MR. IFEANYICHUKWU OKONKWO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2014)LCN/6880(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER VALIDITY OF A PRELIMINARY OBJECTION IS DEPENDENT UPON COMPLIANCE WITH LAID DOWN PROCEDURES
I disagree with the contention of the Appellant that the 3rd Respondent initiated his Notice of Preliminary Objection through a wrong procedure. The validity of a Preliminary Objection if raised in Court of Appeal is dependent upon compliance with Order 3 Rule 15 of Court of Appeal Rules, 2012. See Adelakun V. Oruku (2006) 11 NWLR (Pt.992) 625. See also Order 10 Rule 1 of Court of Appeal Rules 2011 (as amended). On the face of the record, I found a Notice of Preliminary Objection dated 10/11/2012 and filed on 12/11/2012. It therefore does not matter whether a Motion on Notice is ahead of the objection or not. Once there is sufficient notice in compliance with Order 10 Rule (1) of Court of Appeal Rules (2011) the court will be satisfied with the objection so raised provided that the Respondent states the grounds upon which he relies in objection to the hearing of the Appeal. The Appellate court should be concerned with the substance of a suit rather than technicalities initiated by the opposing party to a suit See F.B.N, Plc V. Akparabong Community Bank (2008) NWLR (Pt.962) 438. I hold that the Preliminary Objection is properly initiated. Per ABUBAKAR JEGA ABDUL-KADIR, J.C.A
WHERE A CHALLENGE BY WAY OF MOTION TO THE COMPETENCE OF A SUIT INVOKES THE ISSUE OF JURISDICTION
Where there is a challenge by way of motion to the competence of a suit, it invokes the issue of jurisdiction of the court to entertain same. In the case of UNILORIN Vs OLUWADARE, (2009) 19 WLR, 730 at 733 the Court of Appeal per NWEZE held thus: “Jurisdiction is to a court what a gate or door is to a house. That is why the question of a court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper as vigilant as he is always will readily intercept and query all persons who intrude in his domain.
The above analogy may, fittingly, be applied to the invocation of a court’s jurisdiction.”
I agree with the submission of the learned Senior Advocate for the 3rd Respondent in line with the Supreme Court’s decision in UMANA Vs ATTAH (2006) 17 NWLR (Pt. 1009) 503, 525 at para. E – F. It was the recondite opinion of Tobi JSC (as he then was) that: “Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. No more no less. The position of the law is as hard and strict as that”. Per ABUBAKAR JEGA ABDUL-KADIR, J.C.A
