CHIEF VERO SMOOTH v. CHIEF TUNDE SMOOTH
(2015)LCN/8019(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of November, 2015
CA/B/47/2012
RATIO
PRACTICE AND PROCEDURE: ADDRESS BY COUNSEL; WHETHER AN ADDRESS CAN MAKE UP FOR LACK OF EVIDENCE TO PROVE AND ESTABLISH A CASE
No amount of brilliance in an address can make up for lack of evidence to prove and establish a case or disprove and demolish a point in issue. An address may make a good impression on the Judge but it certainly cannot make up for lack of evidence, and cases are decided on credible evidence. Address by counsel is only a forum where the law is brought in, not only to interprete the facts before the court but to edify them in lucid persuasive style of advocacy.
See the following cases: –
– EKPEYONG VS ETIM (1990) 3 NWLR Part 140 Page 594.
– NIGER CONSTRUCTION LIMITED VS. CHIEF OKUGBENI (1987) 4 NWLR Part 67 Page 787. per. JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
CHIEF VERO SMOOTH Appellant(s)
AND
CHIEF TUNDE SMOOTH Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Delta State Customary Court of Appeal holden at Warri in Appeal No. DCCA/35A/2010 – CHIEF VERO SMOOTH VS. CHIEF TUNDE SMOOTH delivered on 13th day of July, 2011 wherein the appeal of the Appellant was dismissed.
The facts of the case are that the Petitioner married the Respondent under the Ijaw Native Law and Custom in 1984 at Okerenkoko in Warri South-West Local Government Area of Delta State.
Due to disagreement between the parties, the Respondent instituted an action against the Appellant in the Customary Court of Delta State of Nigeria in the Warri South-West Area Customary Court, holden at Ogbe-Ijoh, and by a Further Amended Petition for dissolution of Customary Law Marriage, the Petitioner/Respondent claims against the Appellant/Respondent as follows: –
(1) Dissolution of the Customary Law Marriage the Petitioner contracted with the Respondent sometime in the year 1984 at Okerenkoko, in Warri South-West Local Government Area of Delta State, a place within the jurisdiction of this court.
(2) A declaration that the Petitioner is
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not the biological father of the twin babies purportedly given birth to by the Respondent sometime in the month of January 2010.
(3) A declaration that the Respondent is not the biological mother of the Twin Babies.
(4) A refund of the bride price paid by the Petitioner to the Respondent and her family in compliance with Ijaw Native Law and Custom.
(5) An order of Perpetual Injunction restraining the Respondent and any other person from claiming that the Petitioner is the biological father of the Twin Babies purportedly given birth to by the Respondent sometime in month of January, 2010.
(6) An order of Perpetual Injunction restraining the Respondent from claiming that she is the biological mother of the Twin Babies.
(7) An order of Perpetual Injunction restraining the Respondent from further bearing the name of the Petitioner as her husband.
(8) Any other relief appropriate in the circumstances of this case.
At the hearing in the Warri South-West Area Customary Court, Ogbe-Ijoh, the Appellant pleaded liable to reliefs 1, 2, 4, 5 and 7 while she pleaded not liable to reliefs 3 and 6.
At the conclusion of hearing at the
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(1) The parties in this case – Chief Tunde Smooth (JP) Petitioner and Chief (Mrs) Vero Smooth – Respondent and the twin babies allegedly given birth to by the Respondent – Chief (Mrs) Vero Smooth sometime in January 2010 should and must undergo a DEOXYRIBO NUCLEIC ACID (DNA) TEST BETWEEN WEDNESDAY 22ND and FRIDAY 24TH SEPTEMBER 2010 at the expense of Chief Tunde Smooth (JP) – Petitioner at the LAGOS UNIVERSITY TEACHING HOSPITAL (LUTH) IDI-ARABA, LAGOS to determine the paternity and maternity of the TWIN BABIES – the subject matter of the suit.
(2) It is further ordered that MR. A OBERIGBO (Senior Registrar) attached to this court, Chief Barrister M.O. AKOUBODO – lead counsel to the Petitioner and Barrister P.K. EDERI – lead counsel to the Respondent should accompany parties to LUTH and should also witness the conduct of the DNA test.
(3) Lagos University Teaching Hospital, Lagos is by this order requested to forward the result of this DNA test under a confidential seal (to be handed over to the Registrar of this court – Mr. A. Oberigbo) to the President of this court for further necessary action.
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The Appellant who is dissatisfied with the order for DNA test appealed to the lower Appellate Court.
