Paternity Fraud: Legal And Social Implications

 

– Restoring the fundamental human rights of victims of paternity fraud from cultural, constitutional and legal perspectives

Being a presentation by His Honour Miakpo Emiaso at the Annual Nigerian Bar Association SPIDEL Conference 2021 held at Ibadan 23^rd – 26^th May 2021

 

PROTOCOLS

 

I am glad to be here in Ibadan at the behest of the Nigerian Bar Association SPIDEL Committee. I thank you for the honour of inviting me.

 

I indeed feel privileged to be back in Ibadan thirty years on. I was first here some time in 1990 also to deliver a lecture at the behest of the University of Ibadan chapter of the National Union of Isoko Students. I was then less than two years old at the bar.

 

Ibadan! The capital of that Nigerian region which J. P. Clarke, that Niger Deltan literary icon had poetically described as a:

“… a running splash of rust

and gold-flung and scattered

among seven hills like broken

china in the sun.”

 

Broken china in the sun! That imagery! Does it hold any relevance in today’s Nigeria?

 

Ibadan! This ancient political headquarters of the Yoruba nation from whose womb emerged the literary giant Ola Rotimi – creator of the epic work of drama The Gods Are not to Blame where Odewale, an unfortunate victim of paternal fraud, unknowingly married his own mother who bore him four children!

 

The tragic consequence of that paternal fraud, I want to believe is well known to all of us

 

And in recent months, the Nigerian reading space has been inundated with stories of high-profile men finding out that they are no longer the fathers of the children they have raised, some into adulthood. It is the era of Paternity Fraud! There is, for instance, the story of a top Nigerian banker whose wife not long ago reportedly told him from somewhere abroad, that her boss in the office was the father of ‘their’ children. Poor banker! He reportedly didn’t make it as a result! There are others we shall refer to in the course of this presentation. It is all about Paternity Fraud!

 

Clearly, this gives rise to fundamental challenges to family life as we have always known it. The Nigerian society is heading towards a situation where, until one has certified through scientific means, one cannot be certain of his lineage. This is a problem to not only family life but to society at large.

 

In the course of this presentation, some effort will be made within the very little time available to examine this growing phenomenon from the social, religious, cultural, and legal perspectives, question its origin and reasons for its existence and growth, and attempt proffering solutions, if any. What can be done to stem the ugly trend? Can the law play any role? Does Nigeria have adequate legislation for checking this social evil? What roles have tradition and religion to play?

 

We shall also make some comparative incursions to jurisdictions outside the shores of Nigeria.

 

PARENTAL FRAUD – AS OLD AS CIVILISATION – Mr. Chairman of session sir, the point I am driving at is that parental fraud is not new. It is as old as mankind! It didn’t start with Ola Rotimi’s The Gods Are Not to Blame nor did it even start from Sophocles’ Oedipus Rex which premiered in about 429 BC from which Ola Rotimi adapted his own The Gods Are Not to Blame.

 

Even in Bible times, Jesus the Christ had cause to tell the Jews in John 8:33 – 58 that they were mistaken as to who their father was. Jesus the Christ told them that they were under an erroneous belief that they were Abraham’s children. Hear the discussion:

^“33 They answered him, “We are Abraham’s descendants and have never been slaves of anyone. How can you say that we shall be set free?”

³⁴ Jesus replied, “Very truly I tell you, everyone who sins is a slave to sin. ³⁵ Now a slave has no permanent place in the family, but a son belongs to it forever. ³⁶ So if the Son sets you free, you will be free indeed. ³⁷ I know that you are Abraham’s descendants. Yet you are looking for a way to kill me, because you have no room for my word. ³⁸ I am telling you what I have seen in the Father’s presence, and you are doing what you have heard from your father.^[a]”

³⁹ “Abraham is our father,” they answered.

“If you were Abraham’s children,” said Jesus, “then you would^[b] do what Abraham did. ⁴⁰ As it is, you are looking for a way to kill me, a man who has told you the truth that I heard from God. Abraham did not do such things. ⁴¹ You are doing the works of your own father.”

“We are not illegitimate children,” they protested. “The only Father we have is God himself.”

⁴² Jesus said to them, “If God were your Father, you would love me, for I have come here from God. I have not come on my own; God sent me. ⁴³ Why is my language not clear to you? Because you are unable to hear what I say. ⁴⁴ You belong to your father, the devil, and you want to carry out your father’s desires. He was a murderer from the beginning, not holding to the truth, for there is no truth in him. When he lies, he speaks his native language, for he is a liar and the father of lies. ⁴⁵ Yet because I tell the truth, you do not believe me! ⁴⁶ Can any of you prove me guilty of sin? If I am telling the truth, why don’t you believe me? ⁴⁷ Whoever belongs to God hears what God says. The reason you do not hear is that you do not belong to God.”

^{… 54} Jesus replied, “If I glorify myself, my glory means nothing. My Father, whom you claim as your God, is the one who glorifies me. ⁵⁵ Though you do not know him, I know him. If I said I did not, I would be a liar like you, but I do know him and obey his word. ⁵⁶ Your father Abraham rejoiced at the thought of seeing my day; he saw it and was glad.”

⁵⁷ “You are not yet fifty years old,” they said to him, “and you have seen Abraham!”

⁵⁸ “Very truly I tell you,” Jesus answered, “before Abraham was born, I am!” ⁵⁹ At this, they picked up stones to stone him, but Jesus hid himself, slipping away from the temple grounds”.

King Solomon and the two Women – At 1 Kings 3: 16 – 28, the story is told of how King Solomon made a very intelligent decision between two women one of them trying to perpetrate parental fraud. The Bible story runs thus:

¹⁶ Now two prostitutes came to the king and stood before him. ¹⁷ One of them said, “Pardon me, my lord. This woman and I live in the same house, and I had a baby while she was there with me. ¹⁸ The third day after my child was born, this woman also had a baby. We were alone; there was no one in the house but the two of us.

¹⁹ “During the night this woman’s son died because she lay on him. ²⁰ So she got up in the middle of the night and took my son from my side while I your servant was asleep. She put him by her breast and put her dead son by my breast. ²¹ The next morning, I got up to nurse my son—and he was dead! But when I looked at him closely in the morning light, I saw that it wasn’t the son I had borne.”

²² The other woman said, “No! The living one is my son; the dead one is yours.”

But the first one insisted, “No! The dead one is yours; the living one is mine.” And so they argued before the king.

²³ The king said, “This one says, ‘My son is alive and your son is dead,’ while that one says, ‘No! Your son is dead and mine is alive.’”

²⁴ Then the king said, “Bring me a sword.” So they brought a sword for the king. ²⁵ He then gave an order: “Cut the living child in two and give half to one and half to the other.”

²⁶ The woman whose son was alive was deeply moved out of love for her son and said to the king, “Please, my lord, give her the living baby! Don’t kill him!”

But the other said, “Neither I nor you shall have him. Cut him in two!”

²⁷ Then the king gave his ruling: “Give the living baby to the first woman. Do not kill him; she is his mother.”

²⁸ When all Israel heard the verdict the king had given, they held the king in awe, because they saw that he had wisdom from God to administer justice.

 

Islam frowns at paternity fraud as crime – Islam is less tolerant of what leads to paternity fraud and consequentially paternity fraud. The Holy Quran forbids any form of Zina i.e fornication or adultery both of which are the direct causes of paternity fraud. Fornication and adultery in Islam are strictly regarded as haram. They are major sins and are absolutely forbidden. Anyone guilty of such haram is either stoned to death, whipped, or sent into exile.

 

This means that Islam treats fornication and adultery as crimes! Consequentially, paternity fraud which is usually as a result of the haram of either fornication or adultery is itself haram (a crime) since where ever you find paternity fraud there you will also find either fornication or adultery.

 

(See generally in this respect the Holy Quran at Sura 17:32, 24:2; See also Yahaya Yunusa Bambale (1997) Crimes and Punishments under Islamic Law 2^nd ed. (Malthouse Law Books, Lagos) 35 et seq.).

 

So, the practice or occurrence of parental fraud is not new! It is present in every society from old times. It has been there even before Christ! Before the calendar was invented!

 

PARENTAL FRAUD HERE TO STAY – So, society has been with the challenge of parental fraud for quite some time and it will always be with us. Given the rate of sexual promiscuity especially among the youths, parental fraud is not just here to stay but is on the increase. One of the first judgements I wrote as a judge was one which had an allegation of parental fraud – a paternity dispute in which the plaintiff claimed a

“declaration that the female child known and called Cynthia Orutu or by whatever name called duly given birth by the 2^nd defendant during the period of her lovership to the plaintiff is the putative child of the plaintiff”.

 

The facts of this case are as interesting as they are instructive to the subject of paternity fraud. They are contained in the body of the judgement which I reproduce in full herein as Appendix 1 and which I recommend to you to find time to read at your convenience. In this judgement the court the court deprecated the role played by the mother of the child and observed that

“Clearly the evidence of the DW1 showed that, as a woman, her conduct in the sordid events of this case left so much to be desired. She was obviously not telling the truth when she said she has had nothing to do with the plaintiff. But her assertion that ‘I have no child with the plaintiff. My child is fathered by my husband Macdock Asseh’ is very weighty as it is the assertion of a woman. She is in a better position to know”.

 

A HAZARDOUS UNDERTAKING: Discussing issues connected to paternity fraud is as emotive as handling divorce proceedings or discussing inheritance rights of widows under customary law or issues relating to rape where women are part of the discussion. This topic is very controversial and he who discusses invites pebbles being thrown at him for, as one writer puts it, the concept of paternity fraud is the “demonization of mothers”.

 

Honestly Mr. Chairman of session, I ordinarily try to avoid such discussions because no matter how objective you strive to be, especially as a man, you can hardly get your points through the women without accusations being hauled at you for being anti-women. That can be an unpleasant experience. And, as you can see, I am a man!

 

In accepting this NBA SPIDEL invitation to discuss this subject, I was conscious of the risk I am undertaking with regards to our womenfolk. I stand upon a very fertile chance of losing the love and affection of some of them if not all!

 

I am inevitably going to sound like one who is anti-women. And in these days of gender equality and bitter feminism, undertaking this kind of hazardous discussion is like the case of the proverbial cockroach charged before the Supreme Court of Chickens where all their lordships are hens!

 

Permit me therefore to humbly enter allocutus upfront before my learned friends in skirts and all women under the influence of my voice and solemnly state that I do not intend to and will not say anything in the course of this presentation to provoke an undeserved harsh sentence upon myself.

 

PATERNITY FRAUD: WHAT IS? Paternity fraud is evil. It is a sin against God, sin against its victim, sin against humanity, sin against womanhood, and sin even against the perpetrator.

 

Paternity fraud has been defined in various ways but such that in almost every definition it has been painted as an offence which is committed by a woman usually against an unsuspecting man in love with her who is the primary victim; it is also an offence against an innocent child being the product of the fraud as a secondary victim; and then an evil against society at large which is the ultimate victim.

 

One definition of paternity fraud has it that it is the pretence by a woman that a man is the legitimate and biological father of her child. This fraudulent misrepresentation thus leads the man to erroneously believe that he has a biological connection with the child of another man.

 

Wilkipaedia will have its readers know that paternity fraud, which is also known as misattributed paternity or paternal discrepancy, is when a man is incorrectly identified as the biological father of a child where the mother deliberately misidentifies the biological father (italics mine).

 

Fraud as an element of crime – The word “fraud” is usually associated more with crime or some ignoble conduct. In Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91, 110 paragraph A-B, Tobi JCA (as he then was) stated that

“… Fraud has the element of deceit, imposture, a snare, a deceptive trick. It also colloquially connotes a cheat and a swindler”.

