Practice Tip – Raising Preliminary Objections While On Appeal:
The Supreme Court has in the case of Oladokun v Olawoyin (2017) All FWLR (Pt.872) 1441 deprecated the mode of raising of objections that touches only a ground (or two) of the grounds of appeal and therefore does not erode or deal with the substratum of the appeal thus:- “A Preliminary Objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. A Preliminary Objection should be capable, if successfully taken of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and preliminary objection consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds would put an end to the appeal. In the instant case, where the preliminary objection filed by the 1st respondent was filed against some grounds of appeal, the Court of Appeal struck same out”.
SPDC (NIG) LTD v. AMADI & ORS (2011) LPELR-3204(SC)
“Preliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: NEPA v. Ango 2001 15 NWLR pt 737 p 627.” Per OLABODE RHODES-VIVOUR, JSC (Pp 6 – 7 Paras F – B)
In other words, in appellate matters, a preliminary objection is not the appropriate mode to complain about some of the grounds of appeal. Where such a mode is adopted, the preliminary objection will be struck out. Thus, if the situation is such that even if the objections were to succeed, the hearing of the appeal on the remaining grounds would not be disturbed, the procedure to adopt is to file a motion on notice to dispose of the matter before hearing the appeal, but not to come by way of preliminary objection.
Other cases on this point include – OPEYEMI v. STATE (2019) LPELR-48764(SC), Adejumo v. Olawaiye (2014) 12 NWLR 9 (pt 142) 252 at p.279, DAUDU v. FRN (2018) LPELR-43637(SC), KLM ROYAL DUTCH AIRLINES v. ALOMA (2017) LPELR-42588(SC)
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Sample Drafts of Notice of Preliminary Objection
We have curated two different formats for drafting a notice of preliminary objection.
Kindly click below to download sample 1 and/or 2