In The Supreme Court of Nigeria

On Friday, the 27th day of April, 1990

SC 214/1986

Between

Raimi Jenyo        ......             Appellants

F. A. Aderemi

(Administrators of the Estate of Basiratu Raimi (Deceased)

And

Akinsanmi Akinreti   .......                         Respondent

Nigerian Breweries Ltd.

Judgement of the Court

Delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

The plaintiffs, Raimi Jenyo and another, as the Administrators of the Estate of Busari Raimi (deceased) sued the defendants, Akinsanmi Akinreti and another for the following reliefs:-

AND the plaintiffs, as such Administrators as aforesaid, claim against the Defendants and each of them:-

(i)     N200,000.00 damages under the Fatal Accidents Act, 1961, for the benefit of the said parents of the deceased;

(ii)    N400,000.00 Damages under the Civil Liability (Miscellaneous Provisions) Act, 1961, for the benefit of the estate of the deceased.

Pleadings were ordered, filed and exchanged. The case proceeded to trial before Bamgboye, J., who after hearing the evidence for the parties gave his judgment in the case on 8th November, 1982. For the purposes of the appeal in hand I need only refer to the following portions of the judgment of the learned trial Judge:-

I think on the credible facts a case of negligence on the part of the 1st defendant appears to me to have been fully established and clearly proved in that in this case, the 1st defendant has failed to keep any or proper look-out or to have any sufficient regard to the circumstances of the road that was or might reasonably be expected at the material time and thereby knocked down the deceased, Basiratu, who as a result of the injury caused to her in consequence of the said accident died on the 10th of July, 1973 ……….

Finally, an attention must be turned to the brief but important issue of damages, as claimed by the plaintiff in this action.

At paragraph 6(b)(ii) of the Amended Statement of Claim, the particulars of special expenses is shown as follows:

However, under S.6 (1) of the Fatal Accident Act, Cap.40 of the Laws of Lagos State, 1973, to which my attention was invited by Chief Bayo Kehinde, the learned Senior Advocate of Nigeria A appearing for the plaintiff, it is provided inter alia as follows:-

6(1)  Subject to the provision of this section the Court may in assessing and apportioning damages in an action brought under this law, award such damages in an action as it may think proportionate to the injury resulting from the death of the deceased person to the persons respectively for whom and for whose benefit such action is brought; and the amount so recovered, less the costs not recovered from the defendant, shall be apportioned in such shares as the court directs among the persons entitled.

Whilst the law of the state (i.e. the Lagos State of Nigeria) does not seem to be in doubt as to its provision regarding the award of damages in case of fatal accident it seems to me not quite clear as to the extent the courts could go as to the assessment thereof. It therefore seems to me clearly pertinent to inquire.

How (sic) turning to the issue of the assessment of damages as claimed by the Plaintiff at paragraph 6 of the amended Statement of Claim I think it would be improper for the Court to proceed to assess damages inultenously (sic) on each of the two items of general damages in respect of the same cause of action resulting from one and the same incident. I think such a recourse would run counter and offend against the principles of double compensation as laid down by the Federal Supreme Court in the case of Oshinjirin & Ors. v. Elias & Ors. (1970) All NLR p.153 at 156 ………………

In the present case, I think an award can only be considered in respect of the damages claimed under the Fatal Accident Act, 1961 and that the claim under the Civil Liability (Miscellaneous Provisions) Act, 1961 should be discountenanced and it is hereby so discountenanced.

As to the claim for special damages under items (i), (ii)(a)(b) and (iii) of the same paragraph 6 of the Statement of Claim I must state at one (sic) that there was no evidence offered in support and proof of these items and I do not consider that there should be any award, in that respect.

The plaintiff has made a claim for a sum of N200,000.00 as damages under the Fatal Accident Act, 1961 but having regard to all the facts and circumstances of this case I think a sum of N25,000.00 will be a reasonably fair and adequate compensation and I hereby order as against the defendants jointly and severally that the said sum of money be paid to the estate of the deceased so to ensure for the benefit of her immediate family, namely, his father who is the plaintiff in this case.

It is to be observed that the learned trial Judge thought that an award of damages under the Fatal Accident Act, 1961 and an award of damages under the Civil Liability (Miscellaneous Provisions) Act, 1961, in respect of the same incidents giving rise to both actions would amount to double compensation of the plaintiffs in respect of the wrong they complained of.

The defendants appealed against the whole of the decision to the Court of Appeal, Lagos Division. That court. coram Ademola, Kutigi and Kolawole. JJ.C.A. in its judgment dated 25th February, 1986 dismissed the defendants' appeal on the issue of liability and allowed their appeal on the issue of damages. As a result the general damages of N25,000.00 awarded against the defendants in favour of the plaintiffs were reduced to a rather paltry sum of N1,000.00 (one thousand naira).

