Nkiru Joy Oduche V. Obiefuna Ndubuisi Oduche (2005)

LawGlobal-Hub Lead Judgment Report

OLADOBE RHODES-VIVOUR, J.C.A.

The Respondent commenced divorce proceedings against his wife, the appellant, before the High Court of the Federal Capital Territory, holden at Gwagwalada, Abuja. He petitioned the Court to dissolve his marriage with the appellant contracted on the 8th day of September, 1984. His ground for the petition was that the marriage had broken down irretrievably in that the appellant deserted him and committed adultery. The respondent further claimed for custody of the three children of the marriage, and an order directing the appellant to revert the new surnames given to the children by her in their various schools to their real surname – ODUCHE.

The appellant in her answer to the 2nd amended petition filed a further amended Answer and cross petition seeking a dissolution of the marriage on the ground of living apart for a continuous period of three years, immediately preceding the presentation of the petition. In addition the return of her personal properties or payment of current value for same, and custody of the three children of the marriage.

Both parties gave evidence and tendered forty-five Exhibits. The respondent called two witnesses in support of his case, while the appellant did not call any witness.

The learned trial Judge, A.A Kolojo J. In a considered Judgment delivered on the 14th of November, 2000, made the following orders:

(a) Custody of Echezona Afamefuna Ejike ODUCHE (MALE) to the Respondent.

(b) Custody of the other children, namely Ndidi Sochi ODUCHE (FEMALE) and Emmanuel ODUCHE (MALE) to the appellant.

(i) the respondent should be allowed by the appellant to have access to the latter two children during school holidays and weekends;

(ii) the respondent should also be allowed to have a say in the school the children attend.

c) The appellant is hereby directed to revert the new surname given by her to the children in their various schools to their real surname namely – ODUCHE.

(c) The appellant has failed to prove that she is entitled to the return of her personal properties or payment of current value for some. The appellant is not given the custody of Afam. She is given the custody of Sochi and Emmanuel, subject to the conditions adumbrated above.

Earlier on the 16th of July, 1998, the learned trial Judge pronounced a decree Nisi dissolving the marriage after the parties agreed that they had lived apart for a continuous period of three years, immediately preceding the presentation of the petition.

The appellant appealed to this Court on four grounds of appeal out of which learned Counsel for the appellant, C.I. Okoye Esq. in an Appellant’s brief of argument filed on 19/8/03 formulated four issues for the determination of the appeal. The issues are stated as follows:

“1. Whether the learned trial Judge erred in Law, when he held that the presumption under Section 148 of the Evidence Act was not rebutted in this trial.

2. Whether the trial learned Judge erred in Law, when he held that the respondent is entitled to the custody of Afam ODUCHE.
3. Whether the trial Judge erred in Law, when he ordered the Appellant to revert the new surname given by her to the Children in their various schools to their real name, namely- ODUCHE.
4. Whether the trial Judge erred in Law, when he held that the fact that the respondent did not go for medical test which the appellant underwent does not mean that the respondent is sexually impotent.”

On the other side of the fence learned Counsel for the respondent, F.J. Oniekoro Esq. in his brief of argument filed on 13/10/03 submitted three issues for the determination of the appeal. These are:

“1. Did the appellant prove her claim that the respondent is not the father of the children of the marriage?

2. Whether or not, in the circumstances of the case, the trial Judge was wrong in his order directing the appellant to revert from the new and strange surname (Kathiems) given to the children by her to their real and father’s name – ODUCHE.
3. Whether or not, in the circumstances of the case, the trial Judge was wrong in the order of custody to the children”.

Counsel adopted their respective briefs of argument on 16/5/05.

After an examination of the issues formulated for determination, the judgment of the trial Court and the briefs of argument filed in this appeal, I am of the firm view that the issues formulated by learned Counsel for the appellant are to be preferred as they cover the issues formulated by the respondent.

Before dealing with the submissions of learned Counsel on the issues in this appeal, a brief background of the facts before the trial Judge is necessary.

