TONY ANOZIE v. MRS. CHIZOBA UWAKWE & ANOR (2016)

TONY ANOZIE v. MRS. CHIZOBA UWAKWE & ANOR

(2016)LCN/8481(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of April, 2016

CA/OW/102/2012

RATIO

APPEAL: ATTITUDE OF COURT TOWARDS PROLIFERATION OF ISSUES FORMULATED
This brings to mind this Court and the Apex Court’s admonition on the issue of the formulation of more issues than are required for the determination of a matter on Appeal. The Supreme Court has stated on several occasions that it abhors the proliferation of issues where only a few issues would have determined the Appeal. OGBUAGU, JSC in G.K.F. INVESTMENT NIG. LTD vs. NIGERIA TELE COMMUNICATONS PLC (2009) 15 NWLR (PT.1164) 344 put it simply this way:
“I need to stress that this Court discourages the proliferation of issues.”
MUSDAPHER, JSC (as he then was) was more direct in the case of OMEGA BANK (NIG.) PLC vs. O.B.C. LTD (2005) 8 NWLR (Pt.928) 547 when he stated thus:
“This Court has on several occasions condemned the proliferation of issue in briefs of arguments. It is not the number of issues for determination formulated that determines the quality of brief or that determines the success of an appeal.”
EDOZIE, JSC was rather terse in his own observations on the issue when he said in the case of IBRAHIM vs. OJOMO (2004) 4 NWLR (PT.862) 89 as follows:
“Prolix or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issues to trifles. Appeals are not won on large number or quantity of grounds of Appeal but on the quality of the content of the Grounds of Appeal and issues.” PER FREDERICK OZIAPKONO OHO, J.C.A.
RELIEFS: CAN A COURT GRANT A RELIEF NOT SOUGHT
The position of the law is that the trial Court and indeed Courts of law generally are bound only by the prayers or claims sought before them. What was originally claimed by Appellant in this case was the issue of paternity of an unborn foetus which had now become transformed into a child. The Appellant, being a very senior and respected lawyer ought to have known that the changed circumstances demanded that the original processes ought to have been amended to reflect the changes as no Court of law aware of its duties and responsibilities would grant a relief or prayer different from the one claimed before it. See AKINRIMISI vs. MAERKS NIGERIA LTD (2013) LPELR-20179 SC. See also the case of MICHAEL ODUNZE vs. NWOSU & ANOR. (2007) 13 NWLR (PT.1050) 1 where the Supreme Court, per MUKHTAR JSC had this to say on the subject;
“The cardinal principle of the law that is well settled is that a Court is not a charitable institution that would grant reliefs that are not claimed by a party. It must restrict and confine itself within the wall of the reliefs a party approaches it for and not to undertake its own generous acts of awarding reliefs not sought.”
In whatever way the matter is looked at, Appellant cannot possibly expect to have a different situation in the Court’s hands when what he took before the Court for adjudication was a claim for paternity of an unborn foetus, which has since transformed and had become a child. Appellant surely, did not expect the Lower Court to embark on the proverbial voyage of discovery of the facts and to formulate claims in a matter in which the Claimant had practically done nothing in the area of bringing the real issues in controversy between the parties to the Court’s attention. The position has always been that the Coutts have powers only to the extent of the claims, facts and evidence presented before them by the parties. See ADIKE vs. OBIARERI (2002) 4 NWLR (PT.758) 537.
It would be recalled perhaps in a lighter mood, that in this matter, the Appellant’s first line of attack on the decision of the trial Magistrate was that the Court had relied on issues not canvassed before it in striking out the case. Would the same Appellant or better still his opponent not equally have attacked the decision of the Magistrate for adjudication or deciding on claims not placed before it, if the Appellants claims had rigidly remained the same as it were, claiming the paternity of an unborn foetus, which had become transformed into a child? In the case of ODOFIN & ANOR vs. CHIEF AGU & ANOR (1992) LPELR- 2225 SC the supreme court, per KARIBI-WHYTE, JSC had this to say on the issue;
“Our adjudicatory system has severely circumscribed and restricted the awards to be made by the Court within the scope of the claims made before the Court. The view of this Court is that it is without power to award to a claimant or grant a relief that which he did not claim.” PER FREDERICK OZIAPKONO OHO, J.C.A.
EVIDENCE: PRESUMPTION OF LAW IN RELATION TO LEGITIMACY OF A CHILD
In the case of Anozia Vs Nnani and Anor (2015) 8 NWLR (Pt.1461) 241 at 256, this Court held:
“The law has always acknowledged the right of a woman to say who the father of her child is, and of course, where a child is born within wedlock, the presumption is conclusive, that the child is the seed or product of the marriage… “At common law, there is presumption of paternity of the child born during the subsistence of marriage.” PER ITA GEORGE MBABA, J.C.A.
ACTION: MEANING OF A CAUSE OF ACTION
In the case of Cookey Vs Fombo (2005) All FWLR (Pt.271) 25 at 38 – 39, the Supreme Court held:
“A cause of action is the bundle or aggregate of facts which the law will recognize as giving the plaintiff a
substantive right to make claim for relief or remedy being sought.
Thus, the factual situation on which the plaintiff relied to support his claim must be recognised by the law as giving rise to substantive right capable of enforcement or being claimed against the Defendant (per Edozie JSC)
See also Nosiru Bello & Ors Vs A.G. Oyo State (1986) 5 NWLR (Pt.45) 828, where the supreme Court restated the same definition of cause of action and added that it is substantive right on which plaintiff can found a relief/remedy; that:
“In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right. Concisely stated, any facts relied upon by the plaintiff, resulting from the act of the defendant, which gives rise to justifiable complaint, is cause of action.”
In Ibrahim vs Osim (1988) 3 NWLR (Pt.82) 257 at 267, it was held:
“A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is, in effect, the facts or combination of actions which give rise to a right to sue and it consist of two elements:
(a) The wrongful act of the defendant, which gives the plaintiff his cause of action or complaint, and
(b) The consequent damages. PER ITA GEORGE MBABA, J.C.A.
ACTION: LOCUS STANDI; WHEN WILL LOCUS STANDI BE ACCORDED TO A PLAINTIFF
In the Case of Odeneye vs Efunuga (1990) LPELR -2208, the Supreme Court said:
…locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are being in danger of being violated or adversely affected. “
In the case of Ijelu & Ors vs LSDPC & Ors (1992) LPELR – 1464, the Supreme Court, per Karibi Whyte, JSC, said; on pages 42 – 43:
“A Plaintiff will have locus standi in a matter only if he has a special legal right or alternatively if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. See Ovie Whiskey vs Olawoyin (1985) 6 NCLR 156: Alhaji Agbonikhena & Ors vs Egba & Ors (1987) 2 NWLR (Pt.57) 494, Aberuagba vs A.G. Ogun State (1984) 5 NCLR 667”.
My Lord Mohammed, JSC, on page 14 of that judgment said:
“There is a long line of authorities on the subject of locus standi or standing and the general principle is that, for o person to have locus standi either to institute on action or to prosecute an appeal, he has to show that he has special interest; that the interest is not vague or intangible, supposed or speculative or that such interest has been adversely affected by the act or omission which he seeks to challenge.”
A plaintiff must disclose a vested right, enforceable by law, to be able to maintain a claim in Court. See Dehinsilus vs Mondec Pharamacy Ltd (2008) LPELR Rinco Construction Co. Vs Veepee Ind. Ltd. (2005) 9 NWLR (Pt.929) 85; Moyosore Vs Gov. of Kwara State (2012) 5 NWLR (Pt.1293) 242. Of course, where cause of action is not disclosed the Court lacks jurisdiction to entertain the claim. PER ITA GEORGE MBABA, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

TONY ANOZIE Appellant(s)

AND

1. MRS. CHIZOBA UWAKWE
2. GEORGE LANDONEER ONYIA
(Substituted for SECRET LOVER (YET TO BE KNOWN) per Order of Court 1//7/2013) Respondent(s)

FREDERICK OZIAPKONO?OHO, J.C.A. (Delivering the Leading Judgment):?
What lies at the core of the dispute between the parties to this Appeal is the issue of ownership. Ownership, not for some Real property or Intangible Personal Property and its equivalents or simply Tangible personal Property, but for claims relating to the paternity of an unborn foetus. There are eleven (11) issues nominated from eleven (11) Grounds of Appeal, A conglomeration of complex legal issues and precepts are raised for the Court’s determination ranging from such threshold issues as Jurisdiction to fiercely fought Paternity claims. The matter was first commenced on the 22-12-2008 at the Magistrates’ Court, Imo State, sitting at Oguta Magisterial District, where the Appellant as Plaintiff claimed against the Respondents as Defendants as follows;
“The Plaintiff claims Paternity of the foetus being carried by the 1st Defendant and which she is Donating to the Yet to be disclosed 2nd Defendant in order to entice him for the Marriage and extort money from him.”
PARTICULARS:
1. The Plaintiff and the 1st Defendant have been lovers since June 2007.
2.

With particular regard to the pregnancy issue the Plaintiff and the 1st Defendant had sex on several occasions between 19-7-2009 and 15-8-2008 which coincides with the age of the pregnancy, Defendant realizing that she was pregnant misrepresented to the Plaintiff on 4-9-2008 that she had typhoid fever and started avoiding the plaintiff, only to surface again on 30-11-2008.

