Barnabas Okonobor & 9 Ors V D.edegbe & Sons Transport (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal, Holden at Benin City in appeal No. CA/B/43/98 delivered on the 6th day of January, 2003 in which the court allowed the appeal of the present respondents, set aside the decision of the trial court and struck out the suit of the present appellants for being incompetent. The appellants, as plaintiffs instituted an action at the High Court of the then Bendel State of Nigeria, Holden at Benin City, against the defendants/respondents claiming jointly and severally the sum of five hundred and eleven thousand, nine hundred and sixty naira (N511,960.00) damages suffered by them resulting from the death of one Mrs. Helen Okonobor as a result of the alleged negligence of the driver of the defendants/respondents.

In the course of the proceedings the defendants/respondents raised an objection as to the competence of the action as the plaintiffs/appellants are said not to have the requisite locus standi to constitute the action and urged the court to strike out the suit.

Though the trial court found that….

“There is nothing to show that the person (sic) representative, if any, had failed to act within six months of the death of the deceased. All that the plaintiffs are required to do is to aver in their particulars of claim on the writ of summons or in the statement of claim in that no personal representatives have been appointed or if appointed that six months have elapsed without any action being instituted by the personal representatives”.

the court went further to hold that …

“it will not be in the interest of justice to strike out the case” and proceeded to apply the provisions of Order 47(1) of the High Court of Bendel State Civil Procedure Rules 1988, as applicable to Edo State to order that the appropriate amendment be made by the plaintiffs/appellants.

The present respondents were not satisfied with the ruling and appealed to the Court of Appeal, Holden at Benin City, which allowed the appeal as earlier stated in this judgment. The lower court is of the view that the appropriate order the trial court ought to have made after finding that the action was incompetent was to have struck out the suit and proceeded to do so. It is against that decision that the appellants have appealed to this court on a single ground of appeal at pages 415 – 416 of the record.

The ground reads as follows:-

“(1) The lower court erred in law by holding that the action of the plaintiffs/appellants was incompetent.

PARTICULARS OF ERROR

By the provisions of the proviso to section 4 of the Torts Law (Cap 164 of the Laws of Bendel State of Nigeria, 1976) on which the plaintiffs/appellants founded their action and on decided authorities, and contrary to the decision of the lower court and of the trial court, the onus is on the defendants/respondents and not on the plaintiffs/appellants to state in their pleadings whether or not executors or administrators had been appointed in respect of the estate of late Mrs. Helen Okonobor.

(2) Further grounds of appeal will be filed on the receipt of the record of proceedings”.

In the appellants brief filed on 12th January, 2005 by Chief G. B Nkemnacho the following two issues have been formulated out of the single ground of appeal for determination. The issues are as follows:-