MRS. ANGELA IFEYINWA NNOLIM v. MR. TIMOTHY NNOLIM (2017)

MRS. ANGELA IFEYINWA NNOLIM v. MR. TIMOTHY NNOLIM

(2017)LCN/9430(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of January, 2017

CA/OW/258/2013

RATIO

COURT: INSTANCES THE COURT WILL RAISE AN ISSUE SUO MOTU
in my opinion justifies, why the Court, as a general rule, is not permitted to raise an issue, suo motu, at trial and proceed to resolve it, without giving the affected parties opportunity to address it, on the issue. There is exception, however, where the issue(s) touch purely on law, particularly on the jurisdiction of the Court. See the case of Ugo Vs Obiekwe (1989) 1 NWLR (pt.99) 566 at 581 and Oshodi Vs Eyifunmi (2000) 13 NWLR (pt.684) 298 – where the Supreme Court said:
the law is well settled that on no account should a Court raise a point suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other, without hearing the parties.
In the case of Olaolu Vs FRN (2015) LPELR – 24778 SC, the Supreme Court, again, held:
“It is trite that when an issue is not placed before a Court, it ordinarily has no business, whatsoever, in dealing with it. And on no account should a Court of law raise a point, suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or other, without hearing the parties, in particular, the party that may be affected, adversely, as a result of the point so raised. If the Court does so, it will be in breach of the partys right to fair hearing. See Yekini Abass & Ors. Vs Mogaji & Ors (2001) 11 SCM 1; Hon. E.O. Araka Vs Ambrose N. Ejeagwu (2001) 1 SCM 50; Bola Tinubu Vs IMB Securities Plc (2001) 12 SCM 73; Victino Fixed Odds Ltd Vs J. Ojo & Ors. (2010) 4 SCN 127.
The exception to the above rule was clearly stated in the case of Gbagbarigha Vs Toruemi & Anor. (2012) LPELR – 15535 SC, where the Supreme Court said:
“When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the judge is said to have raised the issue suo motu, the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails? but there is an exception to this procedure. There would be no need to call on Counsel to address the Court on an issue raised suo motu by the judge –
(1) When the issue relates to the Courts own jurisdiction
(2) When both parties are not aware or ignored a statute which may have bearing on the case; or
(3) When, on the face of the Record, serious questions of the fairness of the proceedings is evident. See Comptoir Commercial & Ind. S.P.R Ltd Vs O.S.W.C (2002) FWLR (pt.105) 839; M.O. Kolawole & Ors. Vs Oyo & Ors. (2006) NWLR (pt.966) 50. PER ITA GEORGE MBABA, J.C.A.

COURT: WHAT CONSTITUES ABUSE OF COURT PROCESS
An abuse of the Court process is usually considered in the con of wrongful use of the processes of Court to defraud, annoy, irritate and/or frustrate an opponent, or to clog/compromise the smooth administration of justice. See Saraki & Anor Vs Kotoye (1992) 11/12 SCNJ 26; (19920 NWLR (pt.264) 156; Ogoejeofo Vs Ogoejeofo (2006)3 NWLR (pt.966)205; Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968 (CA). The concept is never used to express offence against another process of Court filed by a party. It is used to express disgust about wrong use of Court processes to circumvent the rules and principles of justice in a case. PER ITA GEORGE MBABA, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

MRS. ANGELA IFEYINWA NNOLIM Appellant(s)

AND

MR. TIMOTHY NNOLIM Respondent(s)

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of Abia State High Court in Suit No. A/6D/2012 (a divorce petition), delivered on 22nd day of January, 2013, by Hon. Justice C.C.T Adiele, wherein the learned trial judge struck out the motion filed by the Respondent/Applicant on 2/7/12, that it was an abuse of the motion filed on 16/5/2012.

Appellant was the Respondent at the Court below, in the divorce proceeding, filed by the Plaintiff (Respondent herein) on 3/4/12, seeking:
?(a) Dissolution of the marriage contracted between the Petitioner and the Respondent on 13th day of April, 1996 on the ground that the marriage has broken down irretrievably.
(b) Custody of the only child of the marriage.?