The 1st Respondent, through her Counsel filed a Notice of preliminary Objection to the jurisdiction of the Magistrate to hear the matter. The Preliminary objection was heard by the learned Chief Magistrate and on the 20-7-2009 the matter was struck out in a considered ruling. In its ruling on the subject the learned chief Magistrate held as follows;
The subject matter of the suit before me is Paternity of a fetus, that an embryo yet unborn allegedly being carried by the 1st Defendant which the Plaintiff claims belongs to him. Unfortunately, it has been confirmed by counsel on both sides that the 1st Defendant has recently delivered a child and so is now bereft of any fetus. The plaintiff clearly stated this while the Defense counsel just said there is no evidence, of any

fetus, either when the suit was filed or now. This change in circumstances has rendered the subject matter of this suit nonexistent. Any further adjudication on this suit as presently constituted can only at best amount to an academic exercise and in fact a waste of time. It is settled law that Courts only adjudicate on life engage issues and do not engage in academic exercises. Accordingly, this suit should and is hereby struck out.?

Thoroughly aggrieved by the decision of the Chief Magistrate Court, the Appellant appealed to the High Court of Justice of Imo State sitting at Oguta, vide a Notice of Appeal dated and filed on the 21-7-2009. There were three(3) Grounds of Appeal reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The trial chief Magistrate erred in raw in adjourning the suit for ruling on whether or not she has jurisdiction to entertain a paternity suit only to fail to rule but strike out the suit for being no fetus, the fetus having been naturally transformed into a baby and delivered by the 1st Respondent on 3-6-2009 or thereabout.
2. The trial Magistrate erred in raw in not taking judicial Notice

that the baby born on 3-6-2009 (or thereabout) is the same subject matter, the fetus naturally transformed.
3. That the trial Magistrate erred in raw in not raising the issue of identity of the res as an issue before striking out the suit for non existence of the res.

Briefs of arguments were fired, exchanged and adopted by learned counsel to the parties. The learned trial Judge on the 22-12-2011 delivered a considered judgment where he said as follows;
“I have examined the suit filed by the plaintiff/Appellant which gave rise to the ruling being challenged in this Appeal. What the plaintiff/Appellant claimed in the suit No.MOG/14/2008 is ownership of ?foetus?. At the time the chief Magistrate was considering the Preliminary Objection on 20-7-2009, both parties agreed that the fetus was no longer in existence the 1st Defendant having been delivered of a baby from the pregnancy she had. The Magistrate presiding over a Court of Summary jurisdiction was of the view that the subject matter of the suit was no longer there and did not therefore consider it necessary to go into comprehensive consideration of the issues raised in

the preliminary objection. The trial Magistrate would have reasoned differently if the Plaintiff/Appellant had amended the claim after the baby was delivered on 3-6-2009 or thereabout according to him. To allow the claim in that state and expect the Court to presume that the child born is the same thing as the fetus claimed by him amounts to wild expectation from the Court by the Appellant. There is a word (sic) of difference between a fetus in a womb and a child who has been born. Under Section 307 of the criminal code the destruction of fetus cannot amount to murder. By that definition a fetus is not a person unless and until it has proceeded fully from the mother’s womb in a living state. The Plaintiff/Appellant ought to have amended his claim when he became aware of the delivery of the child by the 1st Respondent. Looking at it from another angle, why was it actually necessary for the Plaintiff to commence the action the time he did? Since the bottom line in his suit is to have ownership of the baby conceived in the womb by the 1st Respondent; why couldnt the plaintiff/Appellant wait until the delivery of the baby in a living state when it now

becomes a person before commencing his suit? In my view the Plaintiff/Appellant’s suit in the Magistrate’s Court was premature.

Thoroughly dissatisfied the Plaintiff/Appellant (hereinafter referred to as the Appellant) has appealed to this Court vide a Notice of Appeal dated the 24-2-2012 and filed on the 27-3-2012. There are eleven Grounds of Appeal filed which are reproduced here, but once again without their particulars as follows;
GROUNDS OF APPEAL;
1. That the learned High Court Judge erred in law in confirming the decision of the Chief Magistrate, in that that decision was not upon the issue canvassed.
2. That the learned High Court Judge erred in confirming the decision of the chief Magistrate in that a Court that is not seised of jurisdiction could not take a decision of striking out the suit for any reason other than for lack of jurisdiction.
3. That the learned High Court Judge erred in law in confirming the decision of the Chief Magistrate in that the striking out of the suit on the ground that there was no fetus is visibility(sic) flawed as the baby whose photograph is in the Appeal file on Judge’s order, was the fetus born

during the pendency of the suit.
4. That the learned High Court Judge erred in law in confirming the decision of the Chief Magistrate in that the claim of paternity of a fetus (baby in the womb) at the time the case was instituted, is sustainable throughout the whole stages of a man. From fetus to babyhood, to adolescence, to adulthood to the bones in the grave.
5. That the learned High Court Judge erred in dismissing the Appeal in that an Appellate Court has the power to do that which the Justice of the case requires, id est to order the parties to go to a DNA test.
6. That the learned High Court Judge erred in law in confirming the decision of the Chief Magistrate in that the trial Chief Magistrate abdicated her duty of adjudicating the cause of action, namely the paternity of the fetus.
7. That the High Court Judge misconstrued English Language when in an attempt to paraphrase the Appellant’s claim he made a very fundamental error at the last paragraph of page 3 spilling to 4 in holding: “what the plaintiff/Appellant claimed in this suit MOG/14/2008 is ownership of fetus” whereas what the Plaintiff/Appellant in fact claimed is “the

paternity of the fetus?.
8. That the High Court Judge erred in law in not drawing the obvious inference of corruption of the Chief Magistrate from the totality of her utterances and behaviour and the final decision.
9. That the learned High Court Judge erred abysmally in his attempt to apply Section 307 of the criminal code in an attempt to distinguish a human being from a fetus as it is mere academic arrogance and utterly irrelevant and as Section 17 of the Child Rights Act 2003 provides for “the right of unborn child to protection against harm…”
10. That the High Court Judge erred on all points of law in endorsing the senseless decision of the Chief Magistrates in that in his obsession with a show of solidarity with the Chief Magistrate, he dropped the garb of judicial thinking and descended to the level of an imprudent ordinary lay fellow.
11. That the learned High Court Judge erred in law in his sermonizing about the language employed by the Appellant against the Chief Magistrate in that from the totality of her utterances against the Appellant on the very 1st day the Appellant before he which were documented in a letter to the

chief Judge, a copy whereof was given to her and she did not deny any of the onslaughts, coupled with her conduct of the case, no tribunal of worthy judges will fail to find her unworthy of the Bench.

Learned Appellant nominated a total of eleven (11) issues for the Court?s determination as follows;
ISSUES FOR DETERMINATION:
1. Whether it is judicially proper to skip the issue of jurisdiction canvassed in a case and on which Ruling was adjourned and strike out the suit in vacuo or on an issue not canvassed.
2. Whether a Court which is not yet seized of jurisdiction (the issue of jurisdiction having been canvassed for the 6 month duration of the suit can without ruling on whether or not it has jurisdiction, just strike out the suit on any ground other than lack of for jurisdiction.
3. Whether it is proper to strike out a suit wherein the plaintiff is claiming paternity of foetus (as at the time of filing the suit) on the ground that there was “no foetus’, when in fact the Court was informed of the delivery of the foetus as a baby during the pendency of the suit, and whose photograph is in the High Court file on the order of

the High Court.
4. Whether in a paternity claim, the changing stages or transformations from one state to another and to another and yet to another will necessitate amending the suit correspondingly or otherwise having the suit struck out upon the natural transformation of the RES from one stage of development to another during the pendency of the suit.
5. Whether the Appellate power of a Court sitting in Appellate capacity of dealing with the case as if sitting as a Court of original jurisdiction should not have been used to order the parties to a DNA test.
6. Whether the Chief Magistrate’s striking out the suit on any ground other than want of jurisdiction is not an irresponsible abdication of duty of adjudication owed the Appellant and society and warranting a reversal of her aberrant decision.
7. Whether the misrepresentation of the fundamental hub upon which the suit revolves by the High Court Judge, namely, “what the plaintiff/appellant is claiming…” does itself alone not lead to wrong conclusions warranting a reversal of his aberrant judgment.
8. Whether the High Court Judge’s failure to draw the obvious inference of

corruption of the Chief Magistrate in the face of overwhelming facts is not evidence of solidarity with the Chief Magistrate which taints his decision.
9. Whether the High Court Judge’s attempt to distinguish a foetus from a human being in relevant in a paternity suit and is not a betrayal of ignorance of a foetus being a life and given statutory recognition as such.
10. Whether the Judge’s obsession with solidarity with the Chief Magistrate leading to his erring on all points does not impugn his integrity and judgment which must be set aside.
11. Whether the sermonizing of a tainted Judge is of any moment to the legal profession and to society

?On the part of the 1st Respondent learned Counsel observed that the eleven (11) issues nominated by the Appellant are a number of issues too many and that while some of the issues are a duplication of others, there are a few others which definitely overlap the others. Counsel, however, nominated three (3) issues for the Court?s determination as follows;
1. Where a Court discovers that it has no jurisdiction to entertain a matter through preliminary objection whether the proper

order is not to strike out the suit.
2. Does the Appellate Court have power to grant a relief that was not claimed and when there is no application amending the claims and urging the Appellate Court to assume the role of the trial Court and grant same.
3. Does the Magistrate Court have jurisdiction to entertain a claim on paternity of a foetus?

