Mrs. Irene Fubara Manuel V. Chief O. O. Oruwari & Anor (2004)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment):

The suit the subject of this appeal was commenced at the High Court of Rivers State with the following parties –

BETWEEN:
CHIEF OWITUBO O. ORUWARI-   PLAINTIFF
(By his Attorney Chief Kenneth I. Briggs)
v.
1. ATTORNEY-GENERAL, RIVERS STATE
2. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY –  DEFENDANTS
3. MRS. IRENE FUBARA MANUEL

On 14th July, 1988 the plaintiff filed motion on notice praying for leave to discontinue the suit against the Attorney-General of Rivers State. The court below accordingly struck out the Attorney-General of Rivers State from the suit.

On 10th September, 1990 an application was brought by Senibo Oruwari praying that “the name of Chief Owitubo O. Oruwari in the suit no. PHC/526/86 be substituted with that of his son, Senibo Oruwari and that the suit be prosecuted in the name of Senibo Oruwari as the plaintiff”. The application was granted unopposed on 28th January, 1991 and it was “ordered that in the suit no. PHC/526/86 the name of Chief O. O. Oruwari, now deceased be dropped and substituted with the name of his son, Senibo Oruwari, as the plaintiff”.

From thence Senibo Oruwari prosecuted the case as the plaintiff against only the Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, the Attorney-General of Rivers State having already been struck off as a defendant in the suit. Judgment in the suit was delivered on 30th July, 1997 between the Senibo Oruwari, as plaintiff, and Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, as defendants. The substitution of Senibo Oruwari, as the plaintiff, for Chief O. O. Oruwari (by his attorney K. I. Briggs) was on the footing that Chief O. O. Oruwari, erstwhile plaintiff, had since died on 14th May, 1990 – see pages 183 – 187 of the Record of Appeal.

As between the parties this fact is notorious. The testimony of PW.1 at page 206 of the Record bears this fact out.

The 1st Respondent has brought a notice of preliminary objection on 19th September, 2007, which he argued in his brief filed on 12th June, 2010 vide order made on 24th May, 2010. The preliminary objection is on three grounds, namely:

a. That the notice of appeal filed at pages 403 – 405 of the Records, is fundamentally defective and void ab initio having been filed against Chief O. O. Oruwari (by his attorney K. I. Briggs) – both deceased.

b. That the purported interlocutory appeal, argued together with this appeal, is incompetent, its notice of appeal having not been filed in the Registry of the lower court or at all.

c. That the argument of both appeals together by the Appellant renders the brief of argument filed by the Appellant also incompetent and void.

The preliminary objection of the 1st Respondent was argued in paragraphs 3.02 – 3.06 of the 1st Respondent’s Brief. The arguments of the 1st Respondent on the preliminary objection and the appeal, contained in the 1st Respondent’s Brief filed on 12th June 2012 vide order made on 24th May, 2012 were adopted by E. B. Ukiri of counsel to the 1st Respondent on 25th February, 2014 when this appeal was heard. The Appellant’s Brief filed on 8th March, 2005 was deemed argued in the absence of the Appellant and his counsel. The hearing notice for the appeal was on 10th January, 2014 served on the Appellant through her counsel.

Mrs. Irene Fubara Manuel, as the 2nd defendant in the suit of Senibo Oruwari, who was substituted for the deceased Chief O. O. Oruwari, was aggrieved by the decision of Rivers State High Court (coram: F. N. N. Ichoku, CJ) delivered on 30th July, 1997 in the suit no PHC/526/86. The said Mrs. Irene Fubara Manuel, as the appellant, brought this appeal vide the notice of appeal filed on 22nd August, 1997. The notice of appeal at pages 403 – 405 of the Record, settled by O. Ben-Whyte of counsel for the appellant has Mrs. Irene Fubara Manuel as the appellant, and two respondents named as Chief O. O. Oruwari (by his attorney, K. I. Briggs) and the Rivers State Housing and Property Development Authority.