At the conclusion of hearing, the lower Appellate Court i.e. the Customary Court of Appeal, Delta State, holden at Warri in its Judgment dismissed the appeal and ordered as follows: –
(1) That the order of the Lower Court for the Respondent now Appellant – Chief Vero Smooth still stands i.e. she is to go to the Lagos University Teaching Hospital for DNA test to ascertain her maternity of the twin babies. Chief Akoubodo M.O., and Ederi shall follow her as observers while the Registrar of the court below shall be the one to receive the sealed result of the DNA test to be given to the President of the court below. The Petitioner/Respondent shall supply the funds for the DNA test but himself – Chief Tunde Smooth shall not be part of the DNA test to be conducted at LUTH.
(2) This case is sent back to the Warri South-West Area Customary Court, Ogbe-Ijoh for the court to complete the determination of the case.
(3) Appellant is to pay a cost of N10,000.00 to the Respondent.
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The Appellant who is dissatisfied with the Judgment of the lower
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Appellate Court appealed to this court.
The learned counsel for the Appellant formulated five issues for the determination of the Appeal. The issues are reproduced as follows: –
(1) Was the learned Justices of the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court regarding the maternity of the children and consequently ordering the Respondent/Appellant herein to go for a DNA test with the Twin Babies to determine the suit at the lower trial court after entering Judgment in favour of the Petitioner/Respondent that he is not the father of the children and also not the husband of the Respondent/Appellant?
(2) Was the learned Justices of the lower Appellate Court right in upholding the Ruling of the Warri South West Area Customary Court that the facts in the matter are straight forward and the main not in dispute and as such as the trial court will be free to dispose with the final address?
(3) Was the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court when the said court suo motu ordered for a DNA test against the backdrop of overwhelming
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evidence?
(4) Was the lower Appellate Court right when they held that the order made by the Warri South-West Area Customary Court did not occasion a miscarriage of justice?
(5) Was the lower Appellate Court right when they held that the appeal before it lacks merit and therefore dismissed same?
The learned counsel for the Respondent in his own case formulated three issues for the determination of the Appeal. The issues are reproduced as follows: –
(1) Whether the Respondent has lost his locus standi to proceed/continue as a party in this case at the Trial Court by virtue of the Judgment of the lower Appellate Court.
(2) Whether the lower Appellate Court was wrong in law and in fact when it ordered the Appellant and the twin babies in question to undergo a Deoxyribo Nuclei Acid (DNA) Test to determine the maternity of the Twin Babies.
(3) Whether the Judgment of the lower Appellate Court occasioned a miscarriage of justice in the circumstances of this case.
This appeal came up for hearing on 23/9/2015, and counsel for the Appellant was duly served with hearing notice. The said Appellant’s counsel failed to appear in court to
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present oral argument on the Appellant’s brief of argument earlier filed.
The learned counsel for the Respondent was present in court and he referred to the Respondent’s brief of argument deemed filed on 23/9/15. He adopted the brief as his argument in urging that the appeal be dismissed.
Pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules, 2011, this appeal was deemed as having been duly argued.
I have carefully examined the issues formulated for the determination of the appeal by counsel for the parties, though the issues are similar but I am of the view that the issues as formulated on behalf of the Appellant would settle the issues in controversy once and for all. I will therefore rely on the said issues in the determination of this appeal.
ISSUE NO. 1
Was the learned Justices of the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court regarding the maternity of the children and consequently ordering the Respondent/Appellant herein to go for a DNA test with the twin babies to determine the suit at the lower trial court after entering Judgment in favour of the
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Petitioner/Respondent that he is not the father of the children and also not the husband of the Respondent?
The learned counsel for the Appellant submitted that the lower Appellate Court erred in law by ordering the Respondent/Appellant/Appellant to go for a DNA test with the twin babies after holding that the Petitioner/Respondent/ Respondent who instituted the action was not the father of the twin babies and also after making an order to dissolve the marriage between the Appellant and the Respondent herein. He referred to the claim of the Petitioner before the trial court i.e. the Warri South West Area Customary Court, Ogbe-Ijoh. He went further that the Respondent pleaded liable to reliefs 1, 2, 4, 5, and 7.
It was also contended on behalf of the Appellant in one breath that the lower Appellate Court was wrong not to have given Judgment on the admitted reliefs and in another breath stated that the court in exercise of its authority entered Judgment in favour of the Respondent herein in respect of the admitted relief. He submitted that there is no more issue of paternity of the twin babies for determination before the Lower Court.
