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SUPREME COURT OF NIGERIA
9TH DECEMBER, 1963.
CWLR (1963) 22
SIR ADETOKUNBO ADEMOLA, C.J.N. (Presided)
JOHN IDOWU CONRAD TAYLOR, J.S.C.
SIR VANE BAIRAMIAN, J.S.C. (Read the Judgment of the Court)
CHRISTOPHER NNODI (FOR AND ON BEHALF OF HIMSELF AND THE FAMILY OF CELESTINE NNODI, DECEASED)
TORT AND PERSONAL INJURIES:- Fatal accidents – Fatal Accidents Law, 1956 – Who may bring the suit – Claim for damages – Need to prove particulars of damages and harm suffered by virtue of deceased’s death – Need for order as to damages to be made specifically for the primary benefit of immediate family and not as contribution to the family at large – Relevant considerations
CHILDREN AND WOMEN LAW: – Fatal accidents – Claims – Need for the immediate family of deceased to be the plaintiff and direct beneficiaries of claims awarded – Whether relative claiming to be representative of family under native and custom can initiate the action for and on behalf of extended family
PRACTICE AND PROCEDURE: – Retrial – When it would be proper for appellate court to order retrial – Award of Costs – relevant considerations
BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court):
This appeal was allowed at the hearing and an order made on 11th November, 1963 at Kaduna; the Court said reasons would be given later, and they will now be given.
The claim in the writ is for £20,000 as damages for the death of Celestine Nnodi ‘as per particulars attached’. The particulars explain that –
“The plaintiff’s claim is as the person entitled under native law and custom to administer the estate of Celestine Nnodi, deceased, for £20,000 (Twenty thousand pounds) being damages for the death of the said Celestine Nnodi from injuries received by the said Celestine Nnodi while a passenger in the defendant’s lorry No. BYA. 773, by the negligence of the defendant’s servant and driver in charge of the said lorry known as Chukwuweike at Mile 9 on the Lafia-Jos Road, on 28th July, 1959.”
The defendant could not be found, so an order was made to post the writ on the door of his house. That was done, but he did not turn up at the hearing on 23rd May, 1962. Counsel proceeded to prove his case. He called Christopher Nnodi, who testified that being a full brother of the deceased and their father having died, he was the representative under their Ibo native law and custom and represented the family in the suit. He spoke of five children, the eldest fifteen and the youngest five, who went to school and were under his care. He said that the deceased traded in fish, potatoes, English vegetables, bought gari and oil, and had a large store in Port Harcourt; and added that he could manage for the family with £20,000. The second witness, Anene Nwachukwu, spoke of the accident and added that he and the deceased traded together. The 3rd witness, Cletus Ume, also spoke of the accident. Finally the motor licensing officer of Jos testified that at the time of the accident the lorry was registered in the defendant’s name.
Thereupon the trial Court found he was the owner of the lorry, which was driven by his servant negligently, with the result that the deceased died in the accident the lorry had on 28th July, 1959; that the plaintiff was entitled to sue under s. 4 (1) (b) of the Fatal Accidents Law (No. 16 of 1956); but in view of s. 7 (1) of that Law the learned Judge (Reed, J.) said he would have an Ibo assessor to help him. On the following day the trial Judge sat with an assessor, and called on the plaintiff to give full particulars of the persons on whose behalf the action was brought under section 5. The plaintiff then stated the names and ages of the children; that the deceased left a widow, who had not remarried; that their mother was still alive; that he had three brothers and a sister; that all the children were at school, and that he was responsible for them.
The learned Judge awarded £4,000, which the assessor advised should be paid to the plaintiff as the person responsible for the widow and children; he was to hold the money in trust and should keep a proper account, and when the children were independent their share should be paid to them.
The defendant’s principal grounds of appeal are variations on the theme of there being no evidence on oath of what contributions the deceased had been making to each of the claimants and no basis for what was an excessive award.