Appellant and Learned Counsel for the 1s Respondent in their briefs of argument addressed Court extensively and cited plethora of authorities. At the hearing of the appeal on the 3-2-2016 the Appellant’s Amended brief of argument was dated the 3-7-2014 but filed on the 18-7-2014. The brief was settled by Appellant who appeared in person as TONY ANOZIA Esq., The 1st Respondent brief of argument dated the 5-10-2015 was filed on the 9-10-2015. This brief was settled on behalf of the 1st Respondent by O. I. O. OYEOYIBO Esq.

Having taken into consideration the issues raised by Appellant and learned Counsel for 1st Respondent, in their briefs of arguments, together with the authorities cited in support of their positions, it is the view of this Court that this Appeal is resolved on the basis of the issues

nominated by the Appellant for reasons of comprehensiveness.
ARGUMENTS BY LEARNED APPELLANT’S COUNSEL
ISSUE ONE;
Whether it is judicially proper jurisdiction to skip the issue of canvassed in a case and on which Ruling was adjourned and strike out the suit in vacuo or on an issue not canvassed.
It was the submission of learned Appellant that it is wrong in law to have adjourned the Ruling on the issue canvassed to a certain date only for the Court to have skipped the Ruling and got the suit struck out. It was argued by Appellant that a Court does not skip what a suit was adjourned for, only to delve into other issues. Counsel cited the case of IBRAHIM OHIDA vs. MIL. AD – KOGI STATE (2000) 12 NWLR (Pt.680) 24, where the trial Court was expected to rule on whether to adjourn the 2 motions before it or not, but the Court failed to pronounce on the issue of adjournment and went ahead to rule on the motions not moved or argued and the Court of Appeal had this to say at page 42;
“It is wrong for a Court to examine documents outside proceedings of the Court in the case before it. In the instant case, the 2 motions of the

parties having not been moved or argued, were clearly outside the proceedings of the Court as the RES before the Court for ruling was whether to adjourn the two motions or not.
Appellant also cited the case of FALADU vs. KWOI (2003) 9 NWLR (Pt.826) P 643. Where the Court of Appeal once again said at page 655:
“It is wrong for a Court to treat a date which is for the mention of a case as a hearing date and any judgment consequently obtained in this amounts to a nullity.”

In the case of EZUMA vs. NKWO MKT. COMM. BANK LTD (2000) 10 NWLR (Pt.676) P.638 which Appellant also referred to in this connection, it was also observed by the Court thus;
“In the instant case, if the case was set down on 19/10/98 for argument of the Appellant’s motion, the Court had no business hearing the substantive action which was not fixed for hearing on that day?.

According to learned Appellant, the issue that was canvassed ON RECORD for the whole 6 months duration of the suit was whether the chief Magistrate had jurisdiction to entertain the suit or not. He said that after both Counsel had addressed the Court on three occasions, Ruling was

adjourned 20-7-2009 and that on the day of the Ruling the Chief Magistrate simply said “no foetus, case struck out.” Appellant argued that what the High Court confirmed in this decision was curious as something is fishy. He submitted that the High Court erred in law by so doing. He urged the Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
Whether a Court which is not yet seised of jurisdiction (the issue of jurisdiction having been canvassed for the 6 month duration of the suit can without ruling on whether or not it has jurisdiction, just strike out the suit on any ground other than for lack of jurisdiction.
It was the submission of learned Appellant that before any Court makes any judicial order on any issue, apart from contempt issue, it has, first to assume jurisdiction. He said that to strike out a suit without being seized of jurisdiction, for any reason other than lack of jurisdiction, is utterly wrong. Upon the suit coming before her, Appellant said that the Defense Counsel raised objection on ground of lack of jurisdiction and that both the Defense Counsel and the Appellant addressed the Court on three occasions in

six months on the issue of jurisdiction before Ruling was adjourned to 20-7-2009. Appellant said that on the Ruling rather than deliver the Ruling, the Chief Magistrate simply said “no foetus, suit struck out?. By what jurisdictional authority the trial Magistrate got the matter struck out, Appellant could not understand. To this end Appellant argued that the trial High Court Judge erred in law by confirming what he described as a procedural aberration and he urged this Court to hold that any decision of Court without jurisdiction is null and void. Appellant cited the case of ADEKANYE vs. COMPTROLLER OF PRISIONS (2000) 12 NWLR (Pt.682) P 563 in support, where this Court observed at as follows;
“Jurisdiction gives a Court the authority to inquire into a matter before the Court. Any court or tribunal that adjudicates on a matter in which it lacks jurisdiction can be said to have embarked on an exercise in futility because any order made at the end of such adjudication is a nullity’,

On this issue alone, Appellant urged the Court to allow the Appeal.
ISSUE THREE;
Whether is it proper to strike out a suit wherein the Plaintiff is claiming

paternity of foetus (as at the time of filing the suit) on the ground that there was “No FOETUS? when IN FACT the Court was informed of the delivery of the foetus as a baby during the pendency of the suit, and whose photograph is in the High Court file on the order of the High Court.
It was the submission of learned Appellant that where there had been no foetus in the first place at the inception of the suit in December, 2008, there would not have been no baby delivered by the 1st Respondent on 3-6-2009 whose photograph is ordered by the High Court Judge to be put in the file. According to Appellant, it is a notorious fact for which judicial notice should be taken, that after a gestation period of 9 months from conception, a pregnant woman delivers a baby. It was also submitted by Appellant that the administration of justice is not a “wayo” business, game of lottery permutation, a game of clever manipulation. Appellant cited the case of EGESIMBA vs. ONWUZURUIKE (2002) 1 NWLR (Pt.791) 566 in support, where NIKI TOBI, JSC, had this to say;
“Litigation is not a game of smartness but one in which the parties must not cunningly but decently and

overtly place their cards on the table of justice for purposes of measuring where the pendulum really tilts. Justice in its total practical content is truth in action. And the Court has a duty to search for the truth and find it. Justice is not built on technicalities or caricatures.”

It was also submitted by Appellant that the High Court Judge did not search for the truth before endorsing the nebulous decision of the Chief Magistrate. He said that an impartial Judge who approaches his work with open mind will not have endorsed the skewed decision of the Chief Magistrate. He urged the Court to resolve this issue in favour of the Appellant.
ISSUE FOUR;
Whether in a paternity claim, the changing stages or transformations from one state to another and to another and yet to another will necessitate amending the suit correspondingly or otherwise having the suit struck out upon the natural transformation of the res from one stage of development to another during the pendency of the suit.
Learned Appellant argued that the vagueness of phrase: ?No foetus? was enough to lead to the success of this Appeal as it is capable of two(2)

meanings. It was further argued by Appellant that it is not for the High Court to seek to supply what it meant. Appellant cited the case of OGODO vs. EBBA (2000) 10 NWLR (PT.175) 387 where the supreme court per KAYODE ESHO, JSC frowned against Courts of law fishing for what was not brought before them. In his interpretation Appellant argued that the phrase can mean either of two things:
1. That there was no foetus ab initio.
2. That it has been delivered after a period of gestation.
On the 2nd meaning, Appellant described Foetus as one of the early stages of life and that Paternity connotes that the gene of the RES is the same as the gene of the claimant of paternity of the RES. He said therefore, that if the RES transform from one stage of development to another and to another and yet to another, the gene of the RES is constant as every human being has one constant gene from the stage of embryo to Foetus to babyhood to adolescence to adulthood to the interned bones. Appellant therefore argued that a claim of paternity at any stage is a claim sustainable at all stages of the RES for which there should be no Amendment of processes following

changes occasioned to the developing fetus as result of the natural process.

Appellant contended that even in our native ways, where a man claims responsibility for a pregnancy what that means is that he is claiming, that he is the father of the baby when born as paternity connotes the sameness of the gene of the Claimant and the RES claimed. It was further contended that sameness does not change with the transformation of the RES from foetus to babyhood up to the interned bones. Accordingly, he said that the High Court requiring the Appellant to amend his claim upon the delivery of the baby is a gross misapprehension of what paternity claim portends. In using the ratio in EGESTMA (supra) per TOBI, JSC, Appellant submitted that for since the 1st Respondent delivered the baby on 3-6-2009, and the trial Magistrate relying on the fact that what the Appellant was claiming was no more only to strike out the suit was not only smart, tricky and strange logic, but also mischievous. It was also argued by Appellant that it is only a ritualist or a mad fellow that will ask to be given a foetus from the womb of a woman as this is utterly impracticable. Appellant also

contended that when the he claimed the foetus of an unborn child, a prudent Judge should have understood that he meant the man in the foetus stage at the time of filing the suit. According to learned Appellant. That is what TOBI, JSC means when he said:
“Justice is truth in action”
“Litigation is not a game of smartness, cunning”
“Courts must search of truth”

It was therefore the contention of Appellant that where a person is claiming a foetus, (which was not what he was claiming) an impartial Court should understand him to be claiming the paternity of the man in the foetus and not foreclose the claim on the technicality that the foetus has been delivered as a baby. He also submitted that a claim of paternity of foetus encompasses claims for the baby transformed from the foetus, the adolescent therefrom, the adult therefrom, up to the bones in the grave. It was further contended that a claim of paternity portends the sameness of a certain streak intrinsic in a person from embryo to foetus to babyhood to adulthood etc which he shares with his father (the Claimant to paternity). Counsel on this issue urged the Court to resolve

same in favour of the Appellant.
ISSUE FIVE:
Whether the Appellate Power of a Court sitting in appellate capacity of dealing with the case as if sitting as court of original jurisdiction should not have been used to order the parties to a DNA test.
It was contended by learned Appellant that paternity disputes are never settled by evidence but empirically. He argued that since justice is for the parties and for the society, a good approach to justice is not through rigmaroling and adherence to niceties but by taking the bull by the horns. He said that the predecessor to this High Court Judge, IKPEAMA, J expressed the learned opinion in open court that the solution to this case was to order parties to undergo a DNA test and that both Appellant and Counsel for 1st Respondent welcomed the idea. Appellant submitted that an Appellate Court has the power to do that which the justice of the case requires but which the Lower Court had failed to do, id est to order the parties to go for a DNA test. He cited the case of OKAFOR vs. IKAFOR (2000) 11 NWLR (PT.677) 21 in support of the position that the inherent jurisdiction of the Court in exercise of

Appellate jurisdiction was emphasized. In the case of BADEJO VS. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (PT.464) 15 SC which Appellant also referred to, he said that the scope of the power of Court of Appeal under Section 16 of the Court of Appeal Act was expressed as follows;
“The court shall have full jurisdiction over whole proceedings as if the proceedings had been in the court of Appeal as a Court of first instance.”

