CHRISTOPHER IDAHOSA V. SGT. STEPHEN IDAHOSA & ORS
(2010)LCN/3953(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/B/141/2003
RATIO
HEARSAY EVIDENCE: EXCEPTION TO HEARSAY EVIDENCE AS IT RELATES TO STATEMENTS MADE BY A PERSON WHO IS DEAD
The law is certainly ironclad that hearsay evidence is inadmissible, however, there are exceptions to every rule, and one of them is in respect of statements made by deceased persons. Obviously, statements made by a person who is dead must be proved, where necessary, by some other persons. This is where Section 33 of the Evidence Act comes in; it lays down six instances in which such statements if they relate to relevant facts are themselves relevant and therefore admissible in evidence. Section 33 (1) (a) relates to “dying declaration” itself, which is a “statement made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in which the cause of that person’s death comes into question”. It further provides that – “Such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such a declaration believed himself to be in danger of approaching death although he may have entertained hopes of recovery. PER AMINA ADAMU AUGIE, J.C.A.
PECUNIARY AND PROPRIETARY INTEREST: MEANING OF THE WORD “PECUNIARY” AND WHAT THE TERM “PROPRIETARY INTEREST” ENTAILS
The word “pecuniary” means “of or relating to money”, and the term “proprietary interest” is defined as “the interest held by a property owner together with all appurtenant rights” – see Black’s Law Dictionary: 8th Ed. PER AMINA ADAMU AUGIE, J.C.A.
PEDIGREE: MEANING OF THE WORD “PEDIGREE”
The word “pedigree” means – “a history of family succession; ancestry or lineage. PER AMINA ADAMU AUGIE, J.C.A.
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CIVIL CASE; AND CIRCUMSTANCE WHERE THE BURDEN WILL SHIFT TO THE DEFENDANT
We all know that in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings, and the person who would lose the case if on completion of pleadings and no evidence is led has the general burden of proof – see Archibong V. Ita (2004) 2 NWLR (Pt. 858) 590 where the supreme court held as follows – “Although the burden of proof under Section 137 (1) generally remains with the Plaintiff, it is not invariably so. As provided in the subsection, the burden of proof will be determined by the pleadings. It will therefore not be wrong to say that the burden of proof under the subsection fluctuates with the state of pleadings and the level of fluctuation may at times go to the Defendant, if he has asserted the positive fact therein. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES:
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
Christoper Idahosa – Appellant(s)
AND
1. Sgt. Stephen Idahosa
2. Mr. Stephen Eronmwon
3. Mr. Okhuasuyi Eronmwon – Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant and 1st Respondent are brothers, and the action that culminated in this appeal relates to the paternity of the Appellant. Their mother, late Madam Onaiwu Idahosa, was the 2nd and 3rd Respondents’ sister, and she was married to late pa Egharevba Idahosa until his death on the 20th of December, 1977. As the eldest surviving son, the Appellant complied with all the Bini customs in burying their father, and he was the one who inherited the Igiogbe, that is the house in which the late Pa Idahosa lived and was buried, which according to Bini custom, is inherited by the eldest surviving son of the deceased . Madam Onaiwu Idahosa lived with the Appellant until her death on the 2nd of August 1997.
After the traditional wake keeping on the 20th of August, 1997, the Appellant and his older sister took a goat to their mother’s family to ask permission to perform final burial rites of their mother. But the family refused to accept it because they wanted to investigate the report the 1st Respondent made to them that Madam Idahosa had confessed to both brothers before she died that the Appellant and his sister were not pa Idahosa’s children.
The alleged confession was also reported to the Oba of Benin who set up a panel of Chiefs to look into the matter. However, before the Oba could make any pronouncement on the report made to him, the Appellant filed an action at the High Court, Benin, wherein he claimed as follows against the Respondents-
1. Declaration that the Plaintiff is the eldest surviving male child of Pa Egharevbe Idahosa (deceased) of No. 15 Ogbelaka street, Benin city who died on the 20th day of December,1977 at Benin city.
2. Declaration that the plaintiff carried out the final burial rites of his late father, Pa Egharevbe Idahosa in accordance with Bini Customary Law and stepped into his shoes as head of family.
3. Declaration that under Bini Customary Laws and usages, the Defendants who live in Benin city have no right to determine who the heir of late Pa Egharevbe Idahosa is, the 1st Defendant being junior in age to the plaintiff, and the other Defendants being from the Plaintiff’s mother’s family.
4. Declaration that the Plaintiff as the eldest son of his mother, Madam Uvbi Onaiwu Idahosa who died on the 2nd day of August 1997, is the person who, by Bini Custom can perform the final burial rites of his late mother according to Bini Custom.
5. Injunction restraining the Defendants, their servants or agents from doing anything that may injure the Plaintiffs right or prevent him from performing the final burial rites of his late mother …”
On their own part, the Respondents counterclaimed as follows –
(a) A Declaration that the 1st Defendant is the eldest surviving male child of Pa Egharevbe Idahosa (deceased of No. 15 Ogbelaka Street, Benin City who died on the 20th day of December, 1977 at Benin City.
(b) A Declaration that the 1st Defendant is entitled under the Bini native law and custom, to inherit all that property lying and situate at No. 15 Ogbetaka Street, Benin City within jurisdiction of this Court where his said late father lived and died same being the Ogiogbe.