The learned
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counsel for the Appellant also submitted that after entering Judgment in respect of reliefs 1, 2, 4, 5 and 7, the lower Appellate Court ought to before making the order for DNA test (for the Appellant herein and the Twin Children), settle the issue of whether the Petitioner/Respondent/ Respondent still has any sufficient interest left in the remaining reliefs 3 and 6 which the lower trial court would determine between him and the Respondent/Respondent/Appellant.
He submitted further that by the time the lower trial court would have received result of the DNA test and proceed with the case, the status of the Petitioner/Respondent/Respondent has already changed and he would have become a total stranger without any sufficient interest to the remaining reliefs. He relied on the following cases: –
– OYEWUMI VS OSUNBADE (2001) FWLR Part 82 page 1919 at 1957 paragraphs E – F.
– OJUKWU VS OJUKWU (2001) FWLR Part 41 page 1948 at 1973 paragraph F.
– GREEN VS GREEN (2001) FWLR Part 76 page 795 at 822 – 823 paragraphs H – A.
The learned counsel for the Appellant finally submitted on this issue that the order made by the lower Appellate Court for
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the DNA test in order to determine the remaining two reliefs did not only occasioned a miscarriage of justice but that same was made in error as there is no justiciable cause of action still pending before the Warri South-West Area Customary Court. He relied on the case of – OWODUNNI VS REGISTERED TRUSTEES CELESTIAL CHURCH (2000) FWLR Part 8, page 1455 at 1506 paragraphs D – E.
He urged this court to resolve Issue No. 1 in favour of the Respondent/Appellant/Appellant. The learned counsel for the Respondent in his response referred to the Further Amended Petition for the dissolution of the Customary Law Marriage between the Appellant and Respondent dated 13/8/2010 contained on pages 9 – 11 of the record of appeal. He also referred to the order made by the trial court on 20/9/2010 and the Judgment of the lower Appellate Court delivered on 13/7/2011.
He then submitted that the parties and their respective interests still remain as they were as the interests were not tampered with by the Judgment of the lower Appellate Court.
It was also submitted on behalf of the Respondent that the Respondent has substantial interest over the outcome of the DNA
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test, which is to determine whether the Appellant is the biological mother of the Twin babies. Also that Judgment is yet to be delivered by the lower Appellate Court on reliefs 1, 2, 4, 5 and 7 of the Further Amended Petition.
Learned counsel for the Respondent finally urged that this issue be resolved in favour of the Respondent.
The Further Amended Petition for the dissolution of Customary Law Marriage between the Appellant and Respondent dated 13/8/2010 was set out earlier in this Judgment.
At the conclusion of evidence of the parties at the trial court on 20/9/2010, the court ordered as follows: –
This court has heard evidence of both parties in this suit and adjourned for address. Addresses are designed to assist the court. When the facts are straight forward and in the main not in dispute, the trial Judge will be free to dispense with final addresses – Per Oputa JSC in NIGER Construction Limited Vs Chief A.O. Okugbemi (1987) 12 SC page 108 at 114.
A close perusal of the evidence before us will reveal that we cannot do justice to this case without an order for DNA test which has to be conducted before address/Judgment, hence we
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have decided in the interest of justice to suo motu order as follows: – ORDER OF COURT
(1) It is hereby ordered that the parties in this case Chief Tunde Smooth (JP) – Petitioner and Chief Mrs Vero Smooth – Respondent and the twin babies allegedly given birth to by the Respondent – Chief Mrs Vero Smooth sometime in January 2010 should and must undergo a DNA test between Wednesday 22nd and Friday 24th September 2010 at the expense of Chief Tunde Smooth (JP) – Petitioner at the Lagos University Teaching Hospital (LUTH) Idi-Araba, Lagos to determine the paternity and maternity of the twin babies, the subject matter of this suit.
(2) Lagos University Teaching Hospital, Lagos is by this order requested to forward the result of this DNA test under a confidential seal to be handed over to the Registrar of this court – Mr. A. Oberigbo to the President of this court for further necessary action.
The Appellant appealed against the order of trial court set out above. The appeal was to the lower Appellate Court i.e. The Customary Court of Appeal, holden at Warri, Delta State. (See pages 57 – 60 of the record of appeal).
At the conclusion of hearing at
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the lower Appellate Court, the court in its Judgment delivered on 13/7/2011 held that the appeal lacks merit and it was dismissed.
