S. A. EZEKIEL (PLAINTIFF)
E. ALABI & OTHERS (DEFENDANTS)
(1964) All N.L.R. 465
Division: High Court, Lagos
Date of Judgment: 5th March, 1964
Case Number: LD/348/62
Before: Onyeama, J.
The plaintiff claims, against the defendants, a declaration that he is the father of a child born of the first defendant, an injunction restraining her husband from holding himself out as the father, and rectification of the Register of Births to show the plaintiff as the father of the child.
At the trial, it was shown that there was occasional illicit sexual intercourse between the plaintiff and the first defendant; that the plaintiff and the first defendant were not married at any time, that the defendants, who are husband and wife, under native law and custom, slept together during a period when the child in question was conceived.
(1) Where there is evidence of lawful marriage, the court will not enquire into which of a husband and his wife's lovers is the father of a child born in lawful wedlock and conceived during marital cohabitation as such an inquiry would be scandalous.
(2) If a child is conceived and born of illicit sexual relationship such a child would be illegitimate, consequently, the plaintiff has no legal claim to it in English law or under native custom.
Onyeama, J.:-This is an unusual claim.
The plaintiff claims a declaration that he is the father of a child born of the first defendant on the 13th of April, 1957, an injunction restraining the second defendant from holding himself out as the father of the child and a rectification of the Register of Births in Lagos so that the plaintiff, and not the second defendant, would be shown thereon as the father of the child.
The plaintiff's case is that he had sought the hand of the first defendant in marriage in Omupo in Northern Nigeria. Her father demanded £60 as dowry and his father caused £10 to be paid which the first defendant's father accepted. Some time later he wrote a letter to the first defendant to which her father took exception and which caused him to return the £10 paid to him and to call off the proposed marriage; by this time the first defendant was already pregnant as a result of intercourse with the plaintiff.
The second defendant then came on the scene and took the first defendant to Lagos where they have lived as man and wife ever since, and where, a few months later, she gave birth to the child in question.
The defence is that there never was any intercourse between the plaintiff and the first defendant. They were never engaged to be married and he had not paid any dowry. He had made advances to the first defendant but these did not lead anywhere.
The defendants, on the other hand, had performed certain betrothal ceremonies when the first defendant was only six years old. The final marriage ceremony had been performed in November, 1956, when, as a result of intercourse between them in July 1956, the first defendant was pregnant.
The child born was born to the defendants after they were married according to Omupo custom, and was born in wedlock. The defendants are still married.
As a result of a complaint made to the Social Welfare Department, the plaintiff and the defendants and the child were examined by a doctor whose report was inconclusive.
It is quite impossible on the evidence to say that the plaintiff, and not the second defendant, was the father of the child. The child was born in wedlock and the presumption is in favour of legitimacy.
I am quite unimpressed with the evidence that the plaintiff paid any dowry on account of the first defendant. His evidence on this point was badly shaken in cross-examination.
If there was sexual intercourse between the plaintiff and the first defendant, and I am inclined to believe that there was, my opinion is that it was of the nature of an occasional liaison. It was not a marital affair as the plaintiff and the first defendant were, in my view of the evidence, not married at any time. If a child was conceived and born of such illicit relationship, such a child would be illegitimate and the plaintiff could have no legal claim to it in English law or under native custom.
There is overwhelming evidence that the defendants are husband and wife. There is evidence that they slept together during a period when the child in question must have been conceived. This Court will not enquire into which of a husband and his wife's lovers is the father of a child born in lawful wedlock and conceived during marital cohabitation. Such an enquiry would be scandalous.
I have not considered many other interesting issues raised by this claim: for example, domicile, jurisdiction and whether the declaration sought could be made; for even if all these points were resolved in favour of the plaintiff
(and I am by no means sure that they would) the action would fail on the merits.
The plaintiff has failed to prove that he is the father of the child and his claim fails.