Opposing party caught us off guard with a PO

Our company is involved in a commercial dispute before the High Court. During the hearing, the opposing party abruptly raised a preliminary objection without prior notice to us, challenging the Court’s jurisdiction. We were caught off guard and did not have sufficient time to respond. Is it appropriate for a Court to entertain a preliminary objection when the opposing party was not given prior notice? Shouldn’t fairness necessitate notice before such objections can be raised? Please advise us.
BN, Mbeya

A preliminary objection is a point of law that, if upheld, can dispose of a case without delving into factual issues. Case law defines a preliminary objection as a pure question of law arising clearly from pleadings. The requirements for a proper preliminary objection include: (i) it must be based solely on points of law, (ii) it should not require factual inquiry, and (iiii) it must be raised at the earliest stage of proceedings. There are several cases in which the Court has seriously condemned the practice of raising preliminary objections without filing a notice.

However, in a recent case, an interesting question emerged regarding whether a preliminary objection can be raised without a notice being filed. In this case, the Court held the view that points of law may be raised even if no prior notice was given where the point of law concerns jurisdiction. Based on this case, it follows that the respondent was not precluded from raising a preliminary objection at the hearing, even without filing the notice. Whilst raising a preliminary objection may be permissible, Courts have the discretion to entertain or decline a preliminary objection. In determining the preliminary objection, the Court must allow the disadvantaged party time to respond or challenge the objection’s validity. Furthermore, while the Court may permit an objection without notice in exceptional circumstances, the general practice encourages early disclosure to avoid procedural ambushes. Consult your lawyer for further clarity.