(c) An Order for the Plaintiff to render an account to the 1st Defendant in respect of monies, rent and profits collected or received or to be collected by the Plaintiff and or his agents in respect of all that property lying and situate at No. 15 Ogbelaka Street, Benin City …”
(d) An order for the Plaintiff to surrender the shrine of late Pa Idahosa’s ancestors to the 1st Defendant as the Plaintiff has no right under Benin native law and custom to retain same.
(e) An Order that the 1st Defendant is entitled to possession of all that property known and situate at No. 15 Ogbelaka Street, Benin City …
(f) An Order that the purported burial by the Plaintiff of Pa Idahosa is void and of no legal effect whatsoever.
(g) Perpetual injunction restraining the Plaintiff and or his agents, servants or privies from trespassing into or doing anything whatsoever with all that property lying and situate at No. 15 Ogbelaka Street, Benin City within the jurisdiction of this Honourable Court.
At the trial before the lower Court, the Appellant testified and called four witnesses, and the 1st Respondent called three witnesses and also testified himself. After hearing addresses of counsel, the learned trial Judge, Hon. Justice G. E. Edokpayi, delivered his Judgment on the 5th of October 2001, wherein he held as follows-
“The Plaintiff has failed to establish that he is the eldest surviving male child of Pa John Eghparevba Idahosa (deceased)…” I herein declare that the 2nd and 3rd Defendants being from the family of the mother of the Plaintiff have no right under Bini Customary law and usages to determine who the heir of late Pa Idahosa is …” I herein declare that the Plaintiff as the eldest son of his mother … is the person who … can perform the burial rites of his late mother … From the evidence adduced by the Defendants and their witnesses, which evidence I believe and accept as true, I come to the conclusion that the 1st Defendant has established that he is the eldest surviving male child of late Pa Idahosa … It is herein declared that that the 1st Defendant … is entitled under Benin native law and custom to inherit all that property lying and situate at No. 15 Ogbelaka Street, Benin City… The Plaintiff is herein ordered to surrender the shrine of late Pa Idahosa to the 1st Defendant – – The Purported burial of Late Pa Idahosa by the Plaintiff in 1977 is herein declared void and of no legal effect whatsoever…”
Dissatisfied with the decision, the Appellant filed a Notice of Appeal containing five Grounds of Appeal in this court, and in his brief prepared by Kenneth Oladipo Longe, Esq., it was submitted that the following five Issues call for determination in the appeal-
1. Whether the statement allegedly made by Madam Onaiwu Idahosa to the effect that the Plaintiff was not sired by the late Pa John Egharevba Idahosa was a dying declaration as defined in S.33 (1(c) of Evidence Act?
2. Whether the learned trial Judge did not err in law when he held that the Bini adage as to paternity was not challenged?
3. Whether the learned trial Judge was right to rely on the incoherent evidence of the 2nd witness for the defence?
4. Whether the findings of the learned Judge that he believed the 2nd Defendant that the Chiefs decided the paternity of the Plaintiff was not perverse?
5. Whether there was evidence of rebuttal before the learned trial Judge against the presumption in S.148 of the Evidence Act that the Plaintiff was the legitimate son of pa John Egharevba Idahosa?
The Respondents, however, submitted in their brief prepared by G. E. Ezomo, Esq., that the sole Issue arising for determination is –
“Having regard to the state of pleadings and evidence before the trial court, whether the Appellant was not sired by Pa Egharevbe Idahosa”.
Apart from the fact that Issues for determination are not formulated to coincide with the Grounds of Appeal, it is my view that the Appellant’s Issues 2 – 4 are easily covered under the umbrella of his Issues 1 & 4, and I will adopt them in dealing with this appeal.
Issue 1 is hinged on the lower Court’s conclusions, as follows –
“The fact that the Plaintiff was shown to have been born in Benin City coupled with the evidence of the 1st Defendant that his mother … made a dying declaration to himself and the Plaintiff … together with the evidence of the 2nd defence witness, Pa Osayande, who testified that the Plaintiff is his son, are material evidence having regard to the circumstances … in which before Madam Onaiwu made the dying declaration, the parties and their witnesses wholly and entirely believed that the Plaintiff and the 1st Defendant were of the same father, a belief which enabled the Plaintiff to be presented to the Oba of Benin as the senior surviving son of late Pa Idahosa, and a belief which enabled the Plaintiff to spear-head the customary burial ceremonies of late Pa Idahosa as the senior son of late Pa Idahosa. The attitude and belief of the 1st Defendant towards the paternity of the Plaintiff only changed after the dying declaration and as a result of the dying declaration. I have no doubt … that Madam Onaiwu made a dying declaration to the Plaintiff and the 1st Defendant to the effect that she had the Plaintiff and his elder sister for Pa Osayande while she was living with her father in Benin City, and at a time she temporarily separated from her husband.
The Appellant submitted that the lower Court did not define a dying declaration, and the alleged statement made by their mother is not dying declaration under Section 33 (1) (c) of the Evidence Act; that the lower Court did not say why it preferred the 1st Respondent’s evidence to his on their alleged meeting with their mother, which one affirmed and the other denied; that the 1st Respondent’s evidence is at variance with the pleadings, and goes to no issue, citing Uredi V. Dada (1988)1 NMLR 238; that the 2nd Respondent cannot give evidence of firsthand knowledge of what happened when he was two years old or before he was born, thus, the lower Court’s finding was perverse; and that this Court can disturb findings of a trial Court where it has drawn wrong conclusions or the finding is perverse, citing Mba-Ede V. Okufo (1990) 2 NWLR (Pt. 135) 787, and Onowwan V. Iserhien (1976) 9-10 SC 95.
