ICPC Act

A respondent can file a counter-affidavit and a preliminary objection to the same motion.

Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd [2016] 16 NWLR (Pt. 1539) 387 at 433, paras E-G, per Oseji, J.C.A.:

“…A respondent who is served a motion on notice and intends to oppose it [will] of necessity file a counter-affidavit and a written address where applicable to justify the fact that he is opposing the prayers sought in the applicant’s motion. This does not however stop him from filing another application by way of preliminary objection to have the same motion struck out for reason of one defect or the other. It is akin to a defendant filing a statement of defence and also filing an application to have the suit dismissed or struck out for being incompetent and at the appellate level a respondent served with a notice of appeal and brief of argument has the freedom to file a respondent’s brief of argument and at the same time file a notice of preliminary objection to dismiss the same appeal for whatever grounds he deems justifiable.”

Blogger’s Note:

You can read the full Judgment online here.

 

In one breath, one may be compelled to reason that the grounds for challenging the motion may very well be included in the written address in support of the counter-affidavit filed in opposition to the motion. The preliminary objection may be raised in the address as a preliminary issue. This will enable the court to rule on all the issues at once and save the time for taking separate arguments and delivering separate rulings. After all, it has been held that a preliminary objection is essentially a motion (See Anibaba v. Badejo [2013] 5 NWLR (Pt. 1346) 42). It follows that you cannot file a motion to a motion. Just like you cannot file a preliminary objection to a preliminary objection. See Manson v. Halliburton [2007] 2 NWLR (Pt.1018) 211.
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