Retired Major J.a. Ogbole V. Private Clement Onah (1989)

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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.

2. 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.