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1ST JUNE, 1961.

SUIT NO. FSC 223/1960

CWLR (1961) 4



LN-e-LR/1961/23  (FSC)



CHILDREN AND WOMEN LAW – VALIDITY OF MARRIAGE: – Polygamous marriages – Validity of marriage of 9 women to one man under moslem law – Need to prove customary law marriage in an action under the Fatal Accident Act – Effect of failure to prove same
















O’Connor Q. C. (with him Cole) for the Appellants and 1st Cross-Respondents.

Agbaje (with him Thanni) for the Respondents and Cross-Appellants.

Jukes Q. C. (with him Omotosho) for the 2nd Cross-Respondents.



TORT AND PERSONAL INJURY– NEGLIGENCE: –  Injury causing death – Fatal Accidents Acts, 1846 and 1864 (9 and 10 Vict. c.93; 27 and 28 Yct c.95) – Dependents – Tort law – Western Nigerian 1958

FAMILY LAW: Children born out of wedlock – Marriage ordinance – Legitimacy – Acknowledgement – Effect of – Customary law marriage

CUSTOMAY LAW: Probate – Appointment of Administrator under customary law – Relevant considerations

RELIGIOUS LAW – SHARIA: – Islamic law – Validity of marriage of 9 women to one man under Muslim law – How treated

CHILDREN AND WOMEN LAW – LEGITIMACY AND LEGITIMATION: – Distinction between the rules of legitimacy of children in Nigerian and England – Effect thereof – Legitimacy of children born out of legally recognised marriages

ESTATE ADMINISTRATION: – Claim to recover under the Fatal Accidents Act – Effect of a grant to administer estate of deceased person made by a customary court – Whether personal representatives improperly constituted and suit incompetent

PRACTICE AND PROCEDURE: – Statute of general applications – Meaning – Applicability of the Fatal Accidents Act – Duty of a court to uphold and apply an existing statute in spite of difficulties



ADEMOLA,  C.J.F. (Delivering the Judgment of the Court):

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. l/324/58 sued as Administrators of Adeleke Aremu (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 Aremu (deceased); and the plaintiffs in Suit No. 1/326/58 sued as Administrators of Alhaji Adegoke Adelabu (deceased) and claimed from the same defendants the sum of £100,000 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 Alhaji Adegoke 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 traveling 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. 1/326/58 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: the claims of the wives were therefore dismissed. 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. O’Connor 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 the 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:­

  1. 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.
  2. 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 proposed to deal shortly with submissions 1 and 2 made by Mr. O’Connor. 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. O ’Connor urges further that ff 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. O’Connor based his arguments principally on the difficulties which may be encountered in applying the Acts in Nigeria. He referred to the systematic growth of 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 re-marriage terminates benefits under Act, in Nigeria it was possible for the wife of a deceased person with her children to be “inherited” by the deceased’s 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, 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 marriages (whichever it was) must be strictly proved, and it was not proved at all in 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. O. ‘Connor 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 deceased’s 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 1657, 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 1864 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 an 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 administratrix of the deceased’s estate for the purposes of section 2 of the Fatal Accidents 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 submission 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 deceased’s 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 1957 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 person 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 1/324/58 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 1/324/58 and 180 guineas in Suit 1/326/58.



I concur.



I agree, and would only add something on the grounds for holding that the Fatal Accidents Acts were in force in the Western Region at the material date.

In deciding whether any enactment of the Parliaments of England, Great Britain or the United Kingdom on a matter within the competence of the Regional legislature applied, there were, at that time, three provisions of the Western Region High Court Law, 1955, to be taken into account. Section 14 read – “Subject to the terms of this or any other law, the common law, the doctrines of equity, and the Statutes of general application which were in force in England on the 1st January, 1900, shall be in force within the jurisdiction of the Court”.      Section 16 (1) read – “All Imperial laws declared to extend or apply to the jurisdiction of the Court shall be in force so far only as the limits of the local jurisdiction and local circumstances permit, and subject to any Law”. Section 17 provided for the enforcement of existing native laws and customs when not repugnant to natural justice, equity and good conscience nor incompatible with any law for the time being in force, and laid down that subject to certain conditions they should be deemed applicable in causes or matters where the parties thereto were Nigerians and in causes or matters between Nigerians and non-Nigerians where it might appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of the English law.