A legal dictionary explains that fraud is a false representation of a matter of fact – whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed – that is intended to deceive and deceives another so that the individual will act upon it to his or her legal injury.

 

Under our laws therefore, any form of intentional deception with a view to securing unfair and unlawful advantage or benefit over a victim or to deprive such victim of a legitimate right will amount to fraud. Fraud is generally understood as entailing insincerity and dishonesty which a perpetrator employs to secure undeserved advantage.

 

Our laws are replete with crimes having the element of fraud. The infamous Section 419 of the Criminal Code is basically a crime which deals with fraud. It provides that

“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for …”.

 

The word “fraud” and as an element of crime is present in such other crimes as “bank fraud”, “insurance fraud”, and even as an element in forgery. Is paternity fraud a crime?

 

Fraud in tort – But fraud is not always criminal. Fraud can also lead to civil liabilities as in contracts where an aggrieved party may only sue for fraudulent misrepresentation, for instance, and be entitled to rescission and or damages.

 

In this presentation, the context in which ‘fraud’ is used is more in the civil sense than criminal for the obvious reason that our criminal laws are as yet silent on this provocative issue of parental fraud.

 

PARENTAL FRAUD – The present subject of discussion is prima facie limited to paternity fraud. Fraud on a “father”! The title of the paper appears to suggest that the kind of fraud in contemplation can only apply to the male folks as victims. While it is conceded that men in most cases are the usual and primary victims of most parental frauds, it will be unfair for us to ignore the possibility of maternal fraud! Maternal fraud, like paternal fraud, therefore comes under the umbrella concept of parental fraud which involves all the forms of parental fraud which can be perpetrated by any parent.

 

MATERNAL FRAUD: WHAT IS? – Yes! There is such a thing as maternal fraud. For the purpose of this presentation, permit me to define maternal fraud as when a woman is incorrectly identified to be the biological mother of a child where someone, most likely a medical staff, deliberately misidentifies the biological mother of a child. Refer to the case of the two women and King Solomon.

 

It is not unheard of that some midwives who take deliveries of babies at the maternities do swap babies at birth between mothers. The scenario usually is that there is a pregnant woman who desperately needs a baby of a particular gender and who arranges with the midwives at agreed terms that, in the event that her baby comes out not in the gender she seeks and there is another delivery about the same time producing the sought gender, the babies may be swapped by the compromised midwives for the benefit of the woman in search of a baby of a preferred gender!

 

Notwithstanding how evil the practice is, there are reports that some nurses are not just reckless and outrightly negligent about baby-swapping, there is the report of a Kenyan nurse who confessed in old age before dying that she had swapped over 5000 babies in her time purely for fun.

 

When such happens, the innocent woman whose baby has been swapped becomes a victim of a maternal fraud because she is incorrectly identified, deliberately by midwives, as the mother of the baby she takes home from the maternity ward.

 

She is not the only victim. Her husband who is now the happy father of a “bouncing baby” is also a victim as he too has been incorrectly identified to be the biological father of the baby having been deliberately misidentified as the biological father.

 

In some cases, there is a third adult victim! The husband of the woman who strikes the deal with the midwives may be in the dark as to this deal so that when his wife comes home with the baby being of the preferred gender, he goes into jubilation praising God to the heavens that, at last, he has arrived!

 

Of course, the swapped children are both victims of parental fraud in that their parents have deliberately misidentified by midwives and one of the mothers!

 

PROGENICAL FRAUD – This is a situation where the fraud is perpetrated on a child such that a person or persons are incorrectly identified to be the biological parent or parents of a child where the underlying purpose is to deliberately misidentify the person or persons as the biological parent or parents of the child.

 

Chukwuemeka Ike’s work Conspiracy of Silence presents a perfect illustration of what I am trying to describe here. It is the story of a 34-year-old medical doctor who discovered to her shock at age 11 that the man she has lived with and known to be her father was in fact not her father.

 

She could not bear the very thought of not knowing who her real father was as there appeared to have been a well hatched conspiracy by everybody around her never to tell her the truth about who her father was.

 

She was, in fact, a product of incest having “inadvertently” been fathered by her mother’s elder brother – her uncle. A shameful reality the family decided must be kept a secret. By the way, the uncle grew to become a successful lawyer who rose to the rank a Senior Advocate! So, someone else had been incorrectly though deliberately presented to her as her father. But she accidentally discovered the fraud at the age of 11 from which age her life was never free of restlessness.

 

Another good illustration of what I am, in this presentation taking the latitude to describe as “progenical fraud”, notwithstanding any inappropriateness in grammar of the usage, is Ifeoma Okoye’s work Chimere. This, too, is the story of a young female undergraduate who was humiliated by a course mate she was dating because she didn’t know who her real father was because her mother would not tell her the truth about her father.

 

Before leaving this sub-issue of progenical fraud, let me share with us the story of my first solicitor’s brief in 1990 as a lawyer. It is a classical real-life case of progenical fraud. I am lifting it from my yet-to-be-published memoir.

“My first solicitor’s brief came from a nurse. A bit elderly. The type referred to as matrons. She operated a small midwifery practice on the next street where she took deliveries and provided sundry other minor health services.

She walked in to chambers that morning accompanied by a young man. Their story was that she took delivery of a baby a few days back and the mother does not want the baby which they wanted the nurse to accept as her own child absolutely.

The mother of the baby did not come with them. She was a student in one of the secondary schools. It was explained that she was impregnated by an unknown person and was as a result driven out by her sister with whom she lived.

The sister is the wife of the young man who accompanied the nurse to my office. Out of ‘pity’, he secretly took care of the girl and the pregnancy when aborting it was not possible as the poor girl didn’t even know she was pregnant until it was too late and too dangerous to contemplate an abortion.

Madam nurse had then housed the young girl at the expense of the young man till she was delivered. And now both the young man and the young mother have offered the baby to Madam Nurse for keeps with no strings attached. Madam Nurse willingly accepts but now wants some form of agreement in writing precluding the biological mother of the baby or any other person coming to claim the child in future.

I charged them N500.00 (five hundred Naira) and prepared an agreement well typed out in manual typewriter on indenture paper. Madam Nurse paid my fees short of N50.00 (fifty Naira) till today”.

 

This baby will never know who her true parents are! She is a victim of progenical fraud – a species of parental fraud.

Baby factories – Similar situations abound all over with what is generally termed “Baby Factories”! These “factories” are operated by persons, usually nurses or medical doctors, who take care of ladies who “accidentally” get pregnant or, to use a more usual language, ladies who find themselves with “unwanted pregnancies” that they are unable to abort and their circumstances are such that they cannot take care of themselves.

The operators of these baby factories offer to take care of these ladies until their delivery. Some of the ladies are happy to abandon their babies with the operators while others accept some money consideration from the operators upon terms for them to disappear and never to come back looking for their babies.

From news reports, these operators eventually sell the babies to desperate couples in search of children because they are unable to procreate!

Such children can never know who their real parents are! They are victims of progenical fraud – a species of parental fraud. They are victims of parental fraud since the persons they regard as their parents based on the representation they grow up to know are not their parents. And as nobody will tell them, they remain perpetual victims of the fraud.

A WORLD OF EVIL – Mr Chairman of session, ladies and gentlemen, for more on the evil of paternity fraud, please read the article Three Out of Ten Nigerian Men Are Not Biological Fathers of Their Children published in the Saturday Vanguard of the 4^th of May 2019 by Sola Ogundipe, Yetunde Arebi and Evelyn. See also https://www.vanguard.com/2019/05/paternity fraud.

THE TRAUMA OF DISCOVERY – These victims may never discover the fraud as it is usual in the majority of cases of parental frauds. But in rare cases, the truth emerges in usually unexpected circumstances.

 

Chuks is a friend of mine in Warri who is a victim of paternity fraud. He discovered that his first son was not his biological child only as the child went through his medicals upon being admitted to the university. The child’s blood group didn’t match those of any of his parents neither of whom had an ‘S’ genotype!

 

My friend had impregnated the mother while they were boyfriending and girlfriending in the early 1990s. Neither of them had marriage in mind while they friended but then she got pregnant and “planted” the pregnancy on Chuks to “trap” him into marriage.

 

All entreaties to make the girl play the usual ball in such circumstances fell on deaf ears. Poor Chuks had no choice but reluctantly conceded to marriage.

 

As things turned out, this girl was double-dating and sleeping around indiscriminately at the time. She got impregnated obviously by one of the men she was sleeping with but who, in her assessment, would not be able to take care of her and the pregnancy so she decided my friend who was then a promising young lawyer was a more suitable “father” for her baby! It is even possible that she could not determine who in exactitude impregnated her if she had slept with multiple partners!

 

The shock of the discovery almost sent my friend to an early grave! A child he had called his own these past eighteen years! A child he has loved so dearly as his for nearly two decades! A child he has spared no resources in time and money to raise all these years!

 

How do you as a man handle such situations? Do you stop loving the child? Do you send the child away to his rightful biological father? What if the rightful father can no longer be located? Do you send “your” child out into the cold? Do you just carry on as though this was just a dream and that it didn’t happen? How do you henceforth relate with the child?

 

And the mother! Your wife whom you have always loved! Your wife with whom you have shared confidences and secrets! Which kind eye you go take dey look am?

 

How would members of your family and your friends react? Would you be able to keep this to your chest and not let your friends and family know about this painful discovery?

 

SOME RECENT REAL-LIFE SITUATIONS – To answer some of the above worrying questions, let us share some recent real-life situations beginning with the case of a High Court judge in Delta State who in February this year called a world press conference to announce that by way of a DNA testing it had been discovered that his three children by his former wife whom he had raised for over 17 years were in fact not his biological children!

 

You could feel his pains even from his choice of words and language as he spoke to the world. Was his calling a press conference to disclose such weighty matter to the world at large the best way to go in the circumstance?

 

Dipo’s case – Next, I invite you to share in a learned colleague’s beautiful prosaic narrative of the case of Dipo. In it, Kenneth Ikonne wrote:

 

“The love affair between Dipo and Jumoke, the child’s mother had been steamy and passionate. Jumoke’s mother fully supported the affair. Not only was Dipo a comely lad, he had also been a very promising young man, from a very good family in Ondo State. Graduating at the top of his class, with a first class in Engineering from the University of Ife, he had ventured into Accounting, and quickly became a fellow of the Institute of Chartered Accountants of Nigeria. Dipo was thus by every standard, a worthy suitor, and a welcome guest at his lover’s mother’s home in Abeokuta. It was in the course of one of those visits that the inevitable happened, and the lady took in, and eventually gave birth to the baby girl!”

 

Kenneth Ikonne is not only a very senior learned colleague and a personal friend, he is a jolly good fellow whose fans fondly call “Zaddy”. He is a wordsmith who effortlessly tells a story with his pen in such lucid prose you can’t stop once you start reading.

 

He continued writing:

 

“He was still weeping when he picked up his phone and called me, asking me to hop into the next available flight in Abuja to see him in his house in Lagos. When I inquired to know the reason for the urgency, he only retorted gravely: “Ken, my world has come crashing down. I am finished. And my life might even be in danger!”

 

Kenneth Ikonne concluded his touching narrative thus:

 

“The witness had hardly finished his last sentence when the little girl burst into the courtroom, shrieking and wailing. She rushed straight to where a now sobbing Dipo sat, held him tight in an embrace, and started wiping her father’s tears with her palm. As she did so, Dipo momentarily regained composure, stared keenly at his daughter’s face, kissed her on her forehead, shrieked in agony, and resumed crying, father and daughter still locked in harrowing embrace!