Appellant, on 16/5/12, filed a preliminary objection to the Petition. She also filed (in protest) on the same date (16/5/12) the Answer to the petition, to which the Petitioner filed a Reply on 18/5/12. On 2/7/2012 Appellant (as Respondent at the lower Court) filed a formal application, challenging the jurisdiction of the Court to entertain the Petition on the grounds that the

Petition was incompetent, the same having no competent verifying affidavit. The Petitioner filed a counter affidavit to the motion challenging the jurisdiction of the Court, and the motion was argued, on 15/1/2013, when parties adopted their addresses.
?
Ruling on the application, on 22/1/13, the learned trial Court, suo motu, raised an issue of abuse of the Court process by the Respondent (Appellant herein) in that the earlier motion by the Respondent, filed on 16/5/2012, was still pending. It ruled that the motion filed on 2/7/12 was an abuse of the motion filed on 16/5/12. See pages 51 and 52 of the Records, where the trial judge said:
?Despite this application, learned Respondent/Applicant?s Counsel, F.U. Okonkwo Esq, while adopting his written submission in respect of his preliminary objection on 15/01/2013, referred to his Notice of Preliminary objection, as follows:
?There is a Motion on Notice dated 2/7/2012 and filed the same date. It is a preliminary objection challenging the competence of the Court to entertain the matter.?
Though searching through the case file I have been unable to see the Motion moved on

15/01/2013, which learned Counsel for the Respondent/Applicant said was filed on 2/7/2013, I am convinced that the said Motion was actually filed on 2/7/2012, when the earlier Motion filed on 16/5/2012 was still pending? From the foregoing it is evident that both motions filed on 16/5/2012 and the one moved on 15/1/13 filed on 2/7/2012 were both pending in this Petition at the same time. In fact, the motion filed on 16/5/2012, which is still pending, is earlier in time than the one filed on 2/7/2012, which was moved? It appears to me that the motion argued on 15/01/13 by Mr. Okonkwo is in abuse of the earlier process filed on 16/5/12.?

Being aggrieved by the above decision, Appellant filed her Notice of Appeal on 31/1/2013 and raised a lone ground of appeal, as per pages 55 ? 57 of the Records of Appeal, as follows (reproduced without its particulars):
?ERROR IN LAW:
That the learned trial judge erred in law when he suo motu in his ruling raised an issue of law (abuse of the process) without calling on Counsel to parties to address him on the issue and he decided the said issue raised by him, while abandoning the

issue of competence of the Petition canvassed before him by the parities.?

The Records of Appeal was regularized 26/5/14, and the Brief of arguments filed on 16/6/2014, wherein Appellant distilled the following issue, for the determination of the appeal:
“Whether a trial judge can abandon the issues canvassed by the parties before him and suo motu raise a different issue and, without calling on parties to address him on same, went (sic) ahead to deliver a ruling on the issue so raised by him.?

The Respondent filed ?A Respondent?s Notice? and his brief on 25/6/14, and donated two Issues for the determination of the Appeal, as follows:
(1) Considering the provisions of Order VII Rule 3(6) of the Matrimonial Causes Rule, Cap M7, Laws of Federation of Nigeria, 2004, can the Applicant rightly bring her application and expect the Court to rule in her favour?
(2) Considering the fact that the main Suit or Petition No. A/6D/2012, which was adjourned, sine die, on 29/7/2013 as a result of this Appeal, has been withdrawn and formally struck out; can this appeal still continue and not abate?
?
The

Respondent?s Notice was filed on the same date, 25/5/14, of filing the Brief. It was titled: ?Notice by Respondent of the intention to contend that the decision of the Court Below be varied?. In it Respondent stated as follows:
?Take Notice that upon the hearing of the above Appeal, the Respondent herein intends to contend that the decision of the Court below dated 22nd of January, 2013 and found at page 50 of the Records of Appeal, shall be varied, as follows:
?The Appellant filed his objection to the jurisdiction of the Court outside the time allowed under the Matrimonial Causes Rules and against the provision of the provisions of Order VII Rules 3(6) of the Matrimonial Causes Rules 2004
Take Notice also that the Suit upon which this appeal is based on has been withdrawn from the lower Court and is no longer pending thereby making any step taken towards the prosecution of this Appeal, an exercise in vain.
And Take Notice that the ground on which the Respondent intends to rely are as follows:
(1) That the provisions of Order VII Rule 3 of the Matrimonial Causes Rules, 2014 (sic) when read

