Aderinola Adeyemi And 6 Ors V Alhaji Shittu Bamidele And Anor. (1968)
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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.
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
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:-
“They called some of the women who have told the court that they and others were married to the deceased person in accordance with native custom. I do not think that this form is the proper method of proving native customary marriage. Either the person who gave away the woman in marriage or a person who witnessed the ceremony or was sent to ask for the hand of the woman should be called to give evidence is proof of the marriage.”
Counsel submitted that there was sufficient evidence from the category of persons described in the judgment that warranted an inference that the first and second plaintiffs were wives of the deceased and married to him in accordance with customary law. In the present case the judge found that the evidence about the marriages of the first and second plaintiffs was unreliable and that in addition each evidence as there was on the marriage of the first plaintiff was conflicting. Marriage, as constituting status, must be strictly proved. On the evidence before the court we think that the learned trial Judge was right in concluding that the first and second plaintiffs did not establish that they were the wives of the deceased and that they were married to him under any known system of marriage. Apart from the reasons given by the Judge for rejecting the evidence of marriage, we observe that no attempt was made at the trial to call evidence as to the customary law of marriage of the locality concerned and the essentials of such marriage. Customary law, except where it has assumed the character of judicial notice, must be proved as a matter of fact and evidence called in order to prove a compliance must presuppose that the content of the particular customary law has been proved. These comments dispose of the appeals of the first and second plaintiffs.
As stated before, the judge held that it was not established that plaintiffs nos. 3 – 7 were children of the deceased. In the course of his judgment and in connection with the claims of those plaintiffs the judge observed as follows:-
“The rejection of the claims of the first and second plaintiffs as widows will not affect the claims of the children If their claims as children are established. But first, I have to be satisfied as to whether they are in fact children of the deceased, legitimate or illegitimate, a fact which must be strictly proved. It is not an easy matter to decide the paternity of a child in an area where there is no registry of births and deaths. In these proceedings, there is no evidence to show where the children were born in order to help me decide whether in such a place a system of birth registration exists. The first plaintiff in her evidence stated that she had 4 children for the deceased and she gave their names and ages as Morili 10, Mufutau 8, Aolatu 6 and Idiatu 4. She gave the name of the second plaintiff’s child as Akinade, aged 13. No other witness testified on this point. Not that the law requires corroboration but before testimony, standing alone and unsupported, given by a person who stands to benefit by an award can be believed, the veracity of such a witness, must be beyond question. And in order to test the veracity of this witness, I will deal with her evidence with regard to other aspects of this case. The sum total of all these is that this witness is an unreliable witness. She lied on all material points as shamelessly that I find it difficult to say whether her evidence contained any truth at all apart from the fact of the death of the deceased which incidentally was admitted. One would have thought that the matter being so important to the children at least one or two (the more elderly ones) of them should have been brought to the court If not to give evidence to show to the court. In the alternative, could not a relation of the deceased have given evidence as to his children? Surely, being a son of an ex-Alafin, there should still be some members of his own family who could have given a more direct and therefore more useful evidence on this point”.
The Judge then concluded that the first plaintiff was an unreliable witness and on that hypothesis dismissed the claims of plaintiffs nos. 3-7.
Learned counsel for those plaintiffs before us attacked the various reasons which the judge gave for discrediting the first plaintiff and submitted that the reasons were not supported by the evidence. On the other hand, learned counsel for the defendants urged on us those and other reasons not specifically given by the Judge to justify the rejection of her evidence; he however conceded eventually that some of the reasons given by the Judge for rejecting her evidence could not be supported by the written evidence. If the matter had ended there, we would have had some difficulty in interfering with the views taken by the Judge of the credibility of the first plaintiff: the Judge saw and heard her give evidence and the singular advantage he had of appraising her evidence cannot be reckoned with. But the Judge indicated that evidence about the children from a relation of the de-ceased would be “more direct and therefore more useful evidence on this point” and that such evidence was not forthcoming.
This in fact was an error for the third plaintiff’s witness, Lamidi Adeyemi, who described himself as a Brother of the de-ceased, did testify, inter alia, as follows
“ I know the plaintiffs in this case; they are the wives and children of the deceased.”
He was not cross-examined on his evidence and the defence gave no rebut-ting evidence on this point. The Judge did not disbelieve this witness and his evidence remains unchallenged. Had the Judge not overlooked this piece of evidence, on his own reasoning, he would have accepted the evidence as to the children.