Learned Appellant urged the Court to resolve this issue in favour of the Appellant.
ISSUE SIX;
Whether the Chief Magistrate?s ground striking out the suit on any other than want of jurisdiction is not an irresponsible abdication of duty of?adjudication owed the Appellant and society and warranting a reversal of her aberrant decision.?
On this issue, it was the submission of Appellant that both Lower Courts abdicated their duties of adjudicating the cause of action namely; a claim of fatherhood and on this note, he said that the appeal should be allowed. Appellant contended that if the decision of the Lower Courts were to award victory to the Defendant/1st Respondent, that it is all the same obvious

that there is no victory for them as the paternity of the baby is yet to be determined as the baby is yet anybody’s baby. He said IKEAMA, J had earlier ordered that the baby should not be given to any of the Claimants until the determination of the suit.

Appellant also said that the he sued for paternity of the foetus which naturally includes the fatherhood of the baby, the man and the bones of the man. Appellant at this stage queried whether the issue originally claimed by claimant was eventually settled or even touched for the 6 months duration of the suit? His answer was in the negative and so was his answer as to whether the Court say why the issue of paternity was not resolved was because it has no jurisdiction. Against this backdrop Appellant sought once again to query the basis of the High Court Judge confirmation in the Chief Magistrate’s “Ruling”. He concluded by saying, “nothing but confusion”. According to Appellant, the duty of the Chief Magistrate was to have referred the parties to undergo a DNA test or where she had no jurisdiction to come to that conclusion, to say so and back her decision on the issue with relevant authorities.

Appellant urged the Court to resolve this issue in favour of the Appellant
ISSUE SEVEN;
Whether the misrepresentation of the fundamental hub upon which the suit revolves by the high Court judge, namely, ?what the plaintiff/appellant is claiming,…? does itself alone not lead to wrong conclusions warranting a reversal of his aberrant judgment.
It was the submission of learned Appellant that the fundamental misapprehension of the hub on which the entire suit revolves spelt the inevitable doom for the decision of the High Court Judge. Appellant said that the High Court Judge misconstrued English language when in an attempt to allude to the Appellant’s claim he made a very fundamental error at the last paragraph of page 3 spilling to page 4 in holding as follows: “What the Plaintiff/Appellant claimed in this suit MOG/14/2008 is ownership of foetus”, whereas what the Plaintiff/Appellant in fact claimed is “the paternity of the foetus.” From this wrong hypothesis, Appellant said that all his conclusions became wrong.

According to Appellant a Claim of paternity of foetus is the same as a claim of paternity of the born baby therefrom,

of the adolescent therefrom, of the adult therefrom, of the interned bones therefrom. Learned Appellant emphasized that there is a world of difference between a claim of ownership of a foetus which is a claim in personam and a claim of paternity of a foetus which stretches to a claim of paternity of the RES in every stage of human development to even after internment and is a claim in REM defining the status of a RES. Learned Appellant further emphasized that the Appellant needed not to have amended his claim to paternity of the foetus. He said that a claim of the paternity of a foetus is not a claim of that specific RES but of the man in the RES, the transformations or stages of development of a man from conception to death and after death, notwithstanding. Learned Appellant further said that the learned Judge’s requirement of an amendment to the claim after birth of the baby is borne out of ignorance of what a claim of paternity is all about. In his definition, Appellant said that paternity connotes a relationship between the claimant and the RES (Foetus, baby or man). He expatiated furthermore, that in such an action the Claimant does not seek to own the

RES, as he only seeks to stand in loco parentis to the RES’ Counsel argued that it is this idea of ownership that led the Lower Courts to the wrong conclusions they reached.

As far as Appellant was concerned, the crux of the matter is whether a person claiming paternity of a foetus is claiming the specific RES or the LIFE (human being) of which foetus is the 2nd stage of development (the 1st being, embryo). He queried whether a normal person be claiming foetus as specific Res and for what purpose will that be? It was contended that the Lower Courts completely missed the argument when both said that the Claimant is claiming foetus whereas what the Claimant is claiming is paternity of the foetus (baby in the womb) which means that his spermatozoa fertilized the woman’s egg resulting in embryo (at conception), foetus, born baby, adolescent, man etc. Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE EIGHT;
Whether the High Court Judge’s failure to draw the obvious inference of corruption of the Chief Magistrate in the face of overwhelming facts is not evidence of solidarity with the Chief Magistrate which taints his

decision.
Learned Appellant submitted that by not drawing the obvious inference from the facts on the ground, the High Court Judge could not have reached the correct decision and that for that reason this Appeal has to succeed. Thereafter Appellant made a summary of the entire facts as they transpired in the Chief Magistrate Court and which he said ultimately led to the trial Magistrate’s decision which the learned trial Judge affirmed. Appellant cited the case of EZE vs. GEORGE (1993) 2 NWLR (Pt.273) 86 CA and OHIAERI vs. AKABUEZE (1992) 2 NWLR (Pt.221) 1 AT 27 SC, where the Courts enunciated that failure of Court to draw the necessary legal result flowing from established facts is error or misdirection in law. Appellant urged the Court to resolve this issue in favour of Appellant.
ISSUE NINE:
Whether the High court Judge’s attempt to distinguish a foetus from a human being is relevant in a paternity suit and is not a betrayal of ignorance of a foetus being A LIFE and given statutory recognition as such.
Learned Appellant submitted that the attempt by the High Court Judge to distinguish a human being from a FOETUS by citing Section 307 of

the Criminal Code is erroneous. It was argued by Appellant that foetus is a life form which is statutorily protected under Section 17 of the Child’s Rights Act, 2003. It was further argued by Appellant that the Judge’s citation of Section 307 of the Criminal Code was unnecessary and utterly irrelevant in view of the looming presence of Section 17 of the Child’s Rights Act of 2003. Appellant added that a claim of paternity of the foetus at the time the 1st Defendant/Respondent was donating it to the 2nd Defendant is proper and unassailable and cannot be said to be premature. Appellant further argued that a claim of paternity of a foetus is the same as a claim of paternity of a baby therefrom, of the man therefrom. He clarified that paternity is derived from the Latin word: PATER, PATRI, which means FATHER and that if a man claims the fatherhood of a foetus, it means that his spermatozoa fertilized the egg of the woman resulting in the foetus in her womb (pregnancy), and that he by that singular claim CLAIMS the resultant baby, the resultant adolescent, the adult, the interned bones. Appellant contended the claim is in perpetuity – till the end of time as Zik’s

father is Zik’s father in perpetuity for example. Appellant urged the Court to resolve this issue in favour of the Appellant.
ISSUE TEN:
Whether the Judge’s obsession with solidarity with the Chief Magistrate leading to his erring on all points does not impugn his integrity and judgment which must be set aside
Appellant submitted that the judgment based on a miscomprehension and distortion of all the issues canvassed should be set aside, allowing the appeal in its entirety. He defined a Ruling as a decision of a Court on an interlocutory issue canvassed by parties to a suit. Appellant disagreed with the slant ascribed to the Magistrate’s Ruling when he alluded to the fact that it was a product of a Court of summary jurisdiction. To this, Appellant contended that the expression; “summary jurisdiction” is not confined to Magistrate Courts as it is a judicial decision exercised without trial and which also does not mean lack of order or that which is given whimsically, but based on facts in the proceedings. Appellant said that a jurisdiction exercised summarily must have a substratum of established facts. For the above reasons, Appellant urged that the

Appeal should be allowed.
ISSUE ELEVEN;
Whether the sermonizing of a tainted Judge is of any moment to the legal profession and to society.
Appellant submitted that the sermonizing of the High Court Judge about the language employed by the Appellant against the Chief Magistrate is hypocritical for, from all indications the High Court Judge is a tainted adjudicator being in solidarity with the Chief Magistrate and his sermon must be ignored. He cited the case of MENAKAYA vs. MENAKAYA (2001) 16 NWLR (Pt.738) 205 where the Supreme Court berated the Judge who made unwarranted strictures on counsel, MR. ANYAMENE (SAN). Appellant also cited the case of: NIGERIAN DYNAMIC LTD VS. DUMBAI (2002) 15 NWLR (Pt.789) 139 CA where this Court said at page 156 as follows:
“Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy…”

According to learned Appellant this Court also enjoined Judges to be civilized in dealing with those who appear before them. Counsel also cited the case of PRINCE J. S. ATOLAGBE & ANOR vs. ALH. AHMADU AWANI & 2 ORS (1997) 9 NWLR (Pt.522) 536 where the Supreme Court Justices

lashed out at a High Court Judge who refused to follow a precedent. Learned Appellant urged this Court to allow this Appeal and set aside the decision of the learned trial Judge.
ARGUMENTS BY LEARNED RESPONDENT’S COUNSEL;
Learned Respondent’s Counsel decided to argue the three (3) issues nominated by Respondent jointly as follows;
Learned Counsel told Court that Appellant brought a suit at the Magistrate Court Oguta claiming paternity of a foetus allegedly carried by the 1st Respondent and he contended that the Chief Magistrate Court is a Court of limited jurisdiction, whose jurisdiction is determined by the law establishing the Court. As far Counsel was concerned the circumscribed nature of the Chief Magistrate Court in terms of its jurisdiction cannot go beyond the matters specially provided for it in the law by which it is established. Counsel argued that by Section 17(d) of the Magistrate’s Court Law Cap 82 Laws of Eastern Nigeria, 1963, the Magistrate Court has jurisdiction to appoint guardians-ad-litem and make orders and give directions relating thereto. But that also by Section 17(h) the Magistrate Court has jurisdiction to hear and

determine Matrimonial Causes and matters between persons married under the customary law and in suits relating to custody of children and obligation of maintenance of certain classes of people under customary law. This jurisdiction, however the Appellant said appears to have been taken over by the Customary Courts where Section 17(1) of the Customary Court Law (Edict) No.7 of 1984 provides:
“In any matter relating to the guardianship of children, the interest and welfare of the children shall be the first paramount consideration.”

