Idahosa V. Idahosa (2020)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal or Court below or lower Court, Benin Division, Coram: Amina Adamu Augie JCA (as he then was); George Oladeinde Shoremi and Ali Abubakar Babandi Gumel JCA which in delivering the judgment on 9 July, 2010, set aside the decision of the trial Court and entered a judgment in favour of the respondent.

Dissatisfied, the appellant appealed to the apex Court.

Facts briefly stated:

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. Pa Egharevba Idahosa and Madam Onaiwu Idahosa were husband and wife. They settled in Lagos. It happened that Madam Onaiwu Idahosa was ill in Lagos and the husband sent her to Benin for treatment. Madam Onaiwu’s father, Pa. Eronmwon employed the services of a native doctor called Omonor who treated Madam Onaiwu Idahosa. Madam Onaiwu Idahosa at this time was staying with her father.

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After the treatment of Madam Onaiwu Idahosa, the father demanded for the cost of her treatment from her husband, Pa. Egharevba Idahosa 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. The native Court of Benin City judgment of 1935 was admitted as Exhibit B at the trial of this action.

The version put forward by the appellant is that during the period of separation of Madam Onaiwu Idahosa from her husband, Pa. Egharevba Idahosa, she fell in love with one Pa. Osayande. She later had the appellant and PW2, Mrs. Comfort Ekwebelem for the said Pa. Osayande at Benin City. Later, Pa. Egharevba Idahosa came from Lagos to Benin City to re-arrange a re-union with his wife, Madam Onaiwu Idahosa, who then went to live at Lagos with him the appellant and her elder sister PW2, Mrs. Comfort Ekwebelem. After the re-union, Madam Onaiwu Idahosa gave birth to her other children including the appellant who was the 1st defendant at the trial for Pa. Egharevba Idahosa.

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When Pa. Egharevba Idahosa died, Madam Onaiwu Idahosa presented the appellant and PW2 Mrs. Comfort

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Ekwebelem as children of Pa. Egharevba Idahosa. There was evidence before the trial judge that Madam Onaiwu Idahosa refused her relations from the Eronmwon family to participating in the burial of Pa. Egharevba Idahosa since she thought they knew her mischief in order for same not to be made public.

After the conclusion of the burial, the respondent inherited Pa. Egharevba Idahosa’s Igiogbe at No. 15, Ogbelaka Street, even though the appellant laid claim as his eldest surviving son.

Madam Onaiwu Idahosa had a protracted illness. A day before she died, she allegedly confessed to the appellant and the respondent to the effect that she had the respondent and his elder sister Mrs. Comfort Ekwebelem for Pa. Osayande while she was separated from the husband and while living with her own father in her father’s house at Benin City.

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As a result of the startling and dislodging declaration 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

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Obas’s palace for resolution but before the Oba could come out with a final verdict in respect of it, the respondent instituted the action giving rise to this appeal against the appellant, who then counter claimed against the respondent.

At the conclusion of trial, the respondent’s claim as to his paternity by Pa. Egharevba Idahosa was dismissed and part of the appellant’s counter claims were granted. The respondent then appealed to the Court of Appeal and briefs of argument were filed and exchanged. At the close of the hearing, the learned justices 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 this appeal to this honourable Court.

On 22 October, 2019 date of hearing, learned counsel for the appellant, G. E. Ezomo adopted the brief filed on 16 May, 2011 in which he formulated four issues for determination:

1. 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 N30,000.00 against the appellant having

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regard to the evidence adduced by the appellant at the trial and relief claimed by the respondent at the lower Court. (Grounds 1, 2 and 10).

2. 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. (Grounds 3, 4, 7 and 9).
3. 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 late Pa. Idahosa is (Ground 5).
4. 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. (Grounds 6 and 8).

Learned counsel for the respondent, Ogaga Ovrawah Esq., adopted the brief of argument filed on

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28 December, 2016 and adopted the issues as crafted by the appellant.

The four issues as drafted by learned counsel for the appellant cover the field and I shall use them.

Issues 1 – 4 and resolutions:

Canvassing the position of the appellant, learned counsel submitted that the evidence led at the trial were thoroughly evaluated by the trial Court after which he came to the valid conclusion as it did and the Court below had taken a wrong route thereby reaching an erroneous conclusion hence the need for the interference by this Court to right the wrong. He cited Ndoma-Egba v. African Continental Bank Plc (2005) All FWLR (Pt. 283) 152, (2005) 14 NWLR (Pt. 944) 79 at 107; Auchi Polytechnic v. Okuoghae (2005) 10 NWLR (Pt. 933) 279 at 296 – 297; Ishola v. U.B.N. Ltd (2005) All FWLR (Pt. 256) 1202, (2005) 6 NWLR (Pt. 992) 422 at 442 – 443; Auta v. Olaniyi (2005) 4 NWLR (Pt. 863) 394 at 418.

