Can Injured Persons Maintain An Action Under The Fatal Accident Law ? By Balogun Sofiyullahi .O.


This question is borne out of the intense arguments that ensued between me and with a set of my intelligent colleagues at the A.B.U Law Clinic, Faculty of Law, Ahmadu Bello University, Zaria on Friday, 24th day of August, 2018 between 7:30-9:00 PM. And with another set of colleagues on Saturday, 25th day of August, 2018 between 1:30 – 2:13 PM.
Therefore, this write up  seeks to re-articulate the arguments that I canvassed thereat with more authorities and actual clarity.
Fatal Accident simply means an accident that causes someone to die or a great disaster occurred as a result of an accident. But, this ordinary meaning does not seem to give a straight forward answer to the question this write up seeks to address, mayhaps, as a result of the complexity often associated with law students, and nay, practicing lawyers.
Besides, the main source of confusion as to whether an injured person can found a claim/action under Fatal Accident claims is the true construction or import of Section 3 of Fatal Accident Law of Kaduna State 1956, CAP.49. It however appears that this provision is maintained in most of the Laws in other states relating to Fatal Accident . See Section 1 of Fatal Accident Law of Cross River State, CAP. F1 and Section 3(1) of Fatal Accident Law of Lagos State, CAP. F1, 1963.
However, since the provision of Section 3 of Kaduna State  has the same import (although differently worded as in Cross Rivers), with other States Law_ I will maintain that of Kaduna State for purposes of my analysis.
Section 3 of the Kaduna State Fatal Accident Law, provides:
“Nothwithstanding 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 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.”
I respectfully hold the view that the words “whenever the death of a person shall be caused…” as appeared in the above section  is not properly framed as the word “shall be caused” ought to have simply read “is caused” for simple clarity. Equally, the words “…then and in every such case…” is unnecessarily confusing and amounts to  a prolix as the section can stand without it as rightly couched in the Lagos State Law.
However, from a calm perusal of section 3 above_ does it give an injured Plaintiff a right of action under the Law ? I humbly submit in the negative. Therefore, I’ll break the provisions into pieces for clarity of purpose.

“Nothwithstanding any rule of law, practice or procedure heretofore in force to the contrary….”

Whenever the word  “nothwithstanding” is used in any enactment, it means according to the decision in  DAUDA v. ALIYU(2016) LPELR-41293(CA) thus:
“It is trite law that where the term “notwithstanding” is used in a clause in a statute, it means that clause should be construed as a term of exclusion. The term is meant to exclude an impugning or impeding effect of any other provision of the statute or other subordinate legislation so that the clause may fulfill itself.”
See also  – Nigerian Deposit Insurance Corporation Vs Okem Enterprises Ltd (2004) 10 NWLR (Pt 880) 107, Ardo Vs Nyako (2014) 10 NWLR (Pt 1416) 591 and Saraki Vs Federal Republic of Nigeria (2016) LPELR-SC.852/2015.
Since basically fatal accident deals with bringing actions on a deceased/dead person’s rights by its relations, then the nothwithstanding in section 3 for instance, limits the application of the “rule of law” that says the death of a person terminates his rights & obligations except the one that survives him, that  is, that rule is inapplicable to fatal accident claims. See ABAMO & ORS v. BAMIGBOSE & ORS (2016) LPELR-41947(CA).

“…whenever the death of a person shall be caused by a wrongful act, neglect or default of another person and the act….”

In other words, the above means what it says, that is,  in a situation where death is caused by virtue of the actions of another person either wrongfully or negligently or in default of the person’s actions or inactions. Then, the effect shall be seen in the later paragraphs.

“…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….”

At this stage, a careful attention needs to be exercised because this is the very source of confusion that necessitated this write up. I humbly submit that these words are additional information in the provision of Section 3, as they mean that had it been the deceased was merely injured which didn’t result to his death, he would have found an action against the defendant personally and recover damages from him. But for his death, he couldn’t, hence, giving a right of action to  his immediate family as would be seen later. Mind you, if he didn’t die, his claim cannot be under the Fatal Accident Law but under ordinary Tort of Negligence. This is because the intention of the makers are known from the Preamble of the Fatal Accident Law of Kaduna State in the following words:
From the foregoing preamble it is apparent that the law seeks to provide compensation for families of “persons killed in accidents” and not “families of persons killed or injured persons in accidents”. If the preamble is worded in the latter sense, then an injured victim can maintain an action under the Law.
The essence of preamble in an enactment was stated in the case of BABALOLA v. AG, FEDERATION & ANOR (2018) LPELR-43808(CA) thus:
“A preamble to an enactment, though not part of the body of the enactment, can be resorted to as an aid in interpreting the enactment, especially where there is some difficulty in arriving at the meaning of word used in the enactment vide Osawe and Ors. v. Registrar of Trade Unions (1985) 1 NWLR (pt. 4) 755. It is all the more so in light of the fact that a preamble to an enactment is its preface or introduction. Its purpose is to portray or show-case the interest of the framer(s) of the enactment and the mischief the enactment is set out to remedy.”  See also DILLY v. I.G.P & ORS: (2016) LPELR-41452(CA)
More importantly, the usage of the word “would” in section 3 in its literal sense means “possibility, might or may”, and therefore, further strengthening the fact that the above paragraphs in the section constitute an additional information (that if not for death, the person  may have instituted the action personally) but not in itself giving an injured person a right of action under the Law.

