Legal Nuggets (86):PRELIMINARY OBJECTION : Whether a Preliminary Objection can be Raised Against a Motion/Application- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI



PRELIMINARY OBJECTION : Whether a preliminary objection can be raised against a motion/application


"It is worrisome that in apparent disdain or disregard for the 2016 Rules of the Court under which the Applicant brought the instant motion, the Respondent chose to bring the Notice of P.O. filed on 27/6/2018 to the said motion, pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. While it might be that the Respondent does not have the extant Rules of the Court, and notwithstanding that the provision of Order 10 Rule 1 of the repealed 2011 Rules of the Court and that of the 2016 Rules of Court are the same word for word, one would have expected the Respondent in a show of awareness and compliance with the extant Rules of the Court, to have brought the Notice of P.O. in question pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016. Be that as it may. Aside from the neglect or refusal of the Respondent to accept as it were the extant Rules of this Court, and given the provision of the said Rules in Order 1 Rule 3 and which states thus:- "The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the States" I cannot but state that the Respondent would appear not ready to be guided by decisions of this Court to the effect that the Rules of the Court in respect of bringing a P.O. to an appeal cannot be stretched to interlocutory proceedings in the appeal. It is a settled position of the law that an appeal is lodged or brought when a notice of appeal in respect of a decision or judgment is properly lodged (i.e. filed within the periods provided by the Court of Appeal Act, 2004). Ditto, an appeal that has to be initiated by an application for leave to appeal can only be said to be properly lodged only if the application for leave to appeal, is filed and the requisite leave procured within the periods provided by the Court of Appeal Act (supra); or pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2016, within such extended time the Court might grant, if the application for leave to appeal though brought within the periods stipulated by the Court of Appeal Act, was not heard within the said periods and there was no unreasonable delay in bringing the application for leave in the first place. It is also settled law, that an appeal is entered when the record of appeal has been properly compiled and transmitted to this Court pursuant to the relevant provisions of its Rules. I am therefore of the considered view, that it is indisputable that it is only an appeal that the notice of appeal is or was properly filed or the position of which has been duly regularized and also properly entered in this Court, that the respondent therein, can properly raise a preliminary objection to its hearing. Suffice it to say that the propriety of filing a P.O. to a motion filed by an applicant either pursuant to the Rules of the Court and/or under its inherent jurisdiction, was given extensive consideration by this Court in its decision (unreported) delivered on 28/5/2018 in APPEAL NO: CA/OW/116/2013- NIGERIA BOTTLING COMPANY LIMITED V. VACU-NAK BEVERAGES (NIGERIA) LIMITED. Therein, it was stated amongst others to the effect that the filing of a Notice of P.O. to a motion has no foundation in the Rules of this Court and that doing so under the inherent jurisdiction of the Court equally cannot validate such a notice against the backdrop of the concept of "inherent jurisdiction of this Court". This is because acts or steps taken by a party pursuant to the inherent jurisdiction of this Court, must not run against the clear statutory provisions governing the procedure of the Court and/or provisions of its Rules. That inherent jurisdiction being only a part or an aspect of the general jurisdiction of a superior Court of record is meant to supplement the express jurisdiction and power of the Court and not to supplant same. See also the cases of YONWUREN V. MODERN SIGNS (NIG.) LTD. (1985) LPELR - 3529 (SC), (1985) 1 NWLR (Pt. 2) 244; AKILU V. FAWEHINMI (NO. 2) (1989) LPELR - 339 (SC), (1989) NWLR (Pt. 102) 122; and KRAUS THOMPSON ORGANISATION V. N.I.P.S.S (2004) LPELR - 1714 (SC) amongst many others in respect of "inherent jurisdiction". In any event this Court discountenanced the P.O. filed in the NBC Ltd case (supra), specifically relying on the decision in the case of EGWU V. MAINSTREET BANK LTD (2017) LPELR - 43395 (CA) wherein Onyemenam, JCA; stated thus:- "Order 10 of the Court of Appeal Rules provides for Preliminary objection in an appeal. As argued by the Applicant's learned senior counsel at paragraph 2. 01 of the Applicant's reply to Respondent's written address, there is no place for preliminary objection in Notice of Motions in the Court of Appeal Rules. By the order referred to; a preliminary objection is an objection to the hearing of an appeal that if upheld, would render further proceedings before the Court impossible or unnecessary. Preliminary objection does not seek to address issue(s) or delve into the merits of the appeal nor seek to determine any aspect of the merit of the appeal. Accordingly, a preliminary objection is to be filed only when there is a fundamental defect in the Appellant's process in an appeal as its purpose is to terminate an appeal principally on ground of incompetence.By the nature and purpose of preliminary objection, the procedure is only adopted for the hearing of an appeal and not for any other process. In other words, preliminary objection cannot be raised in normal interlocutory applications which come up in the usual conduct of the business of the Court.Seeking to terminate a notice of motion by way of preliminary objection is unknown to our rules of Court. Such practice has been held by the apex Court to be outside the contemplation of Order 2 Rule 9 of the Supreme Court Rules which is akin to Order 10 of the Court of Appeal Rules. It is therefore my view that the preliminary objection raised by the Respondent in challenge of the Applicant's notice of motion is not proper in law and as such incompetent. The same is hereby discountenanced." This Court is bound by its decisions particularly as the decision in the case cited above is an exposition of relevant provisions of its Rules in respect of preliminary objection. See also the case of DOWELL SCHLUMBERGER (NIG) LTD V. ANIEKAN (2018) LPELR - 44811 (CA). In the circumstances, and as there is obviously no appeal before the Court, the Notice of P.O. of the Respondent in respect of the Applicant's motion before the Court, must therefore be and is hereby discountenanced. Discountenancing, the P.O. of the Respondent to the Applicant's motion however does not mean that the Court must grant the orders being sought by the Applicant willy-nilly or whether the Court likes it or not. This is against the backdrop of the settled position of the law that it is for a party seeking an indulgence from the Court to place before the Court sufficient and relevant materials that entitle him to the indulgence being sought." Per LOKULO-SODIPE, J.C.A. (Pp. 8-14, Paras. C-C)

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