What is Preliminary objections in Civil proceedings?
Preliminary objections are objections made by a party to a suit raising issues of law and fact that consideration of same deprives court of jurisdiction to entertain the suit brought before it.
Preliminary objections challenges the competence of suit before the court and seeks for court to abstain from hearing same on the premises that the court has no power to entertain the suit.
How do you raise Preliminary objections in Civil proceedings?
Preliminary objections are raised in High Court by way of Motion on notice filed in court stating the grounds for the objections, accompanied by affidavit and written address of the party.
The processes filed are served on the adverse party. Upon being served with the said processes, the party against whom it is made, shall join issues by filing counter affidavit and written address.The Applicant shall proceed further to file his further affidavit and reply on points of law.
The procedure above applies to other Superior Court of records like Federal High Court, Court of Appeal, National Industrial Court etc.
Preliminary objections are equally made in writing by way of Motion on notice at Magistrate Court level. But oral preliminary objections are allowed with leave of court. Oral preliminary objections can also be allowed in Customary courts.
When can Preliminary objections be raised and on what grounds?
Preliminary Objection anchored on substantive jurisdiction of court can be raised at anytime or stage of the civil proceeding, even for the first time on Appeal. See the case of Okafor v Ezenwa(1992) 4 NWLR.(Pt.237) p. 611
However,preliminary objections based on procedural jurisdiction are better raised at the earliest possible time before issues are joined. That is, before the filing of Statement of Defence and other processes for where action is instituted under irregular procedure, the Defendant who did not complain but took part therein cannot be later heard to complain of and take advantage of the irregularity. See the case of Noibi V Fikolati(1987) 1 NWLR(PT.52) 619.
In practice, motions for preliminary objections are filed alongside the Statement of Defence and other accompanying processes.
GROUNDS UPON WHICH PRELIMINARY OBJECTIONS CAN BE RAISED?
LACK OF JURISDICTION
Jurisdiction is the inherent power of court to try the matter before it and such power the court has to try matter before it is often confered on it by statute or by the nature of the subject matter or the reliefs sought.
Lack of jurisdiction is always the foundation of every preliminary objections and the issue of jurisdiction is an umbrella that houses a multitude of factors which court considers before diving into the matter before it.
Such factors may include issues of the suit being statute barred, the non fulfillment of condition precedent before the filing of the suit, non juristic parties suing or being sued in a suit, lack of locus Standi on the part of parties before the court etc.These plethora of factors are subsequently and extensively discussed.
A. Incompetent Process or mode of commencement of action.
An incompetent Process is a process not signed by the party who prepared it. Such a process cannot be heard, for an action to be validly commenced, such an action must be brought before a court using the due process of law through competent process and incompetent Process can be one of the grounds for preliminary objections.
B. Statute of limitations
An action that is statute barred is incurable by court. A court of law is deprived of jurisdiction to entertain same. The reason is that whenever a statute has provided for time within which an action must be commenced, non compliance with the period prescribed renders the action incompetent.
To determine whether an action is statute barred or not, the court has to consider when the cause of action arosed and when the suit was instituted. From the moment the facts in issue giving rise to rights and obligation started, the cause of action arose and an aggrieved party should have sought for legal redress.
The period of limitations are simplified below:
Simple contract actions- 6 years.
Damages for Negligence- 3 years.
Slander- 3 years
Action upon instruments under seal- 12 years.
Recovery of land by individual- 12 years
Recovery of land by state bodies-20years
Action against public officer- 3 months.
See Section 8,9,10,12,16 of Limitation law of Lagos State. See also Section 2(a) of the Public Officers Protection Act
One of the grounds that can form the basis of preliminary objections can also be non-compliance with pre-action notices required by law before instituting an action.
Pre-action notice is a condition precedent upon which a suit should be heard and determined.
Pre-action notices may be required where:
i.laws establishing statutory bodies provides for it. Forinstance, Section12(2) of the Nigerian National Petroleum Corporation Act provides, that before the corporation can be sued, the party intending to sue the corporation shall give the corporation 1 month pre-action notice.
ii. With respect to Public officers as stipulated under the Public Officers Protection Act, 2004, an action shall not lie against a public officer unless the act complained off has continued, 3 months after the complain against same was made.
iii.In landlord and Tenant matters. The Notice to quit as well as the notice of owner’s intention to apply to court to recover possession serves as a pre-action notices without which the condition precedent necessary to vest on the court the jurisdiction to hear the claim has not been met.
D.INCOMPETENT PARTIES TO AN ACTION
Only a person in law can initiate or defend an action in court. A person in law is either a natural person(human being) or artificial person(Registered bodies). An action commenced other than by a natural person or a registered body under the law is incompetent and liable to be struck out. See the case of Calabar Municipal Govt v Honesty (2022) 2 NWLR PT.1815.. P.409
EFFECT OF ACTION AGAINST NON JURISTIC PERSON.
A non juristic person in law is a person not clothed with the right of action in law. Such a person cannot sue or be sued.
The effect a non juristic person will have in a suit depends on whether there are other juristic person in that suit or not. Where such a person is joined in a suit with other juristic person, the mere presence of a non juristic person is not fatal to the suit. The appropriate thing the court will do is to struck out the name of the party wrongly joined or that is incompetent in the suit. See the case of Calabar Municipal Govt v Honesty supra.
But where the non juristic person is the only party to the suit as a plaintiff or as a Defendant, the suit is bound to be struck out for being incompetent.
E. LOCUS STANDI
The two latin words “Locus Standi” simply means place of standing. For a party to institute an action in law, the party must have a legal right to protect. The law does not have room for “busybodies”.Adesanya v President FRN (1981) 5 SC.112
Can Preliminary objections be appealed against?
Yes. Ruling emanating from preliminary objections can be appealed against by either parties to the suit.
What happens where Court Upholds Preliminary objections?
Where preliminary objections are upheld, the suit will be terminated (struck out). But where the objections is dismissed, the suit shall proceed to be heard on the merit.