Retired Major J.a. Ogbole V. Private Clement Onah (1989)
LawGlobal-Hub Lead Judgment Report
MAIDAMA, J.C.A.
This appeal arose from an action filed by the present appellant, in the Upper Area Court at Otukpo, where his claim was for the return of the disputed child -Echeja and the sum of Two Thousand Naira (N2,000.00) as damages for defaming the character of the said child.
At the trial of the action, both parties were allowed to call witnesses in support of their respective cases. All the witnesses who were called by the appellant were related to the mother of the disputed child and in their testimonies, they confirmed that the 2nd defendant had three children with the deceased, including the disputed child. While the respondent and the mother of the disputed child, who was the 2nd defendant at the trial, gave evidence and called one witness who was the senior sister of the 2nd defendant.
At the end of the hearing, the sole Judge of the trial Upper Area Court, Mr. J.O. Achede, in a considered judgment, delivered by him on the 6th July 1984, dismissed the appellant’s claim for damages but awarded him the paternity of the disputed child. In arriving at his decision the trial Judge took into consideration the following factors: Firstly, that the second defendant i.e. the mother of the disputed child had admitted in her evidence that she was still the legal wife of the deceased i.e. the appellant’s brother Ucheku Daudu, at the time she delivered the disputed child. Secondly, the said disputed child was born on the 11th of July, 1971 when the marriage with the deceased was still subsisting. Thirdly, that it was P. W.1 (Igata Ikpechi) and not the respondent who refunded the bride price to the deceased; and Fourthly, under the Idoma Native Law and Custom which governed the marriage between the parties, the husband of the wife is also the father of the child so long as the marriage between the parties subsists.
The respondent was not satisfied with this decision, therefore he filed an appeal to the Appellate Division of the Otukpo High Court which, after listening to the arguments of the learned Counsel on the issues of facts and law, reversed the decision of the trial Upper Area Court and awarded the paternity of the child to the respondent. Hence, the plaintiff, now the appellant – appealed to this Court and filed two grounds of appeal which read as follows:-
“1. The High Court of Justice, Otukpo on appeal was wrong to conclude that there was enough evidence before the trial court (Upper Area Court, Otukpo) to hold that Section 8(1) (c) of the Native Authority (Declaration of Idoma Native Marriage Law and Custom) Order does not apply to the case.
PARTICULARS OF ERROR
(i) None of the witnesses for the respondent/defendant gave evidence to prove that the pregnancy of the child in dispute was by the respondent/defendant.
(ii) There was evidence for the plaintiff/appellant that the child was known as the son of his brother for long and that this issue of paternity was not in dispute until the plaintiff/appellant asked the child to come to stay in his house.
- The High Court of Justice, Otukpo on appeal erred in law and on the facts when it held that the trial court ought to have applied the principle in Moriyama vs. Sadiku Ejo (1961) N.N.L.R. 81 when on the facts and in the circumstances the principle of that decision was not applicable, there being no positive evidence that the conception of the child in dispute was by a person other than the brother of the plaintiff/appellant.
PARTICULARS OF ERROR
(1) Presumption of paternity by husband before divorce was not “clearly and absolutely rebutted” by evidence for defendant/respondent.
(2) Evidence showed that child was born during the marriage of appellant’s brother to the 2nd defendant.
(3) No evidence that intercourse did not take place between appellant’s brother and 2nd respondent before the child was born.”
Before dealing with the submissions of the learned Counsel for the appellant on the issues raised in the above grounds of appeal, I consider it necessary, for a better understanding of the issues raised, to state briefly the facts of the case as they were presented before the trial Upper Area Court.
The facts are:- that the appellant’s brother, who had since died, married the 2nd defendant in accordance with the Idoma Native Law and Custom on marriage. After they had two children namely:-Onyemowo, a female and Daudu, male, the marriage broke down when the deceased suspected the 2nd defendant of harlotting. At that time, they were living together in Kano, so he sent her home where she stayed with his brother Inyigbe, also deceased.
She later left him because the deceased was not sending any money to her for her maintenance and went to stay with her own brother at Otukpo.