The Respondents, however, argued that the Appellant has not shown how the finding that the statement constituted dying declaration has occasioned a miscarriage of justice to him, and in its absence, the arguments canvassed becomes academic; that issues formulated in a brief must be real issues which when resolved one way or the other will affect the result of the appeal, and not academic questions, citing Akpokiniovo V. Agas (2004) 10 NWLR (Pt.881) 394, Igboidu V. Ezuma (1999) 6 NWLR (Pt.606) 205, Lebile V. Reg. Trustees C&S (2003) 2 NWLR (Pt 804) 399, Trade Bank Plc v. Yisi (Nig.) Ltd (2006) 1 NWLR (Pt 960) 101 & Onyesoh v. Nnebedum (1992) 3 NWLR (Pt. 229) at 315; and that the Appellant has impliedly admitted that the alleged statement was made but only that it does not qualify as a dying declaration.
It was further submitted that the issue is not whether the statement to qualify as a dying declaration, complied with Section 33 (1) (c) of Evidence Act, but whether the statement was made (by whatever name called) in the presence of parties, which the lower Court believed and which was not discredited under cross examination; and that so long as there is evidence from which the trial Court could come to the conclusion it did, the verdict cannot be disturbed, citing Nwankwo v. F.R.N. (2003) 4 NWLR (Pt. 809) 1.
But is there any evidence from which the lower Court came to the conclusion it did? To start with, the lower Court merely used the term “dying declaration” without explaining what it meant by it, and there is no question that the fact that Madam Idahosa made the alleged confession just before she died contributed in no small measure to the lower Court’s conclusions. The Appellant limited his arguments to the provision of Section 33 (1) (c) of the Evidence Act but there is more to that Section of the Evidence Act than that.
The law is certainly ironclad that hearsay evidence is inadmissible, however, there are exceptions to every rule, and one of them is in respect of statements made by deceased persons. Obviously, statements made by a person who is dead must be proved, where necessary, by some other persons. This is where Section 33 of the Evidence Act comes in; it lays down six instances in which such statements if they relate to relevant facts are themselves relevant and therefore admissible in evidence. Section 33 (1) (a) relates to “dying declaration” itself, which is a “statement made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in which the cause of that person’s death comes into question”. It further provides that –
“Such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such a declaration believed himself to be in danger of approaching death although he may have entertained hopes of recovery”.
In this case, the Respondent averred as follows in their pleadings-
“…Sometime around 26/7/97 their mother invited the 1st Defendant to Benin through the Plaintiff. The 1st Defendant travelled to Benin from Lagos on 1/8/97 to answer his mother’s call. At about 10pm on the said 1/6/97, the Plaintiff and 1st Defendant were invited by their mother for an important meeting. When they were present the woman, who was a pagan, confessed that the ancestors were annoyed with her in that she committed a serious crime and she knew she was going to die. She was asked what the crime was. She narrated how she had the Plaintiff and Mrs. Ekwebelem for one Osayande at Ore-Oghene Street, Benin City at a time she was separated from Pa Idahosa who had earlier sent her away from Lagos to Benin City when she was ill. She concluded that she subsequently had Mrs. Esamegho, Mrs. Ogbomo and lastly the 1st Defendant for pa Idahosa when they were re-united after several years of separation. Both Plaintiff and 1st Defendant and their sister were all brought up in the house of Idahosa. Before the members of the family could investigate the matter and appease the gods and the ancestors, she died on 2nd August 1997 … (see their Paragraph 5)”.
In his evidence in chief, the 1st Respondent testified as follows –
“When I saw my mother on 1/8/97 … both the Plaintiff and myself entered our mother’s room … immediately my mother heard my voice, she started weeping and because she knew that she was going to die she started off a confessions statement by saying that she had cheated me of my right and that for that reason, her ancestors would not allow her to die until she confessed the truth to me. She then told me …”
Evidently, the alleged confession was made by Madam Idahosa in a bid to die in peace. It has nothing to do with cause of her death, and coupled with the fact this is not a trial for her murder, it goes without saying that the exception to the hearsay rule in section 33 (1) (a) is of no relevance in this case. However, the Appellant hinged his submissions on the exception in section 33 (1) (c), which relates to statements made by a person who is dead –
“when the statement is against the pecuniary or proprietary interest of the person making it and the said person had peculiar means of knowing the matter and had no interest to misrepresent it…”
The word “pecuniary” means “of or relating to money”, and the term “proprietary interest” is defined as “the interest held by a property owner together with all appurtenant rights” – see Black’s Law Dictionary: 8th Ed. Again, this exception is not applicable. Both parties are ad idem that after the death of her husband, Madam Idahosa lived with the Appellant in the house he inherited. If she made the alleged confession, it had to do with her peace of mind and nothing to do with any pecuniary or proprietary interest.
But that is not all, there is also section 33 (1) (e) dealing with pedigree declarations. The word “pedigree” means – “a history of family succession; ancestry or lineage”, and the subsection says-
“Subject to the conditions hereinafter mentioned, when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had personal knowledge.
Subsection (2) sets out “the conditions above referred to”, they are-
(a) Such a statement is deemed to be relevant only in a case in which the pedigree to which it relates is in issue, and not to a case in which it is only relevant to the issue.