Attention is drawn first to section 5 of the Law, which provides that :
The particulars of claim state its nature but not the persons on whose behalf the action is brought. The trial Judge, after entering judgment, sought to remedy that omission before assessing the damages by asking the plaintiff to give the particulars of who those persons were; and the plaintiff gave the names of all who could be included in ‘the immediate family’ as defined in section 2. That was rather late: it should have been done early so that the defendant might know who the virtual plaintiffs were and be able to prepare his defence, if he had wished to defend, for the purposes of section 7. Of this it is enough to quote subsection (1):
(a) where the deceased person was not a person subject to any system of native law and custom –
(i) the court may give such damages as it may think proportioned to the injury resulting from a death to the persons respectively for whom and for whose benefit such action is brought; and
(ii) any amount recovered under the provisions of subparagraph (i), after deducting the costs not recovered from the defendant, shall be apportioned amongst the persons entitled thereto in such shares as the court shall direct;
(b) where the deceased person was a person subject to any particular system of native law and custom the principles of such system shall be applied by the court in –
(i) the assessment of the total amount of damages;
(ii) the decision as to which (if any) members of the immediate family of the deceased person are entitled to share in such damages; and
(iii) the apportionment of the shares of such damages among the members of the immediate family so ascertained:
Provided that no greater sum shall be awarded by a court in assessing damages under the provisions of paragraph (b) in relation to the death of a particular deceased person than could have been awarded by a court in assessing damages under the provisions of paragraph (a) in relation to the death of such person.”
There is to be one award of damages according to section 4 (3), but in any case under section 7 (1) the amount must be apportioned among those entitled to share in the damages, and there must be a decision of who they are; and the apportionment must have regard to the injury resulting from a death to the persons respectively – we stress the word respectively – for whom and for whose benefit the action is brought.
In this case, in which the plaintiff’s counsel called evidence to prove his claim, there was no statement of who those persons were and no evidence on oath of who those persons were, of what injury each one of them suffered from the death of the deceased to furnish a basis for assessment of damages and of apportionment, and no apportionment among them. The complaints in that behalf were justified, and the appeal had to be allowed; on the other hand, as the three years allowed for suing by section 6 (1) had passed, it was only fair to order a re-trial, and that was ordered.
The Fatal Accidents Law, 1956, replaced the English Fatal Accidents Acts, 1846 and 1864 with an eye to adapting them to local conditions. They and the local Law may be compared to see how far English practice and decisions may be usefully applied. (The English Acts can be seen in Halsbury’s Statutes of England, 2nd ed., p. 4 onwards, and a form of claim is given in Lord Atkin’s Encyclopaedia of Forms and Precedents, vol. 12, p. 57; and guidance will be found in Halsbury’s Laws, 3rd ed., vol. 28, at p. 100.) It is hoped that counsel for the plaintiff will conduct his case with more assistance to the court below next time.
On the question of what to do with the money awarded as damages in a fatal accident case, attention is drawn to what Brett, F.J., said in Emionayi Erinmwionghae v. Matina Chukwuedebelu and others 1 S.C.N.L.R. 160; he said as follows:
“I would also express the hope that where damages are awarded under the Fatal Accidents Acts, or under Nigerian legislation replacing those Acts, the courts will consider making such an order as will ensure that the damages recovered are used for the benefit of the dependants for whom they were awarded, and not treated merely as a contribution to the general resources of the family at large. It seems that in Jirigho v. Anamali (1958) W.R.N.L.R. 195, Duffus, J., made such an order, and even if there is no statutory rule in the matter, as there is in England under Order 16b, rule 12, of the Rules of the Supreme Court, and in Eastern Nigeria under section 11 of the Fatal Accidents Law, 1956, I cannot doubt that the High Court has power to make a suitable order. In the present case the affidavit of the brother of the deceased which was filed in support of the motion asking for leave for the widow to sue suggests that the ‘immediate family of the deceased’, apart from his dependants, suppose that they have some direct interest in the result of the action, which indicates the need for an order protecting the interest of the dependants on whose behalf the action was brought.”
The Court would like these observations to be borne in mind in all such cases.
As to costs, as the defendant did not appear, he has no right to costs in the court below. He is entitled, however, to costs of appeal; but although it seems that the registrar of the court below charged £50 for the notice of appeal being filed, that was a mistake for £7-10s for which the plaintiff cannot be asked to pay.
The following order is made; it incorporates the order made at the hearing:
The appeal is allowed; judgment and costs are set aside. The case will be sent back for rehearing by another Judge.
Leave should be granted to the plaintiff to file full particulars of his claim and/or statement of claim which should, for the purpose of service on the defendant, be posted on the notice board in the Court premises, with a copy posted on the door of, or thrown into the house of, his last known address, 23 Lonsdale Street, Jos, as already supplied to the Court. This should be deemed a good and sufficient service for all processes of Court arising in this matter.
Costs of this appeal are assessed at thirty-nine guineas. There will be no costs in favour of the defendant/appellant in the Court below.
The Registrar of the High Court at Jos shall refund to the appellant £4210s, the excess paid in respect of filing the notice of appeal.
ADEMOLA, C.J.N.: I concur.
TAYLOR, J.S.C.: I concur.