Crime/Justice
Every Customary Marriage Must Be Followed By Cohabitation
There can be no Customary Marriage without the parties living together. The living together must commence from the inception of the marriage. After the parties shall have lived together, the wife may obtain leave to visit her parents for a short period.
Case: See, Osamwonyi vs. Osamwonyi (1972) LPELR-2789 (SC) (P. 9, Paras. A-C) perc Fatai-Williams, JSC.
Ekong & Anor. vs. Akpan(2020)LCN/14044(CA)
ISSUE: PROOF OF CUSTOMARY MARRIAGE- Whether lack of evidence of payment of bride price dislodges the existence of a customary marriage between a man and a woman; Whether presumption in favour of customary marriage can lie in the face of evidence of protracted cohabitation (Issue is mine)
PRINCIPLE:
“The Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives an unbrided access to justice to all. However, the onus is on him who asserts to prove and it must be on the balance of probability. Thus, it is for the trial Court to weigh the evidence by both parties on an imaginary scale and decide on the preponderance of evidence in whose favour the pendulum of justice would tilt.
The appellants in this appeal complained that the trial Court has failed to properly evaluate the evidence adduced and therefore came to a wrong conclusion that the respondent was a legitimate son of Effiong Etim Udo Ekong who died in 1979 and who in his life time neither recognised nor acknowledged the respondent as his child.
It was thus the contention of the appellants that the respondent did not prove his claims in the counter-claim.
Having stated the imperativeness of weighing the evidence adduced by the contending parties, the law is equally settled that where the Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court.
In other words, an appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court except where the trial Court abdicates its duties of evaluation of evidence and the ascription of weight to the evidence, or when it is demonstrably shown that it had not done it properly or having done it came to a wrong conclusion, or there are good and exceptional reasons to do so.
In such cases, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See Eze V. Okoloagu (2010) 3 NWLR (Prt. 1150) 183; Akinola V. Oluwo (1962) 1 SCNLR 352 and Akinbade V. Babatunde (2018) 7 NWLR (Prt. 1618) 316 at 395.
Before embarking on the task of discovering whether the trial Court had abdicated its duty of properly evaluating the evidence in this case, let me say straight away that paternity and marriage are not so interwoven that proof of paternity must necessarily imply marriage between the parents involved. See Anwadike & Anor. V. Anwadike (2019) LPELR–469.
Learned appellants’ counsel has strenuously argued that the respondent did not prove the existence of marriage be it customary or statutory between DW2, the respondent’s mother with late Effiong Etim Udo Ekong as there was no evidence of payment of bride price given as is customary with customary marriages.
The provision of Section 166 of the Evidence Act deals with presumption of marriage and it provides that:
“166, when in any proceeding whether civil or criminal, there is a question as to whether a man or woman is the husband or wife under Islamic or customary law of a party to the proceeding the court shall, unless the contrary is proved, presume the existence of a valid and subsisting marriage between the two persons where evidence is given to the satisfaction of the Court of cohabitation as husband and wife by such man and woman.”
Also, in Anyaegbunam V. Anyaegbunam (1973) LPELR-507, the Supreme Court has held that it will be inappropriate to suggest that the only way to prove a birth, death or marriage is by the production of the relevant certificate or a certified copy thereof.
Thus, where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed; in the absence of decisive evidence to the contrary, even though it may be necessary to presume the granting of a general licence.
In the instant case, there is the evidence of DW1 Affiong Etim Udo Ekong the only surviving sibling of late Effiong Etim Udo Ekong who testified at page 149 of the record thus: “That as at 1970, I was already living in Calabar, in one of my visits from Calabar, in 1972, I discovered that my brother’s wife Elizabeth (former wife of late Mr. Effiong Etim Udo Ekong whom I assisted on entering the matrimonial home had put to birth a male child (now the defendant) for my eldest brother, late Effiong Etim Udo Ekong.”
She testified further that: “That when my elder sister Nkoyo Etim Udo Ekong died in 1997 and my brother Peter Ekong also died in 1999, the defendant contributed as a family member, for the burial of his aunty and uncle respectively.”