in conjunction with the provisions of Sub ? Rule 3 of the same Order made it mandatory that any Respondent in a divorce Petition who files an answer to the Petition, under protest, should within 14 days of filing the same answer file his Application before the Court to seek direction as to the time and place at which the objection is to be determined by the Court.
(2) The Respondent, having filed, out of time, and there was no leave for the extension of time, is deemed to have waved (sic) her objection as reflected in the provision of Order VII Rule 3(6). See also the provisions of Sub Rule 7 of Rule 3 of Order VII of the same Matrimonial Causes Rules 2004(supra).?

The Appellant filed a Reply brief on 8/7/14, and when this appeal was heard on 16/1/17, Counsel for Appellant adopted their brief and urged us, accordingly. The Respondent was absent, despite having been served, and his brief was deemed duly argued.
?
Appellant?s Counsel F.O. Okonkwo Esq, submitted that the trial Court erred in law when he, suo motu, in his ruling raised an issue of abuse of Court process and without calling on Counsel to address him on the issue,

decided that said issue, while abandoning the issue of competence of the Petition, canvassed by the parties, before it; he said that the trial Court was wrong to hold that it was an abuse of the process to file a notice of preliminary objection and further file a formal motion on Notice, with supporting affidavit, challenging the jurisdiction of the Court. He argued that the trial Court breached Appellant?s right of fair hearing, when it raised the issue, suo motu, in its Ruling and relied on the same to strike out Appellant?s application, without determining the issue raised by Appellant on the competence of the Petition. He relied on the case of Leaders & Co. Ltd Vs Bamaiyi (2010) 18 NWLR (pt.1225) 329 at 338; Access Bank Plc Vs UIO Consult Ltd (2009) 12 NWLR (pt.1158) 534; Fawehinmi Construction Co. Ltd Vs OAU (1998) 6 NWLR (pt.553) 195. He also relied on Idehen Vs Roland (2013) Vol. 20 WRN 175, where it was held that:
?It is elementary and trite law that when a trial judge raises an issue suo motu in the course of proceedings before him, he should invite all the Counsel in the matter to address him on the issue before taking any

decision in respect of same.?

Counsel urged us to resolve the issue for Appellant and to allow the appeal.

The Brief did not seek any other relief, other than allowing the appeal. But in the Notice of Appeal on page 56 of the Records, Appellant had prayed for: the ruling of the trial Court to be set aside and issue as canvassed at the lower Court as per the competence of the Petitioner/Respondent Petition,? be decided on the merit ? since the issue raised therein is an issue of law.?

The Respondent, surprisingly, did not react to this submission and did not even file any brief on the issue raised in this appeal. The Respondent rather raised a Respondents Notice, wherein he formulated and argued two issues for the determination of the Respondent?s Notice, which had no direct bearings on Appellant?s Notice and ground of Appeal.
RESOLUTION OF ISSUES
I think the Respondent?s Brief, to the extent that it did not contest the issue/arguments of Appellant (that the trial Court was wrong to have raised the issue of abuse of the process, suo motu, and ruled on it, against Appellant,

without hearing from him, and abandoning Appellants real issue in the process, being want of competence of the Petition, had admitted the arguments canvassed by the Appellant. Thus, the issues raised on the Respondent?s Notice and argued by the Respondent were not canvassed by Appellant in the appeal and were not contemplated in the Ruling appealed against. In the case of Ayangoke & Anor Vs Keystone Bank Ltd (2013) LPELR ? 21806 CA it was held:
?The Rules governing arguments of appeal is trite that appeals are argued on issue(s) formulated on the ground(s) of appeal and Appellant is not permitted to wonder outside the confines of the issue(s) so distilled, in arguing the appeal. See Ossai Vs FRN (2012) LPELR 19669 (CA); (2013) 13 WRN 87.?
However, in the case of Ikwu Vs Ikwu & Ors. (2016) LPELR ? 40512 (CA), it was held:
?The law is trite, that in arguing appeal, the Respondent?s issue for determination has to be founded on the ground(s) of the appeal, as formulated by the Appellant, (except where he filed a Cross ? Appeal or raised a Respondents? Notice allowing him to raise fresh

