would have to respond in a reply brief. In this appeal the respondents argued their Preliminary Objection in their brief. The procedure adopted by the respondents obviates the need to file a separate notice of preliminary objection.The appellants responded by filing an amended reply brief. The Preliminary Objection and the appellants response are thus properly before this court.

— O. Rhodes-Vivour, JSC. Wassah & Ors. v. Kara & Ors. (2014) – SC.309/2001

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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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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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PRELIMINARY OBJECTION TAKEN FIRST

By its nature and necessary implications, the preliminary objection has to be taken first.

– Denton West JCA. Salaja v. Salaja (2013)

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IF PRELIMINARY OBJECTION IS SUSTAINED, APPEAL COURT MAY PRONOUNCE ON THE OTHER ISSUES

This finding on the objection by the Respondent would appear to have taken out the bottom or foundation of the appeal, the grounds of which are predicated on the motion which was statute barred and incompetent. However, bearing in mind that the decision of the Court is subject to a further appeal and the exhortation that the Court even in situations such in this appeal, should make pronouncement on the other issues raised in the appeal, I would consider the other issues.

– Garba, JCA. Dunlop v. Gaslink (2018)

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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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WHAT IS A PRELIMINARY OBJECTION?

A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort.

– Tukur JCA. Odulate v. FBN (2019)

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