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PRELIMINARY OBJECTION NOT ARGUED IS DEEMED ABANDONED

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Dictum

It is on record that on the day of hearing this appeal, both the Respondent and Appellant’s Counsel were absent. Thus, the preliminary objection stands abated and unused. 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 Per IGUH, JSC in ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC) (PP. 17-18, PARAS. F-A). See also 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. The preliminary objection is hereby discountenanced and struck out.

— U.M. Abba Aji, JSC. Cappa v NDIC (2021) – SC.147/2006

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PURPOSE OF A PRELIMINARY OBJECTION

A preliminary objection is the procedure adopted where a respondent objects to the hearing of an appeal. Its purpose is to terminate the appeal in limine.

– PER M.L. SHUAIBU, J.C.A. Cross & Star v. Government of Cross River State (2022)

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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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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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COURT IS OBLIGED TO CONSIDER PRELIMINARY OBJECTIONS AS FAILURE AMOUNTS TO DENIAL OF FAIR HEARING

It is glaring that the Tribunal lumped several preliminary objections together, without considering each of them and the issues raised in each, dismissed them. The exact text of its decision reads thusly – “the several preliminary objections to the competence of the 1st petitioner as a candidate in the election and the jurisdiction of this Tribunal to determine the said petition are hereby dismissed.” This amounts to sweeping aside the objections without hearing or determining them. The dismissal of the objections did not proceed from the determination of any of the objections. It violates the fair trial of the objections and the entire petition and the right of the parties to fair hearing. This feature renders Tribunal’s judgment a nullity.

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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IF FACTS ARE RAISED IN PRELIMINARY OBJECTION, AN AFFIDAVIT MUST BE FILED

In Ama v. Nwankwo [2007] 12 NWLR (Pt. 1049) 552 at 578, Rhodes-Vivour, JCA (as he then was) stated the position of the law relating to preliminary objection vis-à-vis the necessity of filing a supporting affidavit thusly: Preliminary objection strictly speaking deals with law. Consequently there is no need for supporting affidavit, but the grounds of the objection must be clearly stated. For example, objection that court process has not been complied with, suit/process is an abuse of process. When, as often happens a preliminary objection strays from law to facts of the case, the onus is on the party relying on the preliminary objection to justify the facts, and this can only be done by filing an affidavit. A preliminary objection may be supported by affidavit depending on what is being objected to. If the preliminary objection is on law, an affidavit is unnecessary, but if on facts an affidavit is mandatory (emphasis is this Court’s).

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

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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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