From there, she moved to Makurdi at the instance of her senior sister – Abeji Okache (D.W.2) who was an employee of the Nursing Training School, Makurdi. After staying briefly with her sister (D.W.2) she again moved to Jibril Hotel Makurdi, where she met the respondent in June, 1969. With the consent of her sister, she moved to the respondent’s address at High Level, where, they continued to stay together as lovers. According to the respondent, after six or four months, the 2nd defendant became pregnant and on the 11th of July, 1970, she delivered the disputed child. But all this time, the respondent was not aware and was not told by anybody that the 2nd defendant was a married woman. He only came to know about it after she became pregnant, so that by the time the marriage was dissolved in 1971, the disputed child had already been delivered.
The question before the trial Upper Area Court was, whether the child in dispute belonged to the deceased or to the respondent. It should be noted that there was no evidence on the printed record of evidence that the deceased, while alive, ever claimed that the disputed child belonged to him.
There was evidence that when the divorce was granted to the 2nd defendant by the Grade 1 Area Court, the deceased came and collected only two of his children leaving the disputed child with the respondent and the 2nd defendant. One wonders therefore why the appellant is now claiming the paternity when the deceased himself did not claim the said child. If he knew it was his child he would have taken it along with the others. The question which arises is: What right has the present appellant now to bring this action?
Under Section 28 of the Area Court Edict of 1968 which is applicable to Benue State, an Area Court may permit:-
(a) The husband, wife, brother, sister, son, daughter, guardian, servant, master or any man of the household or any person who shows good satisfactory proof that he or she has authority in that behalf or;
(b) … (not applicable).
I have not seen any such authority on the printed record of proceedings but since this question did not crop up at the trial before the Upper Area Court, I will refrain from going further into it and confine myself to the issues raised before us.
In arguing this appeal, Chief Morgan Ogbole, learned counsel for the appellant filed his brief of argument which was served on the respondent, but the respondent neither replied to this brief nor appeared before this Court to defend this appeal. We therefore allowed the appellant to prosecute his appeal. Mr. Ogaba of counsel who held the brief for Chief Ogbole, adopted it and relied on the arguments contained therein. He urged us to allow this appeal and restore the decision of the trial Upper Area Court. In the brief Chief Morgan Ogbole raised only two issues for determination.
The first issue was whether the High Court was right in reversing the judgment of the trial Upper Area Court on the basis that the facts before the trial Court justified the exception to the presumption of paternity by the husband of the mother of a disputed child and the second issue was whether the High Court was right to re-assess and re-evaluate the evidence before the trial Upper Area Court, Otukpo and make new findings of facts to justify its reversal of the trial court.
In arguing this appeal, Chief Morgan Ogbole dealt with the two grounds of appeal together, and the pith and substance of his submission on these two grounds was that the trial Upper Area Court was right, both on the facts and in law, in awarding paternity of the child to the appellant; and the High Court was wrong in reversing that decision. With respect to the law on the first issue, the learned counsel referred us to Section 8 of the Native Authority (Declaration of Idoma Native Marriage Law and Custom) Order (Legal Notice No. 63 of 1959) which provides as follows:-
“8(1) A husband has a right to demand the following from his wife-
(a) …
(b) …
(c) the children conceived by her during the marriage whether or not begotten by him.”
It was submitted by the learned counsel that paragraph (c) of section 8 above has now been amended by the Rule in Mariyama vs. Sadiku Ejo (1961) N.N.L.R. 81 at p.83 wherein the High Court of the Northern Region, sitting in its appellate jurisdiction in a similar situation reversed the decision of the Igbirra Central Court, which awarded the respondent, the daughter of the appellant, his divorced wife, on the ground that to enforce the rule of presumption of paternity as it applied under the Igbirra Custom would result in serious injustice. Under the Igbirra custom any child born within 10 calendar months of a divorce becomes the property of the former husband.