The parties got married at the Marriage Registry Suleja, Abuja on the 8th of September, 1984. They lived together and had three children, named Amamefuna Echezona ODUCHE (MALE) born on 16/11/86; Sachi Ndidi ODUCHE (FEMALE) born on 20/11/92, and Emmanuel ODUCHE (MALE) born on 4/8/94. The appellant gave birth to Emmanuel after she left the matrimonial home on 1/2/94. Thereafter, she changed the Surname of all the three children to KATHIEMS.

I shall now address the issues in this appeal seriatim.

ISSUE 1

Whether the learned trial Judge erred in Law, when he held that the presumption under Section 148 of the Evidence Act was not rebutted in this trial.

Learned Counsel for the appellant observed that the presumption in Section 148 of the Evidence Act was rebutted by strong and distinct evidence to the effect that:

(a) the respondent is impotent;

(b) the respondent had doubts about the paternity of the third child;

(c) there were no children of the marriage;

(d) Exhibits J and J1 show that the respondent is impotent;

(e) the respondent led no evidence to show there was intercourse between them.

Relying on OGBELE v. ONAH 1990 1 NWLR Pt. 126 p. 357 he submitted that the Honourable Court should answer issue NO.1 in the negative.

In reply, learned Counsel for the respondent observed that the evidence of both the appellant and the respondent established the fact that they lived together as husband and wife and none of the parties gave evidence of non-access or absence of sexual intercourse between them when they were together as husband and wife. He further observed that both parties confirmed that the first and second children were born while they were living together while the third child was born six months after the appellant had moved out of the matrimonial home.

He submitted that where a child is born in wedlock, intercourse is presumed between the husband and the wife and where a child is born during the continuance of a valid marriage or within 280 days after its dissolution, the Court shall presume the said child to be the legitimate son of the man if the mother remained unmarried.

Reliance was placed on –

EGWUNWOKE v. EGWUNWOKE 1966 All N.L.R. P. 301; OGBOLE v. ONAH 1990 1 NWLR Pt, 126 p. 357.

He urged the court to hold that the appellant did not prove that the respondent is not the father of the children and that respondent’s refusal to undergo medical examination could not amount to withholding evidence as envisaged under Section 149(d) of the Evidence Act.

Section 148 of the Evidence Act states that

“Without prejudice to Section 84 of the Matrimonial Causes Act where a person was born during the continuance of a valid marriage between his mother and any man or within 280 days after dissolution, the mother remaining unmarried the Court, shall presume that the person in question is the legitimate son of that man.”

While Section 84 of the Matrimonial Causes Act, 1990, provides:

“Notwithstanding any rule of Law, in proceedings under this Decree either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time but shall not be compellable to give such evidence if it would show or tend to show that a child born to the wife during the marriage was illegitimate.”

Indeed, Section 148 of the Evidence Act embodies the rule of Law that a child born while a marriage is valid or during two hundred and eighty days after its dissolution shall be conclusive proof that it is the legitimate child of the man unless it is proved by clear, and compelling evidence that the husband and wife did not or could not have sexual intercourse.

The evidence required to rebut the presumption in Section 148 of the Evidence Act must be strong, clear and conclusive as to lead to the irresistible conclusion that the child is not the offspring of the husband. The presumption cannot be displaced by mere balance of probabilities or by circumstances casting doubt. See- ELUMEZE v. ELUMEZE 1969 All N.L.R. p. 301; EGWUWOKE v. EGWUNWOKE NWADIKE & ORS. 1966 All N.L.R. p. 301;

WATSON v. WATSON 1933 2 All E.R. p. 1013.

The principle underlying the rule is obvious. It is most undesirable to enquire into the paternity of a child where parents have access to each other. The presumption of Legitimacy under Section 148 of the Evidence Act is a rebuttable presumption of Law which can only be displaced by showing that the parties to the marriage had no access to each other. Evidence must be strong, that is to say it must be proved that access was impossible on account of illness, impotence.

Furthermore, the appellant changed the surnames of the three children to “Kathiems”. The fact that she is living in notorious adultery is not sufficient to repel the presumption in Section 148 of the Evidence Act. See- R. v. MANSFIELD 1841 1 Q.B. p. 444; HOWES v. DRAEGER 1888 23 Ch.D p. 173.