When cross-examined, DW1 was explicit as regards the marriage and cohabitation between her late brother and DW2, the respondent’s mother when she stated: “…I witnessed the marriage between Elizabeth Akpan Oton and my brother Effiong Etim Udo (now late) when Elizabeth was pregnant I left for Calabar so I do not know what happened to the marriage.”
Also the evidence of DW2 and DW3 are in tandem with that of DW1 on the marriage and cohabitation between Effiong Etim Udo Ekong and DW2. In an answer to the question put to DW3 during cross-examination, he explained that: “It is only after the elderly people died that the younger members of the family claim that Friday was not the biological son of Effiong Etim Udo Ekong.”
From the foregoing, the evidence of DW1 and DW3 had laid to rest the issue of marriage and cohabitation between the respondent’s parents as the law presumes a child born while a marriage is valid or during two hundred and eighty days after its dissolution to be conclusive proof that it is the legitimate child of the man unless it is proved by clear and compelling evidence that the husband and the wife did not or could not have cohabited.
Learned appellants’ counsel also made an allusion as to the contradictions in the evidence of the respondent and his witnesses as to the year of his birth. For a contradiction in the evidence of witness to be fatal, same must be substantial.
Thus, minor or maniture contradiction which did not affect the credibility of witness may not be fatal. In effect, trivial contradictions should not vitiate a trial. See Alo V. State (2015) 9 NWLR (Prt.1464) 238 at 291 – 292.
In this case, there was no contradiction on the substance of the case and the minor discrepancy on the year when the respondent was born cannot by any stretch of imagination be fatal.
In the result, the findings of the trial Court in favour of the respondent were clearly borne out from the evidence adduced. After all, an appellant who relies on improper evaluation of evidence to set aside the judgment of trial Court has the onus to identify or specify the evidence improperly evaluated or not evaluated.
He has to convincingly show that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation.
The appellant in the instant case has woefully failed to discharge the onus of showing that if properly evaluated, the conclusion would be favourable to their case. In all, there is no merit in their complaint against the judgment of the trial Court.
Accordingly I hereby enter an order dismissing the appeal. I affirm the judgment of the trial Court. Appeal dismissed. Parties to bear their respective costs.” Per SHUAIBU, JCA.
By: King Onunwor with reports from James Atsor
Atsor Esq. wrote from N. Ngbea & Co Markudi, Benue State.
Children are highly desired and parenthood is culturally significant in Africa. In Nigeria, infertility is a socially unacceptable condition, making victims embark on relentless quest for conception. In Vitro Fertilisation (IVF) is the only alternative but same is expensive.
Admittedly, this has contributed to the advent of illegal baby factories in Nigeria and consequently constitutes an emerging trend of human trafficking.
What is baby factory? This implies to a practice in which young pregnant and unmarried girls are given shelter by a proprietor i.e Oga or Madam of the home until they are delivered of their pregnancies and give up the new born for sale.
This illegal centres and homes are most times camouflaged as “maternity homes, orphanages, social welfare homes, and clinics and are operated by well organised groups”.
As an emerging phenomena in developing countries of the world, it is also prevalent in Nigeria particularly in States such as Abia, Imo, Enugu, Edo, Rivers and Lagos.
It is important as well as my concern to note that children have rights and these rights must be protected. This evil scourge of baby factory is an illegal business involving getting pregnant young girls and women without sanity who either are willing or not to give up their babies for financial gain and benefits without having any contacts with the buyer or ever seeing their baby again.
This category of persons are introduced into this business forcefully, by deceit of evaporated love and care or under the guise that the baby factories are clinics or homes where they can pay less or deliver freely with some promise of jobs, safe abortion or money after delivery.
The owners of the factory and their syndicate insist that babies be put up for adoption by childless couples in the most fortunate scenario, else supply the babies to politicians for their rituals, illegal adoption and human trafficking. Pathetic right?
It is my argument that children born into baby factories are denied various civil and fundamental rights alongside their mothers because of their vulnerability. Some of the rights these children are denied include birth registration.
Nigeria is a signatory to many international and regional instruments targeted at eliminating child trafficking, protecting children and also the promotion of their rights which include, the United Nations Convention on the Rights of the Child (1989) and the Optional Protocol to the Convention on the sale of Children.