The evidence of the appellant in the case under reference was that the child in dispute belonged to her 2nd husband, whom she married immediately after she got divorced from the respondent. She said the child was born 300 days after the divorce and that she had no intercourse with the respondent for four months before her application for divorce. The respondent on the other hand said that he had intercourse with her, four days before the divorce, this was when her mother sent him a message to say that the appellant’s menstruation was over, so he went where she was staying and spent a night with her. The High Court which heard evidence, accepted the appellant’s story that she had no intercourse with the respondent as she claimed, therefore, to enforce the rule would result in serious injustice. In this regard, the High Court stated:-
“In this case, it has been clearly and absolutely rebutted and in the very exceptional circumstances of this very case, we feel that to enforce the rule (i.e. presumption of paternity) would result in a serious injustice.”
Chief Ogbole’s submission was that the special circumstances which were found to have existed in the case under reference did not exist in the instant case as there was no reliable evidence before the trial Court that it was the respondent and no other person who pregnated the 2nd defendant. The learned counsel further took us through the entire evidence adduced on both sides, by referring us to the evidence of the appellant’s witnesses and those of the respondent concerning the pregnancy and submitted that the sum total of all this was that the exception to the rule was not proved and cannot therefore be applied as was wrongly done by the High Court in this case.
In respect of the second issue raised, the learned counsel referred us to a recent decision of the Supreme Court, in the case of Obodo v. Ogba 1987 3 S.C.N.J. 82 at page 88 (1987) 2 N.W.L.R. (Pt.54) 1, wherein the Supreme Court re-affirmed the roles of the trial Courts and the appellate courts.
Learned counsel submitted that since it was not shown that the findings of the case were not unreasonable or perverse, the appellate High Court’s decision should be set aside and the Judgment of the Upper Area Court restored.
It should be noted that as long as the marriage between the deceased and the 2nd defendant lasted, there is a presumption that a child conceived and born during its continuance is legitimate. This presumption is provided for under section 147 of the Evidence Act which reads as follows:-
“147. Without prejudice to section 84 of the Matrimonial Causes Decree, 1970, where a person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, the court shall presume that the person in question is the legitimate son of that man.”
A similar provision was also made under s. 147 of the Evidence Law (Cap. 40, Laws of N.N. Vol.II) as applicable to Benue State where it is provided:-
“147. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it could be shown:-
(a) Either that his mother and her husband had no access to each other at any time when he could have been begotten, regard being had both to the date of the birth and the physical condition of the husband;
(b) that the circumstances of the access, if any, was such as to render it highly improbable that sexual intercourse took place between them when it occurred.”
From the above provisions, it is quite clear that this presumption can be rebutted if the circumstances in para. (a) and (b) exist. It is a very strong presumption of law, which cannot be displaced by mere balance of probabilities, but can only be rebutted by strong preponderance of evidence. See Preston-Jones v. Preston-Jones 1951 A.C. page 391 Morris v. Davis 1837 5 C.L. & FIN 163; 7 E.R. 365 in which Lord Lyndhurst observed:-
“The presumption of law is not likely to be repelled. It is not to be broken in upon or shaken by a mere balance of probabilities. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.”
This presumption is not confined to only children of monogamous marriage but it also covers the cases of children born during the continuance of any valid marriage even if such marriage was contracted under customary law or moslem law. The marriage, in the instant case, was governed by the Idoma Native law and Custom on Marriage, therefore there is a presumption of law that a child born during the continuance of such a marriage is legitimate, unless the contrary is proved. It was not in dispute that this marriage subsisted up to 1971 when it was dissolved. But the dispute arose because the disputed child was born when the deceased and the 2nd defendant were separated, and at that time the deceased was staying in Kano, while the 2nd defendant was staying with the 1st respondent in Makurdi as husband and wife. It should be remembered that when the deceased sent the 2nd defendant home, she stayed briefly with the deceased’s brother and later left him and stayed with her brother at Otukpo. There was no evidence that when she stayed with the deceased’s brother or her own brother that the deceased had any access to her. There was evidence that when she left Otukpo and went to Makurdi, she met the respondent in June 1969 at Jibril Hotel and subsequently to his address at High Level with the consent of her sister and since then continued to stay with him as