The court then ordered as follows: –
(1) That the order of the Lower Court for the Respondent now Appellant – Chief Vero Smooth still stands i.e. she is to go to the Lagos University Teaching Hospital for DNA test to ascertain her maternity of the twin babies. Chief Akaubodo M.O. and Ederi shall follow her as observers while the Registrar of the court below shall be the one to receive the sealed result of the DNA test to be given to the President of the court below.
The Petitioner/Respondent shall supply the funds for the DNA test but himself – Chief Tunde Smooth shall not be part of the DNA test to be conducted at LUTH.
(2) This case is sent back to the Warri South-West Area Customary Court, Ogbe-Ijoh for the court to complete the determination of the case.
(3) Appellant is to pay a cost of N10,000.00 to the Respondent. (See pages 127 – 154 of the Record of Appeal).
A careful perusal of the order made by the trial court and the order of the lower Appellate court all set out in this Judgment would
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reveal that Judgment was not delivered on reliefs 1, 2, 4, 5 and 7 which the Appellant pleaded liable to at the trial court contrary to the submission of counsel for the Appellant that Judgment was entered in respect of the said reliefs.
Therefore, it is my view that the respective interests of the parties still remain as they were because their interest were not tampered with by the Judgment of the lower Appellate court.
I therefore agree with the submission of the learned counsel for the Respondent that the Locus Standi of the Respondent in instituting the petition for Divorce and other ancillary reliefs is still intact, it has not ceased to exist.
It must not be forgotten that reliefs 3 and 6 were not admitted by the Appellant at the trial court.
By reliefs 3 and 6 (also set out earlier in this Judgment), the Respondent is contending that the Appellant is not the biological mother of the twin babies.
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The Respondent in his evidence on page 29 lines 1 – 10 of the Record of Appeal stated that: –
If she is sure, I will plead with court to make an order for DNA test to ascertain the true paternity and maternity of the twin babies.
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If she is proved right, I will publicly apologize to her and pay damages. I am ready to foot the expenses.
In her own evidence, the Appellant while testifying at the trial court, after pleading liable to reliefs 1, 2, 4, 5 and 7 of the claim, maintained that the Respondent is the biological father of the twin babies.
At page 53 lines 8 – 28, the Appellant testified among others as follows: –
“The Petitioner is the father of the twins but if he says he is not the father, I leave him for God for judgment. I pleaded liable to his claim that he is not the biological father of the twin because he has pushed me to the wall”
And at page 54 lines 12 – 18 of the Record of Appeal, the Appellant testified as follows: –
“I did not buy the twin babies.
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Four traditional massagers treated me when I was pregnant. The woman who delivered me is called OGECHI. The man at Port-Harcourt is called Baba. The woman at Isaba is called “woman doctor” and the other is called “Mama Abere”.
When the evidence set out
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above is perused, I am of the view that the court can only arrive at a just decision by using the result of the DNA test to corroborate the evidence proffered by either of the parties.
A careful reading of the entire evidence of the parties before the trial court as contained in the Record of Appeal would reveal that both the Appellant and the Respondent have substantial interest over the outcome of the DNA test, which is to determine whether the Appellant is the biological mother of the Twin Babies.
The learned counsel for the Appellant misconstrued the situation in this case when he submitted that Judgment had been delivered in respect of claims 1, 2, 4, 5 and 7 of the Further Amended Petition when in actual fact Judgment is yet to be delivered on the claims.
The lower Appellate Court sent back the case to the trial court so that it could deliver Judgment on Claims 1, 2, 4, 5 and 7 which was earlier admitted in accordance with Order 9 Rule 4(1) of the Customary Court Rules 2001 which provides thus: –
“Where the defendant admits the claim or part thereof, the court shall proceed to give Judgment for the part admitted.”
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And upon
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receipt of the result of the DNA test, the trial court will then complete the determination of the case in terms of Claims 3 and 6 set out earlier in this Judgment which the Appellant did not admit.
In view of the foregoing, this Issue No. 1 is hereby resolved in favour of the Respondent and against the Appellant.
ISSUE NOS. 2, 3, 4 & 5 (Taken together)
– Was the learned Justices of the lower Appellate Court right in upholding the Ruling of the Warri South-West Area Customary Court that the facts in the matter are straight forward and the main not in dispute and as such the trial court will be free to dispose with the final address?
– Was the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court when the said court suo motu ordered for a DNA test against the backdrop of overwhelming evidence?
– Was the lower Appellate Court right when they held that the order made by the Warri South-West Customary Court did not occasion a miscarriage of justice?
