By Elton Chizindu Mpi, Esq.

Preliminary objections are points of law or fact raised at the outset of a case or lawsuit by the defence without going into the merits of the case. Once a preliminary objection is raised, it must be heard first before going into the substantive case. In circumstances where a preliminary objection is raised properly and upheld by the court, it can terminate the substantive suit. It’s usually a common practice for lawyers to raise a preliminary objection with aim to dismiss or get the suit struck out even before trial begins. Preliminary objections are efficient and tactical and it’s purpose is to nip an action in the bud and it is usually used to attack the propriety or otherwise of court processes. It’s an efficient mechanism to remind the Court that there is a problem with the suit and that it should not decide the merits of the case.

There are several grounds for raising a prelimairy objection to any action. This article shall explain the grounds that any lawyer can rely on to throw away any matter in court and even ask for cost. Where there are no counter claim in a suit, wouldn’t it be less stressful as a defense lawyer to terminate a suit at the beginning stage, rather than go through the merits of the case?Inasmuch as it would be profitable to proceed with a matter from the inception to judgement, at the expense of your client of course, it would be more expedient to get the job done as soon as possible, provided your professional fees would still be paid anyway.

Note: Before you bring a preliminary Objection to strike out or dismiss any suit, ensure that you have collected your negotiated fee from your client.

When Can A Preliminary Objection be Raised?

A preliminary Objection should be raised timeously and without undue delay and it should work to the advantage of the lawyer raising it.

Where preliminary objection is to be taken against an action on ground of jurisdiction, it can be raised anytime

If it is on ANY OTHER GROUNDS with the abolition of demurrer proceedings, the objection will be taken after filing Statement of Defence. That point of law can be raised in the pleadings accompanied with the Notice of Preliminary Objection.

Form of Preliminary Objection

A Preliminary Objection can be brought by notice of motion or by notice of preliminary objection.

Notice of preliminary Objection is usually brought when objection is based on point of law and must not have an affidavit but can have written address.

GROUNDS FOR RAISING PRELIMINARY OBJECTIONS IN A LAWSUIT

1. Preliminary Objection on the ground that the claimant has no locus standi

The expression “Locus standi”, denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”.

It is the responsibility or onus of a plaintiff in any suit to disclose in his pleadings that he has

the locus standi to institute the action so as to enable the court to inquire into the merits of his claim. In other words, disclosure of locus standi by the plaintiff in his pleadings is a condition precedent that must be satisfied to enable the trial court to assume jurisdiction to hear and determine the suit filed by the plaintiff.

A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are:-

1. The action must be justiciable.

2. There must be a dispute between the parties. There ought

to be a liberal approach in applying the test.

for a person to have the legal capacity to sue over a matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. Hassan (supra).

Where a plaintiff has no locus standi a court is obliged to strike out his action without going into the merits of the case.

For cases on locus standi see Ojukwu v Ojukwu & Anor (2008) 12 SC (pt. 111) page 1, (2008) 18 NWLR (pt. 1119) 439, Attorney General Kaduna State v Hassan (1985) 2 NWLR (PT. 8) 483.

This ground should be examined critically as there are instances when persons can institute actions on behalf of another even when they are not directly affected. For instance Under the Fundamental Right Enforcement Procedure (FREP) Rules 2009, PARAGRAPH 3(e) TO THE Preamble provides for persons who can sue, and this concludes persons not directly affected. The Rules lists the persons as follows:

1.Anyone acting in his own interest;

2.Anyone acting on behalf of another person;

3.Anyone acting as a member of, or in the interest of a group or class of persons;

4.Anyone acting in the public interest: Public interest includes Interest of Nigerian society; and Interest of any segment of it

Association acting in the interest of its members or other individually.

Nevertheless as a general rule, where a plaintiff has no locus standi, an action would not succeed and would be struck out except for exceptional cases like the instance mentioned above. Lack of locus standi is a proper ground for Preliminary Objection.

2.Preliminary Objection on the ground that the suit discloses no reasonable cause of action.

In determining whether a suit discloses a reasonable cause of

action and whether the plaintiff has the locus standi to institute an action, the Court considers only the originating processes filed by the plaintiff. In the case of a suit commenced by writ of summons, the Court will consider the

facts as stated in the statement of claim. Where the suit is commenced by way of originating summons or originating motion, the Court would consider the averments in the supporting affidavit.

There will be a cause of action if the aggregate of facts, when proved would entitle the plaintiff to a remedy against the defendant. See: Egbe Vs Adefarasin (1987) 7 NWLR (Pt. 47) 1;

It is trite law that where a suit discloses no reasonable cause of action, it will be struck out by the court(see ALFRED AKPORIDO & ORS V. PETROLEUM TRAINING INSTITUTE

(2012) LPELR-9819(CA)

3.Preliminary Objection on the ground that the court Lacks Jurisdiction to entertain the matter.

The Supreme Court in Madukolu v. Nkemdilim[ (1962) 1 All NLR 584; (1962) 2 SCNLR 341] held that jurisdiction defines the power of the court to inquire into facts, apply the law, make decisions and declare judgment.