Learned Counsel further argued that under the Magistrate Court Law Cap. 2 Laws of Eastern Nigeria as amended the claim for foetus is not a matter within the jurisdiction of the Court. But that what the Magistrate Court Law recognizes is a born child. Therefore the proper order the Court is enjoined to make is one of striking out the suit since it has no jurisdiction to try same. Appellant cited the cases of FASKAKIN FOOD NIG. LTD vs. MARTINS SHOSANYA (2006) 26 NSCQR 641 at 662; OMOKHAFE vs. MILITARY ADMINSTRATOR, EDO STATE (2004) 20 NSCQR 154 at 364-365 and MV ARABELLA vs. NAIC (2008) 34 NSCQR 1091 at 1114.

far as Counsel is concerned is concerned the issue of paternity of foetus is alien to the Magistrate’s Courts Law of Imo State of Nigeria. Appellant referred Court to the Black’s Law Dictionary (Eight Edition) which defines paternity as a state or condition of being a father, especially biological one. He said that the same Dictionary defined “paternity suit” to mean; A Court proceeding to determine whether a person is the father of a child (especially one born out of wedlock).” Learned Counsel next assumed, but did not concede that there was a foetus, and asked why was it difficult for the Appellant to wait until the subject matter transforms into a human being recognized and provided for by the law before filing the action?
It was contended by Counsel that so long as the claim for a particular subject matter, in this case foetus, later ceases to be foetus and transforms into a baby, until the claim is amended to reflect the present state of the subject matter, the Court will have no jurisdiction to try to the action because the subject matter as claimed originally was no longer in existence. Learned Counsel further argued that Jurisdiction no doubt is

determined by the claim of the Plaintiff in a suit and cited the case of MADUKOLU & ORS vs. NKEMDILIM (1962) 1 ALL NLR 587 at 595, where the Supreme Court stated among other conditions: that a court is competent when:
“The subject matter of the case is within jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction.”

Against this position, Counsel submitted that when the alleged foetus transformed into a human being it constituted a feature that has prevented the Court from exercising jurisdiction unless the writ is amended. Counsel urged this Court to resolve this issue in favour of the Respondent.

In responding to Appellant’s issues 4 and 5 Counsel queried whether the Appellant Court have the power to grant a relief that was not claimed and that when there is no application for leave to amend the claims, whether it is appropriate to urge the Appellate Court to assume the role of a trial Court and grant same. Counsel said that this was enough to take care of Appellant’s issues Nos. 4 and 5.

On account of the Amended claim of the Appellant learned Counsel reproduced same as follows:

“The Plaintiff claims PATERNITY of the FOETUS being carried by the 1st Defendant and which she is DONATING to the 2ND DEFENDANT IN ORDER TO ENTICE HIM FOR MARRIAGE AND EXTORT MONEY FROM HIM.”
Counsel was quick to add that the claim as couched was not ambiguous, it is self explanatory. He further said that the Court cannot award to a Claimant that which he did not ask for, as that would amount to the Court distributing largess. Counsel cited the case of AG OF ABIA STATE & 2 ORS vs. AG OF THE FEDERATION & 35 ORS (2006) 28 NSCQR 161 at 259. In EKPENYONG vs. NYONG (1975) 2 SC 71 Counsel said that the SC warned that a Court of law should never award that which was never claimed or pleaded by either party. He further said that asking this Court therefore to order a DNA test of foetus is against the position of the law on reliefs not claimed. Furthermore, he argued that the Court cannot also be asked to order such DNA test on any child because there is yet no evidence that a child has been born out of an alleged fetus. Learned Counsel disagreed that Justice Ikpeama ever expressed any such view as to DNA test; certainly he said not in his presence and

not to his hearing.

Learned Counsel argued that the Appellant should be man enough to own up that he made grave and fundamental error in his claim for paternity of a foetus in the Magistrate’s Court and that there is no legal gerrymandering that will remedy the situation. On account of the issues 4, 8, 10 and 11, Counsel admitted that are novel issues and more of academic than strict legal issues. He remarked that they were not drawn from the Grounds of Appeal or facts of the case at hand or the ruling of the learned Chief Magistrate or the High Court Oguta.

Counsel further said that from the duplication of the grounds and issues it show desperation on the part of the Appellant. He further said the Appellant was inquisitive and has become sentimental in this matter because he is personally involved. Counsel said that his predicament is understandable but that the law has to take its course. Counsel urged this Court to dismiss this Appeal and affirm the decision of the Lower Court.
RESOLUTION OF APPEAL
This is a very interesting Appeal partly marred by the proliferation of Grounds and issues nominated for the Court’s determination by

Appellant, who is a senior Counsel and who appeared in person, in addition to other factors, which Court shall have cause to discuss at the appropriate time in the course of this Judgment. There are Eleven (11) Grounds in all from which another Eleven (11) issues were nominated. This brings to mind this Court and the Apex Court’s admonition on the issue of the formulation of more issues than are required for the determination of a matter on Appeal. The Supreme Court has stated on several occasions that it abhors the proliferation of issues where only a few issues would have determined the Appeal. OGBUAGU, JSC in G.K.F. INVESTMENT NIG. LTD vs. NIGERIA TELE COMMUNICATONS PLC (2009) 15 NWLR (PT.1164) 344 put it simply this way:
“I need to stress that this Court discourages the proliferation of issues.”
MUSDAPHER, JSC (as he then was) was more direct in the case of OMEGA BANK (NIG.) PLC vs. O.B.C. LTD (2005) 8 NWLR (Pt.928) 547 when he stated thus:
“This Court has on several occasions condemned the proliferation of issue in briefs of arguments. It is not the number of issues for determination formulated that determines the quality of brief or that

determines the success of an appeal.”
EDOZIE, JSC was rather terse in his own observations on the issue when he said in the case of IBRAHIM vs. OJOMO (2004) 4 NWLR (PT.862) 89 as follows:
“Prolix or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issues to trifles. Appeals are not won on large number or quantity of grounds of Appeal but on the quality of the content of the Grounds of Appeal and issues.”
There are several other decided cases on this issue and the tendency to go on and on in referring to these cannot be ruled out. As it has to do with the instant Appeal, I am completely in agreement with learned Respondent’s Counsel that only a few as three (3) issues or less would have sufficiently disposed of this Appeal, but not necessarily with the issues raised by the Respondent, but rather from some of the ones raised by the Appellant in issues 1, 4 & 5.

However, to properly situate the analysis, this Court is about to make on the issues nominated for the determination of this matter there may be the need to go over the facts of this case, made available to Court

by the Appellant and which the Respondents have so far had no cause to dispute. At all times material to this case, the Appellant and 1st Respondent were said to be lovers since 2007, when the 1st Respondent cooked the Appellant’s food, ate with him, slept with him and virtually shacked up with him. According to the Appellant, on or around the 4-9-2008 he noticed signs of pregnancy in the 1st Respondent and which by the month of November, 2008 had become very visible. Around the same time, when Appellant noticed the 1st Respondent was hiding the fact of the pregnancy from him, he confronted her and that even though she admitted being pregnant, she however said that the Appellant was not responsible for the pregnancy. It was at this stage that the Appellant sued claiming paternity of the fetus at her 3rd to 4th months of pregnancy. According to the Appellant he later learnt that the 1st Respondent was donating the foetus to one George Londoneer Onyia, who in Appellant’s very words; “whose family land minerals oil was discovered and who won a contract with the oil company.” At the Chief Magistrate’s Court, where the Appellant took the case, the Appellant was said

to have been attacked by the Chief Magistrate who asked to be addressed on the question of jurisdiction. Learned Counsel to the parties, with the Appellant appearing in person addressed Court on its jurisdiction but the chief Magistrate?s Court?s Ruling was not delivered until after six (6) months after the child had been born and the learned Chief Magistrate conveniently in her Ruling said; “no foetus, suit struck out.” The Appellant?s Appeal to the High court, was fruitless as the High Court confirmed the decision of the chief Magistrate Court. It is against this decision that the Appellant has brought this Appeal.

The argument of the learned Appellant before the High Court when this matter went on appeal before that Court was that the trial chief Magistrate ought to have delivered her ruling based on the issues raised relating to the question of whether the Court had jurisdiction to entertain the matter, notwithstanding the fact that the 1st Respondent had given birth to a child or not.

