B. A. Lawal and Ors. Vs Messrs a. Younan & Ors. (1961)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F.

This is an appeal from a judgment of the High Court of the Western Region given in two consolidated actions in which the plaintiffs in Suit No. 1/324/58 sued as Administrators of Adeleke Arernu (deceased) and claimed from the defendants the sum of  £10,000 damages under the Fatal Accidents Act 1846 and under the Torts Law 1958 of the Western Region of Nigeria for the death of the said Adeleke Arernu (deceased); and the plaintiffs in Suit No, l/326/58 sued as Administrators of Alhaji Adegoke Adelabu (deceased) and claimed from the same defendants the sum of £100000 damages under the Fatal Accidents Act 1846 and under the Torts Law 1958 of the Western Region of Nigeria for the death of the said Alhaji Adcgoke Adelabu (deceased).

The defendants in the two suits were alleged to be driving their cars negligently thereby colliding with each other which resulted in the death of the two deceased persons who were travelling in one of the cars. The personal representatives in each case sued on behalf of the wives and the children of the deceased persons. In the first case (1/324/58) there were two wives, alleged married under Native Law and Custom, and three children; and in suit No. l/326/58 nine wives, alleged married under Native Law and Custom and 17 children.

After a protracted hearing lasting many days the learned Judge of the High Court found that it was not proved to his satisfaction that the Native Customary marriages were established in each case: the claims of the wives were therefore dismissed. He held that the Torts Law of Western Nigeria would not apply as the law came into operation about five months after the death of the deceased and was therefore not in operation at the time of death. He was, however, of the view that the Fatal Accidents Act 1846 applied. On the evidence the learned Judge was satisfied that negligence has been established against the 1st defendant and not against the 2nd defendant who was therefore dismissed from the suit. Against the 1st defendant, therefore, judgment was entered for the plaintiffs in the first suit, on behalf of the children of the deceased, for a sum of £580 and 50 guineas costs; in the second suit for £6,030 and 100 guineas costs.

Against that judgment the 1st defendant has appealed to this Court. Plaintiffs in each case have also filed counter-appeals against the judgment of the learned trial Judge.

For the purposes of this appeal I find it unnecessary to set out the various grounds of appeal filed and/or argued on either side, but will set out the submissions or grounds made by either side, which are relevant. For the appellant (1st defendant in the case), Mr OConnor made the following three submissions:-

1. Illegitimate children are not children on behalf of whom claims may be made under the Act at the time in Nigeria.

2. Fatal Accidents Act did not apply at all and neither wives nor children, legitimate or not legitimate have any cause of action under the statute.

3. The actions were wrongly constituted, namely there is a defect to the grants to the plaintiff in both actions, which could not be cured at the date of trial.

Plaintiffs in both actions sought to administer the Estate of the deceased in Customary Courts. Submit grant will not entitle them to administer the Estate of the deceased so as to make a claim under the Act.

For the cross-appeal, the following grounds were filed and argued by Mr Agbaje:-

(I) That the learned trial Judge erred in Law and in fact in holding that the claims by the wives of the deceased in the consolidated cases are not maintainable.

(II) That the learned trial Judge erred in Law and in fact in dismissing the claims against the 2nd defendant/company on the ground that the servant of the said 2nd defendant/company was not negligent.

(III) The learned trial Judge erred in Law in not making a ‘Bullock Order’ in respect of the costs awarded against the plaintiffs in favour of the 2nd Defendant/Company in both suits.