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A.C. ONUKAFOR & ANOR.
HIGH COURT, MID-WEST
3RD MAY, 1966
SUIT NO. 5/31/65.
TORT AND PERSONAL INJURY
PRACTICE AND PROCEDURE
ACTION for Damages.
Aganbi for the Plaintiff.
Oji for the Defendant.
EKERUCHE, J.:-This is an action for damages brought by the Plaintiff, who is suing as relative of a deceased, who was killed in a fatal accident. The action is brought under the Fatal Accidents Law, Cap. 122, Volume VI-Laws of Western Region of Nigeria.
When the case was called for hearing, Learned Counsel for the 1st Defendant, took the point that Plaintiffs action was prematurely instituted having been instituted within six months of the death of the deceased and in support of this, he referred to the Proviso to section 4 of the Fatal Accidents Law herein afore-mentioned.
In order to understand fully the said proviso, it is necessary to set out the whole section and it reads:-
“Every such action as is maintainable by virtue of this Part shall be for the benefit of the wife or wives, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of executor or administrator of the person deceased; and in every such action the court may give such damages as it thinks proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before mentioned parties in such shares as the court by its judgment shall find and direct:
Provided that if there shall be no executor or administrator of the person deceased or that there being such executor or administrator no such action as aforesaid shall within six calendar months, after the death of such deceased person have been brought by and in the name of his or her executor or administrator then and in every such case such action may be brought by and in the name or names of all or any of the persons for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons and shall be subject to the same regulations and procedure, as nearly as may be, as if it were brought by and in the name of such executor or administrator.”
The contention of the learned Counsel for 1st Defendant is that by the proviso, the plaintiff not having shown himself to be an executor or administrator, but just a person or beneficiary enabled by the law to sue, he should have waited for a period of six months to elapse before instituting the action.
Learned Counsel for the Plaintiff contended that the action was properly instituted.
I have considered the contention of Learned Counsel for the 1st Defendant on the point and in particular the restriction he seeks to put on the plaintiffs right to sue by the construction he urges on the Proviso to section 4 of Cap. 122 of the Laws of Western Nigeria (Supra) and I must say that I am unable to take the view that the proviso has any such meaning.
The only restriction which the proviso puts on a beneficiary’s right to sue is that he cannot sue within six months if there is either an executor or administrator. The executor or administrator has a first right to sue within that period and if at the expiration of the said period he does not sue, then a beneficiary can sue.
There is no suggestion that there was an executor or administrator when the action was brought. There is even till now no suggestion that one has since existed.
The proviso being considered is in substance the same as section 1 of the United Kingdom Fatal Accidents Act, 1864 and it has been held under that section of the said act that an action may be brought by a relative within six months if there is no executor or administrator at the time (1).