Olayiwola Benson And Another V Joseph Oladipupo Ashiru (1967)

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BRETT, J.S.C. 

In this case the plaintiff sued in the High Court of Lagos on behalf of himself and dependant relatives of Adetutu Ashiru deceased, He claimed damages representing the pecuniary loss sustained by her death, and the writ stated that he was the husband of Mrs. Adetutu Ashiru and brought the action on behalf of himself and the children and parents of the deceased; the names of these persons were given in the writ. Paragraph 1 of the Statement of Claim read-

“1. The plaintiff is the husband of Mrs. Adetutu Ashiru (hereinafter called ‘the deceased’) and brings this action for the benefit of himself and the two children and parents of the deceased as dependants under the Fatal Accidents Act 1846.”

The pleading went on to allege that the second defendant was the servant of the first defendant and that on the 21st January, 1963, he had caused the death of Adetutu Ashiru by his negligent driving of a motor vehicle in the heart of the town of Iperu, Ijebu Remo, Western Nigeria.

It also gave particulars of negligence and of the extent of the financial loss suffered by those on whose behalf the action was brought. The Defence traversed the whole of the Statement of Claim and by an amendment made at the hearing concluded with the paragraph-

“14.The defendants shall contend at the trial of this action that the Fatal Accidents Acts 1846 are not applicable to this action.”

The Judge held that the plaintiff had proved that the death of Adetutu; Ashiru was caused by the negligence of the second defendant and this finding has not been contested on appeal. He also held that the plaintiff had failed to prove that he was married to the deceased, and awarded damages only for the benefit of the children and parents, as well as a sum for funeral expenses. The plaintiff has not contested this finding of fact and the defendants submit that It is fatal to the action, as amounting to a finding that the plaintiff had no title to sue. We shall consider this submission later. As regards the law applicable, the Judge held that it was the Fatal Accidents Act, 1846, and this was attacked in the first ground of appeal argued before this court.

On the material date, damages for causing the death of a human being were recoverable In Lagos under the Fatal Accidents Acts, 1846 and 1864, which applied as statutes of general application which had been in force in England on the 1st January, 1900: Lawal v. Younan [1961] All N.L.R. 245; they were recoverable in Western Nigeria under Part 2 of the Torts Law. The trial Judge was of the opinion that the Fatal Accidents Acts applied in Western Nigeria concurrently with the Torts Law, but In this he overlooked the Law of England (Application) Law (cap. 60) under which English statutes of general application ceased to apply as such in Western Nigeria from and after the 1st July, 1959. Since the plaintiff had said that he was suing under the Fatal Accidents Act, the appellants submitted that this Court should follow its decision in Amanambu v. Okafor S.C. 278/1965, delivered 1st July, 1966 and dismiss the action. In Amanambu v. Okafor the negligent act and the death had taken place in Northern Nigeria, and this Court held that an action did not lie in the High Court of Eastern Nigeria under the Fatal Accidents Law of Eastern Nigeria. Mr. Cole, for the respondent, conceded that it was a mistake to refer to the Fatal Accidents Ads, and asked leave to amend the Statement of Claim by deleting the words “under the Fatal Accidents Act, 1846.”

During the argument on this question we drew the attention of counsel to the judgments given in the High Court of Australia in Koop v. Bebb (1951) 84 C.L.R. 629, in which a number of the Issues were the same as in the present case. After considering this and the other authorities cited to us we are satisfied on the following points-

(1). The rules of the common law of England on questions of private international law apply in the High Court of Lagos. Under these rules an action of tort will lie in Lagos for a wrong alleged to have been committed in another part of Nigeria if two conditions are fulfilled: first, the wrong must be of such a character that it would have been actionable if it had been committed in Lagos;and secondly it must not have been justifiable by the law of the part of Nigeria where it was done: Phillips v. Eyre (1870) L. R. 6 Q.B. 1. These conditions are fulfilled in the present case.

(2) Where no question of foreign law arises, the writ In a claim for damages for causing the death of a human being must show the capacity in which the plaintiff sues, and particulars must be provided of the persons for whom and on whose behalf the action is brought, and of the nature of the claim: Fatal Accidents Act, 1846, s.4. These requirements were satisfied in this case. It is, however, not necessary to refer specifically to the Fatal Accidents Acts: see Precedent No. 453 in Bullen AND Leake, Precedents of Pleadings, 11th edition.

(3)As a general rule, foreign law is a question of fact and must be pleaded: Bullen AND Leake, p. 10: but section 73(1) (a) of the Evidence Act requires the High Court of Lagos to take judicial notice of “all laws or enactments and any subsidiary legislation made thereunder having the force of law or heretofore in force, or hereafter to be in force, in any part of Nigeria,” and it is unnecessary to plead matters of which the court takes judicial notice: Bullen & Leake, p.9. It appears from Koop v. Bebb that the courts in the different states of Australia similarly take judicial notice of the law in force in the other states and the High Court of Australia were unanimous in rejecting a submission that the plaintiffs were debarred from relying on the law of the State where the wrong took place by the fact that they had not pleaded it in their Statement of Claim

(4) Part 2 of the Tons Law is based on the Fatal Accidents Acts in force in England in 1958, when the Law was made, and incorporates certain amendments made in England after the 1st January, 1900, but the persons for whose benefit the present action was brought (apart from the plaintiff himself) are within the class designated for the purpose both in Lagos and in Western Nigeria, and the only point of difference which could be material in the present case is that funeral expenses are recoverable under the Torts Law but not under the law in force In Lagos. No defence would have been available if the action had been brought under the Torts Law which was not equally available as the action was in fact framed.

(5) Section 22 of the Supreme Court Act, 1960, empowers this Court to amend any defect or error In the record of appeal, and gives it full jurisdiction over the whole proceedings as If the proceedings had been instituted and prosecuted in the Court as a court of first instance, which would include power to permit the amendment sought.

Mr. Cole submits that the words he wishes to delete were mere surplusage, and that Amanambu v. Okafor is distinguishable, on the ground that in that case counsel for the plaintiff insisted even at the hearing of the appeal that he could found his claim on the statute of the territory in which the action was brought.

Mr. Benson submits that the amendment alters the whole basis of the action and that to permit an amendment would deprive the defendants of the benefit of the period of limitation, which he says is contrary to the accepted practice of the Court; he mentioned on this point the case of Mabro v. Eagle Star & British Dominions Insurance Co. Ltd. [1932] All E.R. Rep. 411.

We are satisfied that the Court has power to grant the amendment sought, and that it would cure the defect in the claim, but we find it unnecessary to decide whether this would otherwise be a proper case for granting leave to amend, since we hold that the defendants’ appeal must in any event be allowed on the second ground argued.

The Fatal Accidents Acts, 1846 and 1864, and the Torts Law alike provide that the action shall be brought by the executor or administrator of the person deceased, but that If there is no executor or administrator, or if, there being one, he does not institute proceedings within six months after the death, the action may be brought “by and in the name or names of all or any of the persons (if more than one) for whose benefit the action would have been, if it had been brought by and in the name of the executor or administrator.” The plaintiff brought the present action in his own name.

It is true that he described himself as suing on behalf of himself and the dependant relatives of the deceased woman, and obtained an order of the court authorising him to prosecute the action in a representative capacity but as the sole named plaintiff he was dominus lifis until

Other Citation: (1967) LCN/1473(SC)