– Was the lower Appellate Court right when they held that the appeal before it lacks merit and therefore dismissed same?
The learned
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counsel for the Appellant submitted that the lower Appellate Court did not address the issue of not addressing court as one of the grounds of appeal by counsel to the Appellant. He submitted that failure on the part of the lower Appellate Court to allow the Appellant’s counsel to address the court before its ruling, is a violation of the Appellant’s right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution, as amended . He relied on the case of: –
– NIGERIAN NATIONAL PETROLEUM CORPORATION VS. CLIFCO NIG. LTD (2011) 46 NIGERIAN SUPREME COURT QUARTERLY LAW REPORT (NSCQR) page 114 at 118 -137.
It was submitted on behalf of the Appellant that the trial court without hearing parties or affording the parties the opportunity of addressing the court, the court suo motu ordered for the DNA test. The learned counsel also relied on the following cases: –
– OVUNWO VS NOKO (2011) 46 NSCQR page 517 Page 540
– LEADERS AND COMPANY VS MAJOR GEN MUSA BAMAIYI (2011) 46 NSCQR page 800 at 819.
He finally submitted that the conduct of the trial court not allowing counsel to address court was one of the grounds at the Lower Court and this
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was a violation of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
He urged that Issue No. 2 be resolved in favour of the Appellant.
On Issues 3, 4 & 5, learned counsel for the Appellant adopted the argument canvassed in respect of Issue No.1 and 2 and he urged this court to resolve the issues in favour of the Appellant.
In his response, the learned counsel for the Respondent referred to the order of the trial court and the subsequent order made by the lower Appellate Court. He also referred to the evidence of both the Petitioner/Respondent and the Appellant and submitted that there is an obvious dispute as to the maternity of the children and hence the lower Appellate Court in upholding part of the order of the trial court directed the Appellant and twin babies to undergo a DNA test.
He went further that the result of the DNA test in the circumstances of this case in relation to reliefs 3 and 6 of the Further Amended Petition before the trial court will reveal the maternity of the twin babies which is in dispute.
He also submitted that the order was made in furtherance of substantial justice
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and was not wrong in fact and in law and does not occasion a miscarriage of justice.
He finally urged that the issues be resolved in favour of the Respondent and the appeal be dismissed.
In this appeal, Judgment is yet to be delivered at the trial court on Claim Nos. 1, 2, 4, 5 and 7 of the Further Amended Petition for dissolution of Customary Law Marriage in which the Appellant pleaded liable. Also reliefs 3 and 6 are yet to be decided by the trial court.
The learned counsel for the Appellant misconstrued the situation when he contended that Judgment had been delivered.
It is after evidence has been concluded in a case that counsel for the parties would address the court.
In this case, the trial court will still receive the result on the DNA test and if necessary take further evidence before final addresses of counsel would come up before Judgment is delivered.
This is evident from the statement made by the trial court on Monday the 20th day of September 2010, when it stated as follows:- (See page 55 lines 17 – 21 of the Record of Appeal).
“…A close perusal of the evidence before us will reveal that we cannot
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do justice to this case without an order for DNA test which has to be conducted before Address/Judgment, hence we have decided in the interest of justice, to suo motu order as follows: – ……………………………………….”
The lower Appellate Court did not decide the petition before the trial court, it merely sent it back to the trial court i.e. Warri South-West Area Customary Court Ogbe-Ijoh for the court to complete the determination of the case.
It is important to point out at this juncture that addresses of counsel as important as it may be, cannot take place of pleadings or evidence because cases are decided on credible evidence. No amount of brilliance in an address can make up for lack of evidence to prove and establish a case or disprove and demolish a point in issue. An address may make a good impression on the Judge but it certainly cannot make up for lack of evidence, and cases are decided on credible evidence. Address by counsel is only a forum where the law is brought in, not only to interprete the facts before the court but to edify them in lucid persuasive style of advocacy.
See the following cases: –
– EKPEYONG
21
VS ETIM (1990) 3 NWLR Part 140 Page 594.
– NIGER CONSTRUCTION LIMITED VS. CHIEF OKUGBENI (1987) 4 NWLR Part 67 Page 787.
The learned counsel for the Appellant also argued that the trial court without hearing the parties or affording the parties the opportunity of addressing the court suo motu ordered for DNA test.
The contention of the learned counsel for the Appellant is not correct in that regard because the order of the trial court was based upon the evidence before that court.
On page 26 lines 2 – 3 of the record of appeal, the Respondent testified as follows: –
“One of the declarations I am seeking from this court is that she is not the biological mother of the Twin babies. To my knowledge the respondent was never pregnant.”
