APPELLATE PRACTICE — Preliminary Objection — Non-Compliance with Three Clear Days Notice — Court’s Discretion to Regularise
Ratio Decidendi
Per Mukhtar, JSC, in Wachukwu & Anor v. Owunwanne & Anor (2011) NLC-123-87-2001(SC) at pp. 18—19; Paras E—A:
"Although rule (1) supra has set out what is expected of a respondent wishing to raise a preliminary objection to an appeal, rule (2) has provided succour in the event that rule (1) has not been complied with. This court on the 28/2/2011 when the appeal was slated to be heard and it was heard did not adjourn the hearing of the appeal. The appeal is a 2001 appeal and to further adjourn it, would have resulted in to further hardship on the parties, the appeal being an old one. At any rate, the purpose of the notice is to give the appellant sufficient notice within which to reply to the preliminary objection, and obviously the notice in the instant case is sufficient, since the appellants have been able to file a reply, even if it was filed on the date of the hearing of the appeal."
Explanation / Scope
This principle establishes that non-compliance with the three clear days’ notice requirement for a preliminary objection may be regularised by the court where the purpose of the notice—giving the appellant sufficient opportunity to reply—has been satisfied. The principle applies where notice requirements are not strictly met. It ensures that technical non-compliance does not defeat justice. The principle reflects the court’s discretion to regularise. It prevents unnecessary adjournments. The court must consider the purpose of the notice. The principle provides guidance on preliminary objections.