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AGBANOBI v. AGBANOBI (2022)

AGBANOBI v. AGBANOBI

(2022)LCN/16079(CA)

In the Court of Appeal

(ASABA JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/AS/333/2018

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MR. EMMANUEL AGBANOBI APPELANT(S)

And

MR. AUGUSTINE ALLENGATE AGBANOBI RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURTS ACT ON INSTINCT

The Courts do not act on instinct and will not permit a litigant to do so either. The Courts do not act on hunches or rumors – see OGBUBUNJO V. STATE (2001) 2 NWLR (PT. 698) 576) AT 579. SEE ALSO KATTO VS CBN (1991) 9 NWLR (PT. 214, AT 131.

A decision based on evidence and rightly entered suffices and a misdirection which does not occasion injustice will be immaterial; The several submissions in the Appellant’s Reply address are of no moment, therefore. See HILARY VS. MAHTRA (2007) 6 SCN 292 AT 304 and this is more so that evidence had been led challenging and controverting the content of Exhibit ‘E’. See CHIEF PAUL ORDIA VS. PIEDMONT (NIG) LTD (1995) LPELR 2753 (SC), OBI OBEMBE V. WEMABOD ESTATES LTD. (1977) 5 SC AND OMORHIRHI V. ENATEVWERE (1988) 3 SC 207 at 246. PER DANJUMA, J.C.A.

WHETHER OR NOT  EVIDENCE ELICITED FROM CROSS-EXAMINATION NOT ARISING FROM PLEADED FACTS GOES TO NO ISSUE

That evidence elicited from cross-examination not arising from pleaded facts goes to no issue. NSIRIM VS ONUMA CONT CO (NIF) LTD FWLR PT 44, PAGE 405 AT 416 (SC) relied on. PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the decision of the Delta State High Court of Justice, per Onajite-Kuejubola (Mrs.) sitting at the Warri Judicial Division on the 14th April, 2018, where it dismissed the Appellant’s claims in their entirety.

The Appellant as Claimant at the trial Court had claimed as follows:
– A declaration that the defendant is not the biological son of Mr. Aloysius Louis Agbanobi.
– A declaration that the defendant is not related by blood to the claimant as the defendant and the claimant do not share the same father, Aloysius Loius Agbanobi (Deceased).
– An order of perpetual injunction restraining the defendant from parading himself as the junior brother of same parentage with the claimant.

The Claimant had testified himself and called two (2) witnesses and tendered nine (9) exhibits.

THE FACTS OF THE CASE
The case of the Appellant is that Appellant, was the first son of the late Aloysius Agbanobi born in matrimony and lived with his late father; was pricked that sometimes in 1978 after the death of his father, the Respondent whom he had never met before, claimed that he was the late Aloysius Agbanobi’s (deceased) son.

This claim was investigated and denied by the Appellant’s larger family, which asked that the Respondent participate in DNA paternity test, but he declined, hence the suit.

In the cause of the suit, precisely on 18th day of April, 2013 the Court ordered a DNA (Deoxyribocleic Acid) sibling test to determine whether the parties are of the same father. See Exhibit C4. In the Additional Record of the Appeal pursuant to the order of the Court, the Respondent through its counsel recommended pathcare medical laboratories to undertake the sibling test as indicated in Exhibit 7 of the said Additional Record of Appeal.

After the exchange of pleadings and hearing, the learned trial Judge dismissed the Appellant’s claims as not having been proved. Dissatisfied, this appeal was lodged and upon 4 grounds.

The parties having filed and exchanged their respective Briefs of Argument, the appeal was heard on the 12th February, 2022. The Appellant’s Brief of Argument filed on 16th August, 2018 raised two (2) issues for determination thus;
– Whether the learned trial judge was right to have ascribed no evidential and probative value to the DNA kinship analysis test result (Exhibit “E”) ordered by the Court and consequently dismissed the claimant’s entire claim having come to the initial conclusion that “Exhibit E” is the hobnob, upon which the Claimant’s case will either fall or stand. (Grounds 1 and 2).
– Whether the Claimant discharged the burden of proof placed on him by law and as such entitled to the judgment of the trial Court. (Grounds 3 and 4).

The Respondent, by his Brief of Argument filed on 4th March, 2021 and also deemed filed on the said date appropriately upon the grant of the motion filed on 19th September, 2019 for extension time to so file. The motion was granted on 1st March, 2021.

The Respondent also formulated two (2) issues thus;
1. Whether the learned trial judge was right when she refused to ascribe any probative and evidential value to Exhibit ‘E’ in view of the available evidence before the Court and thus dismissed the claim.
2. Whether from the evidence adduced before the trial Court, the Appellant had discharged the evidential burden placed on him by the law.

APPELLANT’S ARGUMENT.
Reviewing the judgment of the trial Court, the Appellant’s counsel faulted the trial Court in holding that the CW3 was a witness called by the Appellant when he was infact supoened by the Court to produce and tender Exhibit ‘E’ produced by order of the Court and being the result of a test consented to by both parties; which bill was borne by both sides as ordered by the Court. The learned counsel argued that labeling the said CW3 – Ademola Samson Adewoyin, (a medical pathologist subpoenaed by the Court) had led to the error of placing the burden of proving the authenticity and probative value of Exhibit E on the Claimant. That CW3 was not a witness of the Claimant/Appellant nor the Exhibit ‘E’ his document by him or for him.