Also on page 29, line 23 – 29 of the Record of Appeal, the Respondent testified among others thus: –
I am quite sure that I am not the father of the twin babies and the Respondent is also not the mother of the twin babies. If she is sure, I will plead with court to make an order for D.N.A. test to ascertain the true paternity and maternity of the twin babies. If she is proved right I will publicly
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apologise to her and pay damages. I am ready to foot the expenses.
It was based upon the evidence of the parties and particularly the evidence of the Respondent that the trial court at pages 55, lines 17 – 21 of the Record of Appeal stated as follows: –
A close perusal of the evidence before us will reveal that we cannot do justice to this case without an order for DNA test which has to be conducted before address/ Judgment, hence we have decided in the interest of justice, to suo motu order as follows: –
………………………………
The order of the trial court is in my view based upon the evidence before that court. It is a misuse of language on the part of the trial court to say that it suo motu ordered for the DNA test.
In view of the foregoing, it would therefore be wrong to say that the trial court violated the provisions of Sections 36(1) , and 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended .
The learned counsel for the Appellant also
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contended that the order of the trial court occasioned a miscarriage of justice.
The Lower Court held among others, that the order appealed against does not amount to a miscarriage of justice as it is intended to advance the cause of justice.
In this case, there is a dispute arising from the evidence placed before the trial court and the court, as an unbiased umpire, has a duty to resolve the dispute. And it can do this by calling for further evidence to clarify the evidence already led before the court.
It is my view that by making the order, both the trial court and the Lower Appellate Court’s intention were geared towards doing substantial justice. The DNA test is to reveal the maternity and paternity of the twin babies and this is in relation to reliefs 3 and 6 of the Further Amended Petition before the trial court.
See the following cases: –
– C.R.P.D.I.C. LTD VS OBONGHA (2001) FWLR part 54 page 353 at 367 paragraph D.
– OKWUEZE VS. EJIOFOR (2001) FWLR Part 48 page 1277 at 1297 paragraph H.
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Consequent upon the foregoing, it is my view that the Lower Court was right in upholding in part, the order of the trial court
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ordering a DNA test to be conducted to determine the maternity of the twin babies. The order does not occasion miscarriage of justice.
Therefore, Issue Nos. 2, 3, 4 and 5 are hereby resolved in favour of the Respondent and against the Appellant.
In the result, this appeal lacks merit and it is hereby dismissed. The decision of the Delta State Customary Court of Appeal in Appeal No. DDCA/35A/2010 – Chief Vero Smooth Vs. Chief Tunde Smooth delivered on the 13th day of July 2011 is hereby affirmed.
There shall be (N50,000.00) Fifty Thousand Naira costs in favour of the Respondent and against the Appellant.
HAMMA AKAWU BARKA, J.C.A.: I have been privileged to have read in draft the judgment just delivered by my noble Lord JIMI OLUKAYODE BADA JCA.
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The facts leading to the instant appeal are not in dispute, and have been lucidly set out in the lead judgment. Equally the facts leading to the trial court’s ordering for a DNA test have been set out, being the sore point in the dispute; the determination of the paternity and the maternity of the twin children. I fully endorse the reasoning and the conclusion to the effect that the
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result of the DNA test would assist the court substantially in arriving at solving the question who the parents of the twin children are. Indeed the twin children deserve to also know who their parents are. That issue not having been resolve one way or the other, the contention by the Appellants that same has been determined partly cannot be correct. I also see no merit in the instant appeal, and would order that same be dismissed, thus affirming the decision of the Lower Court delivered on the 13/7/11.
I abide on order of costs made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft, the leading judgment just delivered by His Lordship, Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion that there is no substance in this appeal and that the same should be dismissed.
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Having read the Records of Appeal and the briefs of argument filed and exchanged by the parties, it is for the same reasons set out in the said lead judgment, which reasons I hereby adopt as mine, that I equally dismiss this appeal. The decision of the Delta State Customary Court of Appeal in Appeal
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No.DCCA/35A/2010 delivered on 13th July, 2011 is hereby affirmed. I abide by the order as to costs contained in the lead judgment.
Appeal Dismissed.
Appearances
No legal Representation for the Appellant.
Chief M.O. Akoubodo
G.N. Osunde For Respondent
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Appearances
No legal RepresentationFor Appellant
AND
Chief M. O. Akoubodo with him G. N. OsundeFor Respondent
