Journal of Civil & Legal Sciences
Open Access

Plaintiffs; Judgement; Jurisdiction; State fundamental; Lawsuit; Contradictory judgements

Introduction

In the case of Tsokwa v. Ibi (2017) 10 NWLR (Pt. 1574) 343 on the meaning of preliminary objection, the court stated that A preliminary objection in a case before an international tribunal is an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary. An objection to the court's jurisdiction is an example of a preliminary objection. What is preliminary is defined as coming before and usually leading up to the main part of something [1]. 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. When the preliminary objection is raised, the court will set suspend the current action to rule on the preliminary objection. After hearing the arguments of each party either orally or written the court will issue its ruling. The court will make any order necessary to support its ruling in the preliminary objection. Most times, the suit is dismissed

Discussion

Grounds for preliminary objections

1. Jurisdiction: The concept of jurisdiction cannot be overemphasized enough. The issue of jurisdiction can be likened to the biblical triumphant entry of Jesus Christ into Jerusalem. It’s that fundamental factor that gives entrance to any action in court Its again fundamental to state that the locus classicus is found in the living judgement given by the apex court in the celebrated case of Madukulum v Nkemdilim (1962) 2 SCNLR 341. A preliminary objection can be raised to question the jurisdiction of the court to entertain such action [2].

2. Res-Judicata: This is also known as the rule of conclusiveness of judgement. The principle of res judicata seeks to promote the fair administration of justice and honesty and to prevent the law from abuse. The principle of res judicata applies when a litigant attempt to file a subsequent lawsuit on the same matter, after having received a judgment in a previous case involving the same parties. A preliminary objection can be raised to issue a plea of res-judicata. See Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365.

3. Res sub-judice: This is also means “under judgement”. The principle of res sub-judice prevents the court from proceeding with the trial of any suit in which the matter in issue is directly or substantially the same with the previously instituted suit between the same parties and the court where the issue is previously instituted is pending has the power to grant the relief sought.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to prevent the plaintiff from getting two separate decisions from different courts in his favour or two contradictory judgements. A preliminary objection can be raised to issue a plea of res sub-judice [3]. See Ibrahim v. Ojonye (2012) 3 NWLR (Pt. 1286) 108.

4. Limitation of time: This ground is to the effect that the suit is time-barred

5. Violation of provisions of law: The pleading violates the provisions of the law. For examples, the plaintiff does not disclose the cause of action.

6. Admissibility of evidence: A preliminary objection can be raised by a party to object that a certain piece of evidence is not admissible

7. Misjoinder of parties

8. No payment of court fees

9. Documents are not signed by the deponent

Preliminary objection can be raised in civil cases for anything that contravenes the law. The Tribunal begins with a brief observation on the standard to be applied for determining a Rule 41(5) Objection. There is no dispute between the Parties that the standard is a high one, and that must be right [4]. The Rule, as introduced in 2006, plainly envisages a claim that is so obviously defective from a legal point of view that it can properly be dismissed outright. By contrast, an objection to the jurisdiction or substantive defence, which requires for its disposition more elaborate argument or factual enquiry, must be made the subject of a regular preliminary objection under Rule 41(1) or a regular defence on the merits. This distinction seems to stem from the very nature of the new avenue of recourse opened by Rule 41(5), once account is taken in addition of the final sentence of the Rule. But the present Tribunal sees further clear reinforcement of this conceptual approach to Rule 41(5) in the time limits laid down in it. These have already been the subject of comment in paragraph 9 above; in the present context it is merely necessary to add that, when the drafters of Rule 41(5) required a tribunal to rule literally at its first session or promptly thereafter, they can only have had in mind an objection that was so clear-cut that it could be decided virtually on the papers or with a minimum of supplementary argument. Each of the present Parties invoked in its submissions the decision in Trans-Global Petroleum v Hashemite Kingdom of Jordan in which the tribunal stated, in assessing the meaning of manifestly without legal merit in Rule 41(5), The Tribunal considers that these legal materials confirm that the ordinary meaning of the word requires the respondent to establish its objection clearly and obviously, with relative ease and despatch [5]. The standard is thus set high. The present Tribunal respectfully agrees. The Trans-Global tribunal went on however to add: Given the nature of investment disputes generally, the Tribunal nonetheless recognises that this exercise may not always be simple, requiring successive rounds of written and oral submissions by the Parties, together with questions addressed by the tribunal to those Parties. The exercise may thus be complicated; but it should never be difficult. And about that, the present Tribunal is less convinced. It seems to be carrying a tribunal into hybrid territory somewhere between Rule 41(5) and Rule 41(1), and the present Tribunal has itself been carried some distance in that direction by the pattern of written, followed by oral, argument agreed between the Parties and the Tribunal at the first session. But the Tribunal is firmly of the view that the distinction has to be maintained between a claim by an investor that can properly be rejected out of hand, and one which requires more elaborate argument for its eventual disposition [6]. The Trans-Global tribunal correctly distinguished between matters which are clear and certain on the one hand and those which are susceptible to argument one way or the other or where it is necessary to engage in elaborate analyses. In the opinion of the present Tribunal, that is the right test. It represents the only way to respect the evident intention behind Rule 41(5), to the benefit of the health of the ICSID system [7]. The Global and Globex v. Ukraine tribunal found itself, no doubt, in a somewhat different situation when it posed itself the question, what materials must a tribunal have before it in order to enable it properly to uphold a Rule 41(5) objection, and in so doing bring the arbitration to a premature end by issuing an Award to that effect. But that is not the situation of the present Tribunal – for which the issue is, are the matters raised by the Respondent sufficiently ‘clear and certain’ to enable them to be determined in summary proceedings of the present kind? Or must they be stood over to be determined in the normal way in a jurisdictional phase or on the merits? That at all events is the approach which the present Tribunal will adopt [8]. The above having been once established, it becomes plain that none of the Respondent’s preliminary objections presently before the Tribunal can be upheld in Rule 41(5) proceedings. On each of them, the Respondent has advanced plausible arguments, which in each case have been rebutted by plausible arguments from the Claimant. That might be sufficient in itself to raise a serious question as to whether the answer was manifest. But, even without that additional element, it seems to the Tribunal that the issue, if seriously pursued by the Respondent, would require a detailed examination, against the limited amount of documentation publicly available, of the history and negotiation of the ECT, of a kind that would make it plainly unsuitable for summary determination under Rule 41(5). Moreover, part of the argument on this issue has revolved around the fairness’ or inequity of allowing Hungary to use Annex IA as a shield, while allowing its nationals to use as a sword the substantive treaty provisions which the Annex refers to [9]. The introduction of that element into the argument would require the Tribunal to make an inevitably discretionary assessment of what constitutes, in the circumstances, fairness and equity, which is wholly antithetical to the basic notion of ‘manifestly without legal merit’ that underlies Rule 41(5) [10].

Conclusion

Similarly, in relation to the Preliminary Objection based on the allegedly preclusive effect of the forum selection clauses in the Shareholders’ Agreement and the GMA, the issue is essentially one of forum convenience, a matter of considerable delicacy which, in domestic jurisdictions, entails a measure of discretionary assessment by the national court. If the matter is classified in that way, it seems inherently unsuited to the ‘knock-out’ operation of Rule 41(5), which does not by any means foresee an ICSID tribunal deciding as a matter of discretion not to exercise a jurisdiction formally vested in it, but rather ruling out a claimant’s claim with final and definitive effect as manifestly without legal merit.

Acknowledgement

None

Conflict of Interest

None

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