issue or to argue in tandem with his grounds of cross appeal). A Respondent cannot therefore, raise a strange issue or argue the appeal on an issue not related to the ground(s) of appeal and/or not contemplated in the judgment appealed against.?
The above case also made reference to the case of Anyalenkeya Vs Anya (2016) LEPLR ? 40218 (CA), where it was also held:
?Appeals are considered on issues distilled from the grounds of appeal, and, where an issue for determination does not flow from or relate, properly, to the ground of appeal, the same simply floats, without a base, and must be ignored or struck out? See Musa Vs State (2014) LPELR ? 22562; OSSAI Vs FRN (2013) 13 WRN 87; Oseni Vs Bagulu (2010) ALL FWLR (pt.511) 813; Shettima Vs Goni (2011) 18 NWLR (pt.1279) 413
In the case of Onuegbu & Ors. Vs Gov. of Imo State & Ors. (2015) 8 CAR 224 at 240; (2015) LPELR ? 25968 (CA), it was held:
the Respondent has no room to formulate Issue(s) for determination of appeal, outside the grounds of appeal raised by the Appellant, except he had cross appealed or raised a

Respondent?s Notice on the issue.?

Of course, the issues formulated in this appeal by the Respondent, would therefore be saved by the process filed by the Respondent titled ?NOTICE BY RESPONDENT OF THE INTENTION TO CONTEND THAT THE DECISION OF THE COURT BELOW BE VARIED?, if the same is adjudged competent before this Court.

A Respondent?s Notice, is provided for under Order 9 Rule 1 of the Court of Appeal, Rules 2011, which states:
?A Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the ground of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.?
Order 9(2) of the Rules, says:
?A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect,

specifying the grounds of that contention.?
Order 9(3) of the Rules, says:
?Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a notice.?
Order 9(4) requires that:
?Any notice given by a Respondent under this Order must be served on the Appellant and all the parties to the proceedings in the Court below ?
(a) In the case of an appeal against an interlocutory order, within fifteen days after the service of the Notice of appeal on the Respondent.
(b) In any other case within 30 days, after the service of the notice of appeal on the Respondent
?
The Respondent filed the Notice on 25/6/14, the same date he filed his Brief. He did not state when the Notice of Appeal was served on Him, but there is evidence that the Records of Appeal (which carried the Notice of

Appeal) was deemed duly compiled and transmitted to this Court on 26/5/2014. It would therefore appear that the Notice of Appeal had been served on the Respondent before the 26/5/14, when the Records of Appeal was deemed duly compiled and transmitted to this Court. Thus, even if one were to go by the bench mark of 26/5/14, when the Records of Appeal was deemed duly transmitted to this Court (when parities had notice of same to prepare their briefs), the Respondent therefore was deemed to have had notice of the Notice of Appeal by that date. But he took, at least, 30 clear days to file the said Respondent?s Notice on 26/6/14, as against 15 days, donated by Order 9(4) (a) of the Court of Appeal Rules, 2011. The Respondent?s Notice could not, therefore, be said to be competent, in the absence of any order by this Court, extending time to file it.
?
However, the Respondent by the incompetent ?Respondents Notice? was also voicing out his own disagreement with the Ruling of the lower Court; that it (the Court) should have considered the motion on its merit, whether or not the same (Preliminary objection) was competently originated by

Appellant, in view of Order VII Rule 3(6) of the Matrimonial Causes Rules, 2004, which regulates the filing of Answer to Petition by Respondent, that:
?Where the party filing an answer under protest does not file the application referred to in Sub?rule (3) of this Rule, within the time limited by that sub?rule, the party shall be deemed to have waived the objection.?

To determine this appeal, it is necessary to review what transpired at the hearing of the motion.

