Standard of Proof Required to Dislodge the Paternity of a Child
After the death and burial of a certain Pa Egharevba Idahosa, the Respondent took possession of his Igiogbe at No. 15 Ogbelaka Street, Benin City, as the eldest surviving son. Before and till his death in 1977, Pa Idahosa was married to Madam Onaiwu Idahosa (nee Eromwon) who was the mother of the Appellant and Respondent. Subsequently, Madam Onaiwu Idahosa fell ill and died in 2007. The Appellant contended that a day before their mother died, she confessed to him and the Respondent that the Respondent is the biological son of one Pa Osayande, and it was not the late Pa Idahosa who fathered him. It was his contention that she confessed that at a time during her marriage to late Pa Idahosa, they were separated, and it was during this period that she was impregnated by Pa Osayande and gave birth to the Respondent and PW2, Mrs Comfort Ekwebelem.
The matter was reported to the Oba’s Palace for resolution. However, before the Oba could come out with a final verdict, the Respondent instituted an action against the Appellant, Mr. Stephen Eromwon and Mr. Okhuasuyi Eromwon, the two brothers of Madam Onaiwu Idahosa, who also claimed that the Respondent and his sister were fathered by Pa Osayande. The Respondent sought inter alia, a declaration that he is the eldest son of Pa Idahosa; hence, upon the demise of Pa Idahosa, he became the head of his family. He also sought a declaration that the Appellant and the two co- Defendants, had no right to determine who the eldest son of Pa Idahosa is. The Appellant filed his defence, and also counter-claimed against the Respondent.
At the conclusion of trial, the Respondent’s claim as to being fathered by Pa Idahosa was dismissed, and the Appellant was pronounced the eldest son of Pa Idahosa.
The Respondent appealed to the Court of Appeal which set aside the judgement of the trial court, and entered judgement for the Respondent on his claim at the trial court. Aggrieved, the Appellant appealed to the Supreme Court.
Issues for Determination The parties filed their respective briefs, in which they formulated issues for determination. However, in the resolution of the appeal, the Apex Court adopted the 4th issue formulated by the Appellant:
Whether the learned Justices of the Court of Appeal were right, in holding that the presumption of legitimacy inures to the benefit of the Respondent.
Arguments Counsel for the Appellant submitted that, the evidence led at the trial court was thoroughly evaluated by the trial court before reaching its conclusion which was valid, and the Court of Appeal had taken a wrong route thereby reaching an erroneous conclusion which required the interference of the Apex Court.
He stated that, the subject-matter of the action was the paternity of the Respondent, and there was direct evidence which was not subjected to cross-examination. Hence, the Respondent’s failure to cross-examine on this aspect, was an admission of the evidence given. He cited NDOMA-EGBA v A.C.B. PLC (2005) 14 NWLR (Pt. 944) 79 at 107 and AUCHI POLYTECHNIC v OKHUOGHAE (2005) 10 NWLR (Pt. 933) 279 at 296-297.
Arguing further, counsel for the Appellant submitted that, the burden of proving that their mother made a death bed confession as to the paternity of the Respondent was discharged by the Appellant, and the trial court was right to have held so after a proper evaluation of evidence. The decision of the Court of Appeal to the contrary was thus, unsupportable. He argued that, the trial court’s reliance on the evidence of the Eromwon family in arriving at its conclusion was proper, as they can validly give evidence of facts within their knowledge, even if they do not have the right to decide who the heir of Pa Idahosa is. He submitted that, the position taken by the learned Justices of the Court of Appeal to the contrary, was in error.
Counsel for the Appellant argued that, the presumption of legitimacy which would have inured to the benefit of the Respondent was rebutted by clear, direct and positive evidence adduced by the Appellant at the trial, which the Justices of the Court of Appeal did not consider before arriving at a contrary decision.
Counsel for the Respondent argued contrarily that, the Court of Appeal was right in setting aside the judgement of the trial court because the trial court relied on inadmissible and tenuous evidence, in arriving at the conclusion that the Appellant is the eldest son of late Pa Idahosa.