The learned counsel refers to Section 219 of the Evidence Act, 2011 Cap. E. 14 which provides as follows:
“A person summoned to produce a document does not become a witness by the mere fact that he produced it and cannot be cross-examined unless and until he is called as a witness.”

Counsel submitted that path care was supoened to tender the result and not to testify; and that after all, the parties did not join issues on this.

It was also submitted that the subpoena duces tecum was to produce document and not to testify as to how blood samples of Peter and Maureen were taken, which was not made an issue at the trial Court.

For the above reason, it was contended that the trite principle of law is that the decision of a Court must be based on facts and materials placed before it by parties to a dispute and not the business of the Court to make out a case for a party. The case of OLUFEMI OLAWALE ONIWALE & ANOR VS. ADEOLA MORUFDEEN ADEFOLABI & ANOR (2008) ALL FWLR PT. 438 PAGE 324 AT 348. That material facts were not placed before the Court in relation to this. That the Defendant’s amended statement of defence as contained on pages 195-201 of the records and having no supporting statement on oath did not provide the fact of “no blood samples taken” as stated by the trial judge relating to Peter Agbanobi and Maureen Agbanobi.

Counsel however admitted that the only averment in the statement of defence that touched on Exhibit ‘E’ is contained on page 200 of the record wherein it is averred as follows:
“The Defendant shall at the trial contend that the second DNA siblingship test was not carried out and or same was doctored by the Claimant and his agent.”

That the aforesaid pleadings was abandoned as no statement on oath was filed in support or proof of the allegation. That pleadings without evidence was valueless.
BEN V. NSITE (2015) ALL FWLR (PT. 790) 1230 AT 1264, BONIFACE ANYIKA & CO. V. UZOR (2006) ALL FWLR (PT. 334) 1835.

That the burden of proof was upon the Respondent who had pleaded that the blood samples of Peter Agbanobi and Maureen Agbanobi were not taken and that the result was doctored.

Counsel refers to the shifting of the burden of proof in civil cases. FEDERAL MORTGAGE FINANCE LTD V. EKPO (2005) ALL FWLR (PT. 248) 1667 AT 1683.

That the allegation that Exhibit ‘E’ was alleged to be doctored and that, the allegation was a criminal imputation and must be proved beyond reasonable doubt. OPADOLA V. AKANMU (2015) ALL FWLR (PT. 773) PAGE 1906 AT 1923-1924 relied on, thus;
“Now the learned counsel for the respondent made some submissions which border on forgery as it related to Exhibits D and D2. The allegations were not specifically denied by the Appellant.
It seems to me and I so hold that there was nothing to deny or admit in the circumstance.
This is because an allegation of forgery which hinges on criminality is like a sore thumb in civil proceedings. The standard of proof in this regard is proof beyond reasonable doubt, which the Respondent has failed woefully to discharge.”

That this was the case herein.

That the parties had not invited the Court to determine the validity of Exhibit ‘E’ by way of pleadings or evidence and as such the trial Court ought not to have done so. ADEOSUN VS. GOVERNOR OF EKITI STATE (2012) ALL FWLR PT. 619, PAGE 1044 relied upon. That the Court set up a different case for the parties against the case they set up for themselves. That it was of no moment that a counsel to the Respondent raised the issue of the validity of Exhibit ‘E’ in his address, as a counsel’s address is not substitute for evidence nor is it evidence. AMADI V. AMADI (2012) ALL FWLR PT. 626 PAGE 559.

The learned counsel in his further analysis and faulting of the trial Court’s judgment submitted that the fact that Exhibit ‘E’ was not signed by the witness and therefore of no probative value, was untenable both in law and facts.

That the mere fact that a witness is not the maker of a document tendered as Exhibit does not in all circumstance mean that the document does not establish the facts contained in same. Counsel refers to Section 83 of the Evidence Act, 2011 to contend that a maker needs not tender a document “provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance.”

Leveraging on the above provision of the Evidence Act, it is counsel’s information that Unistel Medical Laboratories (PTY) Ltd, the laboratories used by pathcare to conduct the test is based outside the shore of Nigeria, in South Africa and Pathcare was nominated by the Respondent as shown in Exhibit 7 in the Additional Record of Appeal.

It was contended that the trial Judge was approbating and reprobating when he did not assign probative value to Exhibit ‘E’ which was signed in the same manner as the first report that was not challenged; that this Court should evaluate the documentary evidence in both tests as it is entitled to. EKONG V. OTOP & 2 ORS (2015) ALL FWLR (PT. 764) 156 AT 173 – 174 PAR H-B (Supreme Court).

It was argued that the uncontested first test had led the Court to conclude that the parties were not blood relations, and that even this fact was admitted by the Respondent in his statement of defence, page 200 of the record and therefore this fact not controverted or challenged, is admitted as the true state of affairs. Referred to MARTCHEM IDU (MG) LTD. V. M. F. KENT (W.A.) LTD. (2005) ALL FWLR (PT. 271) 1 AT 15.

