BENSON & ANOR V. ASHIRU

• Pages: 198-203

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

it may give rise to an expectation that it will always be made publicly known. We

think it advisable that it should be communicated confidentially in all cases.

Appeals of two appellants

dismissed. Those of the other two

allowed.

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BENSON & ANOR V. ASHIRU

10

OLAYIWOLA BENSON AND ANOTHER

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APPELLANTS

V

JOSEPH OLADIPUPO ASHIRU

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RESPONDENT

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SUIT NO. SC 405/1975

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

COKER,

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J.S.C.

LEWIS,

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J.S.C.

9th June, 1967

Tort - Fatal accidents - Competency of action - Plaintiff suing as husband of

deceased - Failure to prove marriage fatal to the action - Damages - Need to

explain law assessed

Civil Action - Practice and procedure - Representative capacity - plaintiff with

no capacity to sue - Order authorising him to prosecute action in representative

capacity - Whether effective

Private International Law - Action in one territory for fatal accident occurring in

another

Appeals - to Supreme Court, Civil - Amendment of statement of claim - Fatal

accident suit founded on law of wrong territory

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Legislation - Evidence Act, s.73(1)(a) - High Court of Lagos (Civil Procedure)

Rules - Supreme Court (Civil Procedure) Rules, 1945, or 4 r3, - Torts Law

(W.N.) part 2 - Law of England (Application) Law,

(WN.)

Fatal Accidents

Acts 1846 and 1864 of England.

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ISSUES:

1.

Whether the failure of a plaintiff/husband to prove his marriage to the deceased

is fatal to an action for damages arising from fatal motor accident where the

plaintiff is suing in a representative capacity.

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2.

Whether under the relevant English Common Law rules of Private International

Law a plaintiff can bring an action in one territory for a fatal motor accident

which occured in another.

FACTS:

The plaintiff/respondent sued in the Lagos High Court on behalf of himself and

dependent relatives of the deceased claiming that the second defendant as ser-

vant of the first defendant had caused the death of the deceased by negligent driv-

ing of a motor vehicle in Iperu, Ijebu, Western Nigeria.

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