He contended that, the Court of Appeal was right when it held that the evidence upon which the trial court came to the conclusion that the Appellant was the oldest son of Pa Idahosa was flimsy, and below the standard of proof required in a pedigree case. He argued that, the Appellant did not prove that the late mother of the Appellant and 1st Respondent made the alleged confession before she died, and the alleged confession, at best, amounts to hearsay evidence and thus, inadmissible. He relied on ARE v ADISA (1967) NMLR 304 at 306.
He submitted that, the Court of Appeal was right when it held that the trial court having declared that the Eromwon family cannot determine who late Pa Idahosa’s eldest son is, was wrong to rely strongly on the evidence of the 2nd Defendant, a member of the Eromwon family, on the issue.
Counsel reasoned that the Court of Appeal was right, when it found that the trial court erroneously held that the Appellant dislodged the presumption of legitimacy of the Respondent under Section 148 of the Evidence Act (now Section 165 of the Evidence Act, 2011).
Court’s Judgement and Rationale In its decision on the sole issue, the Supreme Court found that by Section 165 of the Evidence Act, any person born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, shall be presumed to be a child of the man. The burden of proving otherwise rests on the party alleging the contrary, whose evidence to dislodge paternity requires proof beyond reasonable doubt. The court relied on the decision of the House of Lords in the English case of PRESTON JONES v PRESTON JONES (1951) 1 All ER 124 at 127. Reliance was also placed on UKEJE v UKEJE (2014) 11 NWLR (Pt. 1418) 384.
The Court held further that, what the trial court found as proof of the paternity of the Respondent and his elder sister fell short of the standard of proof required, as it cannot be so casually established from a so-called confession or dying declaration in the absence of the Respondent and his older sister, without a buttressing support. The evidence adduced by the Appellant fell into the category of hearsay evidence and was thus, inadmissible. The Court referred to the decisions in ARE v ADISA (Supra) and SUBRAMANIAN v PUBLIC PROSECUTOR (1965) 1 WLR 963 at 969.
Their Lordships held that, the pieces of evidence, particularly the testimony of Pa Osayande who testified as DW2, adduced as to the paternity of the Respondent and his sister, Mrs. Ekwebekem, fell short of what is expected in a pedigree matter, as he did not talk of any intimacy with Madam Onaiwu their mother, and his testimony as to the dates and sexes of the children or whether he had given them any name was scanty. This is further buttressed by the fact that Pa Idahosa and Madam Onaiwu were married until their death in 1977 and 1997 respectively, and there was no evidence of divorce between them at any time prior to the death of either spouse. Hence, the presumption of Section 148 of the Evidence Act, now Section 165, was in full bloom to endow the children born within the marriage the status of children of the husband of Madam Onaiwu who was Pa Idahosa. The Respondent being the first son remained the eldest son, along with his eldest sister Mrs. Comfort Ekwebelem.
Indeed, the Court of Appeal was on solid foundation when it applied Section 148 of the Evidence Act, now Section 165, in holding that the fact of the Respondent being the eldest son of late Pa Idahosa was not rebutted by the Defendants, as the presumption under Section 148 of the Evidence Act is not one to be taken lightly. It is on the same pedestal, as the required standard of proof in criminal cases.
Appeal Dismissed.
“BY SECTION 165 OF THE EVIDENCE ACT, ANY PERSON BORN DURING THE CONTINUANCE OF A VALID MARRIAGE BETWEEN HIS MOTHER AND ANY MAN, OR WITHIN 280 DAYS AFTER DISSOLUTION OF MARRIAGE, THE MOTHER REMAINING UNMARRIED, SHALL BE PRESUMED TO BE A CHILD OF THE MAN. THE BURDEN OF PROVING OTHERWISE RESTS ON THE PARTY ALLEGING THE CONTRARY, WHOSE EVIDENCE TO DISLODGE PATERNITY REQUIRES PROOF BEYOND REASONABLE DOUBT”