 

“Daddy, it’s a lie”, she screamed, still crying. “Daddy, you are my father. Daddy I love you.”

 

“I love you too, and always will”, Dipo moaned, the pain in his heart very much conveyed by eyes now reddened by anguish. As father and daughter grieved, tears running profusely on their faces, their noses also ran.

 

The police orderly had rushed to restrain the young girl when she first burst into the courtroom, but the Judge had ordered him to leave the girl alone. The poor girl had apparently not heeded the Judge’s instruction to go to her chambers for ice cream, but had lurked around the precincts of the court to espy the proceedings!

 

Now, as father and daughter sobbed and shrieked in pitiful embrace, the stern judge melted and brought out a handkerchief and sobbed along. The scene was so moving that everyone in the courtroom, with the exception of Jumoke, joined in sobbing, with some, especially the women, wailing! I reached for my white handkerchief, removed my glasses and began to wipe my own tears!”

 

This narrative which Kenneth Ikonne entitled MY SADDEST DAY IN COURT! and published on his Facebook page on the 3^rd of February this year succinctly demonstrates the kind of emotional trauma paternity fraud can visit on its victim. I have reproduced the complete narrative as Appendix 2 hereto for full measure. Enjoy it and join the rest of the world weeping for Dipo.

 

Let sleeping dogs lie? – A day after Kenneth published his My Saddest Day in Court, he followed it up with what he entitled MUSINGS ON DNA. This is what he wrote:

 

“If I can buy a puppy, watch it grow, and fall hopelessly in love with it, why then should the biological paternity of a child I have already grown to love matter to me? If I am not the child’s biological father, I will remain it’s social father!

 

The only times I will go for a DNA test are when I suspect that a roving side chic, over whom I have no control, is trying to play a fast one by vesting paternity of her child on me, or if my spouse herself contends that a child born during wedlock is not mine.

 

Sometimes, the better discretion is to let sleeping dogs lie!”

 

Do you share Kenneth Ikonne’s view that sleeping dogs should be left alone to lie? If you do, what would you make of the case of Mr. Izobo who lost his sanity after spending 11 years in prison for an offence he didn’t commit? Yet his ordeal grew out of paternity fraud.

 

Izobo’s Case – The story is lifted from one of Aigg Giwa-Amu’s works which I posted on my Facebook page on the 1^st of April this year after lifting it from another Facebook friend’s page. I entitled it: THE WOMAN! DONT KILL YOURSELF BECAUSE OF ONE!

 

The concluding paragraphs of the narrative run thus:

 

“JUDGEMENT was delivered exactly a year and four months later. Mr izobo was discharged and acquitted.

 

But later events destroyed him completely for which till date he is a patient in a psychiatric hospital in Ghana on the kindness of his friends.

 

He lost it when he found out that ALL those children he thought were his were not his. Two were for another of his family doctor and the other one was for Mr lbe. And that was the reason of a fight between Mrs lbe and Mrs Izobo.

 

Mrs Ibe found out that her husband was having an affair with Mrs Izobo.

 

Mrs lzobo died in a fatal accident on her way to Abuja”.

 

Again, the complete narrative is reproduced as Appendix 3 hereto for your appreciation of the kind of damage paternal fraud can wreak on an individual.

 

PATERNITY FRAUD: A WOMAN’S OFFENCE! From all the definitions and circumstances of paternity fraud including the real-life narratives we have considered, it is clear that most perpetrators of paternity fraud (mostly women) are deliberate in the concealment of vital information from their victims (men) with a view to securing some benefit for themselves.

 

Only a woman can, to a large extent, say who the biological father of her baby is, so the common saying goes. Men just have no choice but to accept whatever their women tell them. In all the narratives we have examined above, the men in those stories believed they were the fathers of those children until the stark crude reality unfolded.

Are you really the father of those children? – Available statistics show that at least three out of ten men in Nigeria are not the fathers of the children they call their own. This is clearly an embarrassingly very high figure which is said to be the 2^nd highest figure of paternity fraud in the world second only to Jamaica. It is an uncomfortable reality that, for us men, we cannot beat our chests and make noise that we are the fathers of our children just because our women said so!

REASONS FOR PATERNITY FRAUD – Some of the major causes of paternity fraud in Nigeria include:

(1) Infidelity

(2) Adultery

(3) Increase in sexual recklessness among Nigerian couples

(4) Easy accessibility to sex among youths

(5) Break down of family values and discipline

(6) Break down of traditional/community sexual values

(7) Failure of parental control over their children

(8) Cheap sex and readily available sex

(9) Ladies no longer pretending about sex

(10) Ladies increased appetite for sex

(11) Poor family planning

(12) Limited access to paternity tests in Nigeria

(13) High cost of paternity testing

(14) Unprotected sex

(15) Multiple sex partners

(16) Strong cultural attachment to procreation

(17) Traditional desire for lineage longevity

(18) Desire to expand family unit as index for social acceptance

(19) Criminalisation of abortion

(20) Sexual promiscuity

(21) Fornication

(22) Pressure on women to marry and procreate

(23) Inordinate desire of families for male children

(24) Wive’s desire to protect the image of their infertile men – some women have been known to get pregnant from outer sources

(25) Stigmatisation of adoption

This list is not exhaustive. Most of the items on the list are self-explanatory but let me make some short remarks about some:

*Traditional/community sexual values – In time past, every community had traditionally entrenched attitudes relating to issues of sex. It was an abomination and a thing of great shame for a girl not to be virgin on the night of her wedding. It was taboo for a girl to be pregnant not being married. Such a girl will be disowned not only by her family but ostracized by the entire community. Sadly, these traditions no longer hold.

Among some Nigerian communities, a married woman commits adultery at the risk of her life. She will be visited by a force known as eri in Isoko where I come from. The Urhobos call it eriwi. This Isoko custom has it that any woman who married to an Isoko man “no matter where the woman comes from” who engages in extra-marital affair will be “arrested” and killed by eri represented by the esemos – the ancestors!

In some other communities of the Niger Delta and some parts of the Igbo speaking tribes of the East, the consequence of adultery on the part of the woman is madness!

I reproduce hereunder as Appendix 4 a write up by an author whose identity I can no longer remember or locate. It was published on the author’s Facebook page from where I have lifted and edited it to improve on its elegance and readability. It illuminates the workings of this tradition which in some quarters today have been derogatorily described as barbaric, repugnant, savage and archaic.

Therein lies the failure of value we are talking about. When these traditions were effective, incidences of paternal fraud were rare if not completely absent. Today, we have excessively imbibed strange Western cultures and ways of thinking that, as the Yorubas would say, “aiye ti di aiye oyibo”! We have completely lost our identities and characters as a people.

In all the communities where the gods visit these grave consequences on adulterous women, the men with whom they committed the act are left untouched. This is discriminatory of course and it clearly offends constitutional provisions as in Section 42 of the 1999 Constitution of the Federal Republic of Nigeria. But who is to challenge the gods of the land? However, these communities have in place some form of punishment for such men such as making them pay damages for their anti-social conduct. See Osaye and eretusa infra.

*Failure of parental control – Today’s parents are very different from the parents of the days of yore. As part of the over-Westernisation of our thinking and behaviour, our parents today do no longer think it is their primary responsibility to bring up their children in the right way they should go so that when they grow up they won’t depart from it. Consequentially, today’s children are completely enveloped with an entitlement mentality such that even parents are afraid of their children. So every body just go complaining of “children of nowadays”! I say, on the contrary, present societal problems are caused by “Parents of nowadays”!

*Break down of family values and discipline – Families no longer have values. Children no longer respect their parents who in turn are over awed. Result is that a girl child goes out and comes in at will with no one able to question her. And when she turns up some day with a protruding tommy, we just carry on as though nothing unusual has happened. Even, if the parents complain too loudly, she just packs her things and move in with the guy who did the handwork and who also does not see anything wrong with what he has done impregnating some other person’s daughter whose name and address he does not know!

NEED FOR LEGISLATIVE INTERVENTION – As evil and heinous as paternity fraud is, there appears to be no legislation anywhere in the world directly dealing with the very evil of paternity fraud. Accordingly, acts of paternity fraud, like adultery in the south of Nigeria, do not give rise to a crime. Much as there is need to legislatively try to control the incidences of paternity fraud, it is doubtful that any law criminalizing it will be effective in Nigeria.

Paternity fraud as crime – Paternity fraud is a family interpersonal matter. How can the law criminalize acts and conducts arising from such interpersonal family issues? Will the law prescribe prison terms for the wife who is found guilty of paternity fraud? A wife who may be the mother of the man’s other children not being products of any fraud?

Bigamy – The law of bigamy prescribes jail terms for the offence of bigamy. In Nigeria, that law is a dead letter law for obvious social and family reasons. Bigamy is a good example of a law which criminalizes a matter which is purely a family matter. But it is a law which does not accord necessarily with the morality and social demands of the society for which the law is made. It is reasonably submitted that any law seeking to criminalize paternity fraud in Nigeria may be as effective as the law of bigamy.

This is not to say that there are no laws which have, to some extent, criminalized family-based issues. For instance, we have criminal laws which involve family issues such as spousal rape, assault, and child abuse and molestation. These offences could land a family member in jail in some jurisdictions even though it is a thing of doubt if such charges would not be dead on take-off!

Collateral Crimes – Although paternity fraud may not survive as a crime, there are however collateral issues arising from or connected with paternity frauds which pass for crimes such as criminal deceit or perjury occurring out of paternity proceedings or knowingly making false statements on a public document such as a birth certificate amounting to a criminal offence.

To name someone who is not the biological father of a child as the biological father of that child in a birth certificate may amount to a crime. It is not the paternity fraud itself that is the crime but the act of making the false statement.

Reports in an article in the International Family Law Group have it that in a recent criminal matter in Liverpool, a mother was convicted for faking a DNA test to fool an ex-lover into thinking that he was the father of her child. She claimed justification because she wanted a father figure for her child and the man had paid towards the child’s upkeep as a result of the deception. The woman was sentenced to 12 months imprisonment not for the paternity fraud but for faking the DNA test.

Civil liability – A paternity fraud victim may however be able to claim damages under existing civil laws. We know no known cases of such claims in Nigeria as yet but there is the reported case of a South Korean man who in 2004 was awarded $42,380 compensation for pain and suffering he suffered when a DNA test showed that his ex-wife’s paternity claim regarding their child was misattributed. This is a civil claim.

There is however no known case of a criminal conviction for paternity fraud qua paternity fraud but there is a growing clamour that some legislation criminalizing paternity fraud or some conduct relating to or in connection thereto be put in place to sanitize this aspect of our family law and inject some discipline and a greater sense of sexual responsibility in women.

See, for instance, the effort of Elizabeth Aiwekhoe Iyamu-Ojo, Edeaghe Ehikhamenor in their research article entitled Requirement of Consent to DNA Testing: A case for Reform in Nigeria published at Nigeria. Int J Cri & For Sci. 1:1, 11-17.) whereat the learned researchers have suggested at Sections 4 – 6 of a proposed bill to be known as the Mandatory Deoxyribonucleic Acid (DNA) Testing Bill that:

“It shall be an offence for an alleged father not being an anonymous sperm donor to refuse to consent to a DNA test for the purpose of determining paternity of a vulnerable child;

5. Where an alleged father not being an anonymous sperm donor refuses to consent to a DNA test for the purpose of determining paternity of a vulnerable child, the alleged father shall be guilty of the offence ‘Parentage avoidance’
6. The offence of ‘Parentage avoidance’ shall be a simple offence punishable with a maximum of three (3) months imprisonment or a fine not exceeding N500,00000 or both”.