That the Court should evaluate the evidence which was a clear and unchallenged scientific documentary proof by an expert that the Respondent was not the Biological offspring of the deceased Alloysius Agbanobi.

That the Court was entitled to rely and accept the evidence of an expert if it is credible, particularly if it is not controverted or challenged and comes from an expert with demonstrable skill. NGIGE V. OBI (2006) ALL FWLR PT. 330, PAGE 1041 AT 1123-1124.

That issue one be resolved in favour of Exhibit ‘E’ and probative weight be attached to same and the appeal be allowed.

ISSUE 2
Whether the claimant discharged the burden of proof placed on him by law and as such entitled to the judgment of the trial Court (Grounds 3 and 4).

It was argued that the trial Court having not rejected the Exhibit ‘C’ first test result, ought to have accepted the Exhibit ‘E’ (subsequent or second test result) and hold that the parties were not related by blood and the Respondent was not the child of the late Agbanobi who had been admitted to be the father of the Appellant and to therefore grant all the prayers in terms of Reliefs “B” and “C”.

Appellant referred to the pleadings and evidence of his paternity as the son of Agbanobi and Section 165 of the Evidence Act on the presumption of paternity created by birth within matrimony. Counsel, however sought to mislead this Court when he submitted that ”there was express and uncontroverted scientific evidence contained in Exhibit “E” to the effect that the result provides strong evidence that the deceased is the Biological father of the Appellant and not that of the Respondent,……”
That the appeal be allowed.

The Respondent by their Brief of Argument filed on 4th March, 2021 and adopted on 15th February, 2022 at the hearing argued that there were no facts to establish the Appellants’ claims for:
(a) “A declaration that the Defendant is not the biological son of Mr. Alouysius Louis Agbonobi (Deceased).
(b) A declaration that the Defendant is not related by blood to the claimant as the Defendant and the claimant do not share the same father Aloysuius Louis, Agbanobi (deceased).
(c) An order of perpetual injunction restraining the defendant from parading himself as the junior brother of same parentage with the claimant.” had to file an application for an order to conduct an DNA siblingship test.

That the said orders were complied with in the full terms thereof by the presence of medical and legal representatives of the parties as seen in Exhibit ‘D’ – the list of attendance at the siblings check investigation done at the centre where blood samples were taken.

That the second sampling test that was ordered by Exhibit C5 to be done on two other children of the late Agbanobi was not done in the presence or knowledge of the Respondent. On the aforesaid reason, the Respondent formulated two (2) issues for determination thus:
1. Whether the learned trial judge was right when she refused to ascribe any probative and evidential value to Exhibit E in view of the available evidence before the Court and thus dismissed the claim of the Appellant.
2. Whether from the evidence adduced before the trial Court, the appellant had discharged the evidential burden placed on him by the law.

Arguing issue number one, the Respondent contended that the burden is on the person who would fail if no evidence at all were given on either side. Sections 131, 132 and 133 (1) of the Evidence Act, 2011 relied upon.

The learned counsel referred to page 248 of the record where in cross-examination said all parties assessing for the DNA test were present at pathcare office. A consultant pathologist represented the parties in line with the order. Attendance was signed. The attendance list is Exhibit ‘D’; the 1st order was that parties should go and do DNA test, the 2nd order was a follow up of the first order.

It was therefore submitted that the 2nd order – Exhibit C5 was a follow up of Exhibit C4 but was not carried out or executed. That to give credence to the misgivings and assertions by the Respondent about the non-testing as ordered, there was no iota of evidence before the trial Court to show who, where and when the samples of the 2nd DNA test were taken.

That the Appellant had in cross-examination stated that “Peter lives in Ireland. I don’t know where his sample was taken. Maureen lives in Asaba. I don’t know when her sample was taken”.

Counsel referring to the evidence of CW2 as the pathologist called by the Appellant under cross-examination at page 245 of the record thus;
“I don’t know how samples were taken before the test was carried out. I was engaged to review lab result from internationally accredited facility.”
Also the evidence of CW3 who tendered Exhibit “E” who said “I don’t know the time when the samples were taken, but taken in Warri.”

Counsel therefore submitted that it was clear that none of the witnesses who testified could confirm when Exhibit C5 was complied with, counsel then asks, whether there was any evidence before the trial Court to show that samples were taken before the alleged 2nd DNA test was carried out?

The doubt would have been cleared if the duo of Peter and Maureen (whose blood samples were allegedly taken) were called as witnesses to show when and where their blood samples were taken before the alleged 2nd test was carried out.

That issues having been joined on whether the test was carried out, the onus propandi was on the appellant. UKEJE VS. UKEJE (2014) ALL FWLR (PT. 730) 1323 AT 1344 per Okoro, JSC thus;
“It is not enough for a party to make an allegation before a Court, he must lead credible evidence to prove same.”
relied upon to fortify the argument of non-proof.

