WHETHER A MOTION ON NOTICE, AND NOT A PRELIMINARY OBJECTION, IS TO BE ADOPTED WHEN SOME GROUNDS OF APPEAL ARE CHALLENGED?

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WHETHER A MOTION ON NOTICE, AND NOT A PRELIMINARY OBJECTION, IS TO BE ADOPTED WHEN SOME GROUNDS OF APPEAL ARE CHALLENGED? 

by Branham Chima. 

✓ DEFINITION(S): 
Preliminary objection: refers to a formal objection raised by a party in a legal proceeding at the early stages of the case. It is typically raised before the trial or hearing begins and aims to challenge the legal sufficiency or validity of certain aspects of the case. 

Motion on notice: also known as a notice of motion, is a formal request made by a party to the court, notifying all parties involved in the case about the intention to seek a specific court order or relief.

Grounds of appeal: refer to the specific legal reasons presented by an appellant (the party appealing a decision) to challenge the decision of a lower court or tribunal. When filing an appeal, the appellant must identify and articulate the grounds upon which they believe the decision should be overturned or modified. 

✓ ANSWER: 
Where some grounds of appeal are being challenged, a motion on notice is the appropriate mode. 

The answer to the poser has been given in plethora of cases among which is Compact Manifold v Pazan Ltd. (SC.361/2017, Supreme Court, Friday the 12th day of July 2019) per P.A. Galumje, JSC., in respect held thus: ‘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.’ 

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