Appellant/Applicant had filed her Answer to the petition on 16/5/12, but the Motion with which she sought the Court to strike out the petition, was filed on 2/7/12. Thus, counting from the 16/5/2012, the time within which the motion, objecting to the jurisdiction of the Court, was filed was over 45 days (far more than 14 days)! That made it offensive to Order VII Rules 3(6) and Sub?rule 3. See page 47 of the Records wherein the Respondent had relied on the said Order VII Rule 3(6) of the Matrimonial Causes Rule 2004 in opposing the motion. Page 48 of the Records show what transpired at the hearing of the motion:
Counsel for Appellant (Okonkwo Esq)

had said:
?There is a motion on Notice dated 2/7/12? It is a preliminary objection, challenging the competence of the Court to entertain the matter. We filed a written address? We hereby adopt same and urge the Court to strike out the Petition.?
Uzoma Esq:
?In opposition, we filed a counter Affidavit on 30/07/2012 for the Petitioner Respondent. We also filed a Reply to the written submission on 11/10/12. We hereby adopt same and urge the Court to dismiss the Preliminary objection.?

I had earlier reproduced the ruling of the Lower Court, made on 22/1/13, which showed that the trial Court abandoned the arguments for and against the motion and went on a frolic, to hold that the motion of 2/7/12 was an abuse of the motion of 16/5/12!

Appellant?s earlier ?Notice of Preliminary Objection to Petitioner?s Petition?, filed on 16/5/12, had intimated the Petitioner (Respondent) to:
?TAKE Notice that the Respondent shall before or at the hearing of this Petition/Suit raise the following Preliminary objection to the hearing of the Petition.
(1) That the petition is

incompetent and the Court lacks jurisdiction Court to entertain the said Petition on the following grounds.
(a) That there is no competent or valid certificate relating to reconciliation in the Petition as the same is not written into the Petition as mandatorily required under the Matrimonial Causes Rule
(b) That the verifying affidavit is incompetent same not being provided for in the Matrimonial Causes Rules.? See page 15 of the Records.

The above was filed on the same date Appellant (as Respondent) filed her Answer to the Petition.

On 2/7/12, Appellant filed what she called a Formal Motion on Notice for:
?An Order Dismissing or striking out the Petitioner?s Petition for want of jurisdiction.? On the grounds that:
?They said Petition is incompetent in that there is no competent verifying affidavit as provided for in the Matrimonial Causes Rules. This being the case, a competent Court lacks jurisdiction to entertain an incompetent Suit.?

I think the learned trial Court was, grossly, wrong to have abandoned the cause (motion) before it, where of issues had been joined and arguments taken,

and rather opted to raise and determine, suo motu, the allegation of abuse of process, which was never raised by any party, simply, because the earlier Notice of Preliminary Objection was pending, when Appellant brought a Formal Motion on Notice to challenge the competence of the Petition.

Of course, it can be appreciated that the filing of a formal motion on 2/7/12, to challenge the competence of the Petition, to which a preliminary objection had earlier been filed on 16/5/12 (on the same complaint of incompetence) and the moving of the motion, meant that the Notice of Preliminary objection had been abandoned, for the formal motion on Notice on the same Issue. If the trial Court had called the attention of the Parties (Appellant in particular) to the Notice of Preliminary objection, at the time of taking the motion on Notice, or even at the time of the Ruling, calling on the parties to address it on the pendency of the Notice of objection, I believe, Appellant would have made a formal application to withdraw the Notice of Preliminary objection.
?
That, again, in my opinion justifies, why the Court, as a general rule, is not permitted to raise an

issue, suo motu, at trial and proceed to resolve it, without giving the affected parties opportunity to address it, on the issue. There is exception, however, where the issue(s) touch purely on law, particularly on the jurisdiction of the Court. See the case of Ugo Vs Obiekwe (1989) 1 NWLR (pt.99) 566 at 581 and Oshodi Vs Eyifunmi (2000) 13 NWLR (pt.684) 298 ? where the Supreme Court said:
the law is well settled that on no account should a Court raise a point suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other, without hearing the parties.?
In the case of Olaolu Vs FRN (2015) LPELR ? 24778 SC, the Supreme Court, again, held:
?It is trite that when an issue is not placed before a Court, it ordinarily has no business, whatsoever, in dealing with it. And on no account should a Court of law raise a point, suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or other, without hearing the parties, in particular, the party that may be affected, adversely, as a result of the point so raised. If the Court does so, it will be in breach of