The case of YOUNG VS. CHEVRON (NIG.) LTD. (2014) ALL FWLR PT. 747, PAGE 620 AT 642 PARAGRAPH C-D per Augie, JCA (as she then was) that:
“But this is an attempt to shift the burden of proof of (sic) the Respondent, who is not required to carry it. The law is that he who asserts must prove; a Plaintiff succeeds on the strength of his case and not on the weakness of the Defendant’s case.” also relied upon.
At page 246 of the record, the Appellant said;
“I was twelve years ten months when my father died. I have no proof that my late dad denied the paternity of the Defendant because I had never heard or met the Defendant.”

That the only basis for the assertion of the Appellant is what he was told and Exhibit “E”. That there was a yawning gap in Exhibit ‘E’ and doubts surrounding the taking of the samples of Peter and Maureen, which would have given credence to Exhibit ‘E’; it is submitted that Exhibit ‘E’ has no probative value.

The analysis of CW2 and CW3 is based on the rebuttable presumption that the samples of the relevant persons as ordered by the Court were taken.

That the analysis of CW2 and CW3 are impeachable once the mandatory foundation is not followed.

That the analysis of the experts are without foundation there being no evidence of the taking of the samples of the relevant persons as ordered by the Court.

The case of NIGERIA PEOPLE PARTY VS. USMAN (2009) ALL FWLR PT. 463, PAGE 1292 AT 1343 thus:
“The opinion of an expert should be restricted to matter peculiar within his knowledge as such expert. Any opinion outside this limit is in admissible.”
Was relied upon to contend that a Court should consider the entire evidence led including an expert evidence to arrive at a decision but must not abdicate in its duty and so an expert evidence must also be judicially and judiciously examined as the Court is not bound by it. NGIGE V. OBI (2006) 14 NWLR (PT. 999).

That the learned trial judge was right when he held thus:
“I find that none of the medical pathologists led evidence that they took blood samples of Peter and Maureen sequel to the order of Court, which generated Exhibit ‘E’. That being the case, where does the analysis of the two expert witnesses stand? The law is settled that the opinion of an expert is restricted to matters peculiar within his knowledge as an expert and does not admit of opinions outside that limit”.
…From the foregoing, what probative value could be ascribed to Exhibit ‘E’? The answer is none.”
That it was the trial judge’s wisdom having read the pleadings and seen the result of the first test that led to the further order for a second test for a conclusive result.

That the pleadings of the Respondent per the amended statement of defence contained on page 127 of the Record casting doubt on the Appellant and his sister as their mother had committed adultery and had two children Rita and Richmond for late Mr. A. L. Agbanobi’s Dry Cleaner which children Were erroneously believed to belong late A.L. Agbanobi; Exhibit C2 – a letter written by the Appellant’s lawyer based on his instruction stating at paragraph ‘C’ thereof that C – “your position that family member of late A.L. Agbanobi had misgivings about the paternity of our client is most untrue, unfair and defamatory. Rita and Richmond were not biological children of late A.L. Agbanobi even though they answered his name. Late A.L. Agbanobi made it abundantly clear and knew right from their birth that they were not his biological children even though they answered his name. They were not born under his roof, but during that period when A.L. Agbanobi and our client’s mother were estranged and they were living apart.

Rita and Richmond lived with her at her residence at Okandeji Street, warri and never lived with late A.L. Agbanobi. After the death of A.L. Agbanobi our client championed the reunion of Rita and Richmond to their biological father. The Respondent’s counsel said the importance of the test on Peter and Maureen is clearly emphasized in Exhibit ‘E’ (page 140 of the Additional Record) which states thus:
“(More conclusive results may be obtained if more relatives (parents, children, siblings) of the deceased is included.)”

That DW3 had in paragraph 6(d) of his statement on oath stated that:
“That to know the biological children of Mr. Aloysius Agbanobi a further test using the DNA of direct brothers or sisters of the deceased, Mr. Aloysius Agbanobi to show the relatedness of the two different groups is required. In the absence of this, the DNA test carried out so far are of no pathological relevance. That the evidence before the Court was that the parents of the deceased father and his siblings are all dead. That this issue be resolved in favour of the Respondent.

On Issue 2
Whether from the evidence adduced before the trial Court, the appellant has discharged the evidential burden placed on him by the law. Reproducing paragraph 32 of the statement of claim, whereat the Appellant as Plaintiffs claims operatively thus:
“32 (a) A declaration that the Defendant is not the biological son of Mr. Aloysius Louis Agbanobi (deceased).
(b) A declaration that the Defendant is not related by blood to the claimant as the Defendant and the claimant do not share the same father; Aloysius Agbanobi (deceased)
(c) An order of perpetual injunction restraining the defendant from parading himself as the junior brother of same parentage with the claimant.”

Submitted that the burden of proof of the aforesaid averments and consequential claims based thereon is on the claimant and exclusively so. Referring to Sections 131(1) and (2) of the Evidence Act, 2011 which provides as follows:
“(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 132, 133(1) of the Evidence Act also relied upon for this obligation under the law.”