Now section 5(b) of the Torts Law provides as follows:-
“(b)a person shall be deemed to be the parent or child of the deceased per-son notwithstanding that he was only related to him illegitimately or In con-sequence of adoption: and accordingly in deducing any relationship which under this section is included within the meaning of the expressions “parent” and “child” any illegitimate person and any adopted person shall be treated as being or as having been, the legitimate offspring of his mother and reputed father or, as the case may be, of his adopters”;
In the present case the Judge stated that he ought to be satisfied as to “whether they are in fact children of the deceased, legitimate or illegitimate, a fact which must be strictly proved.” He was dealing with the case of the plaintiffs nos 3 – 7. Now, both in the High Court and before us, the claims of the first and second plaintiffs (the mothers of the plaintiffs nos. 3- 7) as wives of the deceased, have been rejected,; with the consequence that instead of being presumed the children of the deceased, plaintiffs nos. 3 -7 must be considered as having been born out of wedlock in any event. The status of legitimacy (or its antithesis that of illegitimacy) may have different implications according to the system of law to which it is referred and it Is hardly appropriate in the context purely and solely of Yoruba customary law to describe a person as an illegitimate child of the father since even if he was born out of wedlock he would be legitimate if his paternity is acknowledge by the putative father. See Subuola Alake and Ors v. Bisi Pratt and Ors (1955) 15 W.A.C.A 20. In this connection we feel bound to refer to the obervations of the Federal Supreme Court in Lawal and Ors v. Messrs A. Younan & Sons (1961) All N.L.R. 245 where at p.250 the Chief Justice, Sir Adetokunbo Ademola, delivering the judgment of the court observed as follows—
“Now to what extent have these laws been applied to illegitimate children, or how far can illegitimate children claim under the Act? In England prior to 1934 when the Law Reform Act was passed, an illegitimate child could not claim under the Acts: Dickinson v. The North Eastern Railway Co. LT. vol. 9 New Series, 1863. This latter Act certainly does not apply to Nigeria as it is a statute, though of general application, passed after 1900. When considering the present action therefore, it is not possible to go beyond English Law in 1900.
This raises the question; who are illegitimate children in Nigeria? Unlike In England, legitimate children in Nigeria are not confined to children born in wedlock or children legitimate by subsequent marriage of the parents. In Nigeria, a child is legitimate if born in wedlock according ,to the Marriage Ordinance.
There are also legitimate children born in marriage under Native Law and Custom. Children not born in wedlock (Marriage Ordinance) Or who are not the issues of a marriage under Native Law and Custom, but are issues born without marriage can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father – see Bamgboshe v. Daniel 14 W.A.C.A 111 at page 115 and Alake v. Pratt 15 W.A.C.A. 20. On the face of this, it is clear that legitimacy in England is a different concept to legitimacy in Nigeria.
In the instant appeal there was evidence in the court below on which if the court accepted it, it was possible to say that the children on behalf of whom the claim was made were dependent on their deceased fathers. The trial Judge did not expressly find that they had been ackowledged by their fathers, but he held that they were entitled to share in the estates of their father, which implies a finding of legitimacy under Native Law and Custom, and there was evidence to justify the inference that they had in fact been acknowledged.”
For purposes of the present case it is sufficient to observe that there was evidence not only that the plaintiffs nos. 3 – 7 were children of the deceased, Isiaka Adeyemi, but also that during his life-time the deceased fed and cared for them and this to the knowledge of at least a very near relation of his. In rejecting their claims, the judge observed as follows:-
“On the whole, I find that there is not sufficient evidence on which I can hold that the third to the seventh plaintiffs are children of the deceased. Their claims as such must therefore fall and are hereby rejected.”
We have come to the conclusion that these findings of the judge in respect of those plaintiffs cannot be and are not supported by the evidence and his judgment insofar as it affects the plaintiffs Nos. 3- 7 is hereby reversed and a finding is made that the plaintiffs nos. 3 – 7 were children of the deceased, Isiaka Adeyemi. This finding does not however dispose of the case as it has still to be remitted to the High Court for determination of the questions of negligence trespass and damages. That hearing will be the third time the case has been in the High Court. If the judge had made findings on the issues of negligence, trespass and dam-ages, the necessity to send the case back, at any rate for this second time, could hardly have arisen. In a claim for unliquidated damages, even if the trial court finds against the claimant, it is desirable that the court should indicate its views on the issue of damages and its assessment of them for the assistance of the court of appeal, as, depending on the course taken by the appeal, these views and figures may become extremely useful. We think the observations of Tucker L. J. in Harrison v. Natinal Coal Board  1 K.B. 466 at p.477 to the following effect are pertinent:-
“I desire to add that in cases such as this, which involve difficult questions of law and are likely to be taken to appeal, it is always desirable that the trial Judge, whether or not he is specifically requested by counsel so to do, should assess the damages provisionally if his decision is adverse to the plaintiff. Failure to do so frequently results in unnecessary further expense to the parties.”
The appeals of the first and second plaintiffs therefore fail whilst those of the plaintiffs nos. 3 – 7 must succeed. The following orders are hereby made:-
(i) The appeals of the first and second plaintiffs in Suit No. 1/118/63 (High Court„Ibadan) are hereby dismissed.
(ii) The appeals of plaintiffs nos. 3-7 in the same case are hereby allowed and the order rejecting their claims is set aside, it is hereby ordered that the trial Judge shall treat the evidence as establishing that they were children of the deceased, Isiaka Adeyemi.
(iii) The case is hereby remitted to the High Court, Western State, for Ogunkaye, J. on the evidence on record only to determine the issues of negligence, trespass and quantum of damages insofar as the children of the deceased are concerned.
(iv) The parties or their counsel will be at liberty to address the court on the issues set out in paragraph (iii) supra.
(v) The respondents will pay to the appellants nos. 3 – 7, taking into consideration the costs concerning the first and second plaintiffs who have lost in both counts, costs in this court fixed at 23 guineas.
(vi) The order of the High Court awarding 100 guineas costs to the defendants is hereby set aside; and it is ordered that:-
(a) the first and second plaintiffs shall pay 50 guineas to the defendants as costs in the High Court and
(b) the defendants shall pay 100 guineas costs to plaintiffs nos. 3 – 7 as costs in the High Court, inclusive of all disbursements.
(vii) The costs of the further hearing in the High Court shall abide that event.
Other Citation: (1968) LCN/1615(SC)