In the instant case not a shred of evidence was led by the appellant that during the marriage she did not have sexual intercourse with the respondent, or that access was impossible. The learned trial Judge in my view was right when he held that –

“The appellant cannot be heard to say that the respondent is not the natural father of the children. It is scandalous and absurd on the part of the appellant to say the first two children are not the children of the respondent. By virtue of Section 148 of the Evidence Act the third child, Emmanuel who was born six months after the Respondent left the matrimonial home is the child of the respondent….

There is no evidence that the respondent could not have been the father of the children.”

The trial Judge continued –

“The fact that the respondent did not go for medical tests which the appellant underwent does not mean that the respondent is sexually impotent ”

The respondent’s refusal to undergo medical examination does not amount to withholding evidence as envisaged under Section 149 (d) of the Evidence Act. When a party does not call a witness who is available and is acquainted with the facts of the case, the presumption is that if the witness was called, the evidence he would have given would be unfavourable to the party at whose instance, he came to court to give evidence. It is thus, legitimate to draw an adverse inference if the witness abstains from coming to court to give evidence. See IWUCHUKWU v. ANYANWU 1993 3 NWLR Pt. 311 p. 318; In re: ADEWUMI & ORS. 1988 3 NWLR Pt. 83 p. 483; BAMGBOSE v. JIAZA 1991 3 NWLR Pt. 177 p. 64.

There is no burden on the respondent to call a witness to establish the fact that he is capable of pregnating his wife. The Law presumes that fact.

Indeed, when a child is born in a valid marriage the Law presumes that the married couple had sexual intercourse between themselves.

I am satisfied that the trial Judge was right in his findings that the three children are indeed the children of the respondent. The appellant being unable to rebut the presumption in Section 148 of the Evidence Act.

I must observe that judgments are based on facts of the case and not on our beliefs or our personal thoughts.

ISSUE 2

“Whether the trial learned Judge erred in Law, when he held that the respondent is entitled to the custody of Afam

ODUCHE”

Learned Counsel for the appellant observed that since the respondent is a cult member whose activities are secret, he is not a fit and proper person to have custody of the child. Relying on Registered Trustees of the Rosicrucian Order Armoc Nig. v. Awoniyi 1994 7 NWLR Pt. 355 p. 154; Williams v. Williams 1987 1 NSCC Vol. 18 p. 454; section 71(1) of the Matrimonial Causes Act 1990; he urged the Court to resolve issue 2 in the negative.

In reply, learned Counsel for the appellant observed that the Court took into consideration the circumstances of the case and rightly exercised his discretion judicially and judiciously in making the order of custody. Reliance was placed on- Otti v. Otti 1992 7 NWLR Pt. 252 p. 187; Nzelu v. Nzelu 19973 NWLR Pt. 494 p. 475.

He urged the Court to hold that the order of custody made by the trial Court in the circumstances of the case was not wrongful.

Section 71(1) of the Matrimonial Causes Act 1990 provides as follows:

”In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the Court shall regard the interests of these children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper ”

When deciding the issue of custody, the trial Judge exercises a judicial discretion and in exercising that discretion he should take the following factors into consideration: These are the ages of the children, education, welfare and general upbringing, the arrangements made for their accommodation, the conduct of the parties to the marriage. Indeed the interest of the children at all times should be of paramount consideration.

An appellate Court will not interfere if the discretion has been judicially exercised but where it was exercised arbitrarily, or tainted with some illegality or irregularity, this Court has a duty to reverse or modify the trial court’s order as it deems fit. See- UNIVERSITY OF LAGOS v. AIGORO 1985 1 NWLR Pt. 143 p. 148; ANYAH v. A.N.N. LTD. 19926 NWLR Pt. 247 p. 319; NZERIBE v. DAVE ENGINEERING CO. LTD. 1994 8 NWLR Pt. 361 p. 124; R.G. (INFANTS) 1965 Sol JO p. 756.

