Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 at 564, paras. C-D, per Onnoghen, JSC:

“…The proper thing to do in law, is not to raise the same preliminary objection before this court but to appeal by way of cross appeal against the above finding/holding by that Court as that is the only acceptable way to challenge any decision of a court of law or tribunal.”

Notes:

It is common for respondents to an appeal to file preliminary objection(s) to the hearing and determination of the appeal. Appellate courts (especially the Court of Appeal) have been urged to consider the objections as well as the appeal on the merits, to enable the Supreme Court have a say on all the issues should there be a subsequent appeal to the apex Court.

Now, where the Court of Appeal dismisses a preliminary objection for lacking in merit, there is the tendency to raise the preliminary objections afresh at the Supreme Court. By the above authority, the Supreme Court is of the position that the approach is wrong. The right thing to do by way of proper procedure is to file an appeal against the decision of the Court of Appeal dismissing the preliminary objections and not to raise it afresh at the Supreme Court.

If the preliminary objection was dismissed but the Respondent was however still successful on the main appeal leading to an appeal to the Supreme Court by the Appellant, the Respondent is required to appeal against the Court of Appeal’s decision dismissing the objection by way of cross-appeal and not by repeating the preliminary objection earlier raised at the Court of Appeal.

The foregoing makes sense in that the only acceptable preliminary objection is one filed in relation to the appeal now pending at the Supreme Court on grounds not earlier presented at the Court of Appeal. For instance, a fresh issue bordering on jurisdiction. Jurisdictional issues can be raised at any time even for the first time on appeal.