FAMILY LAW – PATERNITY OF A CHILD  – Position of the law with respect to proof of paternity of a child and dislodging the presumption of law with respect to the paternity of a child


“…I find it difficult to go along with what the learned trial judge found as proof of the paternity of the plaintiff and his elder sister as it cannot be so casually established from a so-called confession or dying declaration of the mother in the absence of plaintiff and his sister without a buttressing support. It therefore falls into the category of a hearsay evidence as it is sought to use the said statement to establish the truth of what is contained in the statement and so made it inadmissible to be used to prove what the defendants asserted. See Are v. Adisa (1967) NMLR 304 at 306; Subramanian v. Public Prosecutor (1965) 1 WLR 963 at 969 wherein the judicial committee of the privy council made the distinction between what is taken as hearsay and thereby inadmissible and what is not hearsay and admissible when the statement is proposed to establish by evidence not the truth of the statement but the fact that it was made. An interesting fact of the case came by way of the evidence of 2nd defendant, a retired permanent secretary who gave evidence from his personal knowledge. The curious angle stems from the fact that the 2nd defendant was 64 years old, having been born in 1934 giving evidence from his personal knowledge of events that occurred in 1928 and 1930. It therefore beats the imagination how his testimony could be correctly utilized as evidence of Eronmwon family in determining the paternity of the plaintiff of the Idahosa family in the determination of who Pa. Idahosa’s eldest son is. The situation on ground has brought up the issue of the required standard of proof in the determination of the paternity of the plaintiff and his elder sister so as to remove them from the Idahosa family into that of Pa. Osayande who is the alleged biological father. In such an instance as we are faced, it is standard of proof beyond reasonable doubt. This is so because to dislodge the presumption of law in Section 148 of the Evidence Act now Section 165 of the Evidence Act 2011, that a child born during the continuance of a legal marriage is presumed to be the legitimate child of the man. The position is very well expatiated in the English case of Preston-Jones v. Preston-Jones (1951) 1 All ER 124 at 127 where the House of Lords in England faced with a similar situation stated, per lord Simons thus: “It is plain that this appeal raises a question of peculiar difficulty, which I may state in this way: ‘If a husband proves that his wife has given birth to a normal child three hundred and sixty days after he could have had intercourse by her is given, what if any, further evidence is required that the child is not his child?’ Let me first get one difficult question out of the way. A question was raised as to the standard of proof. The result of a finding of adultery in such a case as this, in effect to bastardise the child. That is a matter which from time out of strict proof has been required… In this context at least no higher proof of a fact demanded than it is established beyond all reasonable doubt. See Head v. Head (2).” It needs be brought to the fore that the respondent did not take the assertion of the defence that he was not the eldest son of Pa. Idahosa, but of Osayande family, lying down rather he had put up a fierce fight by contending evidence when he testified as follows:- “It is not true that my mother asked me to invite 1st defendant to Benin on 26 July, 1997. It is not true that on the 1 August, 1997 before my mother died she confessed to me and the 1st defendant that myself and my senior sister are not the children of John Egharevba Idahosa.” Under cross-examination plaintiff said: “It is not correct that two days before my mother died, she sent for the 1st defendant. The 1st defendant saw my mother last in 1995.” For a fact, clearly the burden of establishing whether the appellant was in Benin on the day the alleged confession was made is on the appellant who made the assertion in keeping with Section 135 of the Evidence Act (now Section 131 of the Evidence Act, 2011) which stipulates that he who asserts must prove. Therefore, the learned trial judge did not have much to go on as evidence since appellant failed to establish his presence in Benin on the said date when the alleged statement was made and nobody else in Benin called in support of the appellant being at Madam Onaiwu Idahosa’s house the day before she died when the said confession was allegedly made. The situation is all the more dire with the strongly contentious and robust rebuttal by the respondent and so it is easy to agree with learned counsel for the respondent that the trial Court wrongly shifted the burden to the respondent and reduced the standard of proof to that on the balance of probabilities. See Megwalu v. Megwalu (2005) 2 SMC 185. The Court below as seen in page 295 on the alleged confession held thus: “Having found that members of Eronmwon family had no right to determine who the heir of late Pa. Idahosa is, the lower Court should have refrained from using any aspect of their evidence in arriving at the conclusion that the 1st respondent is the said heir.” 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 respondent is the eldest son of late Pa. Idahosa was not rebutted by the defendants as the presumption under Section 148 Evidence Act is not one to be taken lightly and is at the same platform as the required standard of proof in criminal cases. I place reliance on Preston-Jones v. Preston-Jones (1951) 1 AC 391 and Movris v. Davies (1837) 5 C1 7 Fin 163, ER 365. I agree also that the pieces of evidence put across by the appellant fell short of what is expected in a pedigree matter especially when Pa. Osayande was invited to testify as to paternity of plaintiff and his sister, Mrs. Ekwebelem, he did not talk of any intimacy with Madam Onaiwu, their mother and was vague in his testimony without details as to dates or the sexes of the children or whether he had given any names to them. As a matter of fact such scanty presentations cannot be utilized to ground a proof when the standard is that beyond reasonable doubt. The situation is so serious that there was no evidence of a divorce between Pa. Idahosa and Madam Onaiwu at any time and so the presumption of Section 148 of the Evidence Act now Section 165 was in full bloom to endow the children born within that marriage the status of children of the husband of Madam Onaiwu who is Pa. Idahosa and the plaintiff being the first son remained the eldest son along with his elder sister Mrs. Comfort Ekwebelem. For full measure, the Court of Appeal was right in its reevaluation and review of what the trial Court did and finding that the Court of trial fell into grave error whereby it reached a wrong conclusion, the Court below was right to effect the correction.” per PETER-ODILI, J.S.C. in SGT. STEPHEN IDAHOSA v. CHRISTOPHER IDAHOSA (2020-LCER-39164-SC) at p.15 – p. 21

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