husband and wife. In law, where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary is proved that they were living together in consequence of a valid marriage and not in a state of concubinage. It was proved in this case, indeed by their own admission that they were merely lovers.They could not get married because the 2nd defendant was still married to the appellant’s brother. It was after she got divorce, and the dowry was paid to the deceased that she later married the respondent. What is now important is whether there was possibility of the deceased having sexual intercourse with her while she remained with the respondent. There was no evidence before the trial Court that since the 2nd defendant left Otukpo for Makurdi and stayed with respondent, she had any sexual intercourse with the deceased. The evidence of P.W.3 that the deceased once came from Kano to where she and the 2nd defendant were staying and slept with the 2nd defendant in a room while she – P.W.3 slept in the parlour was not quite explicit as to where she and the 2nd defendant were staying at the time. As for the evidence of the appellant’s witnesses which the learned counsel submitted had confirmed that the disputed child belonged to the deceased was in my view merely based on the presumption that since the 2nd defendant was not divorced by the deceased at the time she delivered Ocheja, then, according to their custom all the children begotten by the 2nd defendant, belonged to the deceased. This was not because it was the deceased who pregnated the mother. The circumstances of this case clearly showed that it was the respondent and no other person who pregnated the 2nd defendant. Even if there was a possibility that she might have committed adultery with another man while she was staying with the respondent, that did not mean that the other man who pregnated her was in fact, the deceased. The evidence before the trial Court was that the deceased sent her away because of harloting, which means he did not want to have anything to do with her. It would be highly improbable that such a man would want to have sexual intercourse with the 2nd defendant after he had rejected her.
I have considered all the submissions made by the learned counsel on this issue and with greatest respect, I do not agree with him that the special circumstances which existed in the case of Mariyama v. Sadiku Ejo (cited supra) do not exist in this case. In my view, having regard to all the circumstances of this case, to enforce the rule of Idoma Native Law and Custom regarding the paternity of the disputed child, herein would result in serious injustice. The high Court, in my view was therefore right in reversing the decision of the Upper Area Court and granting the paternity of the child to the respondent. The appeal on this ground therefore fails.
With respect to the second issue, it was submitted by learned counsel for the appellant that the High Court, sitting as an Appellate Court, has no right to re-assess and re-evaluate the evidence before the trial Court. Reliance was placed on the case of Obodo v. Ogba (cited supra) wherein the Supreme Court reaffirmed the roles of both the trial and the appellate Courts. The Supreme Court did not say in that case that the appeal court has no right to interfere with the findings of the trial court at any time. What it said was that the attitude of an appellate court, with regards to the findings of the trial court, on facts is one of caution and of reluctance in interfering with the facts found by the trial court. But it can do so where there is an obvious error in appraisal of oral evidence, and ascription of probative values of such evidence, or where an improper or imperfect use has been made of the opportunity of seeing and hearing the witnesses or where wrong conclusions have been drawn from accepted or proved facts, or where the learned trial Judge has approached the determination of those facts in a manner which those facts cannot and do not in themselves support, then an appellate court, in those circumstances is entitled to and indeed has a duty to interfere and set aside the findings. See Fashanu v. Adekoya 1974 1 A.N.L.R. Part 1 page 35 – page 41; Igiri v. Uperi (1974) N.M.L.R. page 22; Federal Commissioner of Works v. Lababedi (1971) 11-12 S.C. page 1; or/and Obodo v. Ogba (1987) 3 S.C.N.J. page 82; (1987) 2 N.W.L.R. (Pt.54) 1. Thus, if the trial Court did not properly evaluate the evidence before it, the appellate court is as competent as the court of trial- see Ebba v. Ogodo (1984) 4 S.C. 84. In the instant case, the trial Upper Area Court merely relied on the presumption of law under the Native Law and Custom which says that the husband is entitled to the paternity of the child whether begotten by him or not, as long as the marriage subsists. It did not take into consideration other factors which showed that, at the time the disputed child was delivered, there was no access between the deceased and the 2nd defendant. I am therefore in agreement with the finding that the decision of the trial Upper Area Court cannot be supported having regards to the evidence. In the circumstance, the appeal has failed on all the grounds and it is hereby dismissed. There will be no order as to costs since the respondent did not appear to defend this appeal.
Other Citations: (1989)LCN/0088(CA)
