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.
(IV) That the damages awarded in both suits are inadequate.
Mr Jukes appeared for the 2nd defendant at the hearing of the appeal but was not called upon by the Court to argue.
I propose to deal shortly with submissions 1 and 2 made by Mr OConnor. It was submitted that the Fatal Accidents Acts 1846 and 1864 are both not applicable in Nigeria and no claim can be made in Nigeria under the Acts. Mr OConnor urges further that if they do apply, illegitimate children are not children on behalf of whom claim may be made under the Act in Nigeria.
For this submission, it would appear that Mr OConnor based his arguments principally on the difficulties which may be encountered in applying the Acts in Nigeria. He referred to the systematic growth on this law in England and the difficulty of applying it to a country where polygamous marriage exists, and also where customs differ.
One example he mentioned is that whilst in England a remarriage terminates benefits under the Act, in Nigeria it was possible for the wife of a deceased person with her children to be ‘inherited’ by the deceaseds brother. Such like difficulties, Counsel submitted, were so apparent that in the Western Region of Nigeria (with which we are concerned in this matter), the Torts Law 1958 was passed in order to obviate and remove most of these difficulties.
To disagree that some difficulties do exist will be denying the obvious, but to hold that because some difficulties exist in the application of a law, that law does not apply, will be shirking a duty. Section 14 of the High Court Law Western Region enacts that the Common Law of England and all statutes of general application in force in England on the 1st day of January, 1900 shall be applied in Western Nigeria. It is not in dispute that the Fatal Accidents Acts 1846 and 1864 are Statutes of general application. The Courts of Nigeria have for the last 15 years at least applied the Fatal Accidents Acts 1846 and 1864 and in my view, it is too late now to say that the Acts do not apply.
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. L.T.R. 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 acknowledged 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 acknowledged. I would therefore agree with the trial Judge that they were legitimate for the purpose of the Fatal Accidents Acts.
I pause here for a moment to consider the first ground of appeal in the cross appeal. I refer to the claim of the wives of the deceased men which the learned Judge in the Court below held was not maintainable on the ground that marriage in each case under Native Law and Custom was not proved. At the hearing of the appeal the issue was raised as to what form of marriage was required to be proved, whether a marriage under Moslem law as both the deceased persons were said to be good and strict Moslems, or a marriage purely under Native Law and Custom of the Yoruba tribe in the Western Region to which the two deceased men belonged. It was stated that although Moslem law permitted no more than four wives, in the case of the deceased Adelabu he had nine. As his religion strictly forbids marrying more than four wives, it is questionable if the marriages were proved which four would be entitled. In any case the learned Judge found, and in this I agree with him, that marriage (whichever it was) must be strictly proved, and it was not proved at all ill the two cases. Although the point is irrelevant in this judgment as will be seen later, but it is as well to say here that I am of the view that the learned Judge rightly rejected the claim of the wives in each case on the ground that the marriages were not proved.
I return to the third submission made by Mr OConnor for the appellant which is the point on which this appeal must be decided. This hinges on the fact that the two actions are representative actions and the plaintiffs sued as administrators of the Estate of the deceased persons. Earlier, proceedings were taken out by the plaintiffs in each case in the Ibadan No. 1 Grade B Customary Court for the administration of the deceaseds estate; the Court, after due enquiry, gave what it called a judgment which stated that the applicants are ‘true and proper persons to administer the Estate and power to administer the Estate is given to them’. This appears to be in accord with the 2nd Schedule to the Customary Courts Law, Western Region, No. 26 of 1957, where jurisdiction of Grade B Courts with regard to administration of intestate estates is set out as follows:-
(3) Unlimited jurisdiction in causes and matters relating to inheritance, upon intestacy and the administration of intestate estates under customary law.
The learned trial Judge held that this ‘judgment’ or grant is an authority given to the plaintiffs by the Customary Courts to administer the estate of the deceased person and it entitles them to sue in the High Court. I see no reason to disagree with the conclusion reached by the learned Judge that the grant authorised the plaintiffs to administer the estate of the deceased person for which they sought the permission of the Court to administer, but I am not prepared to hold, as the learned Judge did, that the grant entitled them to sue in the High Court in every case.
Section 2 of the Fatal Accidents Act 1846 enacts that actions under the Act must be brought by Executor or Administrator of the person deceased. Section 1 of the Act of l864 made it possible, in certain circumstances, for persons beneficially interested to sue in their own name as persons beneficially interested who have suffered damage by the death of the deceased person. The executors and administrators can sue on behalf of these dependants.
Under the Act there are special Rules of Court applicable to monies received by Executors or Administrators who claimed and recovered damages on behalf of the dependants of a deceased person. The ordinary Rules of Administration do not govern such funds.
The question then arises, was it intended that persons who have come to administer the Estate of the deceased otherwise than by the grant to him of Letters of Administration as known to English Law should be entitled to institute an action in till administrative capacity for and on behalf of persons beneficially entitled? In the case Finnegan v, Cementation Co. Ltd. (1953) 1 ALL E.R. 1130 where the widow of a workman in England obtained Letters of Administration in Dublin to administer the Estate of her deceased husband, it was held that the Letters did not constitute her an administration of the deceaseds estate for the purposes of section 2 of the Fatal Accident Acts, 1846 and she therefore was not entitled to sue as such.
Clearly, to my mind, an administration under a grant by a Customary Court differs materially from an administration under the English Law which is not applicable or taken cognisance of in an administration under the Customary Law. It was argued that the test should be whether or not the plaintiffs are persons entitled by the Law in Nigeria to administer the Estate of the deceased. If they are so entitled, it was submitted, it does not matter whether the grants are made by Customary Courts or according to English Law. I do not think this sub-mission is right or that this is the correct test.
The Customary Court which ‘gave power’ to the plaintiffs in these two cases to administer the Estate of the deceased did not grant letters or make an order from which it can be deduced what part of the deceaseds Estate the plaintiffs are entitled to administer.
Indeed it is believed in some quarters that grants made in the Customary Courts confer administration of an Estate in accordance with English practice. I am in no doubt that this cannot be correct. The Customary Courts are subjects of certain statutes themselves limited in their jurisdiction, and to my mind when such Courts do grant powers to administer, they cannot give powers which they have not got. In effect, grants made by these Courts only apply to such matters to the extent set out in the 2nd Schedule to No. 26 of /957 to which I have referred above.
On the view I have taken of this matter, it is clear a person to whom power is given under Customary Law to administer the Estate of a deceased person, is a person empowered by that law to administer the estate of the deceased where Customary law can be invoked, and such power cannot be extended to matters which are statutory rights under English Law and to which statutory remedies apply.
I have therefore come to the conclusion that the two actions in the High Court could not be prosecuted by the plaintiffs as they have no capacity to sue. The dependants of the deceased persons themselves could have sued on their own behalf. The learned trial Judge should have dismissed the two cases on this ground.
The appeal in the two consolidated cases is allowed. Judgment entered in favour of the plaintiffs in each case is hereby set aside. Claim made by the plaintiffs in each case is hereby dismissed and this will be the judgment of the Court.
The appellant Younan and Sons will be entitled to costs of this appeal assessed at 50 guineas against the plaintiffs in Suit l/324/58 and 50 guineas against the plaintiffs in Suit 1/326/58.
Royal Exchange Assurance Company Limited will be entitled to 50 guineas costs against the plaintiffs in each suit.
Costs to Younan and Sons in the Court below of 50 guineas in Suit l/324/58 and 180 guineas in Suit l/326/58.
Other Citation: (1961) LCN/0188(SC)