Where the jurisdiction of a Court over a suit is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiff’s claim before it, in order to decide, whether it has the jurisdiction to entertain it. ADELEKE V O.S.H.A. (2006) 16 NWLR (PT. 1006) PG. 608, EGBEBU V IGP (2006) 5 NWLR (PT. 972) PG. 146.”Per NDUKWE-ANYANWU, J.C.A. (P. 11, Paras. C-D)-

d.

It is trite law that for a party who perceives that a Court has no jurisdiction to hear a case or matter, to raise the issue at the earliest opportunity. Where a court that lacks jurisdiction entertains any matter, all the proceedings will be nullity and would amount to an academic exercise.

4. Preliminary Objection on the ground that the claimants process is defective.

Where the Writ of Summons and the Statement of Claim are defective, the Memo even if competent has nothing to latch unto. The Writ is defective and everything placed on it has no leg to stand on and would eventually collapse. Once a Writ is defective, it is a fundamental vice and it is void ab initio. It cannot be remedied. A fundamentally defective process cannot be regularised and this makes it a good ground to file a preliminary Objection striking out the defective suit.

5.On Grounds that Condition precedent has not been fulfilled.

A condition precedent is defined as one which delays the vesting of a right until the happening of an event.

The law most times requires certain conditions to be satisfied before filing an action in court. Such condition precedents may be by way of service of pre-action notice or satisfaction of other steps required by law before commencement of action.

It is settled that in instituting an action in court conditions are imposed either by the common law or a legislation. Such conditions include the giving of notice as in the case of bringing an action against government or government agency; the payment of security as in the case of filing an election petition; obtaining leave to sue as in the case of petition of right, serving a letter of demand and bill of charge in cases of professional fee recovery, or a contract that provides that every dispute must first be resolved by way of arbitration. Where this condition precedent is not met, it can be a perfect ground to raise a preliminary Objection and where there is fundamental failure to comply with the requirement of a statute the issue is not of irregularity, but a nullity. See Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt.1093) 498; Umankoro v N.P.A. (1997) 4 NWLR (Part 502) 656

6.Preliminary Objection on the ground that the claimants action is an abuse of court process.

A great challenge in the administration of justice in Nigeria today is the several cases of abuse of court process by some members of the bar and bench. Abuse of judicial process arises in a variety of circumstances. It arises, for instance, in a situation where a party in litigation, in pursuit of a perceived legal right initiates and simultaneously prosecutes legal processes in more than one Court against the same defendant and over the same subject matter, occasioning thereby irritation and annoyance of the defendant and undue interference with the efficient administration of justice. See . See the case of Tailor & Ors vs Balogun & Ors (2012) LPELR-19673 (CA); (2013) 10 WRN 137, and the case of Dingoli vs Bara’u (2012) All FWLR (Pt. 609) 1156 at 1175.

Abuse of court process also entails the improper use of the judicial process by a party in litigation to interfere with due process of administration of justice.

Where you bring a preliminary Objection and the court is of the view that the suit is an abuse of court process and it is shown that the suit is frivolous, duplicity, scandalous or vexations, it would be struck out.

7.On Ground That The Action is Statutes Barred(Limitation Period)

The law sometimes places limitation in bringing certain actions in court. Where there is lapse of time as regard to limitation of time, proceedings will be statute barred Ajayi v. Military Administrator of Ondo State (1997); Egbe v. Adefarasin (1987). This means that a party will be denied proceedings after time has elapsed Obiefuna v. Okoye (1961; Sanda v. Kukawa Local Government (1991) 2 NWLR.

Limitation periods are creatures of statutes and depends on what state you are in. Sanda v Kukawa Local Government (1991): ignorance of the limitation statute is not an excuse.

This period begins to run when the cause of action accrues. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 and the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by limitation law, then the action is statute barred.

8. On grounds that the party suing or the party being sued is not a juristic person.

A non-juristic person can neither sue nor be sued for want of capacity.

It is trite that a non-juristic person cannot sue or be sued. It follows therefore that no action can be brought by or against any party other

than a natural person or persons except where such a party has been conferred by a statute expressly or impliedly with a legal capacity.

A statute can confer a legal personality on a party thus:-

a) under the name by which it may sue or be sued. Or,

b) a right to sue or be sued by that name such as in the cases of business name, partnership, trade union etc. See. Lion of Africa Insurance Company Ltd. v Esan (1999) 8 NWLR (Pt.614) 197 at 201; Carlen Nig Ltd v. University of Jos (1994) 1 NWLR Pt 323) 631.

Juridical personality is acquired when the law accepts and recognises the existence of unincorporated associations. On the other hand the capacity to sue and be sued is not thereby given by a mere recognition or acceptance of its existence, only the law confers that attribute

or capacity and in most statutes the capacity to sue and be sued of an authority or body they create is expressed. Lion of Africa Insurance Pls v. Esan (supra) at page 201; Peat Marwick Ani Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369).

In every suit, where either of the parties lacked the juristic personality of suing or being sued, the court would have no jurisdiction to adjudicate over the matter, consequently any proceedings thereon would be a nullity.

In conclusion, these are the grounds upon which every lawyer can use to challenge any suit. Preliminary objections are effective ways to terminate matters. Preliminary objections give the defendant the opportunity to remind the Court that there is a problem and that it should not decide the merits of the case and its saves time and money.

Written by Mpi,Elton Chizindu.

Legal Practitioner