There is no doubt that the law is settled that where there are pending applications before a court, the court is duty bound to rule on all applications before it before delivering its judgment. There are plethora of authorities in this regard. See Mobil v. Monokpo (2001) FWLR Pt.78 Pg.1210; Mokwe v. Williams (1997) 11 NWLR Pt.528 Pg.309; Savannah Bank Nig. Ltd v. SIO Corporation (2001) 1 NWLR Pt.693 Pg.194.
– H.M. Ogunwumiju, JCA. ITV v. Edo Internal Revenue (2014) – CA/B/20/2013
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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.
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
In law therefore, it is only when a Respondent is challenging the one or more grounds of appeal but not the entire appeal that resort must be had to motion by notice to strike out the incompetent ground(s) of appeal. However, where it is the competence of the entire appeal that is being challenged the proper method is by means of a notice of preliminary objection as rightly employed by the Respondent in this appeal. The Respondent’s notice of preliminary objection was filed on 23/2/2017, that way beyond the three clear days requirement of the rules of this Court, was served and duly responded to by the Appellant in their Appellants’ Reply brief and therefore, the contention by the Appellants’ counsel in this regards is misconceived and hereby discountenanced. I shall say no more! See Clement Odunukwe v. Dennis Ofomata(2010) 18 NWLR (Pt. 1225) 404 per Rhodes-Vivour, JSC. See also Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator of Plateau State (2001) 16 NWLR (Pt. 740) 524; NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183.
— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016
“There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the Court must satisfied itself that the reasons given by an Applicant are good and substantial and that on clear facts placed before the Court, the Applicant deserves to be granted the indulgence being sought.”
– M.L Abubakar, JCA. Amalai & Ors. v The Government Of Adamawa State & Ors. ( CA/YL/33M/2020)
Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection.
– A. Aboki, JSC. Sani v. Kogi State (2021) – SC.1179/2019
Let me add, before I log out, that a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v. MERCANTLE BANK (1987) 6 S.0 341 at 350. Even where the application is not opposed, the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: NWAWUBA v. ENEMUO (1988) 5 S.C.N.J. 154.
— Ejembi Eko, JSC. County Dev. Co. v Hon. Min. Env. Housing Urban Dev. (2019) – SC.239/2011
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