LEGAL PRINCIPLE: APPELLATE PRACTICE — Preliminary Objection — Mode of Raising — In Respondent’s Brief of Argument — Validity
PRINCIPLE STATEMENT
A notice of preliminary objection may validly be raised in the respondent's brief of argument to question the competence of an appeal.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Auto Import Export v. Adebayo & Ors (2002) NLC-491997(SC) at p. 11; Paras A–C.
"It is now well settled that a notice of preliminary objection pursuant to the provisions of order 2 rule 9 of the Supreme Court Rules may validly be raised to question the competence of an appeal in the respondent's brief of argument. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt. 105) 494 at 515 - 516. See too Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469."
EXPLANATION / SCOPE
A preliminary objection challenging the competence of an appeal may be raised in the respondent’s brief. The objection must be clearly stated. The principle promotes efficiency by allowing objections to be raised without separate motions. The court will consider the objection before hearing the appeal on the merits. The rule applies to all appellate courts. The objection must be taken at the earliest opportunity. The respondent is not required to file a separate notice of motion. The principle is well settled by Supreme Court decisions. The appellant may respond to the objection in a reply brief. The court will rule on the objection as a preliminary issue.