 

Although this proposed bill contains a lone criminal offence, this is a good beginning albeit that, strangely, this lone offence is directed at a father – a male! The main object of the bill is not paternity fraud but compulsory paternity testing. This may have the effect of reducing cases of paternity fraud.

SOCIAL CONSEQUENCES – The consequences of paternal fraud are a myriad. It destroys families, brings all parties – father, mother, and child – involved into ridicule, shame and pains. Even friends and family members won’t be spared. Since the family is the smallest unit of society, if the family is destroyed, society is ultimately destroyed. Paternity fraud ultimately leads to the destruction of the very fabric of society.

The Man – As for the man who is the primary victim, he is completely broken. It is capable of driving him crazy and even to contemplate murder or suicide! A realization that the child he has always loved as his own turns out to be the child of another man living right under his roof in circumstances that shows he has been taken for a fool all these many years requires the courage of a lion to endure. The shame of it!

The Woman – Not very many normal women can bear the shame of being discovered. Some take to their heels. A few will go down on their knees to beg forgiveness. And yet a few, like Jumoke in Dipo’s case, will, like Jezebel, wear a straight face through the scandal. But she will become a pariah even among fellow women who are normal!

The Child – If still fairly young, he is at best a pot-pouri of emotional confusion. Where he is fairly grown, the embarrassment of learning that the person he has always regarded and related to as his father is suddenly no longer his father is a huge one.

Emotional/Psychological consequence – As earlier stated, the discovery of paternal fraud can make some men become suicidal. Others may contemplate murder. And yet others may develop mental crisis as in the case of Mr. Izobo.

Broken homes – A less extreme reaction would be a consideration of divorce. This, of course, will lead to other destabilizing family challenges especially with regards to the welfare of the child. Even without a divorce, the deceived father may be unwilling to continue to provide for the child and thereby exposing him to an undeserved hardship growing up.

In some cases, the child could be so neglected that he ends up on the streets and thereby swelling the number of social miscreants. If a girl child, the number of prostitutes will swell. In the final result, the society suffers as innocent members of society may fall victim to the dangers the boy child who has taken to the streets would be capable of inflicting.

LEGAL CONSEQUENCES – Paternity fraud creates a number of legal consequences and complications in family life. An immediate consequence of paternal fraud is its effect on the marriage. In most cases, the discovery puts a natural end to the marriage. But does paternal fraud invest the aggrieved party with a legal right to divorce?

Paternal fraud also has very far-reaching effects and consequences on the child who becomes very vulnerable to the vicissitudes of life. Is the child still a child of the family? Has the “father” a legal right or even a moral right to turn him out of the family? What is his inheritance rights in the family he had always regarded his own?

(1) EFFECT ON MARRIAGE: DIVORCE – The first and almost immediate legal consequence when paternity fraud is discovered is the irretrievable break down of the marriage. Where the offending wife does not take to her heels to hide from the shame of being discovered that he gave some other man’s child to her husband with a view to concealing her adulterous conduct, and the man finds it intolerable to continue to live with her as husband and wife, he will have to take steps to obtain a divorce.

Not that her running into an even prolonged hiding legally brings the marriage to an end except under customary law but could be an added ground for divorce under the Matrimonial Causes Act.

If his marriage is only a customary law marriage, getting a divorce is easy and fast. But if the marriage is one also under the Marriage Act, then it is going to be a complex process which is not only time consuming but expensive.

(i) Under customary law – Where the marriage is one under customary law only, the dissolution of such a marriage is easy as all it takes is for the man to announce that he is no longer interested in the marriage and ask the woman to leave. This is known as non-judicial divorce under customary law – an incidence which is not present under statutory marriage.

Non-judicial divorce – A non-judicial dissolution of a customary law marriage is valid in law notwithstanding that a court has not ordered the dissolution. It is cheap and it is fast.

The only real reason for seeking a judicial dissolution of a customary law marriage would lie in the need for the parties to have the fact of the divorce evidenced in some form of legal writing as a court order of dissolution will provide. The views in some quarters that non-judicial divorce is not tenable or valid in law as was expressed, for instance, by Begho J. in Re Briggs v Osagie (1964) MNLR 95, 96 to the effect that because there is now an abundance of customary courts with jurisdiction for matrimonial causes under customary law,

“a person claiming to be a divorcee … must be able to show that he was granted divorce by a competent customary court”

does not represent the correct position of the law on the point.

All a man who desires to terminate his customary law marriage has to do is one or other of the following:

(i) Get one or two of the wife’s cooking utensils or any of her personal effects and throw them out in the presence of the wife declaring as he does so that he no longer wants to marry her. The wife then packs her items and relocates to her father’s house. That puts an end to the customary law marriage.

(ii) Take the wife to her father and, after presenting drinks, declare to her father in her presence in words to the effect as “I have brought back your daughter whom you gave me in marriage because I no longer desire to marry her”. This brings the marriage to a close. See Okpanam v Okpanam (1972) 2 ECSNLR 581 where Agbakoba J. declared that

“It is sufficient for a husband to arrange a meeting where he duly informs his parent-in-law of his intention to bring the marriage to an end”.

In all cases, such action is not taken by the man on frivolous grounds. The reasons for such steps must be very serious. And I submit that paternity fraud is serious enough reason for taking such steps.

Adultery is the main ingredient in paternity fraud and it is usually an unforgiveable ground for divorce under customary law and Islamic law. Adultery by a customary law wife is a very serious and intolerable offence. It usually carries a capital consequence with reference to the marriage. And paternity fraud is in every case conclusive proof of adultery except where the conception had taken place before the celebration of the marriage in which case it will be fornication and haram under Islamic law.

In every customary law situation, refund of the bride price must be made as this is what effectually terminates every customary law marriage.

(b) Under the Matrimonial Causes Act:

Divorce proceedings in respect of Act marriages can be very tedious, complex, time-consuming and expensive. The decree of dissolution is not obtained by asking.

Apart from the nature and expense of the proceedings which by practice and attitude but not necessarily by law is always instituted in the High Courts, the outcome especially with regards to consequential orders may not necessarily be favourable to the man especially if the wife, notwithstanding that she is guilty of paternal fraud, contends the petition.

Adultery not ground for divorce – The actual matrimonial offence known to law from an incidence of paternal fraud is adultery. But adultery simpliciter is not a ground for the dissolution of an Act marriage. As implied supra, no Nigerian man finds adultery by his wife tolerable. Not even when he is married under the Act. And there is provision under the Matrimonial Act for consequences of adultery. Section 15 (2) thereof provides that adultery can be a ground for divorce under the statutory marriage. It is that:

“15 (2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts –

…

(b) that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

… ”.

By the provision in subsection (2) (b), adultery on its own is not a ground for divorce. It must be accompanied by the intolerability of it by the other party. Therefore, that the fact of paternity fraud conclusively establishes the matrimonial offence of adultery is not in itself going to be enough for the court to hold that the marriage has broken down irretrievably and then order a dissolution of the marriage.

 

The petitioner husband must show to the satisfaction of the court that he finds the adultery intolerable and also that, as provided in (2) (c), the adultery of the wife is such behaviour that he, the petitioner husband, can no longer be reasonably expected to live with the adulterous wife. This should not be difficult as the fact of intolerability is subjective. So, getting a divorce should not be difficult.

 

Can the husband victim sue for damages? – Is divorce enough restitution and recompense for the victim of paternity fraud? Shouldn’t he be entitled to some other form of real remedy? The general principle of the law is that ubi jus ibi remedium! All that pain? All the emotional trauma? All that expense in raising another man’s child under a grand deception? Shouldn’t the court order a refund of all that expense?

Let sleeping dogs lie? – In Nigeria, the general attitude is for the victim to struggle to recover from the shock of it all and pray that it does not lead to some other serious consequences including health challenges such as mental break down as in the case of Mr. Izobo (supra). When he manages to survive the emotional and psychological trauma, he thanks his God for life, picks up his pieces and moves on with his life.

We saw Kenneth Ikonne’s musing earlier on in this paper on the issue of even trying to confirm paternity. What is the point pursuing a legal action seeking recompense which can only constantly remind you of things you would rather forget in a hurry? And to think of doing so in a judicial environment such as ours in Nigeria that is not only expensive but suffocatingly slow? “K’adupe emi”, his friends will advise him and the advice to be grateful for life will make a lot of sense to him.

A helpless legal system? – But law cannot be that vacant such that an injured individual cannot find some succor! The law of torts is a wide and fertile terrain under which all manner of actions can be raised.

Elsewhere in the world, the attitude is different. We saw earlier in this paper the case of the South Korean man who in 2004 was awarded the sum of $42,380 compensation for the pain and suffering he went through when a DNA test showed that his ex-wife’s paternity claim regarding their child was fraudulent.

Reports abound of men recovering damages for money spent in raising other people’s children under a deceit in paternity fraud. One Mr. Bradbury is reported to have recovered the sum of 30,000 pounds plus interest for child support over seven years in the United Kingdom.

In France, a Mr. G recovered 23,000 Euros being money spent and for emotional damage while in Australia, a Mr. Magil succeeded in persuading the court of first instance to award him $70,000 with interest for child support and emotional damage after tests showed that he was not genetically related to the two children he had been made to believe were his.

The law in Australia today allows men to reclaim money and property given in cases of paternity fraud. Such claim can only be made by way a court order.

Writing in the Journal of Medical Ethics, Heather Draper gave reasons for claims by victims as

“Claims for reimbursement of child support, the reversal of property settlements and compensation can arise when misattributed paternity is discovered. This is because the cuckolded man, assuming that he is (not) the genetic father, has treated the child as his son or daughter and accordingly has taken upon himself the responsibilities and rights of fatherhood, including financial responsibilities. When he discovers that his assumption is mistaken, he may think that the responsibilities he took up belong to someone else”.

(Heather Draper is a professor involved in bioethics research including human reproduction and parenting. She works currently at the Warwick Medical School of the Warwick University)

It is my humble submission that in Nigeria, paternity fraud victims should not just endure the pain and suffering in silence and thank God for life but pursue legal options not necessarily for the pecuniary outcome but for the more noble purpose of making profound statements that perpetrators cannot do such things without consequences.

Compulsory DNA testing – Also, I am inclined to aligning myself with current agitations that every child be subjected to paternity testing before or at birth. This will keep lineages pure and remove doubts in the mind of fathers whether they are really the fathers of the children they are raising whom they call their own. Heather Draper said that much when his article talked about groups campaigning for

“compulsory paternity testing of all children at birth to prevent any cases of misattributed paternity in the future”

This may now sound a bit outlandish. But that was how it sounded when the idea of genotype and HIV testing before marriage was first mooted. Today, these are standard practices.

Legal hurdles – Compulsory or mandatory paternity testing especially of children at birth may not be easily achievable as there are strong views opposed to it as amounting to invasion of privacy.

Generally, no one may be compelled to undergo any medical procedure including a paternity test such as a DNA test. See Prof. S.A. Adesanya (1972) Law of Matrimonial Causes 190 where the learned professor stated that “Nigerian courts cannot compel parties to a blood test”. The position of the law is that the law cannot force a paternity test on any one. A citizen has a right to protect his personal privacy by refusing to submit to any medical procedure even if ordered by a court. This is a constitutional right!

 

Any defence by wife? – In the Liverpool woman’s case referred to supra, the mother had offered a defence that all she wanted was a father figure for her child. Was this a good defence to perpetrate such evil? If she was looking for a father figure, what happened to the man who actually impregnated her?

