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FEDERAL SUPREME COURT
10th March, 1959.
SUIT NO. FSC 177/1958
BEFORE THEIR LORDSHIPS
S.O. AKINRELE for appellants.
J.E. BURKE for respondent.
TORT AND PERSONAL INJURIES:- Action under the Fatal Accidents Act, 1846 – Claim of damages for loss suffered through the death of a bread winner as a result of the negligence of the defendant’s driver in a motor accident – Procedural challenges – How treated
MOTOR VEHICLE AND TRAFFIC LAW: – Fatal motor vehicle accident – Claim of dependants of deceased victim – Relevant considerations
CHILDREN AND WOMEN LAW:- Children and Justice Administration – Fatal Accidents – Minors/surviving dependants (suing via Next Friends) for damages against loss occasioned by death of father – Procedural challenges – How treated
PRACTICE AND PROCEDURE: – Civil Action – Limitation of Actions – Fatal Accidents Act 1846.
PRACTICE AND PROCEDURE – ACTION:- Test for the commencement of an action both according to the English rules and the local (Nigerian) Rules of Court – Question whether plaintiff has done all that was required by law to commence action – Relevance – Need to determine same by considering relevant statutes and rules/practices of court in the relevant jurisdiction
PRACTICE AND PROCEDURE – ACTION:– Commencement of action – Whether deemed effective from the time a plaintiff delivers his application to the Registrar and pays necessary fees (provided it is not an action in which the consent of the Court is necessary before the writ is issued) –
PRACTICE AND PROCEDURE – ACTION:– Commencement of action – Delay in the issuance of writ – Where delay is a matter not within the power of the plaintiff to control but merely a domestic affair of the Court – Whether improper for the plaintiff to be penalised
PRACTICE AND PROCEDURE:- Order 2, Rule 1, Supreme Court (Civil Procedure) Rules – Interpretation
INTERPRETATION OF STATUTES: – The word “commenced” in section 36E(3) Interpretation Ordinance; Order 2, Rule 1, Supreme Court (Civil Procedure) Rules – Interpretations thereof
This is an appeal from the judgment of Onyeama, J., sitting in the High Court of Lagos.
The plaintiffs in the case brought an action under the Fatal Accidents Act, 1846, claiming £5,800 damages for loss suffered through the death of one Rail Alawode who met his death as a result of the negligence of the defendant’s driver in a motor accident. The plaintiffs are the surviving dependants of the deceased.
It would appear the accident which resulted in the death of the deceased, occurred on the 2nd August, 1956, on Agege Motor Road.
The plaintiffs filed their application for and paid for a writ on the 2nd August, 1957, exactly one year from the death of the deceased. The writ was not signed by a Judge until the 8th August, 1957. It was later served on the defendant. On the 28th October, 1957, the case came before the Court and pleadings were ordered. The plaintiffs filed their statement of claim within time. The defendant did not file a defence, and on the 7th February, 1958, the plaintiffs filed a notice of motion asking for judgment to be entered in their favour in default of a statement of defence within time. For reasons not apparent on the record, this motion was not heard on the 17th February, 1958. Meanwhile, on the 12th March, 1958, the defendant filed a notice of motion, praying that the suit be dismissed without an answer (under Order 28 rule 1) as action in the matter is barred by the provisions of section 3 of the Fatal Accidents Act, 1846.
Now section 3 of the Act is as follows:
“Provided always, and be it enacted that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person.”
This section of the Act has been amended by the Law Reform (Limitation of Actions) Act, 1954, which extends the time within which to bring an action to three years; but the amendment Act, having been enacted after the 1st January, 1900, has no application in Nigeria. So, the Court was concerned only with section 3 of the 1846 Act hereinbefore set out.
The two Motions were listed before the learned Judge on the 19th March, 1958. The Motion by the plaintiff was never heard; but after listening to Counsel on both sides on the second Motion whether or not the action was statute barred, the learned Judge finally ruled that the action must be dismissed since, in his view, the action was deemed to have commenced on the 8th August, 1957, that is, the date the writ of summons was signed by the Judge and not on the date the claim was filed with Registrar, namely, 2nd August, 1957.
The plaintiffs have now appealed against this Order of dismissal.