?It was further argued before the High Court just as the Appellant had done before this Court that the Chief Magistrate ought also to have taken

judicial notice of the fact that the baby delivered by the 1st Respondent is the foetus he had laid claims to in his suit before the Court and that the suit should not have been struck out on the flimsy ground that because the foetus had been born there was no further need for the suit. In justifying the trial Magistrate’s decision the Lower Court was of the view that: (see page 44 of the printed Records).?
“The Magistrate presiding over a Court of summary jurisdiction was of the view that the subject-matter of the suit was no longer there and did not therefore consider it necessary to go into comprehensive consideration of the issues raised in the preliminary objection. The trial Magistrate would have reasoned differently if the Plaintiff/Applicant had amended the claim after the baby was delivered on 3-6-2009 or there about according to him. To allow the claim in that state and expect the Court to presume that the child born is the same thing as the foetus claimed by him amounts to wild speculation from the Court by Appellant.”

In attacking this reasoning of the learned Judge of the High Court, learned Appellant argued that it was wrong in Law

to have adjourned the Ruling on the issues canvassed with regards to the question of the jurisdiction of the Lower Court only for the Court, not only to have skipped the Ruling but went ahead to strike out the suit. Learned Counsel argued further that a Court does not skip what a suit was adjourned for only to delve into other issues. Learned Counsel cited the cases of IBRAHIM OHIDA vs. MR. AD-KOGI STATE (supra); FALADU vs. KWOI (supra) and EZUMA vs. NKWO MARKET COM. BANK LTD (Supra) in support. Learned Counsel further argued that what was canvassed before the lower Court on record for the whole six (6) months duration of the suit at the Chief Magistrate’s Court was whether the Court had jurisdiction to entertain the matter or not. Counsel said that after learned Counsel had addressed the Court on three (3) occasions, the Court adjourned to the 20-7-2009 for Ruling only for the Court to simply say: “No foetus, case struck out.”

To begin with, what this Court finds questionable and completely unacceptable is the impropriety of not delivering a Ruling in an application challenging the jurisdiction of Court with dispatch in a matter as sensitive as

this. Here is a matter in which what was presented to the Court for adjudication is a dispute arising from competing claims to an unborn foetus. The Magistrate’s Court, being what it is, obviously a Court whose jurisdiction is circumscribed by statute; off-handedly and commonsensically ought to have known that the Court had no jurisdiction to entertain the matter and gone ahead to terminate the matter at that stage. See Section 17 of the Magistrate’s Court Law Cap 82 Laws of Eastern Nigeria, 1963, applicable to Imo State of Nigeria.

The question therefore, is what was the dilatory attitude on the part of the Chief Magistrate about? It would be recalled that this suit was commenced at the Chief Magistrate’s Court on the 22-12-2008 and that on the 5-2-2009 the trial Magistrate was told of a pending Notice of preliminary Objection filed by the 1st Respondent challenging the jurisdiction of the Court. Arguments on the issue were taken and not concluded until on the 8-6-2009 when the Court adjourned to the 20-7-2009 only to deliver a Ruling which did not address the question of its jurisdiction pending before it. Speaking in very practical terms the learned

Chief Magistrate abandoned what was presented before him and upon which arguments had been concluded and ventured into a completely different issue for which he received no arguments from the parties.

The learned trial judge had sought to justify the Chief Magistrate’s decision when he said at page 44 of the printed Records:
?At the time the chief Magistrate was considering the Preliminary objection on 20-7-2007, both parties agreed that the foetus was no longer in existence, the 1st Defendant having been delivered of a baby from the pregnancy she had.”

Apart from the Ruling of the said 20-7-2009 of the trial Chief Magistrate’s Court, which has earlier on been reproduced in this judgment, I have frantically searched the records of Appeal to no avail if only with the intention of catching a glimpse of the much vaunted agreement between the parties and for which reason the learned Judge of the High Court had given the trial Chief Magistrate an underserved pass mark for the delayed handling of a matter which ordinarily should have been handled with dispatch. While it is all too glaring that even from the decision of the trial Chief

Magistrate, the parties were clearly not in agreement, it is rather surprising nevertheless that the learned trial Judge could allude to some non-existent agreement between the parties as justification for the Court’s Ruling on the issue which had no bearings with the issues canvassed before it. For the avoidance of any doubt it may be important to reproduce what the trial Chief Magistrate said on the issue as follows:
?Unfortuantely, it has been confirmed by Counsel on both sides that the 1st Defendant has recently delivred a child and so is now bereft of any fetus. The plaintiff clearly stated this while the Defense Counsel just said there is no evidence of any fetus, either when the suit was filed or now. This change in circumstances has rendered the subject matter of this suit non-existent. Any further adjudication on this suit as it is presently constituted can only at best amount to an academic exercise and a waste of time.?

?What this amounts to in essence is nothing but technical justice leading to the delivery of a mechanical judgment obviously at the instance of the Plaintiff and in favour of the 1st Defendant who had all along

denied the existence of any foetus either at the time of the filing of the suit or at the time of delivery of the said Ruling of Court. In any case the proper thing to have been done by the trial Magistrate upon learning of the change in circumstances, following the alleged delivery of a child by the 1st Defendant, was to have asked the parties to re-address the Court on the question of the Court’s jurisdiction in view of the status of the processes filed before it, on the one hand and the alleged changes which had taken place on the other hand, rather than deciding unilaterally to strike out the matter clearly in response to the allegation that there had been the birth of a child.

?The question of striking out the matter simply because there had been the delivery of a child in the conjuncture of the Court does not in the least arise here. There were no fresh or formal processes filed to show exactly what had taken place and for which reason a justified conclusion could be reached that there were indeed changed circumstances in the matter. Did the 1st Defendant give birth to a child? What date, where and when? This was a situation where there were no

further affidavits or processes filed. How the Court, a Court of law for that matter could have relied on the viva voce pieces of information of either of the parties and allowed it to influence its decision on the spur of the moment leading it into concluding that there was no foetus tends to beat the imagination of this Court. Here is a matter in which one of the parties had alleged that another had become pregnant for him. The party who is alleged to be pregnant had maintained with all amount of vehemence that she was not pregnant. There were no medical reports tendered to determine whether or not the party denying was indeed pregnant or not. There were no processes elaborately deposed to stating the existence of this state of affairs and yet when the Court was told that the party alleged to be pregnant had been delivered of a baby, the Court relied on that viva voce pieces of information and hurriedly got the matter struck down. It is for this reason that I am inclined to agree with learned Appellant that by striking out the matter the way it was done, the trial Chief Magistrate technically awarded judgment in favour of the 1st Respondent who maintained

that there was no pregnancy in the first place. The trial Chief Magistrate had simply struck out the matter because she was of the view that the matter had become academic since the subject matter of the action, i.e., the foetus, was no longer there. It would, however be recalled that the question of whether the matter had become academic or not was not even canvassed and argued before the trial Chief Magistrate, as it was a matter virtually raised suo motu by the Court and gave none of the parties the opportunity of addressing upon it before it decided to have the matter struck out for that reason. Had the trial Chief Magistrate gone ahead to deliver its ruling on the question of the Court’s jurisdiction, which was the issue already argued before it, or in the alternative called on the parties to address the Court on the alleged changed circumstances, the Court would have practically been absolved of its blames.

The mistake should, however not be made here in misunderstanding the decision of this Court on the issue at this point. Striking out the matter by the trial Chief Magistrate Court, may very well have been the best or only decision in the

circumstances of the case at the end of the matter, but that does not still absolve the Court of its share of blames in the matter due largely to the procedure it adopted in doing so. First, for not giving the parties the opportunity to be heard when the so called changed circumstances were announced to have occurred, was clearly wrong. This amounted to a denial of fair hearing of the parties. Second, for not giving the parties the opportunity of addressing it when the Court raised suo motu the issue of the matter becoming hypothetical or academic, before going ahead to strike out the matter. This also amounted to a denial of fair hearing of the parties. See the case of ADEGOKE vs. ADIBI & ANOR (1992) LPELR-95 SC, where the Supreme Court per KUTIGI, JSC had this to say on the subject;
“When a Court raises a point suo motu, then the parties must be given an opportunity to be heard on the point, particularly the party that may suffer punishment as a result of the point raised suo motu”.
In the case of KAFARU OJE & ANOR vs. BABALOLA & ORS (1991) LPELR-2368 the Supreme Court per NNAEMEKA AGU, JSC also had this to say on the issue;

“In this Country this is a Constitutional right and this Court has always insisted that on no account should a Court raise a point suo motu and, no matter how clear it may appeal to be, proceed to resolve it one way or another without hearing the parties”.
See also the cases of AERMACCHI S.P.A & ORS vs. A. I. C. (1968) 2 NWLR (PT.23) 443 N 449; KUTI vs. BALOGUN (1978) 1 SC. 53 AT 60 and IRIRI vs. ERHRHOBARA (1991) 2 NWLR (PT.173) 252 AT 265.

The mere fact that the Chief Magistrate Court is a Court of summary jurisdiction where proceedings are conducted brevi manu or without the rigmarole of any elaborate or formal procedures does not present the Court with a license to ignore the need to conduct its proceedings in accordance with the cardinal principles of fair process which includes strict adherence to the Constitutionally guaranteed rights to fair hearing of the parties’ cases.

