SGT. STEPHEN IDAHOSA VS CHRISTOPHER IDAHOSA

                                                                                                                     SUIT NO:   SC52/2011

Legalpedia Electronic Citation: (2020) Legalpedia (SC) 12669

AREAS OF LAW:

Appeal, Court, Customary Law, Family Law, Law Of Evidence, Practice And Procedure

SUMMARY OF FACTS

Madam Onaiwu Idahosa, Mr. Stephen Eronmwon and Mr. Okhuasuyi Eronmwon are all children of Pa. Eronmwon. Messrs. Stephen Eronmwon and Okhuasuyi Eronmwon were the 2nd and 3rd Defendants respectively at the trial of this action at the High Court. Madam Onaiwu Idahosa was married to Pa. Egharevba Idahosa and they lived in Lagos. Madam Onaiwu Idahosa fell ill and was sent to her father, Pa. Eronmwon in Benin for treatment.  Her father employed the services of a native doctor called Omonor who treated her. After the treatment of Madam Onaiwu Idahosa, the father demanded for the cost of her treatment from her husband, who refused to pay whereupon Pa. Eronmwon instituted a legal action for the recovery of cost of treatment at the native Court and obtained Judgment in 1935, which Judgment was admitted as Exhibit B at the trial of this action.  The case of the Appellant is that during the period of separation of Madam Onaiwu Idahosa from her husband, while she was in Benin City, she fell in love with one Pa. Osayande with whom she had the Respondent and Mrs. Comfort Ekwebelem (PW2). She was later reunited with her husband and moved back to Lagos with the Respondent and Mrs. Comfort Ekwebelem (PW2), after which she gave birth to her other children including the Appellant who was the 1st Defendant at the trial for Pa. Egharevba Idahosa. When Pa. Egharevba Idahosa died, Madam Onaiwu Idahosa presented the Respondent and PW2, Mrs. Comfort Ekwebelem as children of Pa. Egharevba Idahosa. After the conclusion of the burial, the Respondent inherited Pa. Egharevba Idahosa’s Igiogbe at No. 15, Ogbelaka Street, Benin City as his eldest surviving son. Madam Onaiwu Idahosa had a protracted illness and it was alleged that the day before she died, she confessed to the Appellant and the Respondent that she had the Respondent and his elder sister Mrs. Comfort Ekwebelem for Pa. Osayande while she was separated from her husband and living in her father’s house at Benin City.   As a result of the startling revelation allegedly made by Madam Onaiwu Idahosa, the Eronmwon family to which she belonged refused to kill the traditional goat to signal the commencement of her burial until the issue of paternity of the Respondent was resolved. The matter was reported to the Oba’s Palace for resolution but before the Oba could come out with a final verdict in respect of it, the Respondent instituted the action  against the Appellant claiming inter alia: “a declaration that he is his late father’s eldest son”, the Appellant also Counter Claimed against the Respondent. At end the trial, the Respondent’s claim as to his paternity by Pa. Egharevba Idahosa and part of the Appellant’s Counter Claims were granted. Aggrieved by the decision, the Respondent appealed to the Court of Appeal, which set aside the judgment of the trial court and entered in its place judgment for the Respondent as per his claim at the trial court hence, the Appellant has appealed to this Honorable Court contending that the presumption of legitimacy covers children born during the continuance of a valid marriage as provided by Section 148 of the Evidence Act and nothing was proffered in rebuttal of that presumption of legitimacy.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether the learned Justice of the Court of Appeal were right in setting aside the judgment of the trial court and entered in its place judgment in favour of the respondent with the costs of & 30,000.GG against the appellant having regard to the evidence adduced by the appellant at the trial and the relief claimed by the respondent at the Lower court.

