BY LAMID ARISEKOLA

In the Nigerian legal system, parties can approach the court through various procedural mechanisms. While substantive issues are initiated through the statutory mode of commencing an action, parties may also file a motion on notice or preliminary objection to seeking specific relief or addressing the procedural matter.

This article examines the specific questions of whether a motion on notice can be used to strike out another motion on notice, effectively serving as a preliminary objection to the existing motion.

The Nature of Motion on Notice and Preliminary Objections

A motion on notice is an application that focuses on specific aspects of the case without affecting the overall proceedings. In contrast, a motion preliminary objection aims to challenge the very foundation of the suit, potentially stripping the court of its jurisdiction. In Inspector Isa Sarki V. John Lamela (2016) LPELR — 40338 (CA), the Court of Appeal stated,

“It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a motion on notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of preliminary objection challenging the competence of the entire appeal.”

The constitutional and procedural framework

The combined reading of sections 236,248,254,254(f),259,269,274, and 284 of the constitution of the Federal Republic of Nigeria 1999 (as amended) enable the courts to make rules for the practice and procedure of the courts. These rules are binding on all parties. As highlighted in the case of ABIA STATE TRANSPORT CORPORATION & ORS .V. QUORUN CONSORTIUM LTD (2009) VOL. 172 LRCN PG 134 AT 137 RATIO 2 where the Court held thus;

“The settled law is that rules of court are not made for fun, BUT TO BE OBEYED. ONCE SUCH RULES ARE IN PLACE. THEY MUST BE ADHERED TO AND NOT CONTRAVENED OR IGNORED.”

Now, what is the position of law governing the respondent’s response to the applicant’s motion on notice?

Order 43, rule 1(3) of the Lagos State High Court Rules provides that:

“Where the other party intends to oppose the application, he shall file his written address and may accompany it with a counter affidavit within seven (7) days of the service on him of such application”

Also, Order 40 Rules 2(2) of the Edo State High Court Civil Procedure Rules, 2018 which provides thus;

“where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, may file a counter affidavit and shall accompany it with his written address.”

Alluding to the above statutory provisions, it is crystal clear that a party in regard to responding or opposing an application must file a counter-affidavit and a written address to support their argument against the application. However, by implication, a new motion or preliminary objection can not be raised for the court to discontinue or strike out an application. This is against the rule and amounts to frustrating the hearing of the motion. See the case of DOWELL SCHLUMBERGER (NIG.) .V. ANIEKAN & ANOR (2018) LPELR – 44DII (CA) where the Court held thus;

“.THE LAW GENERALLY IS THAT A PARTY CANNOT BE ALLOWED TO RAISE A PRELIMINARY OBJECTION IN THIS COURT TO THE HEARING OF A MOTION, AS THERE IS NO PROVISION IN OUR RULES FOR THAT…A PARTY IS EXPECTED TO FILE A COUNTER AFFIDAVIT, TO OPPOSE A GIVEN MOTION OR OPPOSE SAME ON POINT OF LAWS WHEN ARGUED…SEEKING TO TERMINATE A NOTICE OF MOTION BY WAY OF A PRELIMINARY OBJECTION IS UNKNOWN TO OUR RULES OF COURT…AND I THINK, IT SHOULD BE SO, AS IT SIMPLY DOES NOT SOUND REASONABLE OR PROPER FOR A PARTY, AS IN THIS CASE, TO JUST RISE TO FRUSTRATE THE HEARING OF A MOTION HE THINKS IS INCOMPETENT, RELYING ON GROUNDS THAT CAN ONLY BE CONSIDERED AT THE HEARING OF THE MAIN MOTION! The Objector in such a situation, should rather be patient; and allow the motion to be heard, while opposing the same, using the same particulars he would want to use to frustrate the hearing of the motion… THIS PRELIMINARY OBJECTION, THEREFORE SUFFERS THE SAME LEGITIMACY PROBLEMS AND IS CONDEMNED TO THE SAME DISABILITY OF INCOMPETENCE.”

Also, in the case of the case of ONYEGIRIGWAM & ORS .V. UZOKWE & ORS (2019) LPELR – 46608 (CA) PP 8 – 14 PARAS C – C the Court held thus;

“…suffice it to say that the propriety of filing a Preliminary objection to a motion filed by an applicant either pursuant to the rules of the court and/or under its inherent jurisdiction, was given extensive consideration by this Court in its decision (unreported) delivered on 28/5/2018 in APPEAL NO: CA/OW/116/2013 – NIGERIA BOTTLING COMPANY LIMITED .V. VACU – NAK BEVERAGES (NIGERIA) LIMITED…it was stated amongst others to the effect that the filing of a notice of preliminary objection to a motion has no foundation in the rules of this court and that doing so under the inherent jurisdiction of this court equally cannot validate such a notice against the backdrop of the concept of ‘inherent jurisdiction of thiS court’.

The combined reading of the above provisions has made it clear that a motion cannot be against another motion. Neither motion on notice nor preliminary objection can be used to object to an existing motion. This is one of the preconditions that the party must be mindful of, as it was held in the case of INAKOJU & ORS .V. ADELEKE & ORS (2007) VOL. 143 LRCN AT PG 82, PARA F – K, the Supreme Court held thus;

“it is a good law that where the constitution or a statute provides for a precondition to the attainment of a particular situation, the precondition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached.”

It is this writer’s submission that a motion on notice can not strike out another motion, as case law and procedural rules clearly indicate. This would amount to a violation of the court’s established procedures and could be seen as an abuse of the court process. Instead, Parties must oppose a motion on notice by filling a counter affidavit and written address, addressing the merits of the argument within the framework of the existing motion.

• Lamid Azeez Arisekola is a 300-level law student from Usmanu Danfodio University, Sokoto. He can be reached at lamidazeez8@gmail.com

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