Counsel refers to the evidence in cross-examination on the 21st June, 2016 at page 246 of the Record thus “I have no proof that my late father (Dad) denied the paternity of Defendant because I had never heard or met defendant.”

Page 247 of the Record where in cross-examination the Appellant stated –
When Defendant’s mother died I attended the burial. Two other members of the family Maureen and Fidelis attended Defendant’s mother’s burial.”
And at page 249 thus:
“I don’t know why my dad wrote behind picture of baby Defendant. I didn’t know defendant before I met him in the 70’s when I heard that the defendant claimed to be my brother. I have never heard of him; over 30years ago Defendant came to me saying I was same father which I denied”.

The learned counsel urged this Court to note that the picture referred to by the Appellant is Exhibit ‘F’ as tendered by the DW1 and submits that the entirety of the evidence of the Appellant is the sole reliance on Exhibit ‘E’ which has had doubts cast upon the certainty of the alleged second DNA siblingship test, thus failing woefully to discharge the evidential burden placed on him by law.

This Court has been urged to note that the Appellant was barely 12years, ten months old when Mr. A.L. Agbanobi died and that there was no evidence before the Court that the Late Mr. A.L. Agbanobi denied the paternity of the Respondent.

The Respondent’s counsel, relying on the evidence of DW1, which he insists is unchallenged, including Exhibit F, DW2 (the younger sister of the Respondent of the same father and mother) whose paternity the Appellant is not challenging, submits that all these, graphically show that the Respondent is the biological child of Late Mr. A.L. Agbanobi and that the Appellant failed to discharge the burden placed on him by the law.

BULET INTERNATIONAL (NIG) LTD VS OLANIYI (2018) ALL FWR PT. 943 PAGE 500 AT 530 PARAGRAPH B – C was relied upon to contend that it was not enough for the Appellant to aver in his pleadings as done but had the legal obligation to establish same through credible and verifiable evidence; UKEJE VS UKEJE (supra) also relied on.

That Appellant had failed in this regard, countering the submission that none of the parties made the issue of how the blood samples of Peter and Maureen were taken before the Court, counsel referred to the further amended statement Defence of the Respondent at paragraph 5(iv)(c) thus ”The Defendant shall at the trial contend that the second DNA siblingship test was not carried out and or same was doctored by the claimant and his agents”.

That the evidence led proved that the test was not carried out in directed in Exhibit C5. That none of the witnesses testified whether the blood samples of Maureen and Peter were taken and that issues had been joined on this.

That the burden was therefore cast on the Appellant to prove as per Sections 131,132 and 133(1) of the Evidence Act. The learned counsel had also argued that there was no exception proved as to why the maker of the Exhibit ‘E’ could not be called to testify and that the trial Court had clearly evaluated the evidence led in the circumstances that led to the emergence of Exhibit ‘E’.

It was emphasized that the primary duty to evaluate and ascribe probative value to evidence adduced is that of the trial Court and that if done, it is not the business of an appellate Court to re-evaluate same. ANYEGWU VS ONUCHE (2013) ALL FWLR (PT. 681) PAGE 1622 AT 1632, GARAN VS OLOMU (2013) ALL FWLR (PT. 711) PAGE 1514 AT 1533. Counsel referred to the statement on oath of DW3 paragraph 6(d) thereof where he stated “That to know the biological children of Mr. A.L. Agbanobi, a further test using the DNA of direct brothers and sisters of the deceased, Mr. Aloysius Agbanobi to show the relatedness of the two different groups is required.”

In the absence of this, “the DNA test carried out so far are of no pathological relevance”.

That this has put a heavy cloud on Exhibit ‘E’; and that though admitted as Evidence, the trial Court was right in not ascribing any probative value to same.

The learned counsel relies on NWABUOKU VS ONWORDI (2006) ALL FWLR where Niki Tobi, JSC (as he then was) held:
“It is not the law that every document admitted by a Court of law must be ascribed probative value. A document could be admitted on the ground of relevance but the Court of law may not attach any weight on it, in the light of the circumstances of the case.”

In other words, admissibility which is based on relevancy is distinct from weight to be attached to the document. We have therefore been urged to dismiss the appeal in its entirety on the grounds that;
“i. The learned trial Judge was right when she refused to ascribe any probative value to Exhibit ‘E€’.
ii. The Appellant failed woefully to adduce any evidence before the trial Court showing when and where the alleged blood samples of Peter and Maureen were taken before the 2nd DNA siblingship test was allegedly carried out and that the trial Court was right when she dismissed the claim of the claimant in its entirety.”

In reply, the Appellant adopted its reply Brief of Argument filed on 11-3-21 to contend that the denial of the taking of the blood samples of Maureen and Peter was not supported by evidence and that the burden of proof rests on whoever substantially asserts the affirmative of an issue. MESSRS LEWIS PEAT (NLR) LTD VS A.F. AKHIMIEN (1976) 7SC 157 AT 169. KENNEDY VS INEC (2010) LPELR 9134.

That the averment of the Respondent without evidence can not be as such for the determination of the claim. EMEGOKWUE VS OKADIGBO (1973) NMLR129 relied on.