 

• Whether the learned Justices of the Court of Appeal were right in their holding that the appellant did not discharge the burden of proving that their mother (Onaiwu) made a death bed confession as to the paternity of the respondent and that the trial Judge’s evaluation of the evidence led at the trial amounted to fishing for evidence where none exists.
• Whether the learned Justices of the Court of Appeal were right in holding that the trial court should have refrained from using any aspect of the evidence of the Eronmwon family in arriving at its conclusion having earlier found as a fact that the members of Eronmwon family had no right to determine who the heir of fate Pa. Idahosa is.

 

• Whether the learned Justices of the Court of Appeal were right in holding that the presumption of legitimacy enures to the benefit of the respondent.

 

RATIONES

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

HEARSAY EVIDENCE – INSTANCE WHEN HEARSAY EVIDENCE IS INADMISSIBLE

“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 P.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.   –PER M. U. PETER-ODILI, J.S.C

LAW OF EVIDENCE, FAMILY LAW, PRACTICE AND PROCEDURE

STANDARD OF PROOF – STANDARD OF PROOF REQUIRED IN THE DETERMINATION OF THE PATERNITY OF A CHILD

“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 Simonds 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 atleast no higher proof of a fact demanded than it is established beyond all reasonable doubt. See Head v Head (2).” –PER M. U. PETER-ODILI, J.S.C

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROVING THE EXISTENCE OF A FACT

“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”. –PER M. U. PETER-ODILI, J.S.C

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

PRESUMPTION OF LEGITIMACY OF A CHILD BORN DURING THE CONTINUANCE OF A MARRIAGE – STANDARD OF PROOF REQUIRED IN THE PRESUMPTION OF LEGITIMACY OF A CHILD BORN DURING THE CONTINUANCE OF A MARRIAGE

“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) AC 391 and Movris v Davies (1837) 5 CI 7 Fin 163, ER 365”. –PER M. U. PETER-ODILI, J.S.C

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

PRESUMPTION OF LEGITIMACY OF A CHILD BORN DURING THE CONTINUANCE OF A MARRIAGE – NATURE OF EVIDENCE REQUIRED TO DISLODGE THE PRESUMPTION OF LEGITIMACY OF A CHILD BORN DURING THE CONTINUANCE OF A MARRIAGE

“The law is trite that any person born during the continuance of a valid marriage shall be presumed to be a child of that man. The burden of  proving otherwise rests with the party alleging the contrary. See Ukeje v Ukeje (2014) 11 NWLR (pt 1418) 384. It is instructive to note that under our law, evidence to dislodge paternity as in the instant case requires prove beyond reasonable doubt”. – PER J. I. OKORO, J.S.C

LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE

 

HEARSAY EVIDENCE – WHETHER COURTS CAN RELY ON HEARSAY EVIDENCE

“Now the question on my mind is this: on the day the Appellant heard such heavy confession from late Madam Onaiwu, why didn’t he raise alarm to invite witnesses? It is now his word against that of the Respondent and the court cannot successfully pick and choose which testimony to believe. Such evidence is now at best an hear-say evidence and no court can safely rely on it.  See Doma v INEC (2012)13 NWLR (pt 1317) page 297; Are v Adisa (1967) NWLR page 304 at 306; Subramania v Public Prosecutor (1965)Lnlr 963 at 969. – PER J. I. OKORO, J.S.C

 LAW OF EVIDENCE, WORDS AND PHRASES

DYING DECLARATION – DEFINITION OF A DYING DECLARATION AND ITS ADMISSIBILITY

“A dying declaration is defined by Black’s Law Dictionary 6th Edition as statement made by a person who believed he is about to die in reference to the manner in which he received the injuries of which he is dying, or other cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them. Generally, the admissibility of such declarations is limited to use in prosecutions for homicide.

However in prosecution for homicide or in civil action, a statement made by declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule. In the instant case, the statement was not made in reference to the cause of the declarant’s death and so the rule applicable to dying declaration is inapplicable in the circumstance of this case”. –  PER P. A. GALUMJE, J.S.C

STATUTE REFERRED TO

Evidence Act, 2011