 

A better defence could be one that suggests that she herself was in doubt as to who was responsible for her pregnancy given the circumstance under which she took in especially if the child is the first child of the marriage and she had actually taken in before the celebration of the marriage.

 

This defence, if it is believed, would then only go to portray her as having led an irresponsible life style but takes away the element of deliberate deceit from the question of paternity fraud.

 

The element of deceit is fundamental to paternity fraud since we have defined paternity fraud as an act in deceit deliberately foisted on the victim by the perpetrator. Without deceit, the fraud of paternity is not grounded. Yet, the effect on the parties would not be substantially different.

 

Position of the progenitor – If the other man who is responsible for the pregnancy or pregnancies is known, he will be liable under customary law to damages in favour of the husband victim. In Isoko and among the Urhobos of the Niger Delta, for instance, he will be liable to pay osaye which is damages for committing adultery with another man’s wife. The Ijaws call this form of damages which is common among the peoples of the Niger Delta eretusa.

 

The quantum of osaye or eretusa damages, depending on the community, could be anything from N250,000 to N500,000 or more. This is also accompanied by a goat! The amount could also be less in some circumstance. Osaye is usually a non-judicial communal award but in some cases, the offended family whose wife has been violated can seek judicial intervention by approaching a court – usually a customary court – for adjudication. I had one such case from Okpe-Isoko before me when I sat at Ozoro. I recall not feeling too comfortable doing the case because of its scandalous nature and I pleaded with the parties to go back to the community to resolve the matter.

 

Yes, such cases are not only scandalous but very embarrassing. It is not just about the quantum of damages. A man found guilty of sleeping with another man’s wife lives with the shame of such disgraceful conduct the rest of his life! The shame also rubs off on his extended family including his children. An Isoko man or Urhobo would rather be accused of armed robbery than that he slept with another man’s wife.

 

In this kind of situation, where there is scientific proof that the child or children belong to this other man who is now charged for osaye, he would want to claim the child for himself as his child having paid damages for his adulterous escapade and he would be right. No Nigerian would leave his biological child for another person unless he is not aware or not sure the child belongs to him. This then presents a fundamental challenge of monumental complexity.

 

If the putative father won’t let go as is natural to expect, the child would now have two fathers – a biological father and a social father. Heather Draper explains this predicament thus:

“When men argue that they should be reimbursed or compensated by the “other man”, they seem to assume that the progenitor knew about the children, but he may well not have done. … and could theoretically have been deceived as well. Certainly, if he did not know about the children, he cannot be accused of being party to a fraud.

If the progenitor was not party to the deception, he might also feel aggrieved. If he shares the view that genetic relatedness is sufficient to make a man a father, he may well feel that his rightful place as father to the children has been usurped and that, as a result, he has lost out on the positive aspects of the experience of raising his children and living in their company. Shouldn’t he be entitled to compensation for this loss?

The likely candidate to compensate him would appear to be the woman as, in the kinds of misattributed paternity that we have been discussing so far, we have assumed that the social father was also deceived and cannot therefore be blamed for the injury”.

Damages for adultery – The above discussion has so far focused on the adultery of the wife where such adultery has been discovered by way of an established paternity fraud. Paternity fraud is an offence that is usually committed by a woman hence that tilt of the discussion.

This does not mean that men do not commit adultery. However, the adultery of a man who is married only under customary law is a non-issue since he is a potentially polygamous character in any event. The wife would usually have no claim against him except one of protestation and anger and domestic war-fare!

Whereas a man can claim damages against another man who commits adultery with his wife, the converse is not available to a woman against another woman who commits adultery with her husband. This is again one of those situations where the customary law is discriminatory against women.

According to S.N. C Obi in The Customary Law Manual (supra), such war-fare can be taken to the other woman who dared to commit adultery with her husband. This she does by way of self-help by getting her beaten up. Obi puts it at page 278 paragraph 336 (3) of his Manual thus:

“Adultery by a woman with a married man is an offence by her against the wife of the man with whom the adultery is committed (and) … the remedy for this offence, however, is usually self-help – the offended wife beating up the other woman”.

It is however doubtful today if this recommendation of self-help would be of any practical benefit to the offended woman. Civilization has long moved beyond such crude methods of resolving issues.

Under the Matrimonial Causes Act however, it is possible for a woman to proceed against another woman for sleeping with her husband. Section 31 of the Act makes provision for this possibility in the circumstances provided thereat in the following manner:

“(1) A party to a marriage, whether husband or wife may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.

(2) The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made.

(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition”.

(Consider Ekrebe v Ekrebe {1993} 3 NWLR (…) 514 and Olatawura J. in Olagundoye v Olagundoye (1976) 2 FNLR 255)

(2) EFFECT ON CHILD: The most devastating consequence of paternity fraud is on the child or children. This is because, apart from the emotional and psychological trauma and the social embarrassment of it, the discovery affects his status as a child of the family and consequentially his rights to inheritance under the family he knows to be his own.

(a) Status of child – The discovery of paternity fraud with respect to a child raises the very fundamental issue of the child’s status within the family as to whether he is legitimate or illegitimate. Such status is fundamental to determining his right to succession or even maintenance.

In Nigeria, a child is presumed legitimate if born in lawful wedlock. The converse is also correct that where a child is born not in lawful wedlock, he is illegitimate. He is seen as a bastard! Under most customary law rules, an illegitimate child has no right to succession. According to Coker,

“… there is a status of illegitimacy as opposed to that of legitimacy. The latter entitles the subject ipso facto to succeed to property (while) the former disentitles the subject from so succeeding, unless his rights are ‘legalized by an acknowledgement of paternity’ by the father. … the bastard is so regarded among the Yorubas, and is commonly called the omo ale which literally means ‘the child of an adulteress or an unmarried woman.’”

(See G.B.A Coker Family Property Among the Yorubas 2^nd ed. Sweet & Maxwell, London, 1966) 266).

The above position is applicable almost nationwide as Dr. Obi has declared with respect to the whole of Southern Nigeria that “a child born of an unmarried mother is illegitimate”.

(See S.N.C. Obi Modern Family Law in Southern Nigeria (Sweet & Maxwell, London 1966) 294).

Even under the Received English Law, a child born out of lawful wedlock is illegitimate and which status deprives him of the right to succession and even maintenance.

Accordingly, a child which is the product of paternity fraud is therefore clearly illegitimate and, going by the customary law rule as stated above, he is disentitled from succession under his father’s estate. This is a major blow to him

But the illegitimacy of the child can be cured by legitimation which is a process by which a child who was born illegitimate acquires legitimate status. This is achieved either by when his parents subsequently get married or where the father acknowledges paternity of the child.

Acts of acknowledgement can be in different forms but it has been held by the courts to include supplying information for the issuance of a birth certificate bearing the name of the person acknowledging, celebrating the child’s naming ceremony in his own house.

It is submitted therefore that a child which is the product of a paternity fraud and whose status had been acknowledged by his now social father will be entitled to every right of a legitimate child including succession and maintenance notwithstanding the fact of the new development.

(b) Constitution to the rescue – Section 42 (2) of the Constitution of the Federal Republic of Nigeria now puts being conjecture that a child irrespective of the circumstance of his birth cannot be deprived of any benefits to which he would normally be entitled to. The section provides that

“42 (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”.

In effect, a child, being Nigerian, and notwithstanding that he is a product of paternity fraud, shall not be subjected to any disability or deprivation including the denial of any rights to inheritance which he should ordinarily be entitled to only because, by the circumstances of his birth, he is a product of an adulterous conduct of his mother who deliberately hides the fact from her husband.

(b) Welfare of child – The rationale behind the intervention of the constitution and all other laws in that regard is simply not to punish a child for acts which he did not commit. If the mother of a child commits adultery which results in his birth, why punish the child for that while you leave the actual perpetrator unaffected?

Accordingly, all laws relating to children including laws as to custody of children are made to ensure the welfare and best interest of the child. In furtherance of this policy of the law, the provisions of Section 42 (2) of the Nigerian Constitution is re-enacted at Section 10 (2) of the Child’s Rights Act (Cap. C50) Laws of the Federation of Nigeria 2003 to the effect that

“No child shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”

And by Section 1 thereof, this Act provides that

“in every action concerning a child, whether undertaken by an individual, public or private body …the best interest of the child shall be the primary consideration”.

CONCLUSION – In concluding this presentation, I briefly want to remark that society and the law especially have taken the evil of paternity fraud too casually for too long. It is time the law steps in to address the issue. But before I conclude, let us examine the other side of some aspects of paternity fraud which we have seen in the course of this presentation.

SOCIALLY BENEFICIAL PARENTAL FRAUD – I recall that some reference has been made to Baby Factories in the course of this presentation. Scrutinized with an open mind, I think these baby factories mean well. I see them offering a very useful social service which governments by its laws and myopic policies have failed to provide. And I recommend that henceforth, these factories be no longer demonized but encouraged to continue to do the good works they do and be subjected to control and monitoring under the law.

 

Regulated Baby Factories – These factories cater mostly for unfortunate young girls who find themselves with children in circumstances which, if help is not found for them, may lead to their death or at the very best to their having their children but losing them soon thereafter.

 

Let the state take steps to set up such baby factory centres to which such young girls can run to for succour. And if government would not do so, let those individuals who are currently into this “criminal” enterprise be encouraged to come forward and be properly registered and controlled just the same way as orphanages are registered and monitored.

 

The present attitude to these factories which sees their activities as illegal and anti-social is akin to what we suffer in the Niger Delta where by sheer ingenuity our boys are able to set up refineries and actually produce fuel which the government in its multi-billion refineries is unable to produce.

Yet the government demonise our efforts and pursue us into hiding in the forests to carry out our otherwise socially and economically beneficial activities. They arrest us and destroy our investments! This is myopic and negative government attitude. These geniuses should rather be encouraged, registered and monitored for the general benefit of society.

 

Let government do likewise with the baby factories because ultimately, their activities preserve lives and more so, they provide parents for children who otherwise would be without parents. Once government gets involved, the illegal aspects of their operations especially with the “selling” of these children can then be put to check. Adoption can then be elevated to its proper place in the Nigerian society for the ultimate benefit of such children.

 

Regulated Abortion – As a Catholic, discussing abortion ought to be in one straight direction for me – a NO! NO!! Yes, abortion is evil. It is a sin. It is a crime. And our society treats it as such.

But at the risk of being denied communion by my parish priest, I want to point out that despite the criminalization of abortion and all the other stigmatization associated with it, abortion is known to be on the increase among our women especially the young unmarried ones. And persons involved in it hide to do it in secret because of its criminal toga and social stigma. A lot of these young ladies, because they do not have the means to seek the services of “criminal” but qualified medical personnel, they engage in crude self-treatment or at best patronize quacks the result being often disastrous for them. They either lose their lives in the process or permanently destroy their reproductive organs.

 

Realizing the possibility of these grave consequences, some of these women, where they are lucky to have one, “hang” their unwanted pregnancies on some unsuspecting men whom they have meanwhile lured into sleeping with them. The result is the subject matter of this paper – Paternity Fraud!

 

The current attitude of our laws to abortion, I venture with trepidation to say, is archaic, unhelpful, and somewhat cruel towards our young girls whom we have been unable to discourage from being sexually active when they are not in a position to handle the consequences of such activity.