(b) It must be made by a declarant shown to be related by blood to the person to whom it relates, or by the husband or wife of such a person: except that-
(i) A declaration by a deceased parent that he or she did not marry the other parent until after the birth of a child is relevant to the question of the illegitimacy of such child upon any question arising as to the right of the child to inherit real or personal property under the Legitimacy Act;
(ii) In proceedings for the legitimacy of any person a declaration made by a person, who if a decree of legitimacy were granted, would stand towards the Petitioner in any of the relationships mentioned in paragraph (b) of this Section, is deemed relevant to the question of the identity of the parents
(c) It must be made before the question … to which it is to proved had arisen but it does not cease to be deemed to be relevant because it was made for the purpose of preventing the question from arising.
For this exception to apply, the conditions of relevancy are that –
(i) The statement must be of relevant facts.
(ii) The declarant must have died before evidence of the statement is required to be given.
(iii)The statement must relate to the existence of any relationship, marriage or adoption of some persons. “Declaration in relation to the birth and death of a person and his blood or marriage relationship to other persons will come under this heading”-see Aguda: Law and Practice relating to Evidence in Nigeria, 2nd Ed.
(iv)The statement is deemed to be relevant only in a case in which the pedigree to which it relates is directly in issue, but not to a case in which it is only relevant to the issue.
(v) The statement must have been made by a declarant shown to be related by blood to the person to whom it relates, or by the husband or wife of such person. However, there are two main exceptions as stated in subsection 2 (b) (i) and (ii).
(vi) The statement must have been made before the question in relation to which it is to be proved had arisen. “Question here means “controversy” or “dispute’, which has arisen before the institution of an action. Whether the declarant is aware of the controversy or dispute or not is immaterial, once the statement is made after the controversy or dispute has arisen, it ceases to be relevant under this heading” – see Aguda’s Book (supra)
In this case, if Madam Idahosa made the confession as alleged by the 1st Respondent, it would be relevant and therefore admissible because it related to the birth of the Appellant and his relationship with the late Pa Idahosa; the Appellant’s paternity is directly in issue; and his mother allegedly made it before the action was filed.
The question now is – did she make the alleged confession? The Respondents argued that “the Appellant impliedly admitted that the statement was made but only that it does not qualify as a dying declaration”, but that is not true. Parties joined issues as to that fact, and the Appellant categorically said he was not aware of it until he took a goat to his mother’s family, and they told him.
In addition, he filed an Amended Reply and Defence to counterclaim, wherein he averred as follows in paragraph 6 thereof that –
“… The Plaintiff states that his late mother never told 1st Defendant that Osayande is his father. The Plaintiff further states 1st Defendant saw late Madam Onaiwu Idahosa last in 1995. She was unable to talk to anyone including the Plaintiff for about a week before she died because of the seriousness of her illness”.
We all know that in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings, and the person who would lose the case if on completion of pleadings and no evidence is led has the general burden of proof – see Archibong V. Ita (2004) 2 NWLR (Pt. 858) 590 where the supreme court held as follows –
“Although the burden of proof under Section 137 (1) generally remains with the Plaintiff, it is not invariably so. As provided in the subsection, the burden of proof will be determined by the pleadings. It will therefore not be wrong to say that the burden of proof under the subsection fluctuates with the state of pleadings and the level of fluctuation may at times go to the Defendant, if he has asserted the positive fact therein”.
In this case, the Respondents asserted in paragraph 5 of their pleadings that “sometime around 26/7/97” late Madam Idahosa invited the 1st Respondent to Benin through the Appellant, and he traveled to Benin from Lagos on 1/8/97 to answer his mother’s call, and that about 10pm on the said 1/8/97, their mother invited both brothers into her room and made the confession. In other words, the only people there when she allegedly made the confession were the late Madam Idahosa, the Appellant and 1st Respondent, and it is the report of the alleged confession by the 1st Respondent that snowballed into the action at the lower Court. He is therefore the one who asserted the positive that his mother made the alleged confession, and the Appellant on the other hand, asserted the negative that she did not make any such confession. Obviously, the burden falls squarely on the Respondents to prove that she did and the question now is – how far did they go in discharging same? I can say with utmost ease that they did not go far in that regard.
To start with, they mentioned in their pleadings that Madam Idahosa invited the 1st Respondent to Benin through the Appellant, and yet, in his evidence in chief, the 1st Respondent said –
“When I was in Lagos I had reason to travel to Benin because I received a message from home in Benin that I should come home because my mother was sick. As a result of that message I traveled to Benin to see my sick mother. I saw my mother at my father’s house … where she was staying. I also saw the Plaintiff who is my maternal senior brother who was also staying in my father’s house … When I saw my mother, on 1/8/97 when I arrived home, and I met the Plaintiff in my father’s house when I arrived Benin from Lagos at about 10pm. Both the Plaintiff and myself entered our mother’s room …”
The Appellant said that the 1st Respondent saw their mother last in 1995, and she was unable to talk for about a week before she died. There is nothing in his testimony to confirm the assertion in their pleadings that it is the Appellant who invited him to Benin at the request of their mother. This might look inconsequential but that is not the only anomaly I noticed. The 2nd Respondent testified that-
As a result of what the 1st Defendant told us, we decided to investigate the matter. We investigated the matter… As a result of putting together all the pieces of information arising from their investigation, the entire Eronmwon Family came to the conclusion that the Plaintiff and his older sister … are the natural and biological children of Pa Osayande. This conclusion was reported to the Plaintiff and Mrs. Ekwebelum who were dissatisfied with our conclusion. The 1st Defendant then reported the matter to the Oba of Benin in his Palace”.
