LEGAL PRINCIPLE: CIVIL PROCEDURE – Appeal – Preliminary Objection – When Proper to Challenge Jurisdiction
PRINCIPLE STATEMENT
A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection. In a situation where the trial is a nullity because the trial court lacked jurisdiction to adjudicate on the subject-matter in dispute, an appellate court which can raise the point suo motu if the parties failed to do so, will decline to entertain the question when raised in a notice of preliminary objection. The notice is to save it the trouble of toiling in futility should it indeed be without jurisdiction.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Galadima v. Tambai & Ors (2000) NLC-2171994(SC) at pp. 6–7, 15; Paras D–A, D–E.
"A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection. In a situation where the trial is a nullity because the trial court lacked jurisdiction to adjudicate on the subject-matter in dispute, an appellate court which can raise the point suo motu if the parties failed to do so, will decline to entertain the question when raised in a notice of preliminary objection. The notice is to save it the trouble of toiling in futility should it indeed be without jurisdiction."
EXPLANATION / SCOPE
Preliminary objections challenging jurisdiction require three clear days’ notice to the appellant. Where the trial court lacked jurisdiction, rendering proceedings a nullity, the appellate court may treat the jurisdictional challenge even without formal notice—or raise it suo motu—to avoid futile proceedings. Procedural requirements for notice yield to the fundamental importance of jurisdiction. The court will not enforce technical notice requirements to perpetuate a nullity. However, when notice is required, non-compliance may affect the objection’s competence unless the defect is jurisdictional.