Provisions to the same effect as these have appeared in legislation governing the jurisdiction of the Courts in Nigeria and in other dependent or formerly de­pendent territories, for many years, and the applicability of a number of English statutes has been considered at one time or another. An important group of statutes which have been accepted almost without question as applying in Nigeria are those relating to real property and conveyancing; 13 Elizabeth c.5 (Fraudulent Conveyances): Braithwaite v. Folarin (1938) 4 W.A.C.A. 76; the Wills Act, 1837: Thomas v. De Souza (1929) 9 N.L.R. 81; the Conveyancing Act, 1881: Sanusi v. Daniel (1956) 1 F.S.C. 93; the Settled Land Act, 1882: Thomas v. Nabhan (1947) 12 W.A.C.A. 229; the Trustee Act, 1888: Taylor v. Taylor (1934) 2 W.A.C.A. 126; the Land Transfer Act, 1897: Young v. Abina (1940) 6 W.A C.A. 180; the Partition Acts: Sule v. Ajisegid (1937) 13 N.L.R. 146; Stephen v. Pedrocchi (1959) N.R.N.L.R. 76. To this group may be added 4 Anne c.6 (Landlord and Tenant: Johnson v. Deks (1936) 13 N.L.R. 73; and the Common Law Procedure Act, 1852; Ribeiro v. Chahin (1954) 14 W.A.C.A. 476.

Another group of statutes which have been held applicable govern commer­cial dealings. They Include the Statute of Frauds: Oline v. Obodo (1958) 3 F.S.C. 84; the Infants Relief Act, 1874: Labinjo v. Agbae (1924) 5 N.L.R. 33; and the Sale of Goods Act, 1893: Khami v. McCaul and Co. Ltd.: (1956) 1 N.L.R. 32; but either the Statute of Frauds or the Infants Relief Act, may be excluded if the transaction is one properly to be governed by native law and custom: Okoleji v. Okupe (1939) 15 N.L.R. 28; Labinjo v. Agbae (supra). In Farhoud v. Chama (1953) 20 N.L.R. 166, De Commarmond, S.P.J. found it unnecessary to decide whether the Part­nership Act, 1890, applied since it was in any case merely declaratory of the com­mon law. In my own judgment in Ojomu v. B.P.C. Fabrik (1959) 4 F.S.C. 276, I felt able to take it for granted that the Mercantile Law Amendment Act, 1856, ap­plied.

The leading case in which Statutes of Limitations have been held to apply, but to be liable to be excluded if the transaction is shown to be one governed by na­tive law and custom, is Koney v. Union Trading Co. Ltd. (1934) 2 W.A.C.A. 188, a Gold Coast decision, but one of which the reasoning is clearly applicable in Nigeria: see Green v. Owo (1936) 12 N.L.R. 43; Oloto v. Attorney-General (1957) 2 F.S.C. 74. In In Attorney- General v. John Holt Ltd. (1910) 2 N.L.R. t the Nullum Tempus Act was held to apply. In R. v. Onyinke (1941) 7 W.A.C.A. 31, it was held that the Forfeiture Act, 1870, applied in Nigeria to make a convicted murderer a competent witness.

Reported decisions of the Judicial Committee on this point are rare. InJohnson v. Rex (1904) A.C. 817, the Judicial Committee held that the Crown Suits Act, 1855, was not a statute of general application and dealt only with proceedings in the United Kingdom. In Jex v. McKlnney (1889) 1,4 App. Cas. 77, it was held that the Mortmain Act was a law having general operation throughout England but that it was not among the class of laws which “are applicable or can be applied to” Brit­ish Honduras, having been ‘framed for reasons affecting the land and society of England and not for reasons applying to a new colony’.

