PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Procedure which a respondent intending to raise a preliminary objection must follow; effect of non-compliance

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“Before going into the arguments and submissions of counsel for and against the preliminary objection, it is imperative to point out that the 1st and 2nd respondents failed to comply with the Rules of this Court when raising a preliminary objection. Order 2 Rule 9(1) of the Rules of this Court provides as follows: “A respondent intending to rely on a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time.” The 1st respondent’s notice of preliminary objection is dated 22nd February, 2021 and filed on the same date. Likewise, the 2nd respondent on the other hand also filed a notice of preliminary objection dated and filed 22nd February, 2021. The appellant was served with the notices of both counsel for the 1st and 2nd respondents on 22nd February, 2021, the same date the notices and the 1st and 2nd respondent’s briefs were filed at the Registry of this Court. It is also evident on record that the appellant’s brief of argument had already been filed and served on 13th January, 2021. As rightly noted by the appellant’s counsel in his reply brief that despite having been served with the appellant’s brief of argument, the 1st and 2nd respondents’ counsel chose to wait till 22nd February, 2021 before filing their notices of preliminary objection and arguments in support thereof incorporated in their briefs of argument. By simple computation of time, this is more than thirty five days after the service of the appellant’s brief of argument on them and less than two days before the hearing of this appeal on 24th February, 2021. As stated earlier in this preceding part of this judgment, the 1st respondent predicated his objection on nineteen grounds. The 2nd respondent in similar vein, also predicated his objection on virtually all the grounds relied upon by the 1st respondent. The essence of the direction given in Order 2 Rule 9(1) of the Rules of this Court is to ensure an equal playing ground between the parties. This is to prevent a respondent who intends to rely upon a preliminary objection to the hearing of an appeal from taking the appellant by surprise. The three clear days stated therein in the rules of this Court is to afford the appellant reasonable time to prepare his arguments in opposition to the objection filed challenging the competence of his appeal. On the day the appeal was heard, learned counsel for the 2nd respondent admitted during the process of adumbration that his notice of preliminary objection fell short of two clear days contrary to Order 2 Rule 9 of the Rules of this Court. I would have been inclined to consider the objection on the merit in the light of Order 2 Rule 9 which gives the Court, a discretion to either entertain or refuse to entertain the objection in the event of the respondent’s failure to comply with Order 2 Rule 9 (1), however, with the rather cumbersome way and manner in which the objections were argued, I am of the opinion that it would amount to an undue advantage on the part of respondents to say that the appellant should take just a day in replying to the comprehensive objections when he is entitled to three days. Without dissipating much judicial energy on the objection, I refuse to exercise my discretion in favour of the 1st and 2nd respondents. On this note, the objections are hereby struck out by reason of their failure to comply with Order 2 Rule 9 of the Rules of this Court. See Uwazurike Ors. v. A.-G., Federation (2007) LPELR – 3448 (SC), (2007) 8 NWLR (Pt.1035) 1.” Per ADAMU JAURO, JSC. in AGUMA v. APC & ORS (2021-LCER-40458-SC) (Pp 13 – 16 Paras B – C)

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