Agolo Ibolukwu & Ors V. James Onoharigho (1964) LLJR-SC

Agolo Ibolukwu & Ors V. James Onoharigho (1964)

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 BRETT JSC

This is an appeal by the defendants against the judgment of the High Court of Western Nigeria awarding damages of £7,200 on a claim brought under Part 2 of the Torts Law in respect of the death of Emetejivbie Onoharigho, the wife of the plaintiff. The plaintiff sued for his own benefit and for that of the five children of whom he is the father and the deceased was the mother.

We have no doubt that on the evidence the trial Judge was correct in holding that the appellants were liable in damages for the death of the deceased, and that she was validly married to the plaintiff under native law and custom, and we find it unnecessary to give any detailed consideration to the grounds of appeal which question these findings. There is, however, substance in the submission that the damages awarded were excessive, and we now proceed to consider this point.

The respondent testified in the High Court that he himself was a trader, and earning £2,000 a year. His wife, he said, engaged in trading in textiles on her own account, and they shared the expenses of bringing up and educating their family. The two eldest children, Solomon, aged 20, and Macaulay, aged 17, were both at boarding school, and he paid their school fees. The other three, George, aged 10, Ogheneovo, aged 5 and Ufuoma, aged 3, lived at home, and the entire cost of feeding the family and running the home was met by the deceased out of the proceeds of her trading. At one stage the respondent stated that the deceased’s expenditure on this amounted to £65-4s-0d a month, and it was submitted that this indicated an income of about £1,000 a year, but when the respondent came to give details of the expenditure it came to a sum which the trial Judge estimated at £446 a year and which counsel appearing before us have agreed amounts to about £406 a year.

From the figure of £446 for household expenditure the Judge estimated an annual income of £600. The deceased was aged about 35 at the time of her death, and the Judge was of the opinion that a fair total award of damages would be reached by multiplying the annual benefits received by the dependants by twelve. The appellants have submitted that this figure was excessive, but gave no reason why we should hold it to be so.

It is true that the Judge gave no reason for arriving at the figure, but we are not disposed, in the absence of argument on the point, to say that he must have applied any wrong principle, and we shall adopt the same figure for our own assessment of damages. Where we disagree with the Judge is in our estimate of the sum which should be multiplied by twelve.

The Judge thought it was the total income of the deceased, but the evidence did not support the view that she spent her whole income on maintaining her husband and children, and nothing on herself, and the annual amount of support has not been shown to have exceeded £406. This basic sum, however, must be reduced further since it was the amount spent for a household of nine, made up of the deceased herself, her husband and five children and two other persons. If the share of the husband and five children is taken as two-thirds of £406, that gives a figure of about £270 a year.

If £270 is multiplied by 12, that produces a total sum of £3,240, but it is accepted in England in actions under the Fatal Accidents Acts that the sum awarded may be reduced in consideration of the payment of a lump sum which is capable of earning interest, and in our view this practice should be followed in actions under corresponding legislation in Nigeria. Counsel on both sides have recognised the justice of this, but whereas Mr. Benson, for the appellants, suggests a total award of £2,000, Mr. Irikefe, for the respondent, suggests one of £3,000. We consider that £2,500 would be a fair award, and the judgment will be varied accordingly.

The appellants have no interest in the allocation of the damages between the various persons for whose benefit the action was brought, but since we have reduced the award a fresh allocation is necessary.

The trial Judge, without giving his reasons, awarded £700 to the husband, £1,000 each to the two oldest children and £1,500 each to the three youngest. Mr. Irikefe, again without giving reasons, has suggested that if the award is reduced to £2,500 the husband should receive £250, the two oldest children £300 each, the third £400, the fourth £600 and the fifth £650. This Court, like the High Court, is thus left to arrive at a fair distribution without the assistance of reasoned argument from counsel, and if anyone is ever disposed to rely on this judgment as a guide in future proceedings we hope the fact will be borne in mind. We also hope, since proceedings of this kind are still comparatively infrequent in Nigeria, that counsel appearing in such proceedings will make a more careful study of the principles which have been evolved in England for the assessment and allocation of damages under the Fatal Accidents Acts, and come prepared to give the Court a greater degree of assistance than it receives at present.

Having given this caution, the Court must do the best it can. English cases, of which the most recent known to us is Edwards v. Alan Brown (1964) 3 C.L. §.79, show that the fact that the husband of a deceased wife is himself earning a good income is not treated as a ground for allocating the entire award or even the greater part of it to the dependent children, and the husband in this case is being modest enough in asking for ten per cent of the total award.

We allow him £300. As regards the children, we consider that the awards to them should be related more closely to their ages and to the number of years for which each might have been expected to remain dependent on its parents. We award £30 to Solomon, £70 to Macaulay, £500 to George, £750 to Ogheonovo and £850 to Ifuoma.

In accordance with Order 18 rule 7 of the High Court (Civil Procedure) Rules of Western Nigeria, we direct the defendants to pay the damages of £2,500 to the Registrar, High Court, Warri. The sum of £300 awarded to James Onoharigho may be paid out to him at once, and also the sum of £30 awarded to Solomon, and the sum of £70 awarded to Macaulay.

This case illustrates again the inconvenience of having no regular procedure for the investment of funds paid into Court, but we hope some means of investing the balance may be found. Payments out for the benefit of the three youngest children may be made on the instructions of the Judge to James Onoharigho; in considering any application for such a payment we hope the Judge will bear in mind that the award to each child is intended to go towards providing for him or her until he or she has reached an age to be self-supporting, but this is without prejudice to the Judge’s discretion to make any order which appears likely, in the long run, to be for the benefit of the child concerned.

Each side has asked for the costs of this appeal and we will hear argument from counsel for the appellant, having already been addressed by counsel for the respondents. 

Other Citation: (1964) LCN/1127(SC)