That submission of counsel is not evidence, and so is impugning the Exhibit ‘E’ in address of counsel. DANLADI VS EL-RUFAI (2018) and UMAR VS STATE (2018) ALL FWLR (PT. 963) 1816 AT 1832 relied on.

That evidence elicited from cross-examination not arising from pleaded facts goes to no issue. NSIRIM VS ONUMA CONT CO (NIF) LTD FWLR PT 44, PAGE 405 AT 416 (SC) relied on.

That the trial Court was not right in not ascribing probative value to the testimony of the Appellant on Exhibit ‘E’ as the pathologist was called to merely tender and interpret the result Exhibit ‘E’ to the best of their professional capacity. That one pathologist was called to tender the exhibit while the second pathologist was called to explain the medical terminologies in the entire report; the learned counsel submitted that the pathologists called on Exhibit “E” were not experts for the purpose of determining how Exhibit “E” was carried out and how the blood samples were taken.

That the Respondent being a joint or co-applicant for the production of Exhibit ‘E’, the Respondent cannot impugn or discredit a document made and tendered by him. IGWE VS A.I.C.E (1994) 8NWLR (PT. 363) 456 AT 476.

Counsel referring to ISHOLA VS. FOLORUNSHO (2010) 13 NWLR PAGE 169 AT 223 submits that an Appellate Court may intefer with the evaluation of evidence led contrary to the Respondents posture and in the circumstances indicated in the Ishola case, supra, which he contends existed.

Firstly, that the trial Court failed to evaluate the clear uncontroverted and material evidence placed before it that the Appellant was born in matrimony and therefore failed to apply the presumption of paternity contained in Section 165 of the Evidence Act, 2011 as it relates to the paternity of the Appellant.

That the trial Court had failed to evaluate the first test result contained on page 116 of the records, which parties including the Court accepted, and which completely separates the parties as blood siblings.

Relying on the presumption of paternity as espoused in the cases of UKEJE V. UKEJE (2014) ALL FWLR (PT. 730) 1323 and IDAHOSA VS. IDAHOSA (2020) ALL FWLR PT. 1054, it was contended that the rebuttal of that presumption requires strong, clear and conclusive evidence to disprove same. ODUCHE V. ODUCHE (2005) LPELR 5796 (CA) ELUMEZE V. ELEMUZE (1969) ALL NLR 301, EKWUWOKE V. EKWUWOKE (1966) ALL NLR PAGE 301 relied on. To contend that there was no such strong, clear and conclusive evidence proferred at the trial Court to disprove the presumption of legitimacy of the Appellant.

Submitted that this presumption of paternity coupled with the result at page 116 of the Record separating the Appellant from the Respondent as blood siblings if properly evaluated, should have led the Court separating the parties and allowing the reliefs sought before it.

Counsel relies on OKONKWO V. OKAGBUE GNNLR PAGE 344 where Ogundere, JSC held;
“It is in the interest of the 3rd defendant’s children to let them know who their true father are (were) and not to allow them to live for the rest of their lives under the myth that they are children of a man who died many decades before they were born.”

That there was evidence on record to show that blood samples were not taken of Peter and Maureen as ordered and that it was an erroneeous finding in that regard which had caused the wrong conclusion not ascribing propative value to Exhibit “E”.

That the Exhibit ‘E’ was a documentary and scientific report of an expert not controverted, challenged and shake by evidence under cross-examination and should have been ascribed probative value. OKORIE VS. THE STATE (2018) ALL FWLR (PT. 932) PAGE 828 AT 868 where the Supreme Court said where the evidence of an expert is not shaken under cross-examination and is uncontradicted, it should be admitted and accepted, that the Appeal be allowed.

RESOLUTION
From the Record of Appeal and in particular the judgment of the trial Court leading to the grounds of appeal, the respective issues for determination, formulated by the parties are apt, the issues are the same. The common issue one of the parties, though slightly couched in cosmetically garped variations speak the same tune in asking whether the trial Court was right in not ascribing probative value to Exhibit ‘E’ tendered at the trial Court.

The common issue 2 are also semantically and by intent similar and the same as couched by the parties.

I shall therefore adopt the Appellant’s issues as framed for the determination of the appeal notwithstanding the more succinct formulation of the issue one by the Respondent.

ISSUE ONE OF THE APPELLANT
The Appellant had argued that the parties had accepted the first result of the siblingship test (Exhibit ‘C)’ and so also the Court; but that not acting on same was wrong.

That the Exhibit “E” harped upon was the report of an expert which ought to have been acted upon without question as it was tendered being in the same manner as Exhibit ‘C’ the first Report allegedly not impugned. That the Respond must not be corrobated by the maker being a scientific Report and that this was more so that the pathology Report was sent to South Africa outside the country and the witnesses (experts) could not necessarily testify personally to be cross-examined. That the Appellant had established the credibility and probative value of Exhibit ‘E’ contrary to the position of the Respondent who sought to suggest that Exhibit ‘E’ was a forged Document and had not discharged the burden of proof beyond reasonable doubt cast on him to so prove.