The foregoing position notwithstanding, the Appellant is not without his own share of the blames in this matter, which I shall also have to discuss at the appropriate time in the course of this judgment. Learned Appellant, it would also be recalled argued,

even though strenuously, that in a paternity suit, the Res involved in the dispute is the unborn foetus and that whether it transforms from one stage of development to another and yet to another, the gene of the Res remains constant as every human being has one constant gene from the stage of the embryo to foetus to babyhood to adolescence to adulthood to the interned bones. It was further argued by Appellant that a claim of paternity at any stage is a claim sustainable at all stages of the Res for which there should be no amendment of processes following changes occasioned to the developing foetus as a result of the Natural process. Appellant however cited no decided cases in support of his contention.

I simply cannot in all sincerity say that I am not impressed by the arguments put up by learned Appellant regarding the changes occasioned by the transformation of the developing foetus culminating in the birth of a child. Learned Appellant’s arguments in the least are not different from the position recognized by English Law. Under English Law, the lengthy Latin maxim is; “Qui in utero est pro iam nato habetur Quoties de eju Commodo quaeritur:” this

means: “One who is in the womb is held as alre.ady born whenever a question arises for its benefit.” Under English Law, although the law normally takes cognizance of living human beings, yet the law makes an exception in the case of an infant in ventre sa mere. In other words, a child in the womb of its mother is treated as if in existence to the extent that property can be vested in its name. In short, a child in the womb of the mother is considered to be a person both under the law of crimes and law of torts. It is in this connection that Section 17 of the Nigerian Child Rights Act 2003 becomes of utmost relevance under the scheme of things. The said section is hereby reproduced for the avoidance of doubt as follows;
SECTION 17:
1. An unborn child may bring an action for damages against a person for harm or injury caused to the child willfully recklessly, negligently or through neglect before, during, or after the birth of the child.
2. Where the father of an unborn child dies intestate, the unborn child is entitled if he was conceived during the life time of his father, to be considered in the distribution of the estate of the deceased

father.
3. Where the mother of an unborn child dies intestate before the foetus is delivered, the unborn child is entitled if he survives his mother, to be considered in the distribution of the estate of the deceased mother.?

The question that should perhaps be addressed at this stage is; whether it would be good enough reason for the Appellant not to have amended his processes in this case to reflect the fact that the hitherto unborn foetus had in fact been transformed and born as a child, simply because the law itself would not, and does not recognize changed circumstances especially in the case of a child, who while in the womb is in essence considered already born?

What learned Appellant failed to realize is the fact that the instant suit is a paternity suit involving competing claims to ownership over an unborn child and as such has nothing practically to do with the position of either English Law or the provisions of Section 17 of our own Child’s Right Act, 2003 dealing with the recognition of the rights of an unborn child in such concerned areas affecting tortious and criminal liabilities arising from injuries to the unborn child

and such other areas affecting the distribution of estates of either the deceased father or mother of an unborn child. For Appellant to have therefore relied on his knowledge of English Law and the provisions of Section 17 of the Child’s Rights Act, 2003 in sticking to his guns and refusing to amend his processes upon the announcement of the changed circumstances which, supposedly greeted the matter when the 1st Defendant was alleged to have been delivered of a child, he clearly made grave errors.

The position of the law is that the trial Court and indeed Courts of law generally are bound only by the prayers or claims sought before them. What was originally claimed by Appellant in this case was the issue of paternity of an unborn foetus which had now become transformed into a child. The Appellant, being a very senior and respected lawyer ought to have known that the changed circumstances demanded that the original processes ought to have been amended to reflect the changes as no Court of law aware of its duties and responsibilities would grant a relief or prayer different from the one claimed before it. See AKINRIMISI vs. MAERKS NIGERIA LTD (2013)

LPELR-20179 SC. See also the case of MICHAEL ODUNZE vs. NWOSU & ANOR. (2007) 13 NWLR (PT.1050) 1 where the Supreme Court, per MUKHTAR JSC had this to say on the subject;
“The cardinal principle of the law that is well settled is that a Court is not a charitable institution that would grant reliefs that are not claimed by a party. It must restrict and confine itself within the wall of the reliefs a party approaches it for and not to undertake its own generous acts of awarding reliefs not sought.”
In whatever way the matter is looked at, Appellant cannot possibly expect to have a different situation in the Court’s hands when what he took before the Court for adjudication was a claim for paternity of an unborn foetus, which has since transformed and had become a child. Appellant surely, did not expect the Lower Court to embark on the proverbial voyage of discovery of the facts and to formulate claims in a matter in which the Claimant had practically done nothing in the area of bringing the real issues in controversy between the parties to the Court’s attention. The position has always been that the Coutts have powers only to the extent of the

claims, facts and evidence presented before them by the parties. See ADIKE vs. OBIARERI (2002) 4 NWLR (PT.758) 537.
It would be recalled perhaps in a lighter mood, that in this matter, the Appellant’s first line of attack on the decision of the trial Magistrate was that the Court had relied on issues not canvassed before it in striking out the case. Would the same Appellant or better still his opponent not equally have attacked the decision of the Magistrate for adjudication or deciding on claims not placed before it, if the Appellants claims had rigidly remained the same as it were, claiming the paternity of an unborn foetus, which had become transformed into a child? In the case of ODOFIN & ANOR vs. CHIEF AGU & ANOR (1992) LPELR- 2225 SC the supreme court, per KARIBI-WHYTE, JSC had this to say on the issue;
“Our adjudicatory system has severely circumscribed and restricted the awards to be made by the Court within the scope of the claims made before the Court. The view of this Court is that it is without power to award to a claimant or grant a relief that which he did not claim.”

Learned Appellant’s Counsel had in fact contended that

paternity disputes are not resolved by evidence but empirically. According to Counsel since, Justice is for the parties and the society, a good approach towards resolving the matter would have been for the Court to order the parties to undergo a DNA test. Learned Counsel further argued that an Appellate Court has the power to order the parties to go for a DNA test. He cited the case of OKAFOR vs. OKAFOR (supra) and reiterated the inherent jurisdiction of the Court in exercise of its Appellate jurisdiction under Section 16 of the Court of Appeal Act, which gives the Court full jurisdictions over whole proceedings as if the proceedings have been in the Court of Appeal as a Court of first instance. In his reaction, learned Respondents Counsel was of the view that an Appellate Court had no powers to grant a relief that was not specifically claimed especially where there had been no application for leave to amend the claims. Learned Counsel contended that by asking the Court to order the parties to go for a DNA test would be to ask the Court for the grant of a relief not specifically claimed.

Generally, a Court may not grant a relief not requested or

claimed by the Plaintiff since a Court is said not to be a “father Christmas.” The Court of Appeal under the powers conferred on it by Section 16 of the Court of Appeal Act is in a position to intervene and to right decisions already taken by the Lower Court in the interest of justice, but this is not in all situations. The section is not easily invoked merely for the asking. The party invoking the section must show in its processes that there are real issues in controversy between the parties. Appellant had doggedly stuck to his decisions not to amend his processes after the child was allegedly born. The dilemma here is that the foetus claimed is no longer there, if at all there was one in the first place. What the Appellant had taken before the Chief Magistrate Court remains the bedrock of the Appellant’s claim in this matter, thus leaving too many yearning gaps unanswered which Section 16 of the Court of Appeal Act cannot proffer solutions.

By asking this Court to invoke its powers under section 16 of the Court of Appeal Act, this Court cannot do that except if the trial Court had powers to do what the Court of Appeal had been asked to do in exercising

its powers of remediation provided by Section 16 of the Court of Appeal Act. See the case of UDUMA vs. ARUNSI (2012) 7 NWLR (PT.1298) 140. See also the case of AKPAMGBO-OKADIGBO & ORS vs. CHIDI & ORS (2015) LPELR-24565 SC. What Appellant in essence is asking, is for this Court to assume the powers of the trial Court in granting the Appellant the claims he had taken to the Chief Magistrate which I have said are no longer adequate in the circumstances of this matter, apart from the fact that the Court had no jurisdiction to have entertained the matter in the first place.

In the final analysis, this appeal is moribund and it is accordingly dismissed with cost of N50,000.00 in favour of the 1st Respondent.

ITA GEORGE MBABA, J.C.A.:I agree with the reasoning and conclusions of my learned brother Fred O. Oho JCA, in the judgment just delivered in this strange case.

The issue of the Lower Court affirming lack of jurisdiction of the Learned Magistrate to entertain the case, formed the common thread in the issues distilled by the Respondent for the determination of the appeal, which my learned brother, FRED

O. OHO, JCA, who wrote the lead judgment, rightly adopted to determine this appeal.

The trial Court had called on parties to address it as to the jurisdiction of the Magistrate’s Court to entertain the matter, as the subject matter of the case was paternity of alleged foetus, an embrayo of unborn child, allegedly carried by the 1st Respondent, which the Appellant claimed as being responsible for its conception. The magistrate Court finally ruled that it had no jurisdiction in the case, and this was affirmed by the Lower Court, High court of Imo State in HOG/1A/2010.

One is also bound to ask whether there was any cause of action, in the circumstances, to found Appellant’s claim; and whether there was, infact, any foetus on which Appellant could lay claim to? What was the basis of Appellant’s claim, even if, infact, the foetus existed, considering the fact that Appellant never claimed the 1st Respondent to be his wife (i.e. that there was legitimate marital relationship between them, when they allegedly slept and made love), especially as he admitted that the lst Respondent told him he was not responsible for her pregnancy?

