Failure to move preliminary objection to an appeal during the hearing of the appeal is fatal.

N. D. P. v. I. N. E. C. [2013] 6 NWLR (Pt. 1350) 392 at 412, paras. D-G, per Ariwoola, J.S.C.:

“It is pertinent to refer to the notice of preliminary objection given by the respondent on page 4 of its brief of argument. It is equally apposite to say that the said preliminary objection was not moved before this court though argued, hence same was deemed abandoned and liable to be discountenanced. It should be noted that the preliminary objection raised by the respondent in its brief of argument cannot be deemed argued along with the brief.

This is because the respondent is required to specifically seek leave of court and obtain same when the appeal is being heard, to move its objection. Therefore, the respondent not having been available to seek leave and obtain same to argue its preliminary objection, same is of no moment. It is deemed abandoned and liable to be struck out… Accordingly, the notice of preliminary objection incorporated in the respondent’s brief of argument is hereby discountenanced and struck out.”

Blogger’s Note:

I consider the above position of the law as needlessly harsh. The Supreme Court as well as the Court of Appeal should be diligent enough to consider all relevant issues (such as a preliminary objection) raised in a respondent’s brief. After all, even in the absence of oral adumbration, a written brief of argument can be argued or deemed argued in the absence of counsel. The Supreme Court should review its stands on the above position in the interest of justice.


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