“…then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages….”

Flowing from the explanation earlier given above, the above equally means assuming the deceased person didn’t die, he would have sued the defendant personally under “negligence” and the defendant would have been liable to pay the injured  victim damages  who sued in person. Take note of “…if death had not ensued….” Because this means with the usage of “had” which happens to be a simple past & past participle of “have”_ it connotes a past event that had occurred. I.e death, as  in this instant issue.
This writer discovered that emphasis is wrongly placed on the word “shall be liable to an action for damages”, particularly the word “shall”  by some individuals, thereby submitting that this gives an injured person a right of action under the Law because it connotes mandatoriness. I hold the view that this is a misconception because the entire provision of Section 3 must be carefully construed together as we have submitted above.

“…notwithstanding the death of the person injured.”

Flowing from the entire explanations above, we should readily know that logically  , a deceased person cannot sue _ therefore, assuming he is alive & merely injured by the defendant’s conduct he would have sued him personally and recover damages. Since he is dead & the import of “notwithstanding any rule of law…” is known to us as explained above, the deceased “immediate family” who can bring an action under the Fatal Accident Law is known by the dint of Sections 2, 4 and 5_ then, they can maintain an action (as the deceased would have done under negligence, if he were to be merely injured and alive) “notwisthstanding the death of the (deceased) person injured.”
We should not be derailed by the words “person injured” as appeared in the provision because they are not independent of the preceding word “death”, that is, death was caused as a result of the injury and not mere injury without death. The fact is further made known by Section 7(1)(a) of the Kaduna State Law on mode of assessment of damages by the Court. It reads:
“The Court may give such damages as it may think fit proportioned to the injury resulting from a death….”
From the foregoing analysis, I hold the view that the main contemplation of Section 3 of the Fatal Accident Law is with regards to maintainance of an action(by family) on behalf of a deceased person killed by accident, in the same way he would have maintained an action in person against the defendant in negligence_ had it been he was merely injured.
Conclusively, it is a basic rule of interpretation that when construing an enactment:

A Section should not be read in isolation of other provisions, in otherwords relevant provisions should be read together. See the cases of ELELU HABEEB V. AGF (2012) LPELR-SC.281/2010; Nafiu Rabiu v. The State (1980) 8 – 11 S.C. 130 at 149 and Senate of the National Assembly v. Momoh (1983) 4 N.C.L.R. 269 and SKYE BANK v. IWU: (2017) LPELR-42595(SC)

I have carefully traversed the entire Fatal Accident Law, I discovered that the entire Law  contemplates a deceased person and not just an injured victim of an accident. Therefore, reading Section 3 in isolation of other provisions and particularly  the preamble to the law, is not wholly accurate.

When interpreting an enactment, the duty of anyone is to seek the intention of the law makers from the words used and the circumstances of the enactment in question. Hence, the intention of the law makers is clear from the preamble and the entire provisions of the Fatal Accident Law when read as a whole. See the cases of DG, DICN & ANOR v. DINWABOR & ORS: (2016) LPELR-41316(CA), INSPECTOR GENERAL OF POLICE V. ALL NIGERIA PEOPLES PARTY & ORS  (2007) LPELR-CA/A/193/M/05,  (2007) 18 NWLR (Pt.1066), IBRAHIM V. JUDICIAL SERVICE COMMITTEE(1998) LPELR-SC.130/1990,(1998) 14 NWLR (Pt. 584) 1 and AttorneyGeneral for Canada v. Hallet and Carey LD. (1952) A.C. 427 at 449.
The marginal or side note in the Kaduna State Fatal Accident Law provides “Right of action in respect of death of a person where action would lie for injury or(sic:of) such person”. I hold the view that this marginal note has restricted the claims cognizable under the section to mean that the immediate family has a right of action when death must have occurred as a result of an injury which the deceased sustained from an accident caused by the defendant’s act. The Supreme Court held in SKYE BANK v. IWU(2017) LPELR-42595(SC) thus:

“While it is trite that the marginal note to a Section does not form part of the enactment, it is helpful in determining its purpose or the mischief it is aimed at.” See also : Idehen v. Idehen (1991) 6 NWLR (pt.198) 382; O.S.I.E.C. v. A.C. (2010) 12 SC (Pt. IV) 108,  F.R.N. v. IBORI & ORS. (2014) LPELR- 23214 (CA),UWAIFO v. A-G. BENDEL STATE (1982) NSCC 221 at 242.

From the generality of the Fatal Accident Law, what the Law recognises is a deceased whose death was caused by accident. Therefore “person” within Section 3 means only  two persons i.e the deceased & the defendant, not an injured person. I draw inference from the import of Section 2  that specifically confined the meaning of “person” under Section 3 to mean a deceased person. Section 2  provides that :

“In this Law:
“deceased person” means a person whose death has been caused by a wrongful act, neglect or default of another person within the meaning of section 3;”
Be that as it may, I finally submit with considerable force that an injured victim who did not die as a result of accident cannot bring a claim under Fatal Accident Law because, his remedy lies in an action for damages in the law of negligence, simpliciter. Nevertheless, nothing stops a defendant in an action brought under the Fatal Accident Law against him  to rely on defences afforded by Tort of Negligence. I.e contributory negligence. See NIGERIAN DYNAMIC ENGINEERING CONSTRUCTION LTD v. DASSO & ORS: (2017) LPELR-43206(CA).