I think the entire case

of the Appellant was founded on wishful fantasy and wild speculation, that there was a foetus, carried by the 1st Respondent, for which he was responsible for its conception. He was dreaming, but had no way of ascertaining that the 1st Respondent carried foetus, and/or that the foetus was his, in the absence of a state of marriage between him and the 1st Respondent. There is no where Appellant could lay claim, to a foetus carried by a woman he sued as Mrs Uwakwe (a married woman but not married to him) and who had told the Appellant that he was not the person that impregnated her.

In the case of Anozia Vs Nnani and Anor (2015) 8 NWLR (Pt.1461) 241 at 256, this Court held:
“The law has always acknowledged the right of a woman to say who the father of her child is, and of course, where a child is born within wedlock, the presumption is conclusive, that the child is the seed or product of the marriage… “At common law, there is presumption of paternity of the child born during the subsistence of marriage.”

Incidentally, the above case also involved the Appellant in this case, where he also took out a suit, to compel a 57 year old man (2nd

Respondent) to take him (Appellant) as father, alleging he had sexual intercourse with his (2nd Respondent’s) mother, who was then legitimately married, to another man; he had alleged that that sexual intercourse resulted in the conception of the 2nd Respondent. Of course, the 1st Respondent, in that case, had denied the claims of the Appellant, and Appellant’s attempt to force the Respondents to undergo DNA (deoxyribonucleic acid) test to provide evidence for his claim, failed. In that case we observed:
“…I think I can bare my mind on the brazen, scandalous conduct of the Appellant, which portrays his high moral turpitude, in seeking to force a 57 year old man to take him (Appellant) as father, trying to use law to blackmail him (2nd Respondent) and his mother (1st Respondent) to accept Appellant, and that under, a foundation that appears flawed and abominable!”

Whereas, in the case of Anozia Vs Nnani (supra), Appellant was laying claims to a living identifiable person, that he was the father of the same. In this case, the same Appellant is laying claims to an alleged foetus in the womb of a woman he never married, but boasted they were lovers.

He stated in his particulars of claim:
(i) The plaintiff and the 1st Defendant have been lovers since June, 2007.
(ii) With particular regard to the pregnancy issue, the plaintiff and 1st Defendant had sex on several occasions between 19/7/08 and 15/8/08, which coincides with the age of the pregnancy, before the 1st Defendant, realising that she was pregnant, misrepresented to the plaintiff on 4/9/08 that she had typhoid fever and started avoiding the plaintiff, only to surface again on 30/11/08.?
The Claim was:
“…PATERNITY of the FOETUS being carried by the 1st Defendant and which she is DONATING to YET TO BE DISCLOSED 2ND DEFENDANT IN ORDER TO ENTICE HIM FOR MARRIAGE AND EXTORT MONEY FROM HIM.
The claim was taken out on 22/12/08.
(See page 1 of the Records of Appeal).

The trial Magistrate gave her ruling on 20/7/09, after being addressed on 8/6/2009. She declined jurisdiction, especially as Counsel had admitted that 1st defendant had put to bed and was no longer carrying foetus.

The above claim, in my opinion, does not disclose any cause of action, as the alleged Foetus, alleged carried by 1st

Respondent, sounds intangible, speculatory and imaginary, incapable of any form of identification and/or verification by the Appellant, to justify any form of exercise of claim, and/or vested interest in/over it by the Appellant.?

In my view, it is absurd, ridiculous and morally depraved, for a man of advanced age and a lawyer, who claims to have 6 graduates, as children (as shown in his letter to the Chief Judge), to publicly and proudly make such embarrassing claims, that he “had sex on several occasions” with a married woman, who is not his wife, and to assert right of ownership of the foetus, allegedly, carried by the woman, alleging that his sexual escapes with the woman “coincided with the age of the pregnancy” of the woman. Abomination!

What made Appellant to think that the woman did not ‘sleep’ with another man (or her husband) during the alleged time, having sued the woman as Mrs Chizoba Uwakwe, if the woman was truly pregnant? And, how can he establish vested right/interest or paternity over a foetus (or pregnancy), by his mere oral assertion of right, when there was no marital relationship between him and the woman (1st Respondent)?

He admitted that the 1st Respondent was not married to him, and alleged that she was “donating” the foetus “to yet to be disclosed 2nd Defendant, in order to entice him for marriage and extort money from him” Hence, his 2nd Defendant at the Magistrate’s Court and High Court was ‘SECRET LOVER (YET TO BE KNOWN)”

It appears Appellant was only interested in fighting harassing and embarrassing the 1st Respondent, with a view to stopping or frustrating her marriage to the person she accepted as being responsible for her pregnancy! Appellant had acknowledged the 1st Respondent as a married woman and had sued her as Mrs. Chizoba Uwakwe!

As a lawyer, he should be ashamed to approach the Court with such scandalous, immoral claim, trying to use the instrument of law, wrongly, to intimidate and blackmail the lady, to enforce illegality.
What is cause of action?
In the case of Cookey Vs Fombo (2005) All FWLR (Pt.271) 25 at 38 – 39, the Supreme Court held:
“A cause of action is the bundle or aggregate of facts which the law will recognize as giving the plaintiff a
substantive right to make claim for relief or remedy being sought.

Thus, the factual situation on which the plaintiff relied to support his claim must be recognised by the law as giving rise to substantive right capable of enforcement or being claimed against the Defendant (per Edozie JSC)
See also Nosiru Bello & Ors Vs A.G. Oyo State (1986) 5 NWLR (Pt.45) 828, where the supreme Court restated the same definition of cause of action and added that it is substantive right on which plaintiff can found a relief/remedy; that:
“In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right. Concisely stated, any facts relied upon by the plaintiff, resulting from the act of the defendant, which gives rise to justifiable complaint, is cause of action.”
In Ibrahim vs Osim (1988) 3 NWLR (Pt.82) 257 at 267, it was held:
“A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is, in effect, the facts or combination of actions which give rise to a right to sue and it consist of two elements:
(a) The wrongful act of the defendant, which gives the plaintiff his cause of action or complaint, and
(b) The consequent

damages.

What is obvious from the above definition of cause of action is the fact that ’cause of action’ is not just constituted in the reliefs sought by the plaintiff, perse, but in the facts or aggregate of facts alleged by the plaintiff as acts or conduct of the defendant, which give rise to the reliefs and which infringe the recognizable right of the plaintiff. See the case of Pastinor Investment Co. Ltd & Anor Vs Bon & Anor (2014) LPERL – 23622 (CA).

What wrong did the 1st Respondent (and/or unknown secret lover of 1st Respondent) do to the Appellant to justify his coming to Court to seek remedy?

Even if the lady was pregnant and she decided to ‘donate’ the pregnancy to “her Secret lover’, what right would the Appellant have against the 1st Respondent for donating her foetus (if she was, infact, pregnant), to the man of her choice, whom she thinks or believes got her pregnant?

Appellant never married her and had even sued her as Mrs. Uwakwe. I doubt the existence of any cause of action as he cannot, in all certainly, establish right of claim over the foetus carried by the 1st Respondent, (if, infact, she was pregnant) in the

absence of marital relationship between them.

Appellant cannot therefore show any act or conduct of the Respondents that suggests an infringement of his recognizable and enforceable rights, or that discloses a bundle of facts or aggregate of facts which the law can accord recognition as accruing the Appellant enforceable rights, or that leaves the Appellant with a vested rights, against the Respondents.

That also questions the locus standi of the Appellant to take out the action, as he could not lay hold on any tangible claim/right.

In the Case of Odeneye vs Efunuga (1990) LPELR -2208, the Supreme Court said:
…locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are being in danger of being violated or adversely affected. ”
In the case of Ijelu & Ors vs LSDPC & Ors (1992) LPELR – 1464, the Supreme Court, per Karibi Whyte, JSC, said; on pages 42 – 43:
“A Plaintiff will have locus standi in a matter only if he has a special legal right or alternatively if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest

is adversely affected. See Ovie Whiskey vs Olawoyin (1985) 6 NCLR 156: Alhaji Agbonikhena & Ors vs Egba & Ors (1987) 2 NWLR (Pt.57) 494, Aberuagba vs A.G. Ogun State (1984) 5 NCLR 667”.
My Lord Mohammed, JSC, on page 14 of that judgment said:
“There is a long line of authorities on the subject of locus standi or standing and the general principle is that, for o person to have locus standi either to institute on action or to prosecute an appeal, he has to show that he has special interest; that the interest is not vague or intangible, supposed or speculative or that such interest has been adversely affected by the act or omission which he seeks to challenge.”

A plaintiff must disclose a vested right, enforceable by law, to be able to maintain a claim in Court. See Dehinsilus vs Mondec Pharamacy Ltd (2008) LPELR Rinco Construction Co. Vs Veepee Ind. Ltd. (2005) 9 NWLR (Pt.929) 85; Moyosore Vs Gov. of Kwara State (2012) 5 NWLR (Pt.1293) 242. Of course, where cause of action is not disclosed the Court lacks jurisdiction to entertain the claim.

I, therefore, agree with the Court below, that the Magistrate’s Court was

right to decline Jurisdiction to entertain the suit, not only because the claim of the Appellant touched on issue of paternity, but also, in my opinion no cause of action was disclosed in the plaintiff’s claim, to vest a Court with jurisdiction to entertain the claim.

I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

PETER OLABISI IGE, J.C.A.:I had a preview of the leading judgment just delivered by my learned Brother OHO, JCA, and I agree with the said judgment which is lucid and incisive.

Appearances

Tony Anozia appeared in personFor Appellant

AND

O. I. Onyeoyibo, Esq. with him, S.C. Ohanyere, Esq. and N. S. Umoren, Esq.For Respondent