 

I call for a move away from the current wholesale criminalization of abortion and recommend that government take steps to control and regulate the situation instead; so that young persons who find themselves in such unfortunate situations can be officially helped. That way, their lives are preserved, they can have their babies in a safe healthy environment after which they can cheerfully continue with their lives while their children can also be raised in a decent environment under government supervision and control. With such an arrangement in place, there will be no need for any lady to “plant” a pregnancy on any man and thereby commit the cruel offence

 

Such controlled abortion is then registered while the young mother is appropriately counseled so as not to fall into a repeat situation.

 

Let me make myself clear here that I have not called for a legalization of abortion. I am only saying that since criminalization and stigmatization of it have not achieved the objective of checking it, we need to change tactics and approach. Let it remain a sin and a crime. But not a wholesale crime as in an appropriate case, the law can permit it to save and preserve the life of the pregnant woman and the unborn child instead of risking two lives for the sake of upholding a law – a law which no longer accords with the practical moral realities of today’s society.

 

Sex is now a very common commodity even among kids because society has awfully failed to sustain the attitudes of our forebears to sex and nobody is going to be able to stop it. Not even HIV/AIDS succeeded in making us to be afraid of casual and reckless sex!

 

This paper therefore concludes by suggesting:

*legislative intervention by way of at least a mandatory paternity testing at child birth or so soon thereafter.

*criminalization of aspects of or conducts leading to paternity fraud.

*Regulated and controlled Baby Factories.

*Regulated (not legalized) and controlled abortions.

*Encouragement of paternity fraud victims to seek compensation in civil courts.

*A return to the attitudes of our forebears to sex

*Encouraging a move away from the 25 Reasons for Paternity Fraud list supra in this paper.

*A call on religious bodies and Non-Governmental Organizations to do more at enhancing moral rectitude with regards to sexual rascality.

 

I THANK YOU ALL FOR YOUR TIME.

 

His Honour Miakpo Emiaso is a retired Area Customary Court Judge, currently a lecturer at Novena University and a doctoral scholar at the Delta State University 

 

 

 

 

APPENDIX 1

 

SUIT NO. PACC/17/04

Between

PREYE ORUTU                                                                                 PLAINTIFFS

And

1. MACDOCK R. ASSEH
2. ENEYI ASSEY DEFENDANTS

 

JUDGEMENT

The plaintiff filed this action claiming

(a) A declaration that the female child known and called Cynthia Orutu or by whatever name called duly given birth by the 2^nd defendant during the period of her lovership to the plaintiff is the putative child of the plaintiff.

(b) An order of perpetual injunction restraining the 2^nd defendant howsoever from ascribing paternity of the female child to the 1^st defendant other than the plaintiff.

(c) An order for the defendants to produce the aforesaid child in every sitting days until the final determination of this suit.

The claim was filed on the 2^nd of August 2004 and was duly served on the defendants who, on the 16^th of September 2004 filed a counterclaim claiming N500,000.00 damages for defamation, injunction and an order for apology.

The plaintiff reacted by filing a reply/defence to counterclaim on the 22^nd of September 2004 and opened his case on the 9^th of August 2005, called one witness with himself and closed his case on the 9^th of November 2006. The plaintiff tendered no evidence in defence of the counterclaim neither did the 2^nd defendant say anything in relation to the counterclaim throughout her evidence in defence of the claim which she began on the 7^th of November 2006.

During the pendency of the suit, the 1^st defendant/counterclaimant died without testifying either in defence of the plaintiff’s claim or in proof of his counterclaim. Since no evidence was led by either side in relation to the counterclaim, it is hereby dismissed.

The plaintiff filed two motions during the pendency of the suit. The first is dated the 6^th day of October 2004 seeking the court’s order ‘directing the defendant to produce the female child in dispute at every sitting day until the final determination of the suit’. The second is dated 7^th May 2007 praying for ‘an order compelling the 2^nd defendant/respondent to produce Cynthia Orutu (f) in court for her to undergo DNA test’. Both motions were not moved and are hereby struck out.

PROVING his claim, the plaintiff testified that he met the 2^nd defendant in February of 1993 when some women brought the 2^nd defendant from Lagos to him for friendship and marriage. Said he: ‘The 2^nd defendant also said she came all the way from Lagos because of me. I accepted. We moved straight to my house and started living together as one’.

In ‘about September or October 1993’, witness said the 2^nd defendant informed him that she was ‘two or three months’ pregnant. He then took the 2^nd defendant to ‘somebody’ at Osuoware for massaging because 2^nd defendant was very fat.

The woman who massaged the 2^nd defendant also confirmed to him that the 2^nd defendant was ‘about four months pregnant’.

Then about ‘almost January’, he gave the 2^nd defendant N5000.00 to go to Lagos and bring all her properties. That was the last the plaintiff saw the 2^nd defendant. However, in March 2004, one Sainki informed him that his wife put to bed in February in Lagos.

About two years later when the plaintiff went to Lagos, the 2^nd defendant brought ‘his child’ to show to him and assured him the baby was his. Also in September 1997, the 2^nd defendant came to visit him with his ‘pikin’ in the presence of ‘my wife’ whom he later married.

About ten years after the birth of Cynthia, the plaintiff discovered that Cynthia was bearing Asseh and not Orutu at school. He then challenged the 1^st defendant by writing Exhibit PO1 dated 18^th July 2003 to the 1^st defendant asking the 1^st defendant to return his child to him which demand was ignored.

On the 16^th October 2003 however, 1^st defendant wrote Exhibit PO3 to the plaintiff warning the plaintiff to keep off his daughter. 1^st defendant also caused his solicitors to write Exhibit PO2-2A to the plaintiff threatening legal action for defamation.

The PW2, one Robinson Oyobo, seem to corroborate the plaintiff’s story that the 2^nd defendant once told the plaintiff in the presence of several persons that she would return the child to the plaintiff after the death of the 1^st defendant and that the plaintiff should be patient. During cross examination, this witness said ‘I got to know that the defendant was pregnant for the plaintiff on the day the plaintiff sent me to call the 2^nd defendant who on that day confirmed that she actually got pregnant for the plaintiff but that she lost the pregnancy’.

DEFENDING, the 2^nd defendant as DW1 stated that she gave birth to Cynthia two years after she met the plaintiff and that the plaintiff only started laying claim to paternity of the child after ten years. This was when he sent her friend Mary to call her to the plaintiff’s grandmother’s house at Aven.

DW1 stated that she told the plaintiff that the child was not his child. ‘I have no child with the plaintiff. My child is fathered by my husband Macdock Asseh’, the DW1 asserted.

DW1 who said she already had eight children from a previous marriage declared during cross examination that except when she was introduced to the plaintiff by Tombri, she had had nothing to do with the plaintiff. ‘I have never slept with the plaintiff’, she asserted. ‘On the day he was introduced to me, he proposed to me to marry him but I refused because I was already married and I am living with a husband’, she stated.

THIS COURT has with great attention listened to the testimonies of the witnesses in this curious case. What the court is called upon to determine is very simple and straight forward. It is this: who is the biological father of Miss Cynthia? But the claim of the plaintiff however is for us to determine not the biological father but the putative father of Miss Cynthia.

Whichever way, the kind of evidence that a court will require to be able to act must be strong and cogent. In these scientific days, a DNA test is inevitable if the court is to be certain in its decision. This is absent in this case. Recourse must therefore be placed on the probable evidence led by the disputants.

The evidence of the 1^st defendant would have been most helpful. But he died before he could testify. The 2^nd defendant’s evidence did not help much as she said very little. The court will usually tilt towards believing the evidence of a mother in this kind of proceedings as a mother is in a better position to say who the father of her child is. Although her little evidence is crucial, it must be observed that she was very emotional all through her testimony.

Clearly the evidence of the DW1 showed that, as a woman, her conduct in the sordid events of this case left so much to be desired. She was obviously not telling the truth when she said she has had nothing to do with the plaintiff. But her assertion that ‘I have no child with the plaintiff. My child is fathered by my husband Macdock Asseh’ is very weighty as it is the assertion of a woman. She is in a better position to know.

Be that as it may, the burden of proving the plaintiff’s case that he is either the putative or real father of Cynthia lies squarely on the plaintiff. This is because under our laws, he who alleges must prove. Section 35 Evidence Act 1990.

It is common knowledge, in the nature of things, that from conception to the birth of a child is a period, plus or minus, of nine months. To succeed in his claim therefore, all the plaintiff needs to establish are:

(a) that he had sexual intercourse with the 2^nd defendant

(b) the exact date or dates of such sexual intercourse, and

(c) the date of birth of the child.

These are facts that the court cannot speculate over. To succeed, the plaintiff must specifically prove these facts in the absence of a scientific DNA test. Has the plaintiff discharged this burden? Did the plaintiff tell this court whether or not he had sexual intercourse with the 2^nd defendant?

In this regard, all that the plaintiff offered by way of evidence is ‘we moved straight to my house and started living together as one’. This cannot amount to saying they had sexual intercourse unless the court is to speculate or embark on conjecture.

Indeed the evidence of the 2^nd defendant is suggestively more helpful when she said that except on the day she was introduced to the plaintiff, she had nothing to do with the plaintiff. This could mean she only had something to do with the plaintiff on the day they were introduced. But then, this is conjecture which the court cannot act upon. This evidence that the parties had sexual intercourse must be specific and unequivocal. We think such evidence is missing in this case.

As to dates, the plaintiff’s evidence is manifestly self defeating as in all the instances where the plaintiff referred to dates in his evidence, he was not specific. Except when they met in February of 1993, he was informed of the supposed pregnancy ‘about September or October’. That the pregnancy was ‘two or three months’ old. And then, the woman who massaged the 2^nd defendant at the time the pregnancy was ‘two or three months’ old said the pregnancy was ‘about four months’. Then he gave the 2^nd defendant N5000.00 to go to Lagos in ‘almost January’.

As for the date of birth of the child, the plaintiff in fact does not know except that one Sainki told him in March that his wife put to bed in February.

This court cannot act on these kind of speculative evidence to make the kind of declarations being sought by the plaintiff.

The conduct of the plaintiff also leaves a lot to be desired. This is someone who claims to be the father of a child he did not name. For two years after the birth of Cynthia, he did nothing. When he went to Lagos after two years, it was not to look for his putative daughter but to look for money for his treatment. That he met the child and the 2^nd defendant was only because the 2^nd defendant came looking for him. Meanwhile, Cynthia lived with the 2^nd defendant and ostensibly with the 1^st defendant for all of ten years before the plaintiff woke up to ask for his child in Exhibit PO1.

From Exhibit PO3, the 1^st defendant wrote that when the plaintiff on the 7^th of October presented Cynthia with N100.00 she refused to accept. This is an indication that the child is certainly not used to the plaintiff. Cynthia is now 14 years old. Her own interest as a young person must be taken into consideration in all of these sordid happenings. How does this court expect a 14 year old girl to feel when she is told that the person she grew up getting used to as her father is suddenly no more her father but someone else?

WE think it is late in the day for the plaintiff to wake up from his slumber to lay claim to Cynthia in the absence of a scientific fool-proof DNA test.

The plaintiff called Robinson Ayobo as PW2. This witness testified that on the day he was sent to call the 2^nd defendant, she said that she actually got pregnant for the plaintiff but that she lost the pregnancy. This is the plaintiff’s evidence. It means that Cynthia is not the child which the plaintiff may have fathered.

On the whole, this court holds that the plaintiff has failed to prove his case to deserve the declaration he seeks. They are accordingly dismissed. No orders as to costs.

 

*********

 

 

 

 

 

APPENDIX 2

 

MY SADDEST DAY IN COURT!