That the burden to prove that the blood samples of Peter and Maureen were not taken had not been proved; and that it was not an issue between the parties; as to how the samples were to be taken and that there was an obligation on the Respondent who claimed that the samples were not taken to prove that allegation.

I have studied the submissions of the Respondent’s counsel and note that the Appellant in cross-examination had merely alluded to the existence of Exhibit ‘E’ and said Exhibit ‘D’ existed to show the attendance list at the test ordered. However, that test was a follow up test ordered per Exhibit C5 contrary to the earlier order of Exhibit C4 which is the order of the Court that culminated to the Exhibit ‘C’ (the first report) that was harped upon by the Appellant’s counsel as conclusive and which ought to, in the Appellant’s view, have been accepted in favour of answering the Appellant’s claims in his favour.

Clearly, the Appellant had admitted or stated in cross-examination that Maureen and Peter live in Asaba and Ireland respectively and he did not know where and if their samples were taken and CW2 – the pathologist called by the Appellant who in cross-examination said he “did not know how blood samples were taken before the test was carried out” and that he was “only called to review lab result from internationally accredited facility.”

The evidence of CW3 that he “did not know the time the blood samples were taken, but were taken in Warri”. Clearly confirms that none of the witnesses who testified could confirm when the order C5 to conduct a second sibling blood DNA test was complied with.

I am in tandem with the query and reasoning of the Respondent’s learned counsel, that there was no evidence before the trial Court to show that samples were taken before the 2nd DNA test was purportedly carried out, and whether it was indeed carried out. The doubt cast was not cleared by the non-calling of the duo of Peter and Maureen to testify if their blood samples were taken. That evidence was not impossible and may be available and possible but was not called. The presumption is that if called would be unfavourable to the Plaintiff/Appellant. See Section 149(d) of the Evidence Act.

The parties had joined issues there on. See the Defendant/Respondents Amended statement of Defence, paragraph 5(iv)(b) thus:
– This Honourable Court however on 18th of June, 2013 ordered that a DNA Siblingship test be carried out by the parties to this case which test was carried out on the 20th day of May, 2015. Parties and their legal and medical representatives were represented at the centre where samplings were taken and attendance list was signed by the parties and their representatives. The Defendant shall at the trial rely on the attendance list dated 28th of March, 2014.
– On seeing and/or realizing that the first DNA siblingship test will not give the desired result, this honourable Court again ordered for a second round of DNA siblingship test which test was allegedly carried out without the Defendant’s knowledge or participation as was done in the test.
– The Defendant shall at the trial contend that the second DNA siblingship test was not carried out and or same was doctored by the claimant and his agents.

From the above joinder of issues, it is not correct as submitted by the Appellant that the Exhibit ‘E’ was a professional Report that needed no evaluation or scrutiny.

Secondly, the evidential burden was cast on the Appellant to prove that the Exhibit ‘E’ was actually based on a test carried out and in the manner ordered, Claimant/Appellant having sought to rely on same. It is only in pursuance to the proof when called up, that the Respondent can rebut as asserted.
That Respondent had no burden of proof as he did not allege or aver in the positive the existence of the state of facts upon which a claim, to relief is based. The Respondents’ averment was in the negative and in denial. He did not have the primary duty/burden of proof as contended by the Appellant herein.
The burden of proof is on he that will fail if no evidence is led. See Section 131, 132 and 133 of the Evidence Act.

It is noteworthy that the Respondent/Defendant made no claims before the Court for any relief and therefore had no obligation to prove the validity of Exhibit ‘E’. The Respondent’s counsel is correct in submitting that the Exhibit ‘E’ had to be proved to be the conclusive test and outcome of the order of the Court as ordered by Exhibit C5, as a claimant succeeds on the strength of his case and not on the weakness of his opponent’s evidence.

Clearly, the Appellant who admitted that he had no evidence of the denial of paternity of the Respondent which was pleaded to have been acknowledged and testified to profusely by the Respondent, cannot rely on what he was told to strengthen and given authencity and probative value to Exhibit ‘E’ which has not been shown to have any probative value.

The analysis of CW2 and CW3 of Exhibit ‘E’ was made on an Exhibit not shown to have been produced upon compliance of the condition precedent thereto its production as ordered.

In this wise the evidential value and probative value of the Exhibit ‘E’ was suspect. The learned trial judge was right in not ascribing any probative value to Exhibit ‘E’ as it had clearly indicated therein that “more conclusive results may be obtained if more relatives (parents, children, siblings) of the deceased is included)”.

That above quoted caveat is as on Exhibit E contained on pages 139-140 of the Additional Record of Appeal, clearly the Exhibit ‘E’ was inconclusive and the trial judge was right in ascribing no probative value to it.

It is not true that the Exhibit ‘E’ indicated that the Appellant was conclusively shown as the Biological son of the deceased Agbanobi. It is also obvious that the DNA sibling test ordered as in the enrolled order made by Hon. Justice G. B. Briki-Okolosi of Court No. 1 Warri on Tuesday the 11th November, 2014 being Exhibit 5 “to be on Peter Agbanobi and Maureen Excellence Agbanobi who are children of late Agbanobi by another mother who shall make themselves available for the DNA testing and upon service of this order on them” was not carried out in the manner ordered as the presumption in favour of same had been rebutted or weakened by the evidence of the witnesses. Issue one is resolved against the Appellant and in favour of the Respondent.

