➥ CASE SUMMARY OF:
Olayiwola Benson and Anor. V. Joseph Oladipupo Ashiru (1967) – FSC
by Branham Chima (SAL).
Federal Supreme Court – SC. 405/1965
➥ JUDGEMENT DELIVERED ON:
Friday, June 9, 1967
➥ AREA(S) OF LAW
Capacity to sue.
➥ PRINCIPLES OF LAW
⦿ EFFECT OF SECTION 22 SUPREME COURT ACT
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. — Brett JSC.
⦿ JUDGES SHOULD SET OUT HOW THEY ARRIVE AT QUANTUM OF DAMAGES
The quantum of damages does not now arise for consideration. We would only point out that the Judge did not record a finding as to the extent of the annual financial loss suffered by those whom he held to have been dependants of the deceased woman, or say how he arrived at the total sum awarded. It Is easier for an appeal court to decide whether the damages awarded can be upheld H it knows how they were assessed, and we hope that in cases of this kind judges will set out the reasoning by which they arrive at their final estimates. — Brett JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
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. 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.
➥ ISSUE(S) & RESOLUTION(S)
The following are the points reached by the Supreme Court –
A. PRIVATE INTERNATIONAL LAW APPLIES IN THE HIGH COURT OF LAGOS STATE
“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.”
B. PLAINTIFF MUST SHOW CAPACITY IN WHICH HE SUES: DAMAGES FOR DEATH
“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.”
C. FOREIGN LAW IS A QUESTION OF FACT; MUST BE PLEADED
“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.”
D. THE PLAINTIFF DID NOT PROVE HIS MARRIAGE TO THE DECEASED
“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 judgment subject only to the control exercised by the court over the settlement of compromise of any claim made for the benefit of an Infant: see the Supreme Court Practice, 1967, note 15/12/7 and Order 80, rule 10. We cannot regard the action as having been brought by or in the name of anyone but himself. This being so, it must follow from the finding that he had failed to prove his marriage to the de-ceased woman that the action was brought by a plaintiff who did not come within either of the classes of persons empowered to bring such an action and who, having no interest of his own, was not qualified under 0.4, 0 of the High Court Rules to sue for the benefit of or on behalf of the persons having an interest. We have no choice but to hold as was held in Lawal v. Younan (supra), that the action in the High Court could not be prosecuted by the plaintiff as he had no capacity to sue. The result is that nothing can now be recovered for the benefit of the depend-ants, and we regret having to decide the case on a ground such as this.”
“The appeal is allowed, the judgment of the High Court and the order for costs are set aside, and the action is dismissed. In the court below the defendants submitted that the plaintiff had failed to prove that he was married to the deceased woman, but it does not appear that they made the further submission, which has been decisive of the appeal, that the whole action should be dismissed for this reason. We award them 50 guineas costs of the proceedings in the High Court and 40 guineas costs of the appeal.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ SUED AS
In Finnegan v. Cementation Co. Ltd.  11 Q.B. 688 the widow of the deceased man had obtained letters of administration in Ireland but not in England and sued in England as administratrix. It was held that her action must be dismissed, although it would have been properly brought if she had sued merely as widow.
➥ REFERENCED (OTHERS)