The plaintiffs have now appealed to this court against the judgment of the Court of Appeal on as must be expected, the issue of damages alone. There is no cross appeal by the defendants. So this appeal is only concerned with the issue of damages. This is why earlier on in this judgment I have focussed my attention on the aspects of the judgment of trial court dealing with the assessment of the damages it thought the plaintiffs were entitled to in this case. In the same vein I have to set it down how the Court of Appeal came to the conclusion that the damages awarded the plaintiffs have to be reduced drastically. The reasoning of the lower court in this regard can be gathered from the lead judgment of Kutigi . J.CA. in which Ademola and Kolawole JJ.C.A. concurred and also from the concurring judgment of the latter.

As regards the point at issue Kutigi. J.C.A. said as follows:-

Generally speaking, I do not think that, Mr. Sofola is correct in saying that the Judge awarded damages based on the law i.e.. Act No.33 of 1961, which claim he had dismissed. Counsel on both sides agree that there is no cross appeal on the dismissal of the claim under that law. I think what actually happened as will be seen later in the judgment was that the Judge in his endeavour to assess damages stated correct principles but applied them wrongly. A careful perusal of the judgment will show that the trial Judge on finding that the appellants were liable under the Fatal Accidents Law. Cap. 4(1. then proceeded to enunciate the relevant principles as to assessment of damages as laid down in Benham v. Gambling (supra ) . It must be noted that the Fatal Accidents Law is similar to the English Law Reform (Miscellaneous Provisions) Act. 1934 which applied in 13enham's Case. I may also add that although I have not been able to see from the record where the Judge, said the case of Barnet v. Cohen (1921) 2 K.B. 461 was irrelevant. I believe he will be right. if he did, since the claim in that case was for the benefit of the defendants of deceased four years old infant son. That case was dismissed because the court held that there was no reasonable probability of pecuniary benefit but only a speculative possibility. In this case Liability is founded under the Fatal Accidents Law. Cap.40, Laws of Lagos State ........

The respondents claimed N200,000.00 and the Judge awarded N25,000.00 relying on the principles of assessment as stated in Benham v. Gambling (supra). But I feel that he applied those principles wrongly. The head note Benham's case reads:-

Damages given for the shortening of life should not be calculated solely or even mainly, on the basis of the length of life that is lost, they should be fixed at a reasonable figure for the loss of a measure of prospective happiness. If however the character or habits of the deceased were calculated to lead him to a future of unhappiness or despondency that would be a circumstance justifying a small award. No regard must be had to financial losses or gains during the period of which the victim has been deprived, damages being awarded in respect of loss of life, not of loss of future pecuniary prospects. In the case of a child, as in the case of an adult, the proper sum to be awarded should not be greater because the social position or prospect of worldly possession is greater in one case than another. Damages in respect of the death of an infant child reduced from £1200 to £200.

The learned author of Macgregor on Damages, 13th Edition, para. 1180 at p.795 also has this to say:-

While the speech of Viscount Simon (in Benham v. Gamling), laid down the principles on which damages are to be assessed - stressing in particular that it was the prospect of a predominantly happy life rather than of length of days that fell to be operated within the framework of the £500 ceiling and can therefore only serve to lead to awards which are below this figure should the deceased prospects of happiness have been insubstantial.

Being guided by the above principles, it is manifest that the Judge was in error when he awarded N25,000.00 damages to the respondents. This must be reduced. As there was no evidence before the trial Judge that the 'character or habits of the deceased were such as calculated to lead her to a future of unhappiness or despondency." I will be constrained to reduce the award to N1,000.00 (one thousand Naira) so long as liability is established.

In this regard too, Kolawole. J.C.A., said:-

..…The claim for N400,000.00 under the Civil Liability (Miscellaneous Provisions) Act, 1961 was also dismissed and the learned Judge, without adverting his mind to the proper principles applicable in the assessment of damages for fatal accident cases involving infants, awarded N25,000.00 as damages under the Fatal Accident Act, 1961……… The Law Reform (Miscellaneous Provisions) Act, 1934 of England under which Benham v. Gambling was decided is in pari materia with the Fatal Accident Law of Lagos State. The principles applicable in Benham v. Gambling would therefore be applicable in this case. In the assessment of damages for loss of expectation of life in the case of a very young child as the 5 year old Basiratu Raimi damages should generally be reduced since "there is necessarily so much uncertainty about the child's future, that no confident estimate of prospective happiness can be made." In Benham v. Gambling decided in 1941 the award was £200 where the deceased was a child of two and a half years. A quarter of a century later in 1968 in Naylor". Yorkshire Electricity Board (1968) A.C .529 the House of Lords awarded the sum of £500 where the deceased was a young man who was killed shortly before his twenty-first birthday.

In the result I endorse the appropriateness of the award of N1000.00 in favour of the plaintiffs with costs as assessed."