 

The scene in the court room of the Family Division of the Lagos State High Court, Ikeja, evoked deep pathos. The judge, a Lady, was sobbing. And so were the parties, the lawyers, and everyone else in that rattled courtroom, including me! It was at the hearing of a case instituted by me on behalf of my client, Dipo, against his former consort. Their relationship more, than thirteen years earlier, had produced a baby girl, but it did not eventually lead to marriage, even though Dipo had assumed full responsibility for the child’s upkeep and maintenance, and was at the time of the hearing bearing full responsibility for her schooling and upkeep at the very expensive Turkish – American secondary school at Victoria Island, Lagos! Dipo was well – heeled, a chartered accountant, and loved the child – his only child – dearly.

 

The love affair between Dipo and Jumoke, the child’s mother had been steamy and passionate. Jumoke’s mother fully supported the affair. Not only was Dipo a comely lad, he had also been a very promising young man, from a very good family in Ondo State. Graduating at the top of his class, with a first class in Engineering from the University of Ife, he had ventured into Accounting, and quickly became a fellow of the Institute of Chartered Accountants of Nigeria. Dipo was thus by every standard, a worthy suitor, and a welcome guest at his lover’s mother’s home in Abeokuta. It was in the course of one of those visits that the inevitable happened, and the lady took in, and eventually gave birth to the baby girl!

 

Dipo did not eventually marry his lover, but he continued maintaining both she and the baby, even after the lady found love elsewhere and married! And fortune was immensely kind to him. He rose quickly professionally, becoming the Managing Director of a major firm in the city of Lagos – and super wealthy to the bargain. He himself had married, but the marriage had not produced any issue, even after several years. And he had begun to doubt whether he was going to ever sire another child. But the thoughts of his very beautiful Angel from his earlier relationship always comforted and reassured him. The girl was almost his carbon copy, and he adored her.

 

When the little girl was thirteen years, Dipo honoured an invitation to attend a wedding in Lagos. His attendance at that wedding was to change his world forever. Dipo was invited to the high table to chair the occasion. From where he sat at the high table, he could see a daintily dressed couple swaying gaily to the beats and praises of the Fuji singer, as they waltzed their way to their seats at the high table. The master of ceremony had earlier, in calling them to the high table, introduced them as Mr and Mrs Abimbola. They, along with Dipo, were among the distinguished guests at the wedding reception. They took their seats right beside Dipo, with the husband sitting right next to Dipo.

 

Dipo instantly recognised his ex girlfriend, his baby’s mother, and waved at her in greeting. But when he took just one look at her husband, his heart sank. Sitting right there next to him was Ade. He had put on some weight, but there was no mistaking who he was. “Ade”, blotted out Dipo. “Na you be this? Wonders shall never cease!” Dipo, chairman of a wedding, lost control of his emotions, and began to sob, his dropped head in his palms. He regained composure, and took charge of the wedding proceedings!

 

Fifteen years previously, while he dated Jumoke, now Mrs Abimbola, Ade had also been a regular visitor at Jumoke’s house at Abeokuta. Ade was good looking and courteous toward Dipo whenever Dipo visited, and sometimes even ran errands for Jumoke’s mother. Both Jumoke and her mother introduced him to Dipo as Jumoke’s cousin, and in Dipo’s presence, Ade played the part perfectly. But there was one particular day that Dipo came to her house unannounced, opened Jumoke’s room without knocking, and caught Jumoke and Ade untangling from what he thought was an embrace and a kiss. Dipo reported what he thought he saw to Mama, but Mama and daughter quickly doused his suspicions, with Mama explaining that the duo had always been so close, right from infancy.

 

It was shortly after this time that Jumoke took in for Dipo, and birthed his adorable little baby girl!

But now, Ade and Jumoke were sitting right next to Dipo, introduced by the MC to the whole world as husband and wife! They were even dressed in the same uniformed attire, leaving no one in any doubt that this was a couple. When Dipo left the wedding party that evening, he wept like a baby, from the moment he entered his car, and up to the point he arrived home.

 

He was still weeping when he picked up his phone and called me, asking me to hop into the next available flight in Abuja to see him in his house in Lagos. When I inquired to know the reason for the urgency, he only retorted gravely: “Ken, my world has come crashing down. I am finished. And my life might even be in danger!”

 

The atmosphere in the courtroom that early morning was calm, almost sombre.

 

I had arrived with Dipo in the same car. Just after alighting from the car, and as Dipo and I began to walk the short distance from the car park to the court room, a pretty little girl, fair complexioned and slight in build, much like Dipo, raced from the shade of the big mahogany tree not too far from the courtroom and flung herself at Dipo. Father and daughter locked themselves in passionate embrace that lasted almost five minutes.

 

“Daddy I love you”, said the young girl. “I love you too”, Dipo responded, almost choking on his emotions. From under the shade of the big tree, a fortyish looking woman, fair complexioned too and pretty, fixed her gaze at Dipo and daughter. She did not utter even a word to Dipo. Her face was expressionless. She only looked away when Dipo looked in her direction and began to walk into the courtroom with his daughter.

 

“Ken”, that’s Jumoke”, Dipo said almost in a whisper. I said I already knew. She was in court at the last court sitting which Dipo himself did not attend.

 

At that sitting the court had ordered that the only way to resolve one of the most contested issues in the suit was for a DNA test to be conducted on the young girl. The parties were to take the girl to St. Nicholas Hospital Lagos, accompanied by the Registrar of the Court, for samples to be obtained from the child and Dipo. The court further ruled that the result of the test be brought directly to the court in a sealed envelope by a qualified scientist from the Hospital’s laboratory who will open the result for the first time in court, tender same, interpret it, and be cross – examined by both parties! Dipo was to bear the logistical implications of the test in full.

 

A few months earlier, and on Dipo’s instructions, we had brought an action in deceit and paternity fraud against Jumoke and Ade, claiming humongous damages, alongside an awkward declaration that even if a result of a paternity test showed that the child was not Dipo’s, he was entitled to custody which Jumoke had disallowed him since the girl’s birth, since he loved the child dearly, had maintained her all along, and knew no other child all his life. The declaration sought was a clumsy one – and I felt uneasy drafting it. Infact, upon my arrival from Abuja after Dipo had summoned me, I had advised him, upon him telling his story amid sobs, to forget about going to court, and let sleeping dogs lie.

 

But Dipo was adamant. For some strange reason, he felt his life was in imminent danger, and that if he suddenly died, Jumoke and her husband would exploit his relationship with his daughter, descend upon his estate, and inherit all that he had laboured for in life. He calmly explained that this was possible since under Yoruba customary law, a girl – child was entitled to a share in her father’s estate. Jumoke’s daughter – his daughter – therefore stood to inherit everything, which will then pass on to Jumoke and her husband. And Dipo believed his death was imminent – unless the truth was quickly unmasked.

 

He was in no mood to entertain further arguments. I therefore proceeded to work, settled the originating processes, which we later filed at the Court Registry. The suit was then assigned to the Family Division of the High Court of Lagos State. It was on the very first day of the hearing that the Honourable Court ordered the DNA testing and gave a fairly long adjournment to enable the test to be conducted, and a result produced. It was therefore on the day of the production of the test result that Dipo and daughter met, and walked together into the court room, followed at a distance by Jumoke and two other women about her age, along with two men, none of whom was Ade, her husband.

 

The first case to be called on the day was the divorce petition brought by Festus Keyamo against his wife. It was quickly adjourned, and Dipo’s case was called. Counsel to both parties announced their respective appearances, with us then informing the court that the business of the day was for the scientist from the Hospital to produce and tender the result of the paternity test. The scientist was the court’s witness, and the parties had therefore refrained from seeking to know, or mingle with, him.

 

Fortuitously, the Court Registrar informed the Judge that the witness was in court, and signalled to him from where he sat among the throng in the packed courtroom to proceed to the witness box where the oath to speak the truth was immediately administered on him.

 

It was the Judge herself who led the witness in evidence. But just as she was about to begin, she looked toward where Dipo sat with his daughter immediately behind the lawyers row, and noticed the young girl. Her maternal instincts immediately kicked in. “Stand up, sweetheart”, the Judge told the girl in a sweet tone. “Why are you here again today?”, her Lordship inquired. “I think I told you last time not to come to court again until this case is over. Courtrooms are not good for small children. You will go to my office and stay. They will even give you ice cream and minerals there.” The young girl tried to explain that her school was on its long vacation, and that her ambition in life was to be a lawyer, and that she was therefore in court to see how the lawyers did their thing.

 

But the Judge was adamant, and at Dipo’s gentle prodding, the girl left the courtroom meekly and walked away, cutting a pitiable figure, and drawing sighs.

 

Her Lordship then turned her attention to the witness. She had suddenly transformed from the very gentle mother of a few minutes earlier to a stern faced arbiter, very much in control of the proceedings. She began by asking the witness his name, address, place of work, qualification and experience. As the witness spoke, she meticulously recorded all his answers.

 

“Your hospital was ordered by this court to obtain samples from the Plaintiff and his daughter and perform a DNA test to determine the paternity of the daughter”, her Lordship probed in grave but measured tones. “Yes, my Lord”, came the Reply. The witness confirmed that the samples were collected as ordered and sent to their correspondent laboratory in South Africa were the test was conducted, and the sealed result sent to his hospital, and that the result was still sealed. He fetched forth the envelope from a folder, and showed the Judge.

 

The judge then requested the witness to un – seal the envelope and bring out the result. As he did so, the tense courtroom became deathly quiet. I took a quick look in Dipo’s direction and saw him looking scared and lost. But Jumoke, who sat further back, was expressionless. Her face only came alive when she caught me looking at her. She met my gaze with a stern grimace, batting her eyelids rapidly at me in apparent rebuke of my effrontery. I quickly returned my attention to the proceedings.

 

The witness then tendered the DNA result, and counsel on all sides were shown the result by the Court official, and the Judge asked whether any of the counsel had any objection to its admissibility. In the absence of any objection, it was received in evidence and marked. I looked back at Dipo again and saw him muttering a silent prayer, eyes closed, lips quivering in quiet supplication to the great maker of all things to avert his worst fears.

 

The judge ordered that the witness be given the result once more. “From the result in your hands, whose paternity test result was this?” The witness answered that it was the little girl’s. “Now, witness, from the result in your hand, is the Plaintiff the father of the little girl?”

 

There was once more pindrop silence as the witness began to answer, squelching the muted murmurs and whispers that had arisen moments earlier. Then came the bombshell: “My Lord”, the witness began slowly. He then paused for dramatic effect, a small smile playing by the corner of his thick lips, his dark face betraying the countenance of a man who had seen so much of the follies of this world. The judge rebuked him, and reminded him that he was there for serious business. He quickly bowed and apologised, and resumed his testimony. Looking at the result in his right hand, he read out some technical jargon, and began to interpret it, looking at the judge: “My Lord, what this means is that the Plaintiff here”, he paused and pointed at Dipo, “could not have by any chance in the world fathered this girl.” Instant howls could be heard across the courtroom.

 

The witness had hardly finished his last sentence when the little girl burst into the courtroom, shrieking and wailing. She rushed straight to where a now sobbing Dipo sat, held him tight in an embrace, and started wiping her father’s tears with her palm. As she did so, Dipo momentarily regained composure, stared keenly at his daughter’s face, kissed her on her forehead, shrieked in agony, and resumed crying, father and daughter still locked in harrowing embrace! “Daddy, it’s a lie”, she screamed, still crying. “Daddy, you are my father. Daddy I love you.” “I love you too, and always will”, Dipo moaned, the pain in his heart very much conveyed by eyes now reddened by anguish. As father and daughter grieved, tears running profusely on their faces, their noses also ran.