But the 1st Respondent stated as follows in his evidence in chief-
‘After the death of my mother on 2/8/97, the Eronmwon Family reported the confessed issue of paternity of the Plaintiff and Comfort Ekwebelum to His Highness Oba Erediuwa, Oba of Benin in his Palace”.
The 1st Respondent said it was the Family that reported the matter to the Oba of Benin, while the 2nd Respondent said it was the 1st Respondent who reported it to the Oba. Minor discrepancies, yes, but they do show that the lower Court did not appreciate the nuances of the evidence before it, and failed to make any findings on the issues of whether the Appellant invited the 1st Respondent to Benin or whether he was there when she made the confession, or even whether she did in fact make the confession as alleged.
The Appellant also argued that the lower court did not say why it preferred the evidence of the 1st Respondent to his on the alleged meeting with their mother. The Respondents argued that it did and referred us to the following statement by the lower court –
“The witnesses for the Plaintiff are members of Idahosa family who did not have the benefit of being Present when Madam Onaiwu made her dying declaration … and they are still holding the belief which the 1st Defendant held before he heard the dying declaration of his mother, and it is not unnatural or contrary to human behavior, for the Plaintiff who had all his life time been held out as having the same father with the 1st Defendant and who has belived and acted in that capacity all along without any contrary suggestion until the dying declaration was claimed suddenly on him in the presence of only the 1st Defendant who is his junior brother of the same mother to deny that his mother ever made that dying declaration, more so, when his mother died shortly after making that staggering and dislodging declaration, which if found to be true, would unseat him as the head of the family of late Pa John Egharevba Idahosa, and still more so, when his mother died before any other member of Idahosa family or any member of Eronmwon family could ask his mother any question on the declaration or investigate the dying declaration… Weighing the evidence adduced by the Plaintiff in support of his case … side by side the evidence adduced by the Plaintiff in support of their case… I prefer the case for the defence to that of the Plaintiffs”. (Highlight mine)
But the lower Court’s observation does not support their case; rather it strengthens that of the Appellant because the lower court in reasoning as it did, shifted the burden of proof to the Appellant. It was the 1st Respondent who alleged that his mother confessed to both brothers that the Appellant was not the son of Pa Osayande. What is more, he filed a counter-claim seeking a declaration inter alia that he is the eldest son of Pa Idahosa because his mother had confessed that the Appellant was not the son of Pa Idahosa, and the onus was on him to prove it. He failed to discharge the burden on him, and without any proof, the lower Court held that she had in fact made the confession and it is not unnatural or contrary to human behavior for the Appellant to deny that she did. But the burden of proof rested squarely on the 1st Respondent, and the lower court seriously erred when it shifted it to the Appellant.
In addition to that, the lower court relied on the evidence of the 2nd Respondent to find as a fact that the late Madam Idahosa made the alleged confession. The 2nd Respondent testified as follows –
“As a result of what the 1st Defendant told us, we decided to investigate the matter. We investigated the matter. As a result of what was reported to me, the Eronmwon Family investigated the paternity of the Plaintiff … During the course of our investigation I came across Exhibits A and B in this case. These Exhibits A and B were in the Archives of the High court of Edo state … The family of Eronmwon did not accept or slaughter the goat because the Eronmwon family had not fully investigated the matter that was reported to them. Consequently, the Eronmwon family set in motion the machinery for an incisive and thorough investigation … My investigation revealed that our sister had the Plaintiff for Pa Osayande in Benin city, while our sister Onaiwu was still staying with our father since her husband, Pa Idahosa, sent her to Benin … Our investigations further revealed that our late father in Exhibit B counter claimed against Pa Idahosa for the sum of seven pounds which he used in treating Onaiwu… I found out how the Plaintiff and his elder sister came to be living with Pa Idahosa… As a result of the information we received about the Plaintiff, we members of the Eronmwon Family in which Onaiwu was a member refused to slaughter the goat brought by the Plaintiff. As a result of putting together all the pieces of information arising from their investigation, the entire Eronmwon Family came to the conclusion that the Plaintiff and his older sister, Mrs. Ekwebelum, are the natural and biological children of Pa Osayande.
Under cross-examination, the 2nd Respondent replied as follows –
“The matter was reported to Eronmwen Family and I was part of the investigating panel. Other members of the investigating panel is the 3rd Defendant. The sources of our information were both from records already tendered and from oral information. We had to meet the Osayande family for some information. The archives of the High Court of Justice, Edo state, was another source of our information. That is where the proceedings in the Native court were got and produced. From Exhibit B, Pa Idahosa visited Benin once and that was when my sister had just arrived Benin. It is not true that I have based all my decisions as to the paternity of the plaintiff mainly on Exhibit B”.
Contrary to what the witness actually said, the lower court said –
“He unequivocally testified that it was when Madam Idahosa was living with her father in Benin that (she) got pregnant and gave birth to Mrs. Comfort Ekwebelem and the Plaintiff for Pa Osayande. This witness who is a retired Permanent secretary and a junior brother to Madam onaiwu Idahosa gave evidence of his personal knowledge and not evidence of what he was told by any other person about the paternity of the plaintiff and his senior sister… The evidence of this witness as to the paternity of the Plaintiff is fluent, consistent, and graphic, with dates and necessary names of persons, places and events”.
It is the Appellant’s contention that the lower Court considered the 2nd Respondent’s evidence as one of a witness who was witness to these events rather than one whose evidence was one of hearsay. It was submitted that there is no basis to support the conclusion as his being a retired Permanent Secretary cannot alter his evidence, and he is not in a position to give evidence of firsthand knowledge of what happened when he was 2years old or before he was born.