Briefs of arguments were filed on both sides. For the plaintiffs it is stated by their counsel, Chief F.R.A. Williams. S.A.N. in their brief of argument that the only issue arising for determination in this appeal is as follows:-

Whether the Court of Appeal correctly applied (sic) the principle laid down by the House of Lords in Benham v. Gambling (1941) A.C. 157 affords any basis for reducing the amount of damages by the learned trial Judge in this case.

For the defendants. (the respondents). their counsel. Kayode Sofola. Esq.. appears to submit from the points he made under the sub-title "Questions for determination and arguments" in the defendants' brief of argument that the main issue for determination is this: whether the Court of Appeal has applied the correct principles of law relating to the assessment of damages in the matter the subject-matter of the appeal now before us.

It appears to me that I must pause now to analyse the principles of law relating to the assessment of damages in cases under the Fatal Accident Law, 196I. Before doing this, I have to find out if it is true. as Kutigi,J.C.A., put it, that the Fatal Accidents law. 1961 is similar to the English Law Re-form (Miscellaneous Provisions) Act 1934 or as Kolawole J.C.A. put it' that The Law Reform Act, 1934 of England is in pari materia with Fatal Accidents Law of Lagos State. So I have to set down the main provisions of the two statutes. In respect of the Fatal Accidents Law of Lagos State I need only reproduce sections 3 and 6 thereof which say : -

3. (1)    Where after the coming into operation of this law. The death of a person is caused by' wrongful act, neglect or default, and the wrongful 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 hereof, 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.

(2)    Every action under this section shall be for the benefit of the members of the immediate familv of the deceased person and shall –

(a)    if the deceased person was not subject to a system of customary law, be brought by and in the name of the A executor or administrator of the deceased person; or

(b)    if the deceased person was immediately before his death subject to a system of customary law relating to estate, be brought at the option of his immediate family, by and in the name of such person us the court is satisfied is under the customary law, entitled or empowered to represent the deceased person or his estate.

(3)    If there is no executor or administrator, or where there is in executor or administrator but no action is brought by the executor or administrator within six months after the death of the deceased person, then action may be brought by and in the names of all or any of the persons for whose benefit the action would have been if it had been brought by the executor or administrator.' and every action brought shall be for the benefit of the same persons and he subject to the same regulations and procedure as nearly as may be if it had been brought by an executor or administrator.

6. (1)   Subject to the provisions of this section the court may, in assessing and apportioning damages in an action brought under this law, award such damages as it may think proportionate to the injury' resulting from the death of the deceased person to the persons respectively for whom and for whose benefit such action is brought, and the amount so recovered less the Costs not recovered from the defendant shall be apportioned in such shares as the court directs, amongst the persons entitled:

Provided that where the deceased person was immediately before his death, subject to any system customary law relating to estate, the court shall have regard to the particular system of customary law, and decide which members (if any) of the immediate family of the deceased person are entitled to share in the damages and shall apportion the shares amongst the persons entitled:

(2)    No account shall be taken of any sums paid or payable on the death of the deceased person under any contract assurance, and the award of damages may include reasonable funeral expenses of the deceased person incurred by the persons for whose benefit the action is brought."

As regards the Law Reform (Miscellaneous Provisions) Act.1934 (U.K.), it will be sufficient for our present purposes to refer only to section 1(1) and (5) thereof which say as follows:

1.    Effect of death on certain causes of action:

(1)    Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Section one hundred and eighty-nine of the Supreme Court of Judicature (Consolidation) Act, 1925, for damages on the ground of adultery.

(5)    The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any right conferred on the dependents of deceased persons by the Fatal Accidents Act. 1846 to 1908…. and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Acts as it applies in relation to other causes of action not expressly expected from the operation of subsection (1) of this section

A comparison of the main provisions of the Fatal Accidents I.aw of Lagos State reproduced by me above with those of the Law Reform ( Miscellaneous Provisions) Act, 1934 (U.K.) which I have also reproduced above, shows quite clearly that the two legislation are neither similar nor in pari materia. In fact the two legislations are dealing with different subject matters. The Fatal Accidents Law of Lagos State is a law to provide for compensation for the families of persons killed in accidents. On the other hand, the Law Reform (Miscellaneous Provisions) Act 1934 (UK.) is an Act to amend the law as to the effect of death in relation to causes of action and as to the awarding of interest in court proceedings. I have not bothered to reproduce the provisions relating to the latter for they are irrelevant for our present purposes.

It is therefore clear that the Court of Appeal was in error to have regarded the two statutes as being similar or in pari materia. I will say more about this error in the lower court shortly. The true position of things is that the Fatal Accidents Law of Lagos is in pari materia with the Fatal Accidents Act, 1846 U.K. and as subsequently amended whose main provisions will be found in sections 1 and 2 thereof which says:

(1)    When death is caused by negligence an action shall be maintainable

         … Whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act neglect, or default is such as would (if death had not ensued) have entitled the party injured to an action and recover damages in respect thereof. then in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured

(2)    Action to be for the benefit of certain relations, and brought by executor or administrator of deceased ... Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased-, and in every such action the jury may give such damages as they may think proportioned to the injury re- A suiting 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 jury by their verdict shall find and direct.

