THE IMPLICATION OF PRELIMINARY OBJECTION TO APPEAL
This was held in the case of Ubazi v. F.R.N. (2025) 10 NWLR (Pt. 1995) 89 where the court stated that:
It is trite position of the law that the purport of a preliminary objection is to terminate or truncate the appeal in limine. It should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds that can sustain the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds not defective, which can sustain the hearing of the appeal.
A brief narration of what transpired in the case is that:
The appellant was charged with seven counts of offenses under the Corrupt Practices and Other Related Offences Act, 2000, including making misleading statements to a public officer, receiving public funds through misdemeanor, making inconsistent statements to a public officer, and using his office to confer corrupt advantage. The charges stemmed from allegations that the Appellant was simultaneously employed by both the Legal Aid Council and the Nigerian Security and Civil Defence Corps (NSCDC) between 2007 and 2010, receiving salaries from both institutions. At the trial Court, after the prosecution called 4 witnesses and tendered 15 Exhibits, the Appellant filed a No Case Submission which was upheld by the trial Court. Dissatisfied, the Respondent (Federal Republic of Nigeria) appealed to the Court of Appeal, which overturned the trial Court’s decision and ordered that the case be remitted for retrial. The Appellant then appealed to the Supreme Court.
In its decision the supreme Court held that:
A preliminary objection is properly raised against the hearing of the entire appeal and not merely against a few grounds of appeal. The essence of a preliminary objection is to terminate or truncate the appeal in limine. Accordingly, a preliminary objection should only be filed where it has the potential to wholly defeat the hearing of the appeal. It is not appropriate to raise a preliminary objection against one or more defective grounds of appeal when other competent grounds exist that can sustain the appeal. In such circumstances, a preliminary objection is an improper procedure. The appropriate approach would be to address the defective grounds through a motion to strike out, rather than seeking to truncate the entire appeal through a preliminary objection.
A preliminary objection to the hearing of an appeal is an opposition to the hearing of the appeal by the respondent before opening of oral submission by the appellant. The purpose of a preliminary objection, if successful, is to terminate the hearing in limine, either partially or totally. A preliminary objection in a case is an objection that, if upheld, would render further proceedings before the court impossible or unnecessary; if it succeeds, that would be the end of the appeal. It is only raised to the hearing of an appeal, and not a challenge to a ground or few grounds of appeal.
In Polaris Bank Ltd. v. Forte Oil Plc (2023) 5 NWLR (Pt. 1876) 179 this Court was firm in holding that
"a preliminary objection is only raised to the hearing of an appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds that can sustain the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal." – Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.
It is trite law now that where a Notice of Preliminary Objection is filed and moved before a court of law, the court is duty bound to consider the Preliminary Objection before venturing into the main or cross-appeal, the aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nib it at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a court's proceedings. In other words, forecloses hearing of the matter in order to save time.
The Supreme Court in its ruling dismissed the appeal, and affirmed the Court of Appeal's judgment that the evidence adduced by the prosecution was sufficient to establish a prima facie case requiring the Appellant to enter his defense. It further held that the Court of Appeal was wrong in striking out the Appellant’s objection to Ground 1 of the Respondent’s Notice of Appeal for non-compliance with Order 10 Rule 1 of the Court of Appeal Rules, as the objection was not to the entire appeal but only to a single ground. In delivering judgement, the Court held that at the stage of a No Case Submission, what is required is not whether the evidence is sufficient to justify conviction, but whether the prosecution has made out a prima facie case requiring at least some explanation from the Appellant. Furthermore, it upheld the Court of Appeal’s order for the case to be remitted to the Chief Judge of Abia State for reassignment to another judge for retrial.
Additionally, the Supreme Court also established a rule of No Case submission on when to upheld . In a bid to establish the potency of the No Case Submission filed by him, the learned Counsel for the Appellant dissected the elements of the offences in the seven counts charge against him and submitted that the Court of Appeal erred when it held in the given circumstances of this case, that the Respondent made out a prima facie case, requiring the Court to call the Appellant to enter his defence and give some explanation. He relied on Ibeziako v. C.O.P. (1963) 1 All NLR. 60 at 63-64 where the Court set out the guidelines for upholding a no case submission as showing that-
a. The Prosecution has failed to prove an essential element of the alleged offence.
b. The evidence has been so discredited as a result of cross examination; and
c. The evidence is so manifestly unreliable that no reasonable tribunal will convict on it.– Per CHIOMA EGONDU NWOSU-IHEME, J.S.C.
In conclusion, it was decided that a preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. This is because if it succeeds, that is the end of the appeal. It has been clearly established in the case that preliminary objection to the hearing of an appeal, is an opposition to the hearing of the appeal by the respondent before opening of oral submission by the appellant. The purpose of a preliminary objection, if successful, is to terminate the hearing in limine either partially or totally.
About the Author:
Jamilu Haruna Usman is the Deputy Director of Research and Litigation, Solace Chambers, Bayero University, Kano.
He can be reached via 09068341589, and email: Jamiluusman410@gmail.com
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