He stated on that the subject matter of this action is the paternity of the respondent who was the plaintiff at the trial Court and not one based on the property of Pa. Osayande. That there was direct evidence on that paternity of the respondent and the witness

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not cross-examined at all in this respect which is an implied admission of the evidence given and fatal to the respondent’s case. That it is settled law that the lower Court can believe an aspect of the evidence of Pa. Osayande as a witness and do away with the others as earlier submitted. He cited Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273, (1992) 6 SCNJ 59; Ojo v. Anibire (1999) 11 NWLR (Pt. 628) 630.

Mr. Ezomo of counsel for the appellant contended that the relief claimed by the respondent as contained in his notice of appeal was “to set aside the judgment” and he did not appeal against those of his reliefs that were not granted by the trial Court, as his appeal was mainly against the counter claim of the appellant granted by the trial Court.

That it is trite law that under our civil jurisdiction, a Court does not grant to a party more than what he has claimed. That the same position is all the none so in the appellate Courts where a relief is only granted in response to the issues raised from a ground or grounds of appeal and in this case the grounds of appeal did not contain any claim to grant the respondent’s claim as

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dismissed by the trial Court. He cited Briggs v. Chief Lands Officer of Rivers State of Nigeria (2005) All FWLR (Pt. 268) 1626, (2005) 12 NWLR (Pt. 938) 59; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137, (1990) 3 SC (Pt. 1) 130.

For the appellant, it was further submitted that there were pieces of evidence at the trial stage which the trial Court relied on the totality of evidence before it that the burden of proof on the appellant had been discharged as the learned trial judge had the advantage of observing the demeanour of witnesses in the box and had the discretion to decide who to believe and the reasons for the belief which the trial judge did in this case in relation to the confession as to the paternity of the respondent. He relied on Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1, (2005) 13 NWLR (Pt. 941) 1 at 122, (2005) 7 SC 1, (2005) WRN 1, (2006) 2 EPR 295, (2005) 8 MJSC 1, (2005) 7 SCNJ 1; Sanni v. Ademiluyi (2003) FWLR (Pt. 145) 621, (2003) 3 NWLR (Pt. 807) 381; Section 33(e) of the Evidence Act.

That findings of fact are peculiarly within the province of and reserved for the trial Court and the evaluation and ascription of probative

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value the evidence are the primary functions of the trial Court which sees, hears and assesses the witnesses. It was cited Kowa v. Musa (2005) All FWLR (Pt. 290) 1413, (2006) 5 NWLR (Pt. 972) 1 at 37 and 38.

Learned counsel for the appellant contended that under Benin Customary Laws and Usage and in fact general legal principles, there is a world of difference between having a right to determine who the heir of Pa. Egharevba Idahosa is and the right to testify as a witness of facts within that knowledge of such witness of who should be the heir. He cited Section 155(10) of the Evidence Act; Kowa v. Musa (supra) 35; Ngige v. Obi (2006) All FWLR (Pt. 330) 1041, (2006) 14 NWLR (Pt. 999) 1.

It was submitted for the appellant 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.

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Ogaga Ovrawah Esq., of learned counsel for respondent submitted that the defendants did not prove that the late mother of the plaintiff and the 1st defendant made such a statement or what the learned trial judge

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called confession or dying declaration the day before she died. That the alleged confession is at best hearsay. He citedAre v. Adisa (1967) NMLR 304 at 306.

That the burden of proof that Pa. Osayande fathered the plaintiff and his elder sister, Mrs. Comfort Ekwebelem is on the defendants and such proof is beyond reasonable doubt and that onus has not been discharged. He referred to Preston-Jones v. Preston-Jones (1951) 1 All ER 124 at 127.

Learned counsel for the respondent stated that the words allegedly uttered by Madam Onaiwu Idahosa do not amount to a dying declaration under Section 33(1)(c) of the Evidence Act. That the Court of Appeal was right when it held that the trial Court shifted the burden of proof to the respondent. He cited Preston – Jones v. Preston – Jones (supra); Megwalu v. Megwalu (2005) 2 SMC 185.

