Aderinola Adeyemi And 6 Ors V Alhaji Shittu Bamidele And Anor. (1968)

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COKER, JSC.

The appellants are the plaintiffs and the respondents the defendants in an action (Suit No. 1/118/63) tried by Ogunkeye, J. In the High Court, Ibadan. The writ of summons was endorsed as follows:-

“The plaintiffs, the dependants of one Isiaka Adeyemi claim from the defendants the sum of thirteen thousand pounds (£13,000) being damages suffered as a result of the death of the said Isiaka Adeyemi from the negligence or trespass of the defendants on the 30th day of September, 1960 at Strachan Street, Ebute Metta.

PARTICULARS

1.    Aderinola Adeyemi (wife)    Aged     28    £ 1,500

2    Jejelola Adeyemi (wife)     Aged    32    £ 1,500

3.    Akinade Adeyemi     Aged    13 Boy Student    £ 2,000

4.    Mufutau Adeyemi     Aged    61/2 Boy  Student    £ 2,000

5.    Morili Adeyemi     Aged    10 Girl Student    £ 2,000

6.    Idiatu Adeyemi     Aged    4   Girl   Student    £ 2,000

7.    Awulatu Adeyemi     Aged    2 Girl Student    £ 2,000

TOTAL    £13.000

Thus framed it is manifest that the claims on the writ are founded on the Torts Law, cap, 122 (Laws of Western Nigeria). Evidence was taken on both sides. At the trial the first two plaintiffs claimed to have been wives of the deceased, one Isiaka Adeyemi who died in a road accident at Strachan Street, Ebute Metta, on the 30th September, 1960. The other plaintiffs were minors and had sued by their next friend. It was claimed on their behalf that they were children of the deceased. All the plaintiffs claimed to be dependent on the deceased at the time of his death. The defendants resisted the plaintiffs’ case on all grounds. In a reserved judgment the High Court held that with regard to the first two plaintiffs they did not establish that they were wives, and with regard to the other plaintiffs it was not established that they were children, of the deceased. The judge then dismissed the case with 100 guineas costs in favour of the defendants. He made no findings on the issues of negligence, trespass and damages; and it is not contended before us that if his findings as to the status of the plaintiffs were correct the other issues on which he made no findings would arise for consideration.

Against this judgment the plaintiffs have appealed to this court and the gravamen of their complaint is that the learned trial judge erred in concluding that the plaintiffs were incompetent to claim. At the commencement of the hearing before us learned counsel for the plaintiffs submitted, and this was not resisted by the defence, that even If he succeeded in establishing the capacity of the plaintiffs, this could would still have to remit the case back to the High Court for determination of the issues of negligence, trespass and quantum of damages. On behalf of the first and second plaintiffs, counsel referred to the case of Lawal and Ors v. Messrs Younan & Sons (1959) W.R.N.L.R. 155, where at p.159 the court observed as follows:-