The Respondent, however, argued that the 2nd Respondent’s evidence merely confirmed the lower Court’s finding of fact that late Madam Idahosa made the alleged confession from the pieces of evidence available to it; that its acceptance of the said evidence has not occasioned any miscarriage of justice to the Appellant, who has also not shown why it ought to have disbelieved the fact that the confession was made from the evidence before it; that the lower Court could do without the evidence of the 2nd Respondent and come to the same conclusion in view of the contents of Exhibit B, which was tendered to establish the Respondent’s pleadings.
It was further submitted that an appellate Court can only consider whether the trial Court’s decision is right and not whether his reasons are because if the decision is right and the reasons are wrong, an appellate Court will not interfere with the decision, citing Ekpo v. State (2003) 17 NWLR (Pt.-849) 392, A.G. Bendel V. A.G. Federation (1981) 10 SC 1, Abaye v. Ikemofili (1986) 1 SC 231 & Uke Jianya v. Uchendu (1950) 13 WACA 45; that it is not every error that will result in an appeal being allowed, and its only when the error has occasioned a miscarriage of justice that an appellate Court will Intefere, and this has not been shown by the Appellant, citing Livestock Feeds Plc v. Funtua (2005) 17 NWLR (Pt. 955) 549 and Owhonda v. Ekpecha (2003) 17 NWLR (Pt. 849) 326.
The Respondents’ arguments are clearly misconceived, and have no particular relevance except to confuse issues altogether. The fact is that the alleged confession made by Madam Idahosa is the stand upon which the action filed at the lower court is based. Without the alleged confession, which the 1st Respondent reported to the 2nd and 3rd Respondents, the Eronmwon Family would not have rejected the goat that the Appellant and his elder sister took to them as tradition required before he could bury their mother, and the Appellant would not have been forced to institute the action at the lower court that has culminated in the appeal before this Court.
The 1st Respondent started the ball roiling when he said their mother, Madam Idahosa, made the deathbed confession that the Appellant and his older sister were not the children of pa Idahosa. He had the onus of proving that she made the alleged confession, and it is not for the lower Court to help him by fishing for evidence where it did not exist, and erroneously conclude there-from that –
“The attitude and belief of the 1st Defendant towards the paternity of the Plaintiff only changed after the dying declaration and as a result of the dying declaration. I have no doubt … that Madam Onaiwu made a dying declaration to the Plaintiff and the 1st Defendant to the effect that she had the Plaintiff and his elder sister for Pa Osayande while she was living with her father in Benin City, and at a time she temporarily separated from her husband. (Highlight mine)
Hearsay evidence is inadmissible in law, and it is well settled that the evidence of a statement made to a witness by a person who is not himself called as a witness is “hearsay” if the object of such evidence is to establish the truth of what is contained in the statement. Statements that satisfy the conditions of relevancy under Section 33 of the Evidence Act are exceptions to this rule. However, the 1st Respondent failed to establish that his mother made the alleged confession, and the 2nd Respondent’s evidence, which is clearly hearsay evidence, is inadmissible to prove same.
The end result is that the alleged confession made by late Madam Onaiwu Idahosa is out of the equation, and cannot be relied on in whatever form as the basis or the ground for any order or declaration from this court or any other court. The evidence of the 2nd Respondent, which the lower court erroneously relied on, is also out, and cannot be used for or against the parties in this case. Besides, the lower court found as a fact and declared as follows-
“From the evidence adduced by the parties in this suit, I herein declare that the 2nd and 3rd Defendants being from the family of the mother of the Plaintiff have no right under Bini customary Laws and Usages to determine who the heir of rate pr Egharevba Idahosa is”.
Having found that members of the Eronmwon family had no right to determine who the heir to late pa Idahosa is, the lower court should have refrained from using any aspect of their evidence in arriving at its conclusion that the 1st Respondent is the said heir.
The question now is whether there is any other evidence to rebut the presumption of legitimacy in the Appellant’s favour, which brings us to Issue 2. Section 148 of the Evidence Act provides –
“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 its dissolution the mother remaining unmarried, the court shall presume that the person in question is the legitimate son of that man”.
The Appellant submitted that the above section of the Evidence Act does not only apply to children born in a valid marriage under statute but also children born under customary law or Moslem law, citing Ogbole v. Onah (1990) NWLR (pt. 126) 357, that the evidence of the Appellant and his witnesses is that the marriage between Madam Idahosa and Pa Idahosa was never dissolved; and that the onus was therefore on the Respondents to show that –
(a) Whether born in Benin or Lagos, he was not born to Idahosa.
(b) At the time he was born the marriage between Idahosa and Onaiwu had terminated or was no longer valid under Bini customary law, citing Banbury Peerage case (1803-13) All E.R. (Reprint)
The Respondents, however, argued that they adduced evidence to show that the Appellant was born in Benin, and so the onus of proving that he was born in Lagos shifts to him, which he failed to discharge. It was submitted that the onus of proof in a civil case is not static, and the onus of adducing further evidence is always on the party who would fail if such evidence were not produced, citing N.B.C.I. v. standard (Nig.) Eng. co. Ltd (2002) 8 NWLR (pt. 768) 104, Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 sc 79.