That the evidence tendered by the appellant is not strong, distinct, satisfactory and conclusive to dislodge the presumption of law in Section 148 of the Evidence Act (now Section 165) of the Evidence Act, 2011) and so the Court should uphold the decision of the Court below and dismiss the appeal.

The angle taken by the

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appellant are captured in these bullet point style as follows:-

i. Having regard to the evidence adduced by the appellant at the trial, the learned trial judge’s decision is supportable and should be allowed to stand while the decision of the justices of the Court of Appeal ought to and should be set aside as it is against the weight of evidence.

ii. The burden of proving that their mother (Onaiwu) made a death bed confession (or pedigree declaration) as to the paternity of the respondent and discharged by the appellant and the trial Court was right to have held so after a proper evaluation of the evidence. The learned justices of the Court of Appeal’s position to the contrary is unsupportable.

iii. The trial judge’s reliance on the evidence of the Eronmwon 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 and the position taken by the learned justices of the Court of Appeal to the contrary was in error.

iv. The presumption of legitimacy which would have enured to the benefit of the

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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.

The opposing stance of the respondent in similar style of salient points being thus:-

(1) The Court of Appeal was right in setting aside the judgment of the trial Court because the learned trial judge relied on inadmissible and tenuous evidence in arriving at the conclusion that the appellant’s the eldest son of late Pa. Egharevba and cost awarded was not excessive. The Court of Appeal order was based on the relief sought.

(2) The Court of Appeal was right when they held that the evidence on which the learned trial judge came to the conclusion that the appellant was the eldest son of Pa. Idahosa was flimsy and below standard of proof required in a pedigree case.

(3) The Court of Appeal was right when they held that the learned trial judge having declared that Eronmwon family cannot determine who late Pa. Osayande Idahosa’s eldest son is, was wrong to rely strongly on the evidence of the 2nd defendant on the issue.

(4) The Court of Appeal was right when they held

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that the learned trial judge was in error when he 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).

(5) The respondent’s action had merit.

The learned trial judge had held as follows:-

“…it is not unnatural or contrary to human behaviour, or the plaintiff who had all his lifetime been held out as having the same father with the 1st defendant and who has believed and acted in that capacity all along without contrary suggestion until the dying declaration was clamped on him in the presence of only the 1st defendant who is his junior brother of the same mother, to deny that his mother ever made the denying declaration. More so, when his mother died shortly after making that staggering and dislodging declaration, which it found to be true, would unseat him as the head of the family of late Pa. John Egharevba Idahosa, and still more so, when his mother died before any other member of Idahosa family or any member of Eronmwon family could ask his mother any question on the declaration or investigate the dying

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declaration.” Page 208 of the record refers.

The learned trial judge had held further thus:-

“I have no doubt in my mind that Madam Onaiwu Idahosa made a dying declaration to the plaintiff and the 1st defendant to the effect that she had the plaintiff and his elder sister of Pa. Osayande while she was living with her father in Benin City and at a time when she temporarily separated from her husband.” (page 207 of the record).

A foray into the beginning would show that the respondent who was plaintiff at the trial Court took out summons against the defendant (appellant herein) seeking among other things:-

(a) A declaration that he is his late father’s eldest son.

(b) A declaration that according Bini Customary Law, on the demise of his father he became head of his family.

(c) That the defendants have no right to determine who was eldest son of his father.

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The learned trial judge in coming to the conclusion that the plaintiff was not the son of late Pa. Egharevba Idahosa relied on the following pieces of evidence:

(i) the evidence of the 1st defendant that his mother on her dying bed had said that

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she did not bear the plaintiff and the elder sister of late Pa. Idahosa who had died in 1977.

(ii) evidence of 1st defendant on Madam Onaiwu Idahosa’s alleged dying declaration to that effect.

(iii) evidence of the 2nd defendant, a retired permanent secretary who the judge said “unequivocally” testified from “his personal knowledge” about the paternity of the plaintiff and not on evidence of what was told to him.

(iv) the evidence of DW2 who said that he was father of the plaintiff and his elder sister without more.

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;

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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

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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

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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

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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

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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

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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.

In conclusion, the appeal lacks merit and I do not hesitate in dismissing it based on the foregoing. Appeal is hereby dismissed as I affirm the judgment and orders of the Court of Appeal which set aside the decision of the trial Court.

Costs of N100,000.00 awarded to the respondent.

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SC.52/2011