The learned trial Judge granted custody of the eldest son who was then 14 years old to the respondent (the father) and the two other children aged 8 years and 6 years to the appellant (the mother). His lordship expressed his views on the matter as follows:

“Both parties have adequate accommodation for the children but the respondent (father) seems to have an edge on this and other amenities over the appellant (mother). In an application of this nature, the interest of the children should be the uppermost consideration. I think it is in the interest of the younger children, Sochi And Emmanuel to continue to stay with their mother. The respondent does not have any objection to this Provided he is given access to the children during School holidays or weekends.

This is a reasonable demand…”

His lordship continued-

“…In any case, Afam Oduche, the parties first child was born in 1986. He is now 14 years old and in Senior Secondary School. He should now be in a position to have a mind of his own. He should know the difference between what is good and what is bad. Afam is a big boy and I see nothing objectionable in awarding his custody to the respondent (father). But the boy, Afam Oduche, should be allowed to spend half of his school holidays with his mother, the appellant.”

I am satisfied that the trial Judge exercised his discretion properly. No extraneous matters were considered. His lordship saw and heard the parties. He watched their demeanour and quite rightly in my view exercised his discretion as he saw fit.

It is not for the Court of Appeal to reverse his orders on custody because it may have exercised its discretion differently. Once extraneous matters were not considered, His Lordship’s orders are correct.

DAVIES L.J. in Re O. (Infants) 1971 All ER p. 744 said as follows:

“There is no rule that little children should be with their mother any more than there is a rule that boys approaching adolescence should be with their father; it depends on what is proper in each individual case.”

See also WILLIAMS v. WILLIAMS 1987 2 NWLR Pt. 54 p. 66.

I feel it is right that a boy of 14 years old, other things being equal is better to be with his father.

Learned Counsel for the appellant made heavy weather of the fact that the respondent is a member of a Secret Society – AMORC and so not a fit and proper person to be saddled with the custody of the young teenager.

After reviewing evidence, the learned trial Judge found that in 1988, the respondent took oath that he would no longer be a member of AMORC. The trial Judge then ruled that the respondent is no longer a member of AMORC. In cross examination, it was established that the respondent was no longer a member of AMORC as from 1994 in view of the fact that there was no re-examination on that issue. At the time, judgment was delivered on 14/11/2000, the trial Judge was right to award custody of Afam to the respondent after satisfying himself that the respondent was no longer a member of a Secret Society.

I for one, am not aware of any law, policy or legal authority that bars members of secret societies from supervising the upbringing of children, after all, our country and indeed other countries abound with secret societies and the members have children, who are well brought up. The order of the trial Court on the award of custody of Afam to the respondent is correct.

ISSUE 3

“Whether the trial Judge erred in Law, when he ordered the appellant to revert the new surnames given by her to the children in their various schools to their real name, namely ODUCHE.”

Learned Counsel for the appellant observed that the trial Judge’s order directing the appellant to revert the new surname given by her to the children in their various schools to their real surname namely ODUCHE is a decision not based on reason and evidence. Referring to exhibits B-B14, D-03 learned Counsel further observed that they were contradictory regarding the surname of the children. Relying on KAMALU v. UMUNNA 1997 5 SCNJP. 201; SEISMOGRAPHS SERVICES NIG. LTD. v. EYUAGE 1976 9-10 SC p. 135

he urged the court to answer issue 3 in the negative.

Learned Counsel for the respondent observed that his children answered his name, Oduche prior to when the appellant left him. Reference was made to Exhibits D, D1, D3, G, G1-7.

He urged the court to hold that the trial court’s order that the new and strange surname given to the children by the appellant be reverted to their real surname was not wrong.

The trial Court held inter alia:

“The conduct of the Appellant (mother) in changing the surname of Afam Oduche and Sochi Oduche is most reprehensible and detestable. The children bore the surname of their father, while both the Petitioner (now respondent) and the Respondent (now appellant) lived together.