For purposes of completeness I must say that the provisions of the Civil Liability (Miscellaneous Provisions) Law, 1961 of Lagos State relating to the survival of causes in special cases are similar to or in pari materia with the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 which I have reproduced earlier on in this judgment. The main provisions of the Civil Liability (Miscellaneous Provisions) Act, 1961 dealing with the survival of causes of Action in special cases are as follows:-

PART 1- SURVIVAL OF CERTAIN CAUSES OF ACTION

(1)    Subject to the provisions of this Part of this Act, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be for the benefit of his estate.

(2)    No proceedings shall be maintainable in respect of the cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either -

(a)    proceedings against him in respect of that cause of action were pending at the date of his death; or

(b)   the cause of action arose not earlier than six months E before his death and proceedings are taken in respect thereof not later than six months after his personal representative is authorised to act as such.

(3)     Nothing in this section shall apply to causes of action for defamation or seduction or inducing one spouse to leave or remain apart from the other, or to claims for damages on the ground of adultery.

(4)    Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part of this Act to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

(c)    Where the death of that person has been caused by the act or omission, which gives rise to the cause of action, H shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may he included.

(6)    The rights conferred by this Part of this Act for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the members of the immediate family of deceased persons by the Fatal Accidents Act, 1961.

A comparison of the main provisions of the two statutes bears out what I just said about them.

I will now go back to the error of the lower court as to its view that the Law Reform (Miscellaneous Provisions) Act, 1934 (U.K.) and the Fatal Accidents Law, 1961 of Lagos State are similar or in pari materia. The lower court realised it, and correctly in my view, that the decision of the House of Lords in Benham v. Gambling (1941) A C. 157 was in a case grounded on the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 of U.K. The following passages in the speech of Viscount Simon, L.C., brings out clearly what I have just said and also what head of damages was being considered in the case:-

My Lords, under the common law of England it was the general rule that no executor or administrator could sue, or he sued, for any tort committed against or by the deceased in his lifetime. Such was the actual purport of the maxim "actio personalis moritur cum persona "- a maxim which is both obscure in origin and inaccurate in expression, for the proposition that personal actions abate with the death of either party is, of course, not true, generally speaking of causes of action arising out of contract. The common law rule was subject to important exceptions, some of them admitted by the common law itself and others introduced by statute. But the rule itself was in effect swept away by the Law Reform (Miscellaneous Provisions) Act, 1934………

But for the purposes of solving the problem which this appeal presents, we have to consider more particularly the situation which results under the Act of 1934 if the injuries, for which the defendant is responsible, are so severe that the victim dies of them before action brought, or at any rate before judgment. it must be accepted that, in cases where the victim's life has been shortened by the accident and the claim is properly formulated and proved, some figure to represent the loss suffered by the deceased through the shortening of his life may be included in the damages...... 

....... The present appeal raises the problem of assessment of damages for "loss of expectation of life" before this House for the first time, and it is indeed the only issue with which we are now concerned.

It is clear that the problem addressed in the case was one relating to the assessment of a head of damage for loss of expectation of life in an action under the Law Reform (Miscellaneous Provisions) Act, 1934 U.K.

I have said that the Fatal Accidents Law of Lagos is in pari materia with the Fatal Accidents Act, 1846 U.K.

I have to ascertain the measure of damages under the latter legislation a view to finding out if damages for loss of expectation of life of the person killed in an accident simpliciter can properly be awarded in an action under the statute. If it were, then the decision in Benham v. Gambling (supra) Will be relevant to such an action too, if not it will be wholly irrelevant to the case.

Lord Wright in his speech in the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C.601 at 611, 612 stated the principles applicable to measure of damages in a claim under the Fatal Accidents Act, 1846 U.K. as amended by subsequent enactment as follows:-

The general nature of the remedy under the Fatal Accident Acts has often been explained. These Acts "provided a new" cause of action and did not merely regulate or enlarge an old one," as Lord Sumner observed in Admiralty Commissioners v. S. S. Amerika (1). The claim is, in the words of Bowen, L.J., in the Vera Cruz (No.2), (2), for injuriously affecting the family of the deceased. It is not a claim, which the deceased could have pursued in his own lifetime, because it is for damages suffered not by himself, but by his family after his death. The Act of 1846, s.2, provides that the action is to be for the benefit of the wife or other members of the family, and the jury (or Judge) are to give such damages as may be thought proportioned to the injury resulting to such parties from the death. The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances, which may be legitimately pleaded in diminution of the damages, must be considered: Grand Trunk Ry. Co. of Canada v. Jenning (1). The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death………

The general principle that the right of the individual defendant under these Act is for damages to be assessed on balance of loss and gain, which is established by long-standing authority would prima facie seem to apply to this case…… 

............There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages, which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure, which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to he dependent, and other like matters of speculation and doubt."