With few exceptions, statutes which have been held applicable have this in com­mon, that grave inconvenience would follow if they were held totally inapplicable, but as a rule the Courts have been content to state their decisions on the applica­bility of a statute, without going in detail into the principles on which the decisions are based. One matter can be quickly disposed of: Mr. O’Connor disclaimed re­liance on the fact that the Fatal Accidents Acts did not apply to Scotland, and on the authority of Young v. Abina (supra) he was undoubtedly correct in doing so. There is at least one unreported decision to the contrary effect: Okpaku v. Okpa­ku, W.A.C.A. 2491 of 2nd May, 1947, but it must be held to have been given per incuriam.

Mr. Agbaje has drawn our attention to the “rough but not infallible” test sug­gested by Osborne, C.J. in Attorney- General v. John Holt Ltd. (1910) 2 N.L.R. 1, at p.21 – “(1). by what Courts is the Statute applied in England? and (2) to what classes of the community in England does it apply? If, on the 1st January, 1900, an Act of Parliament were applied by all civil or criminal Courts, as the case may be, to all classes of the community, there is a strong likelihood that it is in force within the jurisdiction. If, on the other hand, it were applied only by certain courts (e.g., a Statute regulating procedure) or only to certain classes of the community (e.g., an Act regulating a particular trade) the probability is that it would not be held to be locally applicable”: In Braithwaite v. Folarin (supra) the Court said of the statute 13 Elizabeth 1, Cap. 5 ‘The Statute in question is in our view a Statute of general application, applying as it does quite generally to ordinary affairs and dealings of men without any qualification or specialty restricting its application.” In Young v. Abina (supra) the Court said ‘The Land Transfer Act of 1897 applied quite generally to all estates in England of persons dying after 1st January, 1898.

It is difficult to see how a statute could be of more “general application” in England than that.”

If these tests are applied it would seem to me that the Fatal Accidents Acts are statutes of general application, but the further point remains to be considered, whether their applicability is affected by the provisions of s.16 of the High Court Law that Imperial laws are to be in force only so far as local circumstances per­mit. The restrictive words are not Identical with those in the Ordinance of British Honduras which was under consideration in Jex v. McKimmey (supra), but it would seem that an Act manifestly “framed, for reasons affecting the society of England and not for reasons applying to Nigeria” might be held to be among those which local circumstances did not permit to be In force. It Is, In fact, Mr. O’Connor’s sub­mission in this case that local circumstances do not permit the application of the Acts. The Fatal Accidents Act fall outside the main classes of statutes which have been held applicable hitherto, and there are perhaps not the same compelling rea­sons of convenience for holding that they apply. Following Jex v. McKimmey, where their Lordships held that “can be applied” mean “can reasonably be applied” I think the Court would be free to hold that local circumstances did not permit a statute to be in force if it produced results which were manifestly unreasonable or contrary to the intention of the statute. I do not consider, however, that the Fatal Accidents Act are open to that objection. As the Chief Justice has pointed out, the Courts have in fact been enforcing them, even though subject to reservations, and that is as strong an Indication as there could well be that local circumstances do permit their application. The institution of polygamy, and the rules of native law and custom under which the widows and children of a deceased person may be inherited” by his male relatives may certainly give rise to difficulties in the applica­tion of Imperial La%-,; and will have to be taken Into account if such legislation as the Married Women’s Property Act ever falls to be considered. As regards the Fatal Accident Acts, however, while there may be difficulties in assessing the degree of financial dependence, they need not be insoluble and since the onus is on the plaintiffs to prove the degree of dependence no injustice to a defendant need re­sult. On the whole I am of the opinion that local circumstances do not prevent the Acts from applying, though I agree that the present appeal must succeed for the reasons given by the Chief Justice.

Appeal allowed.

Cross-Appeals dismissed.




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