 

The police orderly had rushed to restrain the young girl when she first burst into the courtroom, but the Judge had ordered him to leave the girl alone. The poor girl had apparently not heeded the Judge’s instruction to go to her chambers for ice cream, but had lurked around the precincts of the court to espy the proceedings!

 

Now, as father and daughter sobbed and shrieked in pitiful embrace, the stern judge melted and brought out a handkerchief and sobbed along. The scene was so moving that everyone in the courtroom, with the exception of Jumoke, joined in sobbing, with some, especially the women, wailing! I reached for my white handkerchief, removed my glasses and began to wipe my own tears!.

 

“The court shall rise”, the Judge managed to announce, and immediately left the courtroom for her chambers, never to return for the day. It was the clerk of court who later returned to announce to a tumultuous courtroom that the matter had been adjourned for the day, and that counsel in the matter should approach the clerical desk for dates!

 

**********

 

APPENDIX 3

 

THE WOMAN! DONT KILL YOURSELF BECAUSE OF ONE!

“Two sentences landed him in prison for eleven years awaiting trial for murder:

(a) “l will kill you today”

and

(b) “tell your parents to prepare for your funeral.”

Both sentences were said in the heat of a quarrel. There was no physical contact or fight between two of them.

One went home and died at exactly 11 pm on the 20th of June, 1999. The other was arrested by the police based on a complaint by the widow of the deceased alleging murder and he was taken before the Magistrate Court, Ebute Metta, Lagos State on a holding charge.

He was remanded in prison custody awaiting trial and was subsequently arraigned in the High Court of Lagos State for murder.

This matter survived four judges and six lawyers. It was an exasperating case due to the constant transfer of judges and reassignment of the case itself to other courts.

Besides, for all the six lawyers except the first three it was a pro bono service. Pro bono services are not easy.

From obtaining proof of evidence to appearance fees, none is paid by the defendant. In the case of Stephen Solomon Foundation, we give the defendants money for their upkeep. Then it was N10k a month for those in dire need. It is a tasking and taming job.

I sat waiting for him in the Records Office of lkoyi Prison. His name is Mr Izobo from Owan West Local Government Area. He is from Sabongidda Ora. He was said to be taking his medicals so l waited for him patiently.

About 45 minutes later, he came in looking gaunt, weary, sickly and in deep despair.

I understood the way he felt. Eleven years in prison custody had taken its toll on him.

He sat down and we exchanged pleasantries. I went straight to the point.

“Sir, you’re going to be out of this place within a year and a half, if you’re not convicted”.

He laughed and said “you have not made any promise by that statement”.

l replied him “Yes, l have not made a promise to you but l have fulfilled a promise to myself and He who sent me here, Jehovah, to make you laugh and give you hope”.

He laughed and said “Sir, this is my first time in eleven years that l have laughed and have hope. Thank you”.

What was his story? He said his name is Emmanuel Izobo. That he was the Chief Accountant of an oil servicing multinational company .

That he is married to Margaret lzobo, a petroleum engineer who lost her job when this matter started.

That he is blessed with three sons and an adopted daughter.

That on the fateful day, NEPA officials came to the area to disconnect those in debt.

That his neighbour, the deceased Mr Jonathan lbe, was owing N100k and he, Mr. Izobo, was not owing.

That Mr lbe removed the receipt he pasted on his wall and pasted same on his own gate to deceive the NEPA officials. But that the NEPA officials found the fraud and called him to come out to see things for himself.

That the officials also discovered that Mr ibe had bridged his, Mr Izobo’s source of supply to power his sachet water production factory behind his house.

That an argument arose and insults were exchanged not only between himself and Mr Ibe but their wives too.

That the NEPA officials were there when it all happened and supported him and threatened to report Mr Ibe to the police.

That it was when Mr Ibe called his wife a prostitute and his children “not his” and that he is sterile and cannot father a child that was when he uttered the words: “l will kill you today and tell your parents to prepare for your funeral”.

That he went home to his house and never came out again that day.

That he was at work the next day when he got a call from his wife that Mr Ibe died the previous night after vomiting and stooling blood.

That Mr Ibe’s wife, Juliana, and his wife were once best of friends.

That amongst his worries in prison was the statement of late Mr Ibe that he could not father a child .

That what did or could his wife, have told Mrs Ibe? He was broken.

I told him that the task before me was his freedom. l am not a doctor.

When and if he gets his freedom he may go ahead and do a DNA test.

l have long lost my sense of matrimonial emotions. Sentiments. I lost it long ago when l found that between staircases, sex is readily available for married couples with outsiders.

In shops and elevators. I lost it when l see a lot of married women lodged in hotels and having good sex with boys not even the match of their husbands.

I cannot and will never demand fidelity from my wife. If she wishes to give it, fine. But don’t bring disease home to me.

At 20 years old, l was manager of Zim Hotels, Benin-City, a five star hotel. My late brother’s hotel. I saw many things. I saw married naked women with their teenage boyfriends.

Life is deep I told myself.

Mr Izobo should save me the crap of feeling bad over a wife. No time menhhhhhh!

I have learnt that stolen sex is the SWEETEST. Adultery is the finest of wine for the wicked. And mankind is wicked.

Mrs lzobo had since stopped coming to see her husband in prison but with the husband’s consent had sold their house to fund legal fees and take care of the children. She moved into a rented accommodation.

Trial commenced. Prosecution called seven witnesses. Five testified that they heard Mr izobo make the threat but there was no physical contact between the deceased and himself in their presence.

One said “… a witch flew in the night and a child died in the morning who is responsible?”

The pathologist gave evidence at my cross examination that Mr lbe died of UNKNOWN CAUSES.

That the blood found on Mr Ibe were “suspicious” and looked “very suspicious”.

On further cross examination, l asked if by “very suspicious” it included “planted blood or blood imposed on the corpse”. He answered in the affirmative and that it could also be as a result of “rough movements” of the corpse or “rogue interference” with same.

l got the court to call the family doctor of the lbes. His evidence was crisp. Incidentally, he was also the doctor of the lzobo family.

He told the court that he made a statement to the police.

That Mr Ibe had chronic hypertension and faints even when driving.

That he had warned him not to do excessive work or actions.

l called the NEPA officials to testify. Their testimony was far reaching.

 

JUDGEMENT was delivered exactly a year and four months later. Mr izobo was discharged and acquitted.

But later events destroyed him completely for which till date he is a patient in a psychiatric hospital in Ghana on the kindness of his friends.

 

He lost it when he found out that ALL those children he thought were his were not his.

Two were for another of his family doctor and the other one was for Mr lbe. And that was the reason of a fight between Mrs lbe and Mrs Izobo.

 

Mrs Ibe found out that her husband was having an affair with Mrs izobo.

 

Mrs lzobo died in a fatal accident on her way to Abuja”.

 

– Aigg Giwa-Amu

 

 

APPENDIX 4

 

CONSEQUENCES OF COMMITTING ADULTERY IN ISOKO LAND

In Isoko land, “We have lots of cultural heritage, which will remain forever binding on any born Isoko child. But the most serious of them all that can even lead to death is the ESEMO issue.

“ESEMO” which means “our ancestors” is a spiritual being in Isoko land which can be seen only by those that violate the laws of the land as regards fidelity. It has been in existence centuries back and it was instituted by our great ancestors to fight injustices in our land.

This custom is binding on all Isoko descendants even outside the shores of this town, including overseas and on any woman married to an Isoko indigene from any part of the world. Once a lady’s bride price has been paid, she is no more available for any other man apart from the husband. But if another man rapes her, it will turn around and deal with the rapist.

Custom has it that any woman married to an Isoko man “no matter where the woman is from” who engages in extra-marital affair will be “arrested” by the “ESEMO” deity. It should be stressed too that the Esemo will catch the man (husband) and kill him leaving the woman (wife) if she told the husband what happened or the man had the slightest idea that the wife was unfaithful but didn’t relate this to the elders immediately and still sleep with the woman or eat food prepared by her. He can only sleep with her when the family elders have been informed and the gods have been appeased.

Also, a man who commits this act is not left out. Any man who commits extra-marital affair with Isoko man’s wife or even an obvious attempt or intention to do that by kissing or having your hand across her waist attracts the same reaction as having had sex with the woman. The man is accordingly fined some reasonable amount of money by the husband’s family for cleansing. This is called “OSAYE” which literally means “the price of a wife”.

While Isoko men are happy with this custom set out by their ancestors, a lot of people especially women are of the opinion that this tradition is unfair to the women and have clamoured rather it should be equally applicable both parties.

From findings, the progenitor of the tradition of “Esemo” in Isoko land made it to keep Isoko women in exclusively reserved for their husbands.

As for the men, they are allowed to have more than one wife. Tradition has it that Isoko men are great farmers and marrying as many wives as they can assures of farm hands for the family. Although Isoko men are forbidden from sleeping with married woman as this is usually visited with consequences, they are free to have a harem of girlfriends/concubines or mistresses.

Some Isoko women are known to have tried to be smart with the Esemos by trying to challenge this perceived ‘anomaly’ and they were visited with instant consequences. The women are reported to have prepared charms to “blind” the spirit of Esemo so that they can also experiment with multiple sex partners like their husbands. Some are said go to the extent of bathing with water used for bathing corpses believing that it is a means of neutralizing the spirits.

However, stories have it that this set of people only postponed the doomsday as they only succeeded in making their own public confession after seeing mysterious happenings like losing their kids one after the other or having strange illnesses. Most times the deity will suffer the woman who prove stubborn until she confesses, and she will die immediately after her confession.

HOW THE GODS ARE APPEASED

In other to avert the wreck of the gods, the gods are appeased. There are processes of reconciliation and restitution but it affects the personality of the people involved. The first step is for the woman to confess openly that she engaged in such and must pronounce the name(s) of the person(s) involved in such act. After this, certain rituals are done with a goat, yams, plantain, palm wine, and kola nut as stipulated by the elders of the family. The woman’s confession will be repeated before the elders of the family in front of the family shrine. At the end of the confession, she will park sound as a sign that there might be others that she can’t remember. The sand is normally raised from the ground and thrown into the air by the confessor to signify that it is finished and to include both remembered and omitted names. Note that any single omission of names willfuly or unintentionally renders the whole restitution exercise null and void.

The man whose wife was caught by Esemo spirit stays away from the scene during the confession. He is also not allowed to taste or eat the items used to appease the gods. If these measures are not taken urgently, the person will be killed by something only he or she can see and cannot be seen by other free people around. The Esemo spirit normally manifests by forcefully pulling out the person’s tongue, stiffening of neck like somebody suffering from cerebral spinal meningitis and in extreme cases death.

Apart from this, there are other issues that attract the wreck of the Esemo which includes;

1. Having an affair with your mother, father, uncles, aunties, sisters, brothers, cousins, nephews, and niece.
2. married women are forbidden from stealing their husband’s money without informing your husband about your act.
3. Having an affair with another woman or man in your matrimonial bed.
4. Children having affairs in their parents’ matrimonial bed.Top of Form

SOME REACTIONS

Bill Peters: A savage custom, barbaric, repugnant to equity and natural justice. The woman is no lesser than the man hence God instituted love and submission which in turn channels …

Jerry Edo:  Nice piece. Thanks for bringing something intellectual to this forum rather than the vanilla stuff we are always fed with here. Our history and culture are invaluable compass in charting our future. Some aspect of the Esemo concept may seem…barbaric to modern minds but they served the purpose for which they were established by our ancestors. Culture is dynamic and every cultural act and practice is subject to change and evolution. The Jews once stoned adulterous women to death. Today in Israel, that culture is extinct. In Isoko land today, I guess it is FEAR that still keeps these traditions alive.