It appears clear to me from the above passages from the speech of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (supra) on measure of damages in a claim under the Fatal Accidents Act (1 846) U.K. as amended by subsequent legislations that there can be no award for loss of expectation of life of the deceased simpliciter in the case. So a decision in a case like Benham v. Gambling (supra) dealing with the principles relating to award of damages for loss of expectation of life of a deceased person simpliciter is irrelevant when considering damages to be awarded under the enactment.

Because of what I hitherto said lam satisfied the Court of Appeal was in error not only to have said that the Fatal Accidents Law of Lagos State and the Law Reform (Miscellaneous Provisions) Act, 1934 U.K. are similar or in pari materia but also to have applied the decision in Benham v. Gambling (supra) as the principle governing the measure of damages in this case.

This however is not the end of this appeal. There is the further question arising from the briefs of arguments for both sides whether on the application of the correct principles relating to measure of damages in a case of this the lower court was right in reducing the damages of N25,000.00 awarded the plaintiff by the trial court drastically to N1,000.00

I have stated the general principles, as contained in Davies v. Powell Duffryn Associated Collieries Ltd. (supra) applicable in this case. No doubt the trial court did not advert its mind to them in its judgment. Perhaps Kolawole, J.C.A., had this in mind when he said:

The learned Judge without adverting his mind to the proper principles applicable in the assessment of fatal accident cases involving infants awarded N25,000.00 as damages under the Fatal Accident Act. 1961.

However, he himself, wrongly, in my judgment, applied the decision in Benham v. Gambling (supra) in this case before he reduced the damages to N1,000.00

Counsel for the defendant. Mr. Kayode Sofola has submitted to us that it is the decision in Barnett V. Cohen & Ors. (1921)2 K.B. 461, where the plaintiff therein sued under the Fatal Accidents Act, 1846 (Lord Campbell's Ac') as personal representative of his infant son under four years old at the time of his death to recover damages for the death of his son from the in-juries caused by the negligence of the defendants there, that is relevant, here. The deceased infant in the instant case was five years old, at the time of his death. In that case it was held:

......In the present action the plaintiff has not satisfied me that he had a reasonable explanation of pecuniary benefit. His child was under four years old. The boy was subject to all the risks of ill ness, disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived. He might or might not have turned out a useful young man. He would have earned nothing till about sixteen years of age. He might never have aided his father at all. He might have proved a mere expense. I cannot adequately speculate one way or the other…………

Where a claim is made under Lord Campbell's Act, as it is here, it is not only a question of the expectation of life of the deceased man, but there is also a question of the expectation of the life of the claimant." Upon the facts of this case the plaintiff has not proved damage either actual or prospective. His claim is pressed to extinction by the weight of multiplied contingencies. The action therefore fails.

Even if I had awarded damages they would not have exceeded the 101 paid into Court by the defendants with a denial of liability.

I am convinced that the decision in Barnett v. Cohen (supra) is apposite here. So I am satisfied too that Mr. Sofola is correct in his further submission to us that the lower court, if it had applied the correct principles applicable to measure of damages in a case like the one in hand would not only have reduced drastically the damages of N25,000.00 awarded by the trial court as it did but also would not have awarded anything near N1,000.00, if anything at all, to the plaintiff as damages under the Fatal Accident Law of Lagos.

The conclusion I reach therefore on the authorities is that I cannot say the Court of Appeal was wrong in cutting down drastically the damages awarded the plaintiff. The only criticism of the award by the Court of Appeal I can make is that, having regard to the authorities, it is itself too high. However, there is no appeal by the defendants against the award. So I must per-force leave it at that.

In the result the plaintiffs'/appellants' appeal fails and it is hereby dismissed by me with N500.00 costs to the defendants'/respondents.

Judgement delivered by

Obaseki, Ag C.J.N.

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Agbaje, J S.C. and find that his opinions on all the issues for determination raised in this appeal accord with mine. I hereby adopt them as my own.

The claim filed in the High Court was for (1) N200,000.00 damages under the Fatal Accident Act, 1961 for the benefit of the said parents of the deceased and (2) N400,000.00 damages under the Civil Liability (Miscellaneous Provisions) Act, 1961 for the benefit of the estate of the deceased.

The learned trial Judge disallowed the claim under the Civil Liability (Miscellaneous Provisions) Act, 1961 and awarded N25,000.00 damages to the plaintiff in the claim brought under the Fatal Accident Act, 1961. The deceased in the instant case was an infant of 5 years old.

