[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
AFRICAN INSURANCE CO. LTD.
2ND DECEMBER, 1965
BEFORE THEIR LORDSHIPS
TORT AND PERSONAL INJURIES LAW:- Claim for damages for death occasioned by fatal accident – Statutory nature of claim – When deemed barred by statute – Effect of amendment of statute extending time within suit may be brought – Whether applicable retrospectively
INTERPRETATION OF STATUTES: – Eastern Nigeria – Fatal Accidents Law, 1956, s.3, s.6(1) original and as amended by Fatal Accidents (Amendment) Law, 1960 (Printed at p. A 11 of vol. 1 of the 1961 Laws E.N.)- England – Fatal Accidents Act, 1846, s. 3; Law Reform (Limitation of Actions, etc.) Act, 1954, s.3, s. 7(1). – Interpretation – Retrospective operation of statutes – Attitude of court thereto
CHILDREN AND WOMEN LAW – WIDOW: Fatal Accidents Act – When claim for compensation is deemed incompetent and statute barred
BAIRAMIAN, J.S.C. (delivering the judgment of the Court):-
This appeal relates to a fatal accident in which one Lucius Okafor was killed on 21st February, 1960. As the Fatal Accidents Law, 1956 of the Eastern Region stood at the time, the action for damages had to be brought within twelve months after the death of the deceased. By Law No. 21 of 1960, which came into force on 23rd January, 1961, the period was amended to read within three years: see the new text of section 6(1) in cap. 52 of the 1963 Laws of Eastern Nigeria. The widow sued for damages on 19 February, 1963; the defendants objected that the action was brought too late, and the learned trial judge decided that Law No. 21 of 1960 did not apply retrospectively and the action was statute-barred. The plaintiff has appealed from the dismissal of her action on that ground.
Mr. Oputa for the plaintiff conceded that the time allowed for bringing the action was not a matter of procedure; also that there was no right at common law to claim damages for a fatal accident but the right was created by statute; also that when the right to sue arose in this case it was to sue within twelve months: but he added that during the currency of the twelve months in this case, while the right to sue was still subsisting the period allowed for suing was extended to three years, and submitted that three years became the operative period for bringing this action. He argued that it was the intention of the legislature to benefit those who had lost someone, and the extension of the period did not cause any injustice to the defendants. At the same time Mr. Oputa recognised that his submission meant that the defendants’ liability to be called upon to pay was extended from one to three years.
Mr. Cole’s argument for the defendants was that when the right of action arose in this case it was limited to twelve calendar months after the 21st February, 1960; on his reckoning the last day to sue would have been the 22nd February, 1961, and the defendants were under obligation, if sued within that period, to pay damages. Mr. Cole pointed out that Law No. 21 of 1960 was not made retrospective but provided the 23rd January, 1961 as the date of its coming into force. He referred to Maxwell on Interpretation of Statutes, p. 205 in the 11th edition (see p. 213 in the 10th edition) where the learned author introduces the section on Retrospective Operation with this paragraph:
“Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. Nova constitutio futuris formam imponere debet, non praeteritis. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act. or arises by necessary and distinct implication.”
Mr. Cole’s argument is that when the twelve months were up the defendants had a right to be relieved of their obligation.
Mr. Cole referred to Croxford v. Universal Insurance Co. Ltd. 11936] 2 K.B. 253, 281, where Scott L.J. said that the statement in Maxwell was almost perfect. We also note that Greer L.J. in Barber v. Pigden (19371 1K.B. 664, 673, accepted the statement in Maxwell that statutes:-
“are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended.”
Barber v. Pigden, by the way, furnishes an example of a statute with retrospective operation, namely the Law Reform (Married Women and Tortfeasors) Act, 1935, where section 3(b) and section 4, subsection (1)(b), show that a retrospective effect was clearly intended.
Before giving our views, we shall quote the text of section 3 of the Fatal Accidents Law (E.N., cap. 52):
“Notwithstanding any rule of law, practice or procedure heretofore in force to the contrary, whenever the death of a person shall be caused by a wrongful act, neglect or default of another person and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured to maintain an action, and recover damages in respect thereof, then and in every case the person, who would have been liable if death had not ensued, shall be liable to an action for damages, not withstanding the death of the person injured.”
We have to stress the words “the person, who would have been liable if death had not ensued, shall be liable to an action for damages”. Thus, the section creates a liability to an action for damages; and section 6, as it stood at the time of the death in this case, provided as follows:
“6.(1) Subject to the provisions of subsection (2) of this section, every action brought under the provisions of this Law shall be commenced within twelve calendar months after the death of the deceased person.”
(Subsection (2) is irrelevant here.)
Read together, sections 3 and 6 created a liability to an action for damages brought within twelve months after the moment of death, that being the punctum temporis when the liability to the action arose, and it was only if the action was brought within those twelve months that the action was competent. That was the position as the law stood at the moment of death in this case. The argument for the plaintiff must mean that the defendants’ liability was enlarged by Law No. 21 of 1960, which amended section 6(1) to read within three years, and that means that the amending law had retrospective operation backwards to the 21st February, 1960, the date of the death in this case, to the prejudice of the defendants. We find that Law No. 21 of 1960, printed at A 11 of vol. I of the 1961 Laws of Eastern Nigeria and entitled the Fatal Accidents (Amendment) Law, 1960, provides in section 3 that:-
“3. Subsection (1) of section 6 of the principal Law is amended, in line three, by replacing the words `twelve calendar months’ by the new words `three years’.”
As for its other sections, section 1 gives the short title, section 2 adds a definition of customary court, and section 4 adds customary courts to the proviso to section 9 in the principal Law. In the amending Law it is only its section 3 which has a bearing on the matter in hand. All it does is to replace the twelve calendar months by three years; in that there is nothing which compels us to say that the legislature intended the amendment to have retrospective operation; and we think that the amendment ought to be construed as operating only in cases or facts coming into existence as from the date on which the amendment came into force-that is to say, where the death in respect of which the action is brought shall have occurred on or after the 23rd January, 1961.
We have arrived at that conclusion by applying the general principle that a statute ought not to be given retrospective operation except where its language clearly intends the statute to operate retrospectively. To that we can add section 3 and section 7, subsection (1), of the Law Reform (Limitation of Actions, etc.) Act, 1954, which provide as follows:-
“3. In section three of the Fatal Accidents Act, 1846 (which provides that actions under that Act shall be commenced within. twelve calendar months after the death of the deceased person) for the words `twelve calendar months’ there shall be substituted the words `three years’.”
“7.(1) The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later.”
We guess that section 3 of the amending Law No. 21 of 1960 of Eastern Nigeria was passed in consequence of section 3 of the above English Act of 1954, but the legislature of Eastern Nigeria did not include a provision similar to section 7, subsection (1), of the English Act, so as to give the benefit of the new period of three years to a cause of action which arose before the amending Law No. 21 of 1960 came into force and in respect of which the twelve months had not expired. We are led to think that without a provision like the English one in section 7, subsection (1), the new period of three years would not apply to such a cause of action as aforesaid.
The appeal of the plaintiff from the decision of Kassim ag. J. dated 13th September, 1963 in the High Court of the Eastern Region, Port Harcourt Judicial Division, Suit No. P/19/63, is hereby dismissed with costs, to be fixed and to be payable as the Supreme Court may order.