Now, the parties are not disputing the fact that Pa. Idahosa never divorced Madam Idahosa, and that the Appellant was born during the subsistence of their marriage. The Respondents’ case is that there was a break in the marriage during which time the Appellant was born at Benin city to Pa Osayande, who testified that the Appellant is his son, but replied under cross-examination –
“I know a man called Egharevba Idahosa who is of the same father and mother with Onaiwu Eronmwon. I am blind and I cannot say where Egharevba Idahosa is now. I used to know where he was when I had not gone blind”.
In other words, he replied that late Pa Egharevba Idahosa was the same father and mother with late Madam Onaiwu Idahosa, and not the husband and wife that they were. The Respondents, however, submitted that he was over a hundred years old, and his reply did not detract from his evidence that he was the Appellant’s father, that the Appellant failed to cross-examine him on his paternity, which is fatal, citing Amadi v. Nwosu (1992) 5 NWLR (pt.241)273, Ojo v. Anibire (1999) 11 NWLR (Pt. 628) 630; that the lower court can believe an aspect of his evidence and do away with another, citing Esika v. Medolu (1997) 2 NWLR (pt. 485) 54, Shehu v. Afere (1998) 7 NWLR (Pt. 556) 111 and that it is its exclusive role to watch witnesses and attach probative value to evidence presented before him, citing Sanni v. Ademituyi (2003) 3 NWLR (pt. 807) 381.
Obviously, the argument cannot hold water, and lacks merit.
The object of cross-examination, which is provided for in Section 200 of the Evidence Act is – to weaken, qualify or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s witness – see Ojiako V. The State (1991) 2 NWLR (Pt 175) 578. It has another purpose, which is to cast a doubt upon the accuracy of the evidence already given by the witness.
In this case, Pa. Osayande is a very important witness indeed; Pa. Idahosa and Madam Idahosa are deceased, and he is the only one alive who can narrate the story of what happened. Thus, his testimony and his reply under cross-examination cannot be treated lightly or waved off because he is said to be an old man. The Respondents knew he was an old man before they called him as a witness, and they will have to abide by the consequences.
The Respondents put a lot a store on the fact that Pa. Osayande is the father of the Appellant and his older sister, and their whole case is hinged on that fact. Yet, all he had to say was –
“I know Mr. Christopher Idahosa … He is my son. I know Mrs. Comfort Ekwebelem. She is my daughter. The mother of these two children was Onaiwu who was the daughter of Eronmwon. I met Onaiwu in her Father’s house when she was living with her father in her father’s house.
I was always going to visit Onaiwu Eronmwon in her father’s house and in the process and place she gave birth to two children for me. The two children Onaiwu Eronmwon had for me are here in Benin City”.
The Respondents had averred in paragraph 14 of their pleadings –
“Evidence will be led to show parts played by Mr. Osayande’s younger sister Mrs. Emwinyuwa Odigie-Oyegun (who took custody of one of the children for some time) and other relations of Mr. Osayande in feeding and caring for the two children (Mrs. Ekwelebelum and Plaintiff) since their father Mr. Osayande was a road labourer with little income”.
Despite the allusion to the fact that Pa Osayande’s family knew about the children he allegedly had with Madam Idahosa, none of them were called to verify it or prove the assertion in the pleadings, and Pa Osayande’s evidence itself did not clarify matters either.
A presumption is a conclusion, which may or must be drawn from a given set of facts until the contrary is proved. There are two types of presumptions, presumption of law and presumption of fact. Presumptions of law are further sub-divided into rebuttable and irrebutable presumptions. Where it is rebuttable, as in this case, evidence contrary to the fact presumed is allowed, and if this other evidence is accepted by the court, the presumption is disproved.
The provision in section 148 of the Evidence Act is in respect of a rebuttable presumption of law, which is not easily rebuttable. As Aguda pointed out is his book (supra), “this is a very strong presumption, which cannot be displaced by a mere balance of probabilities but by strong preponderance of evidence” – see Preston Jones v. Preston Jones [1951] A.C. 391, Morris v. Davies [1837] 5 C1. & Fin. 163, E.R. 365, where Lord Lyndhurst said –
“The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive”. See also piers v. Piers (1849) 9 ER 1132. As the Appellant submitted, this presumption also covers the children born during the continuance of any valid marriage, be it under Customary Law or Islamic law, and as Aguda added –
“Even where the wife commits adultery customary courts nevertheless invariably rule in favour of the legitimacy of the child especially where the lawful husband of the woman subsequently acknowledges the child as his”.
In this case, there is no evidence that Pa Idahosa ever complained or mentioned to anyone that the appellant was not his son, and the 1st Respondent also said he had no idea until that fateful night his mother allegedly confessed to him that he was not the man’s son. The lower court said it all when it pointed out in its Judgment that –
‘The witnesses for the Plaintiff are members of Idahosa family who did not have the benefit of being present when Madam Onaiwu made her dying declaration … and they are still holding the belief which the 1st Defendant held before he heard the dying declaration of his mother.
What I find intriguing is that all the evidence points to the fact that none of the parties knew about any connection to Pa Osayande until the 1st Respondent reported the alleged confession to them.
The Pa. Osayande himself is called as a witness and adds nothing to clear up the mystery surrounding the alleged confession, and what is more, exhibited his ignorance of who late Pa. Idahosa was. The same Pa Idahosa, whose property is the subject of the action.
I cannot end this Judgment without expressing my dismay and disgust at how far the 1st Respondent could go to get hold of the house his father left behind. His parents are not alive to defend themselves and to go this far to besmirch their memory is very sad.