On appeal to the Court of Appeal, the defendant succeeded in having the damages reduced from N25,000.00 to N1,000.00. To effect the reduction, the Court of Appeal was guided by the principles enunciated by the House of Lords in Benham v. Gambling (1941) A.C.157. Benham v. Gambling (supra) was a claim under the Law Reform (Miscellaneous Provisions) Act, 1934, which was in pan materia with our Civil Liability (Miscellaneous Provisions) Act, 1961 and not under the UK. Fatal Accident Act, 1846 or the Lagos State Fatal Accidents Law, 1961. The U.K. Fatal Accident Act, The 1846 is in pari materia with our 1961 Fatal Accidents Law of Lagos State and the relevant judicial authority where the guiding principles for the assessment of damages have been clearly enunciated by the House of Lords is the case of Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC.601 at 611 and 612 per Lord Wright. The formula to be used is directly related to the benefit that will be lost to the claimant by the death of the deceased. Using the formula and guided by the said principles and having regard to the decision in Barnett v. Cohen & Others ([921) 2 KB .461 which is apposite, the award of N1,000.00 damages given by the Court of Appeal has been more than generous. On the application of the correct principles, the appellant would have received nothing and he is entitled to none.

I therefore agree with my learned brother, Agbaje, J.S,C., when he said:

I am convinced that the decision in Barnett v. Cohen (supra) is apposite here. So I am satisfied too that Mr. Sofola is correct in his further submission to us that the lower court if it had applied the correct principles applicable to measure of damages in a case like the one in hand would not only have reduced drastically the damages of N25,000.00 awarded by the trial court as it did but also would not have awarded anything near N1,000.00, but anything at all, to the plaintiff, as damages under the Fatal Accident Law of Lagos State.

The appeal fails and I hereby dismiss it with N500.00 costs to the respondents. The decision of the Court of Appeal is hereby affirmed.

Judgement delivered by

Nnamani. J.S.C.

I had a preview of the judgment just delivered by my learned brother, Agbaje, I .S.C., and [entirely agree with his reasoning and conclusions.

In this tragic case in which a young girl of 5 years lost her life, her father and one other as administrators of her estate brought an action claiming:

(i)     N200,000 damages under the Fatal Accidents Act, 1961 for the benefit of the said parents of the deceased; and

(ii)    N400,000 damages under the Civil Liability (Miscellaneous Provisions) Act, 1961, for the benefit of the estate of the deceased.

The High Court discountenanced the claim under the Civil Liability (Miscellaneous Provisions) Act, 1961 and awarded N25,000 under the Fatal Accidents Act, 1961. On appeal to the Court of Appeal, that Court reduced the damages to N1,000 hence the present appeal to this court.

It is clear that the claim under the Civil Liability (Miscellaneous Provisions) Act, 1961, was for the benefit of the deceased's estate and that that head of claim was dismissed. This was accepted by both parties and it seems to me too late in the day to hold, as we were urged in oral argument to hold, that the learned trial Judge had that law in mind when he awarded N25,000. The claim fell under the Fatal Accidents Law, Cap.40, Laws of Lagos State and Sections 3(1) and (2) referred to by the Court of Appeal are relevant. In assessing the damages awarded by the High Court, the Court of Appeal fell into the error of relying on Benham v. Gambling (1941) A.C. 157 on which the learned trial Judge had also relied. That case was decided on the English A Law Reform (Miscellaneous Provisions) Act, 1934. That Act, contrary to the view of the Court of Appeal, is not similar to the Lagos Fatal Accidents Law. It would perhaps be nearer the Civil Liability (Miscellaneous Provisions) Act, 1961.

It seems to me that it is Lord Campbell's Act of England, Fatal Accidents Act, 1846 of England, which is nearer to the Fatal Accidents Law of Lagos State. In Barnett v. Cohen & Ors. (1921)2 K.B.461 decided under the Fatal Accidents Act, it was decided that in order to succeed it is necessary for the plaintiff to show that he has lost a reasonable probability of pecuniary advantage - a mere speculative possibility of benefit will not suffice. In that case, as here, a father had sued following the death of his 5on then under 4 years of age. The question was what damages, if any, to pay. McCardie, J., reviewed all the authorities including Wolfe v. Great Northern Railways Co. (1890)26 L.R. Ex. 548 where the child was a daughter of ten who helped her parents in the house and was of such exceptional value as to enable her pa-rents dispense with a servant. It was there held that the evidence justified the conclusion that the services of the deceased were of a pecuniary value exceeding the cost of her maintenance and education. £50 was awarded.

In the instant case, all the plaintiffs pleaded in the amended statement of claim is that the life of the deceased had been considerably and abruptly shortened at a tender age "in consequence whereof her said estate and her parents have thereby suffered loss and damage."

There was no evidence of the nature of loss. In fact, the parents did not give evidence at the trial. It was only plaintiffs' witness 1 who said she and E the deceased had been sent to buy something from the shops when the accident occurred. If one followed the English Act and the case of Cohen (supra), the plaintiff would not be entitled to any damages at all for what we have here cannot be anything but speculative possibility of pecuniary advantage. One difference though between Lord Campbell's Act and the Fatal Accidents Law of Lagos State is that while in the former no damages would F be awarded by way of solatium for the injured feelings of the relatives (see Blake v. Midland Railway Co. (1852)18 Q.B.93). In Cap.40 of Lagos State Section 6, the court may in assessing and apportioning damages award what it thinks proportionate to the injury resulting from the death of the deceased person to the persons respectively for whom and for whose benefit the action is brought.