The first child, Afam, was born on 16/11/86 at the City Clinic and Maternity Suleja and Abuja. Exhibit D is his birth Certificate. His name therein is Echezona Afam E. ODUCHE. Exhibit D3 is his certificate of Baptism and his name again is Echezona A.E. ODUCHE.

With the passage of time, the appellant became very bitter. The marriage now a sham, she changed Afam’s surname to Okoye, See Exhibits B1, B6, B7, B9, B11, B14, C1, C7. Okoye is the appellant’s maiden name. She proceeded thereafter to change the children’s surname to Kathiems. See Exhibits A, A2.

These children in their short life so far were once called ODUCHE and then Okoye and now KATHIEMS. It is clear to my mind that the trial judge was right to order that their names should be changed back to ODUCHE.

The appellant is apparently unaware that these children are very likely to be traumatized for a long time to come.

Meanwhile, dark clouds of suspicion remain over the paternity of these unfortunate children.

This is a patrilineal and not a matrilineal society, and some features of family life are elemental. Children take their father’s name and not their mother’s name.

No evidence was led as to who KATHIEMS is. In any case, if he is a man, he never contested the paternity of the children. That issue is not worth considering since it was not even remotely considered at the trial Court.

On this issue, the trial Judge was right after examining documentary evidence to order that the surname of the children is ODUCHE. This reasoning is premised on the fact that documentary evidence makes oral evidence much more credible.

In KINDLY v. M.G. OF GONGOLA STATE 1988 2 NWLR Pt. 77 p. 473 It was held “that documentary evidence serves as a hanger from which to assess oral testimony.”

See OMOREGBE v. LAWANI 1980 3-4 SC p. 117; BURAIMOH v. ESA. 1990 2 NWLR (pt. 135) p. 406; OLOWOFOYEKU v. A.G. OYO STATE 1990 2 NWLR (Pt. 132) p. 369.

Once again, the trial Judge was right on issue 3 in view of the overwhelming documentary evidence.

ISSUE 4

“Whether the learned trial Judge erred in law, when he held that the fact that Petitioner (now respondent) did not go for medical tests, which the Respondent (now appellant) underwent does not mean that the respondent is sexually impotent”.

This issue was dealt with in a flawless manner by the learned trial Judge in a considered Ruling delivered on 13/5/99.

His lordship found that the court can only order medical inspection of the type required in a divorce matter where the proceeding is for a decree of nullity of a voidable or a void marriage.

His lordship relied on Order X1 rule 21(1) of the Matrimonial Causes Rules and rightly observed that relief sought in the substantive suit is for dissolution of marriage on grounds other than those to which Order X1 rules 21(1), 23 apply.

His lordship further found and quite rightly too, that by the provisions of Section 84 of the Matrimonial Causes Act, which I had cause to refer to earlier in this judgment that neither party shall be compellable to give evidence that would show or tend to show that a child born to the wife during the marriage was illegitimate. His lordship concluded by saying that from the provisions of Section 84 of the Matrimonial Causes Act and Section 148 of the 1990 Evidence Act, it would seem to me improper to order a medical inspection of the respondent in the circumstances of this case. I agree entirely with the trial Judge on issue 4.

Where the husband and wife have co-habited together and no impotency is proved to the satisfaction of the court, the child or children are conclusively presumed to be legitimate even though the wife is shown to have been, at the same time guilty of infidelity, and even where the parents are living apart a very strong presumption of legitimacy still arises, and it can only be rebutted by irresistible proof of non-access to sex.

Indeed, Section 84 of the Matrimonial Causes Act, Order X1 rules 21(1) and 23 of the Matrimonial Cause Rules and Section 148 of the Evidence Act ensures that on ground of public policy it is most undesirable to enquire into the paternity of a child whose parents have access to each other.

Medical test for the respondent is uncalled for in the circumstances of this case. Such a requirement or suggestion degrades the sanctity of marriage and is obviously contrary to public policy.

Again, the trial judge was right on issue 4.

There is no merit in this appeal.

The judgment and orders of the trial Court are hereby affirmed.

Appeal dismissed.

I award costs of N5,000 to the respondent.

Other Citations: (2005)LCN/1780(CA)