the party?s right to fair hearing. See Yekini Abass & Ors. Vs Mogaji & Ors (2001) 11 SCM 1; Hon. E.O. Araka Vs Ambrose N. Ejeagwu (2001) 1 SCM 50; Bola Tinubu Vs IMB Securities Plc (2001) 12 SCM 73; Victino Fixed Odds Ltd Vs J. Ojo & Ors. (2010) 4 SCN 127.?
The exception to the above rule was clearly stated in the case of Gbagbarigha Vs Toruemi & Anor. (2012) LPELR ? 15535 SC, where the Supreme Court said:
?When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the judge is said to have raised the issue suo motu, the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails? but there is an exception to this procedure. There would be no need to call on Counsel to address the Court on an issue raised suo motu by the judge –
(1) When the issue relates to the Court?s own jurisdiction
(2) When both parties are not aware or ignored a statute which may have bearing on the case; or
(3) When, on the face of the Record, serious questions of the fairness of

the proceedings is evident. See Comptoir Commercial & Ind. S.P.R Ltd Vs O.S.W.C (2002) FWLR (pt.105) 839; M.O. Kolawole & Ors. Vs Oyo & Ors. (2006) NWLR (pt.966) 50.

From the above, it is clear that the trial Court, unduly meddled in the case, when it, suo motu, called up the issue of the alleged abuse of the process, simply because the Notice of Preliminary objection was not withdrawn, when the motion challenging jurisdiction was argued and reserved for ruling. It was even more erroneous for the trial Court to hold that the motion moved was an abuse of the motion filed on 16/5/12. An abuse of the Court process is usually considered in the con of wrongful use of the processes of Court to defraud, annoy, irritate and/or frustrate an opponent, or to clog/compromise the smooth administration of justice. See Saraki & Anor Vs Kotoye (1992) 11/12 SCNJ 26; (19920 NWLR (pt.264) 156; Ogoejeofo Vs Ogoejeofo (2006)3 NWLR (pt.966)205; Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968 (CA). The concept is never used to express offence against another process of Court filed by a party. It is used to express disgust about wrong use

of Court processes to circumvent the rules and principles of justice in a case.

I resolve the issue for the Appellant and hold that the appeal has merit, and should be allowed.

But what order can be made in the circumstances of this case, where the trial Court did not rule on the merits of the application argued before the trial Court?

Appellant, in her reliefs sought in the Notice of Appeal, had urged us to decide the application, already argued, on its merit, and decide on the competence of the petition. I had earlier referred to the argument by the Respondent, that the motion filed by Appellant on 2/7/12 was incompetent, going by Order VII Rule 3(6) of the Matrimonial Causes Rule; that Appellant did not bring the motion promptly, having failed to do so within 14 days, of the filing of the Answer in protest. That was the ground of his opposition to the motion, as per page 47 of the Records of Appeal, when he relied on Order VII Rule 3(6), to say:
?Where the party filing and answer under protest does not file the application referred to in Sub-rule 3 of this rule, within the time limited by that sub?rule, the party shall be

deemed to have waived the objection.?
The Sub?rule 3 states:
?Where an answer under protest has been duly served, the party filing the answer may, within fourteen days, after the day on which the answer is filed, file an application to the Court for directions as to the time and place at which the objection is to be determined by the Court.?

I am inclined to agree with the Respondent that, if the trial Court had not distracted itself from considering the merits of the motion, and had duly considered the submissions of Counsel on both sides to the application, it would still have come to the conclusion that the application lacked merit and would have dismissed it; that it was not competent, having not been brought within 14 days of filing the Answer by the Appellant on 16/5/12. As the law presumes, under Order VII Rule 3(6) of the Matrimonial Causes Rules, 2004, Appellant was deemed to have waived the objection

I, therefore, acting on Section 15 of the Court of Appeal Act, 2004, enter the ruling which the trial ought to have made, dismissing the Motion filed on 2/7/12, for lacking in merit.
?
The appeal is

meritorious and is allowed.
Parties shall bear their respective cost.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother, Ita George Mbaba, JCA. I am in total agreement with the viewpoints espoused and expressed therein, coupled with the conclusions reached over the merits of the appeal. Thus, for the fluid reasons so lucidly adumbrated and or set out in the said lead judgment of my learned brother, Mbaba, JCA, I am also of the view that the appeal is brimful with merits and would accordingly allow it. I abide by the orders made in the said lead judgment with regard to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.

Appearances

F.O. OKONKWO, ESQ.For Appellant

AND

A.C. UZOMA, ESQ.For Respondent