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A PRELIMINARY OBJECTION RENDERS FURTHER PROCEEDINGS UNNECESSARY

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A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held – An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.

— A.A. Augie, JSC. Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)

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WHEN TO FILE A MOTION ON NOTICE VS PRELIMINARY OBJECTION

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

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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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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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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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WHEN TO USE A PRELIMINARY OBJECTION OR A MOTION ON NOTICE

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, NOT PRELIMINARY OBJECTION, IS THE PROPER PROCESS TO CHALLENGE SOME GROUNDS OF APPEAL

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

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