ISSUE 2
The contention of the appellant that his pleadings and evidence had proved that the Appellant’s claims were established cannot hold water. The Appellants had made heavy weather of the presumption of paternity in his favour and had submitted that presumption be held in his favour.

Clearly, the reliance on the presumption of paternity has no basis as the Respondent had made no claim or assertion by any suit challenging the Appellant’s paternity. That presumption rather inures and may rightly be relied upon by the Respondent who pleaded same profusely and testified to acts of presumption of paternity and rightly relied on UKEJE VS. UKEJE and IDAHOSA VS. IDAHOSA (supra).

Appellant’s counsel had misread page 200 of the Record of Appel by contending that the Respondent had therein admitted that the Respondent was not the biological son of the deceased.

Indeed, it was not an admission but a restatement of what the report contained. It is not enough to make an allegation, but there must be evidence in proof of same by credible evidence See UKEJE VS. UKEJE and YOUNG VS. CHEVRON NIG. LTD. (supra) as a Plaintiff succeeds on the strength of his case and not on the weakness of his opponent’s case.

The Appellant who had testified that he was only 12 years old when his father died and had no proof that his father denied the Respondent’s paternity, cannot be said to have any evidence in that respect as he stated that he had never even met or heard of the Respondent before his father’s death and that his assertion was based only upon what he was told and the Exhibit “E”. There being no basis for Exhibit “E”, there could not have existed any evidence in that regard.

The basis of the analysis thereon the Exhibit ‘E’ and the conclusion thereon had no foundation, in law; The picture Exhibit “F” tendered showing the endorsement thereon by the late Aloysius Agbanobi was such that together with DW2 younger sister of the Respondent of same father and mother with Respondent and whose paternity, the Appellant, did not dispute showed that Appellant had not proved his claims.

I had found in the Record of Appeal, the Appellant’s evidence that the Respondent’s mother came into the late Aloysius Agbanobi’s home with pregnancy leading to the birth of the Respondent. This clearly is upon the hearsay evidence of what the Appellant was told. In any case, even if it was so, there had been established the fact of the acknowledgement of paternity by the pleadings and evidence led.

The admission of the Exhibit “E” without more did not constitute the evidence to ground the Appellant’s claims as Plaintiff, as the weight to attach to an admitted document or exhibit was an entirely different thing to be considered upon the evaluation of the evidence in that regard and all the surrounding circumstances will determine what weight to ascribe to it.
See NWABUOKU VS ONWORDI 2006 ALL FWLR.

The Courts do not act on instinct and will not permit a litigant to do so either. The Courts do not act on hunches or rumors – see OGBUBUNJO V. STATE (2001) 2 NWLR (PT. 698) 576) AT 579. SEE ALSO KATTO VS CBN (1991) 9 NWLR (PT. 214, AT 131.

A decision based on evidence and rightly entered suffices and a misdirection which does not occasion injustice will be immaterial; The several submissions in the Appellant’s Reply address are of no moment, therefore. See HILARY VS. MAHTRA (2007) 6 SCN 292 AT 304 and this is more so that evidence had been led challenging and controverting the content of Exhibit ‘E’. See CHIEF PAUL ORDIA VS. PIEDMONT (NIG) LTD (1995) LPELR 2753 (SC), OBI OBEMBE V. WEMABOD ESTATES LTD. (1977) 5 SC AND OMORHIRHI V. ENATEVWERE (1988) 3 SC 207 @ 246. Reliance on Exhibit ‘E’ could have been valid, therefore. The trial Court was right in not relying on Exhibit ‘E’, and so also its findings of facts based on first siblings test Exhibit ‘C, which has not been appealed against, subsists and is binding on both the Appellant and the Respondent. See CALABAR V. EKPO (2008) 2 SCNJ 307 AT 324 -325.

The Appellant had not proved its case at the trial, the issue two is also resolved against the Appellant and in favour of the Respondent.

Accordingly, the appeal is dismissed and the judgment of the Delta State High Court in Suit No. W/194/2012 per P. O. Onajite Kuejubola (Mrs.) delivered on the 11th day of April, 2018 wherein she dismissed Appellant’s claim is affirmed.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, DANJUMA, JCA, which has just been delivered. I agree with the reasoning and conclusion therein to the effect that the appeal has no merit.

I therefore dismiss the appeal and affirm the judgment of the trial Court.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have been afforded the privilege of reading a draft copy of the lead judgment just delivered by my learned brother, MOHAMMED AMBI – USI DANJUMA, JCA and I am of the view that he has covered the field admirably and has aptly brought out the crux of this appeal and simplified it.

I also hold that the appeal is void of merits and join my Lord in dismissing the appeal.

Appearances:

E. S. Orhiunu, Esq, of E. S. Orhiunu & Co. For Appellant(s)

F. I. Agboroh, Esq, of F. I. Agboroh & Co. For Respondent(s)