Be that as it may, Pa Idahosa’s family testified that as far as they are concerned, the Appellant is the eldest son of pa Idahosa, and the 1st Respondent has failed woefully to prove the contrary.
The appeal therefore succeeds and is allowed. The decision of the lower court in its Judgment delivered on the 5th of October 2001, is hereby set aside, and in its place Judgment is hereby entered for the Appellant. He is also awarded costs assessed at N30, 000.00.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Augie JCA. I agree that the Evidence of pa Idahosa’s families who testified that the Appellant is the first son of pa Idahosa can not be faulted.
The evidence of pa Osayande to say the least is Partisan and no weight should have been attached to it. It is in evidence that the Appellant had finished and concluded the burial ceremonies as required by the Bini Native Law and Custom: i.e. First and second burials. It is now too late in the day to decide the Legitimacy or illegitimacy of the Appellant especially when Pa Osayande did not claim him when Pa Idahosa was alive. Under the Bini Law and custom, there is no illegitimate child. See The customary Laws of the Binis by USI OSEMWOWA page 34. Children born and acknowledge by a father to be his children are legitimate BANGBOSEV DANTEL 14 WACA 11 at 115; ALAKE v PRATT 15 WACA 20. There is a strong case of legitimacy which was not rebutted by the Respondent. Under S. 148 of the Evidence Act and S.115 (3) of the Matrimonial Cause Act cap 220 Laws of Nigeria. Legitimacy is presumed
“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 legitimate son of that man”.
This section to my mind covers the cases of all children born in any valid marriage even when such marriage was contacted under Customary Law or Moslem Law. See B.A. LAWAL & ORS V. MESSRS YOUNAN & ORS (1961) WNLR P.197 at 201.
I also hold that the 1st Respondent had failed to prove any case as to entitle him to judgment. The decision of the lower court in its judgment delivered on 5th October 2001 is set aside and in its place judgment is entered for the Appellant. He is also awarded cost assessed at N30,000.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, AUGIE, JCA. I agree with all the reasonings and conclusions therein. I wish to add a few words of my own in further support to my learned brother.
Pa Osayande, a.k.a Johnson Osayande Ogbemudia was DW2 before the lower Court his evidence is contained from pages 104 to 105 of the record of appeal. While referring to the deceased mother of the appellant and 1st Respondent, Pa Osayande said:-
“I met Onaiwu in her father’s house when she was living with her father in her father’s house. I was always going to visit Onaiwu Eronmwon in her father’s house and in the process and place she gave birth to 2 children for me. The two children Onaiwu Eronmwon had for me are here in Benin City.”
The reference to 2 children is in regards to the Appellant and his sister, Mrs. Comfort Ekwebelem. In the course of cross-examination DW2 told the Court further:-
“I do not know, Egharevba Idahosa who is a child of Eronmwon. I know a man called Egharevba Idahosa who is of the same father and mother with Onaiwu Eronmwon. I am blind and I cannot say where Egharevba Idahosa is now. I used to know where he was when I had not gone blind.”
The evidence of Pa Osayande is very crucial to the resolution of this matter. However, from the entirety of the circumstances of this matter certain basic facts appear to me to be of great importance and must always be borne in mind in the rather dramatic events culminating in this matter. There is no doubt and it is beyond per adventure that the appellant and his older sister were born during the continuance and subsistence of some form of a lawful and valid marital union recognized by law between late Madam Onaiwu and late Pa Idahosa. The paternity of all the children sired by Pa Idahosa with Madam Onaiwu is a matter within their exclusive knowledge. Pa Idahosa, during his life time never at any moment had any doubts about the paternity of the appellant and his older sister. Pa Idahosa died in 1977 while Madam Onaiwu died in 1997.
During this period of 20 years, Pa Osayande never confronted Madam Onaiwu with any evidence he ever had, if any at all, of his paternity of 2 of her children. His evidence in the course of this trial merely muddled the waters because it is not amenable to reality, truth, accuracy or common sense. In my view his testimony, to the extent it was, ought to have been rejected and discountenanced as the fanciful or deluded ideas and thoughts of a senile blind old man who was at the sunset of life.
Added to this, the lower Court was wrong to have placed the burden of proof on the Appellant to disprove that the, alleged statement about his paternity was ever made. It may also be said, even if it is just by the way, that it would amount to setting a bad and very dangerous precedent if the scenario enacted in this matter would be tolerated because of its real capacity to deprive eldest male children subject to Bini native law and custom of their judicially well recognized right to an Igiogbe. Conspiracies of like scenario will continue being hatched ad nauseam.
Though the laws of this Country do not have it as their main declared objective the enforcement of rules of morality, the Courts must strive, in my humble view, to evolve reasonable interpretations of legal rules and principles wherever possible such as to support the enforcement of universally accepted or acceptable rules of morality. This case offers such opportune moment when the law should be tailored to suit the enforcement of moral rules. The attitude and approach of the 1st Respondent towards his parents and siblings has remained totally unwholesome and must be condemned.
For the foregoing reasons and the fuller reasons of my learned I would also allow this appeal. I abide by all the consequential orders in the lead judgment, including the order for costs.
Appearances
K. O. Longe, Esq., with Miss A. T. Clark For Appellant
AND
G. F. Ezomo, Esq., with E. J. Omoregie, Esq. E. O. Edigue, Esq., D. O. Aigbekaen, Esq. C. P. Agbaeze, Esq., S. Martins, Esq., and E. O. Oyibo, Esq. For Respondent