While in Cohen, the parents got nothing, I think it safer to leave what the Court of Appeal has awarded albeit in error as they relied on the wrong case although purporting to act under the Fatal Accidents Act.

It was for these reasons. and the more detailed reasons in the lead judgment, that I too dismissed the appeal. I endorse all the orders for the Costs In the lead judgment.

Judgement delivered by

Belgore. J.S.C.

By the authorities I have no alternative than to reach the same conclusion as in the lead judgment of my learned brother, Agbaje, J S.C. I agree entirely with him and thus adopt his judgment as mine with the same consequential orders as made by him.

Judgement delivered by

Wali. J.S.C.

 I have had the privilege of having a preview of the lead judgment of my learned brother, Agbaje, J.S.C., and with which I entirely agree.

The plaintiffs' claim as Administrators of the Estate of Basiratu Raimi (deceased) was for damages under the Fatal Accident Act, 1961 and the Civil Liability (Miscellaneous Provisions) Act. 1961 for the benefit of the estate of the deceased and her immediate family: to wit her parents in this case, against the 1st and 2nd defendants jointly and severally.

The facts of the plaintiff’s case are as contained in the following paragraphs of the Statement of Claim:

2.     The deceased was the lawful daughter of the 1st plaintiff and the 2nd plaintiff and she was aged five years at the time of her death.

3.     On the 3rd day of July 973,at about 11.00 am, the deceased was standing near Nasamu Street, Ajegunle, Apapa, Lagos, when the 1st defendant drove, managed and controlled a motor lorry bearing registration Number LW 4086, the property of the 2nd defendant. along the said Road and caused or permitted the same violently to strike and knock down the deceased in consequence whereof the deceased sustained severe injuries from which she died at the University Teaching Hospital, Idiaraba, on or about 10^th day of July, 1973.

4.     The 1st defendant was a servant or agent of the 2nd defendant and at all material times and at the time of the accident he was acting in the course of his duties as such servant or agent.

5.    The said accident was caused by the negligence of the 1st defendant.

The plaintiffs particularised the damages in paragraph 6 of the Statement of Claim thus:-

Particulars of Special Expenses

In the joint Statement of Defence of the 1st and 2nd defendants, it was admitted that an accident occurred at the time and place pleaded but denied negligence in causing it and also the damages claimed. In stating their own facts of the incident they averred in paragraphs 6, 7, and 8 of their Statement of Defence as follows:-

6.     The defendants aver that on the 3^rd of July, 1973, as the 1^st defendant had completed discharging some cartons of beer to one Mr. Ezeani along Mission Street, Ajegunle, he proceeded slowly, carefully and skilfully on first bend along Nasumu Street the right hand side of which was so muddy and had fallen into a very bad state of disrepair and not therefore motorable, and unexpectedly, the deceased infant without due care and attention pushed another girl against the rear left hand side tyre of his said vehicle No. LW4086 thereby occasioning the said accident.

7.     As soon as the 1^st defendant became aware of the occurrence, he immediately applied his brakes and stopped.

8.     The defendants state that the accident was caused solely by the negligence of the said girl.

After taking evidence on both sides and final addresses by counsel in support of their respective cases, the learned trial Judge arrived at the following conclusions:-

Whilst the law of the state (i.e. the Lagos State of Nigeria) does not seem to be in doubt as to its provision regarding the award of damages in case of fatal accident it seem~ to me not quite clear as to the extent the courts could go as to the assessment thereof. It therefore seems to me clearly pertinent to inquire.

In a leading case of Benham v. Gambling (1941) AC. 157 where one Mr. Gambling was driving his car and had with him a little child aged two and half years, Mr. Benham tried to overtake it. He failed. He ran into it and overturned it. The baby was badly injured. He was unconscious and died the same day. His father sued for damages on behalf of the baby’s estate. Even though it seemed an extraordinary idea but the House of Lords held that the baby's estate could sue because the baby's life had been shortened. It had lost its expectation of life.

There are indeed a good many decided cases some of which were based on the principle of fair compensation rather than actual damages, because as I believe, it is generally thought that the deceased, who in fact suffered the injury and died, did not stand to benefit from such an award. It only ensures for the benefit of his estate.

But in Benham’s case, the Lord Chancellor sitting with other five Law Lords expressed the view and said inter alia as follows:

Such a problem might seem more suitable for discussion in an essay on Aristotalian ethics than in the judgment of a Court of Law.

