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AFFIDAVIT SHOULD BE FILED WHERE THERE ARE ISSUES OF FACTS IN PRELIMINARY OBJECTION

Dictum

Grounds (v), (vi) and (vii) of the preliminary objection themselves raise issues of facts, at best issues of mixed law and facts, for which the defendant ought to have filed a supporting affidavit. The defendant did not. Grounds (v), (vi) and (vii) are respectively stated to be thus: (v) The Plaintiffs’ Suit does not disclose a reasonable cause of action against the Defendants. (vi) The Plaintiffs’ Suit is lacking in bona fide, as it was filed to harass, irritate and embarrass the Defendant, which constitutes an abuse of judicial process. (vii) The ministers (sic) Referral offends the twin pillar of Justice – nemo judex in causa sua and audi alterem partem. These are not grounds that can be resolved without the facts upon which they are based — facts that ought to come by way of an affidavit from the defendant.

— B.B. Kanyip J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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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...

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WHERE NO AFFIDAVIT SUPPORTS PRELIMINARY OBJECTION

The defendant in filing its preliminary objection did not file any affidavit in support, which effectively made its preliminary objection one of law.

— B.B. Kanyip J. FG v. ASUU (2023) – NICN/ABJ/270/2022

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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 Was this dictum helpful? Yes 0...

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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...

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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...

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HOW TO FILE A PRELIMINARY OBJECTION

In response to the submissions of the learned counsel to the Appellant, the learned counsel to the Respondent in his brief of argument, argued at length what he termed a preliminary objection. It is noted that it was not headed as such and there was no Notice of the preliminary objection filed with the grounds...

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