Although three grounds of appeal were filed, two were argued at the hearing of the appeal; the third ground was abandoned.
The three grounds filed are as follows:
“1. That the learned trial Judge erred in law in holding that the claim is statute barred when the plaintiffs/ appellants filed their claim within time.
The argument on the first ground of appeal centred round the interpretation of the word “commenced” as applicable to Order 2, rule 1, Supreme Court (Civil Procedure) Rules. Order 2, rule 1, reads:
“Every suit shall be commenced by a writ of summons signed by a judge, magistrate or other officer empowered to sign summons. The writ of summons shall be issued by the registrar, or other officer of the court empowered to issue summons, on application. The application shall ordinarily be made in writing but the registrar or other officer as aforesaid where an applicant for a writ of summons is illiterate may dispense with a written application and instead himself record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.”
It was argued by Counsel for the appellant that unlike the practice in England where a plaintiff pays for a writ of summons and thus commences an action, in Nigeria, the plaintiff applies to the Registrar or any officer of Court so authorised for a writ. The application for a writ, it was submitted, is the act of the plaintiff which the law allows him and the issue of a writ is a matter entirely within the control of the Court.
For the respondent it was argued that Order 2, rule 1, Rules of the High Court, must be strictly construed, and a plaintiff who had to file his claim within a time specified by the law, as in the present case, must take into consideration in filing his writ, that it would take a few days between his application and the issue of the writ.
It appears to me that if the respondent’s contention was correct, a plaintiff who wishes to apply for a writ of summons in Lagos in circumstances aforesaid, must first of all assess how busy the Registrar of the Court is, how many days it would take the Registrar to write out the claim or the writ, and how many days it will take the Judge before he has time to sign the writ. This, in my view, cannot be correct.
The corresponding English rule to Order 2, rule 1, is to be found in Order 2, rule 1, Rules of the Supreme Court, and it reads:
“Every action in the High Court shall be commenced by a writ of summons, which shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action, and which shall specify the division of the High Court to which it is intended that the action should be assigned.”
It is to be observed that in England once a plaintiff buys his writ the action commences. In the Lagos High Court, as in this case, the provisions of Order 2, rule 1, require that an application for a writ be made by the plaintiff to the Registrar of the Court who, after issuing the summons will place it before a Judge, or other officer empowered to sign it.
The test for the commencement of an action both according to the English rules and the local Rules of Court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action? In England, all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the Court and its staff. From the time the plaintiff, in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the Court is necessary before the writ is issued), and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been “commenced.”
Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the Court for which the plaintiff cannot be penalised. It certainly would be a matter of grave injustice to a plaintiff who delivers his application for a writ and pays the necessary fees if he is deemed not to have commenced an action merely because, for some reason, it was not possible for the Court or the Judge to sign the writ for a fortnight or so after the application.
The judgment of Graham Paul, J., in Nicholls v. The General Manager, Nigerian Railway contains, in my view, a correct statement of the law in Nigeria with regard to what constitutes the “commencement” of an action.
The learned Judge in the present case is, in my opinion, wrong in holding that the plaintiff in the case commenced his action on the 8th August, 1957, the date the Judge signed the writ.
As this case itself arose out of an application of an Imperial Act, namely, the Fatal Accidents Act, 1846, it may be necessary to draw attention to section 36E(3) of the Interpretation Ordinance – see page D 25, Laws of Nigeria, 1956. It reads:
“(3) For the purpose of facilitating the application of the said Imperial Laws, they shall be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, monies, penalties and otherwise as maybe necessary to render the same applicable in the circumstances.”
The commencement of an action envisaged by section 3 of the Fatal Accidents Act, 1846, is not that provided for in Order 2, rule 1, (High Court Rules) but an act of the party. The Act should, therefore, be applied with such formal alterations as may be necessary in accordance with the local rules, if it is to have any meaning at all in Nigeria.
It will not be necessary for the purpose of this appeal to consider the arguments on the second ground.
The appeal will be allowed. The case is sent back to the Court below to continue at the point the learned Judge heard the motion which gave rise to his judgment. The plaintiffs’ motion which was not heard that day should now be heard by the learned Judge.
Costs to the appellant assessed at 25 guineas.
Appeal allowed: Case remitted to High Court.