What is a Preliminary objection? (guide + sample)

preliminary objections, grounds for preliminary objections

This post is about a preliminary objection.

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What is a preliminary objection?

Preliminary objection (P.O) refers to the legal issues raised by any party in a civil case that requires court determination before proceeding to the main case.

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A preliminary objection is a legal opportunity available to the parties of the case, to tell the court that there is a problem based on the point of law which must be decided before the main case.

How to raise a preliminary objection

A party that wishes to raise preliminary objections must give notice to that effect. Among other things, the notice of preliminary objections must contain grounds for objection and prayers to the court.

The notice of preliminary objection can be featured in a written statement of defence or filled separately.

Once filled, or in any other proper way presented in court, the court must determine the objections first before proceeding with the main case.

In entertaining the objections court will allow each party to present his arguments either orally or in written form.

After hearing the arguments from each party court will issue its ruling.

When the court allows the objections, it will make any order that it may think fit in relation to the objection raised. In most cases, the suit is dismissed.

When the court rejects the objection, it will proceed to hear the main suit.

Grounds for preliminary objections

The following may be the grounds for preliminary objections

  1. Jurisdiction– that the court has no jurisdiction to determine the case
  2. Res-judicata- This ground tells the court that the cause of action has been already determined by the court in another case. The doctrine of res judicata bars litigation on a point that has been the subject of litigation in a previous suit.
  3. Res sub-judice– this ground tells the court that there is a similar case that is pending before the court (Res sub-judice bars litigation in two suits simultaneously.)
  4. Limitation of time- This ground is to the effect that the suit is time-barred
  5. The pleading violates important provisions of the law; for example, the plaint does not disclose the cause of action.
  6. Admissibility of evidence- a party can object that a certain piece of evidence is not admissible.
  7. Misjoinder of parties
  8. Non-payment of court fees
  9. Etc.

NB: the list above is not exhaustive.

Generally, in civil cases, anything that contravenes the law may be a good ground for preliminary objection.

Sample of notice of preliminary objection

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO…… OF ……….

A AND B Appellant

X AND Y Respondent

(Revision from the High Court of Zanzibar at Vuga-Zanzibar, The Hon. ………. dated ………. in Miscellaneous Civil Application No… of……)

NOTICE OF PRELIMINARY OBJECTION

(Made under Rule 107(2) of the Tanzania Court of Appeal Rules, 2009)

NOTICE IS HEREBY given that at the commencement of the hearing of the Application, a preliminary objection will be raised on behalf of the Respondent asking the Honourable Court to dismiss and/or strike out the Application on the following grounds: –

  1. The Application is misconceived and incompetent because it improperly seeks to move this Honourable Court to exercise its revisional jurisdiction; and
  2. he application is an abuse of the Court process.

Dated at Dar es Salaam this ________ day of November…..

ADVOCATE FOR THE RESPONDENT

Lodged in the Registry at Dar es salaam this _________ day of November 2…

COPY TO BE SERVED UPON: