The Error of Raising Preliminary Objections as Issues for Determination on Appeal
By Ikechukwu James Orji LLB., BL., ACArb.[i]
Introduction
Appeals are constitutional right given to a dissatisfied litigants who believe their case was not properly adjudicated. In such instances, they petition the higher court to overturn or review the judgement. On appeal, the primary responsibility of the Appellant is to challenge the judgement of the lower court, providing compelling, substantial and credible reasons why the decision of the lower court should be overturned. Meanwhile, the responsibility of the Respondent is to defend the reasoning and decision of the lower court.
The process of appealing a lower court’s decision is a tedious task, although provided for under our laws, rules and judicial pronouncements. There are instances where counsel for the parties have made certain errors, leading the appellate court to either dismiss credible appeals or uphold appeals that should ordinarily have been dismissed. One such instance occurs when counsel raises preliminary objection as an issue for determination in brief of argument. This will be addressed in details in the subsequent subheadings.
It is important first to understand what a preliminary objection and an issue for determination are, in order to clarify the error of Counsel regarding the subject matter.
Preliminary Objection
Preliminary objection, simply put, is a critical point of law or fact raised at the beginning of a suit, without delving into the substance of the case, to challenge the competence of the suit. According to the court in the case of Tsokwa v. Ibi[ii], a preliminary objection in a case before an international tribunal is an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary.
A preliminary objection is aimed at truncating the hearing of the appeal and terminating its life in limine.[iii]
Grounds for raising Preliminary objection are lack of jurisdiction[iv], res judicata[v], res sub-judice[vi], violation of substantive law, limitation of time, misjoinder of parties and other procedural issues.
Issues for Determination
The words of Buckley, L. J. in Howel v. Dering & Ors[vii] on the subject states thus:
“An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.”[viii]
The Supreme Court in Eke v Okwaranyia[ix]explained what issue for determination means thus:
“… An ‘issue’ is a disputed point or question to which parties to an action have narrowed their several allegations and upon which they desire to obtain a decision of the Court. The issue may be that of law or fact.”
From the above Supreme Court decision, it is important to state that issues for determination can pertain law, fact or a combination of both. However, as Lord Diplock put it in Fidelitas Shipping Co. Ltd. V V/O Ex-portchleb[x], “But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not ‘an issue’.”
The Court of Appeal in Hassan v Maiduguri Management Commitee[xi] held that for it is a well established principle and practice of procedure that parties are bound by issues formulated by themselves in their pleadings and a court is not entitled to consider a case not pleaded by the parties.
It is a well settled principle of judicial adjucation that the judgment in a lis must be confined to the cause of action and the issues raised on the pleadings.[xii] This is because it is fundamental principle of the determination of dispute between parties that judgment must be confined to the issues raised by the parties and it is not competent for the court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties.[xiii]
The Error of making Preliminary Objections an Issue for Determination
There are instances where preliminary objections are improperly subsumed into an issue for determination. The reason for this careless act by counsel could be to save costs or cut corners. The Court in Duru & Anor V. Ewuru & Ors[xiv] in distinguishing both concepts stated thus:
“An issue for determination which must necessarily flow from the grounds of appeal, is a proposition of law or fact in dispute between the parties necessary for determination by the Court, the determination of which would affect the result of the appeal. A preliminary objection on the other hand is aimed at truncating the hearing of the appeal and terminating its life in limine. It follows that raising a preliminary objection as an issue for determination clearly defeats the purpose of a preliminary objection. Indeed the two are two ‘strange bedfellows’.”
Also, the court in Duru & Anor V. Ewuru & Ors[xv] has held that:
This is patently wrong and with due respect to the learned counsel, only displays the fact that the learned counsel is either not abreast of the proper position of the law or does not appreciate the distinction between the purport of each or intends by so doing wittingly or unwittingly to invite this Court to re-write the law. It has been stated time without number and judicial authorities are legion on this point that a preliminary objection cannot be raised as an issue for determination. In other words, an issue for determination cannot be used to challenge the competence of an appeal. EFCC V. AKINGBOLA (2014) LPELR 24257 1 at 47, ODUNZE V. NWOSU (2007) 13 NWLR (Pt. 1050), BUNGUDU V YARO (2022) LPELR-58300(CA), TEC ENGINEERING CO. (NIG) LTD & ANR. V SALISU (2018) LPELR-46654 (CA).
In ODUNZE V NWOSU,[xvi] Chukwuma-Eneh, JSC, stated:
“Issue for determination and preliminary objection under our rules, do not have a common meeting ground. Preliminary objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Courts in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the parties – while issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal – – it must relate to the grounds of appeal – – The two are more or less strange bedfellows: and so, for a preliminary objection to be dressed in the garb given to it here is strange and improper.”
It is, therefore, wrong and inconsistent with the established law and rules of court to raise a preliminary objection as an issue for determination in an appeal. Where this is done, the purported issue is and will be declared incompetent and struck out.[xvii]
Conclusion
In conclusion the Rules of Court and case law are exhaustive on the impropriety of subsuming preliminary objection as an issue for determination. Preliminary objection and issues for determination serve distinct purposes and possess different characteristics in a suit. Like day and night, they cannot coexist. A preliminary objection is designed to truncate the hearing of a suit or appleal, terminating it at its inception, while an issue for determination addresses the substantive rights or defense of a party. One cannot substitute for the other; they must remain separate and serve their respective roles.
References
[i] IKECHUKWU JAMES ORJI LLB.(Uyo), BL.(Kano), ACArb., LLM (in view)
[ii] (2017) 10 NWLR (Pt. 1574) 343
[iii] See the case of Odunze V Nwosu (2007) 13 NWLR (Pt.1050) 1
[iv] See Madukulum v Nkemdilim (1962) 2 SCNLR 341
[v] The principle of res judicata states that there should be an end to ligation and once a matter same parties and subject matter has been adjudicated upon it should not be instituted again. See the case of Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365.
[vi] This principle prevents a court from proceeding with the trial of any suit in which the matter in issue is directly or substantially the same with a previously instituted suit between the same parties and the court where the issue is previously instituted is pending has the power to grant the relief sought. See Ibrahim v. Ojonye (2012) 3 NWLR (Pt. 1286) 108
[vii] (1915) 1 K.B. 54 at p. 62
[viii] See also Ugo v Obiekwe (1989) SC. 207/1985
[ix] (2001) 12 NWLR (pt. 726) 181 at pg. 213-214
[x] (1966) 1 Q.B. 630 at p. 642
[xi] (1991) 8 NWLR (pt. 212) 738 at 749
[xii] See Ochinma v Asirim Unosi (1965) NMLR 321 Awoniyi v AMORC (2000) LPELR-
[xiii] Iguh JSC in Oshatoba v Olujitan (2000) 5 NWLR (PT 655) 159 SC
[xiv] (2024) LPELR-62821(CA)
[xv] (2024) LPELR-62821(CA)
[xvi] (2007) 13 NWLR (Pt.1050) 1
[xvii] See TOTAL E & P (NIG) LTD V ELEMELE (2021) LPELR-56490 (CA)