Now turning to the issue of the assessment of damages as claimed by the plaintiff at paragraph 6 of amended Statement of Claim I think it would be improper for the Court to proceed to assess damages simultaneously on each of the two items of general damages in respect of the same cause of action resulting from one and the same incident. I think such a recourse would run counter and offend against the principle of double compensation as laid down by the Federal Supreme Court in the case of Oshinjirin and Ors v. Elias & Ors. (1970)1 All NLR P.153. ………..

In the present case, I think an award can only be considered in respect of the damages claimed under the Fatal Accident Act, 1961 and that the claim under the Civil Liability (Miscellaneous Provisions) Act, 1961, should be discountenanced and it is hereby so discountenanced.

As to the claim for special damages under items (i), (ii)(a) (b) and (iii) of the same paragraph 6 of the Statement of Claim I must state at once that there was no evidence offered in support and proof of these items and I do not consider that there should be any award, in that respect.

The plaintiff has made a claim for a sum of N200,000.00 as Damages under the Fatal Accident Act, 1961 but having regard to all the facts and circumstances of this case I think a sum of N25,000.00 will be a reasonably fair and adequate compensation and hereby order as against the defendants jointly and severally that the said sum of money be paid to the estate of the deceased so to ensure for the benefit of her immediate family, namely his father who is the plaintiff in this case.

The defendants appealed against the judgment to the Court of Appeal. In the lead judgment of the Court of Appeal by Kutigi, J.C.A., with which Ademola and Kolawole. JJ.C.A. agreed, he held:

…….having regard to the evidence before the trial court, I entertain no doubt at all that the Judge was right when he found as he did that the appellants are liable in respect of the claim under the Fatal Accidents Law.

.......The respondents claimed N200,000.00 and the Judge awarded N25,000.00. I think the learned trial Judge was right in relying on the principles of assessment as stated in Benham v. Gambling (supra). But I feel that he applied those principles wrongly.

.......Being guided by the above principles, it is manifest that the Judge was in error when he awarded N25000.00 damages to the respondents. This must be reduced. As there was no evidence before the trial Judge that the 'character or habits of the deceased were such as calculated to lead her to a future of unhappiness or despondency,’ I will be constrained to reduce the award to N1,000.00 (one thousand Naira) so long as liability is established.

The plaintiffs have now appealed to this court against the judgment of the Court of Appeal.

The central issues for determination that can be deduced from the briefs filed by both plaintiffs as appellants and the defendants as respondents are -

1.     Whether the Court of Appeal correctly applied the principle laid B down by the House of Lords in Benham v. Gambling (1941) AC.157 in reducing the damages awarded by the trial court.

2.     Whether the Fatal Accidents Law, Cap.40 of Lagos State is in pari materia in other words, similar to the English Law Reform (Miscellaneous Provisions) Act, 1934.

3.     Whether the plaintiffs/appellants are even entitled to award of C any damages at all under the Fatal Accidents Law, Cap. 40.

There is no doubt as stated by my learned brother, Agbaje, J.S.C. in the lead judgment that a careful comparison of the provisions of the Fatal Accidents Act, 1961 applicable to Lagos State with that of the Law Reform (Miscellaneous Provisions) Act, 1934 of the United Kingdom will reveal that the provisions of the two statutes are not in pan materia as concluded by the D learned Justices of the Court of Appeal. This will therefore automatically exclude the application of the rules in Benham v. Gambling (supra). Whereas an action under the Fatal Accidents Act (which is similar to the British Fatal Accident Act of 1846 as subsequently amended) is a separate cause of action by itself, the cause of action under the Law Reform (Miscellaneous Provisions) Act, 1934 survives for the benefit of the deceased person's estate and the damages recoverable are calculated without reference to any loss or gain to the estate consequent on his death. But under the Fatal Accident Act, damages are awarded to compensate the defendants of the deceased for loss of actual or prospective pecuniary benefits derived from the relationship between them. (See Kassam v. Kampala Aerated Water Co. Ltd. (1965)1 WLR 668 and Taff Vale Railway Co. v. Jenkins (1913) AC.1).

In the instant case, the girl whose death was caused by the negligent act~ of the 1st defendant as the agent of the 2nd defendant was about 5 years old At that age the plaintiffs could not be said to be deriving any benefit from her nor could it be speculated and conjectured that the deceased would live and even if she did live the plaintiff would derive any pecuniary benefits from her. At that tender age the deceased was nothing more than an unavoidable I burden and liability to them. The law is still as stated by Viscount Haldane, L.C. in Taff Vale Railway v. Jenkins (supra) that "The basis is not what has been called solatium. that is to say damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss.

It is for this and the more elaborate reasons contained in the lead judgement of my learned brother, Agbaje, J.S.C., that I too will dismiss this appeal and it is hereby dismissed. The defendants/respondents are awarded N500.00 costs against the appellants.

Appeal dismissed.

Counsel

Chief F.R.A. Williams, S.A.N.           ........                   For the Appellants

with E. O. Durojaiye

Kayode Sofola                         ........                   For the Respondents