Section 12 of the Constitution of the Federal Republic of Nigeria (as amended) stipulates the guidelines for applicability of this treaties in Nigeria.
Regrettably, despite the vast number of statutes protecting children and women, there is still an alarming prevalence of heinous crimes against these vulnerable units of our society.
The Children’s Rights Act was enacted as passed in Law in Nigeria in 2003, to serve as a legal document and protection of children’s rights and responsibilities in Nigeria which consolidates all laws relating to children into one single legislation, as well as specifying the duties and obligations of government, parents and organisations.
However, despite its values and importance, most States in Nigeria have not domesticated the Act, which implies that children in some States are not being protected under this law which prompts unequal rights in children.
Section 30(1) of the Children Rights Act provides that No person shall buy, sell, hire, let on hire, dispose off or obtain possession of or otherwise deal in a child. This section clearly prohibits the act of buying and selling of a child or children.
Section 207 empowers the police to create a specialised unit for the combating of the crime.
The sporadic growth of baby factories across the Nigeria State is a front burner issue that needs urgent address, given the rise in in the thriving business due to the ever increasing in height of economic downturn in the country.
The vulnerability of children and the need for their protection has attracted international recognition as well as domestic legislation.
The Constitution also provides protection for the dignity of the human persons and personal liberty as stated in Sections 34 and 35 respectively. Howbeit, it is very safe to say that these laws are ineffective for the purpose they were enacted.
Having considered this topic in relation to baby factories as an avenue for trafficking and the laws enacted to promote and protect women and children, it is my recommendation that:
1. The government institutions established by law for the protection of children performs their duties.
Security agencies should not delay the prosecution of persons who commit this offence.
The government should ensure that upon discovery facilities harbouring women and children for sale be destroyed and periodic checks should be conducted on churches, mosque, hospital etc.
Intense education and sensitisation campaign and programmes for young girls, and boys and women about unwanted pregnancies.
Government should assume their responsibility of the protection of lives and increase the budgetary allocation for children orientation programme in schools, villages, church and mosque.
Esaenwani Baribor Ferguson
Esaenwani is a practising lawyer based in Port Harcourt at Brisk Attorneys and Consultants.
The Nigeria Police Force is the principal law enforcement agency in Nigeria. It has its origin in Lagos following the creation of a 30-man Counsular in the year, 1861.
It further has its Constitutional backing in the Chapter Six (6), Part Three (3), Section 214 of the Constitution of the Federal Republic of Nigeria , 1999 (as amended). Down the line, the Nigeria Police Force begin to have other formations like the Mobile Police Force in the 1980s.
The motive behind the creation of the Nigeria Police Force, is to preserve law and order, the enforcement of law and regulations with which they are directly charged. The performance of such military duties within and outside the country as may be required of them by or under the authority of the Police Act or any other Act.
When the heat or should I say, the need or urge to provide better policing in the country became necessary, more formations like the Special Anti Robbery Squad (SARS) were birthed around 1992 to battle crime especially armed robbery.
This very formation (SARS), before it went under on Sunday November 11, 2020, when the then Inspector General of Police, Mr Mohammed Adamu announced its disbandment was a talk-of the-town.
People were delighted to catch a glimpse of SARS men especially when they are in operation and in their full regalia. They fought crime to almost zero point before the devil took over the outfit and placed it in the history book.
The Slogan ‘ The Police is Your Friend’ is one of the most disgusting or disturbing things about the Nigeria Police Force. Many are not at ease with it. In most cases, they begin to wonder what the Police is even doing to get the least attention.
But until you are closer to some people including the Police, you may not say for sure what they do or their importance to the society. Some Police men are down-to- earth. They execute their jobs in such professional manner that one may be tempted to purchase Police recruitment form of a given year.
I have the privilege to interface with some of them at some Special Areas in Rivers state. Their profiles are not only intimidating, but reveal a serious road map on how best to tackle security challenges in the country.
When they related to me why they cannot execute some actions, I was flabbergasted. The government ought to look for those kind of officers and secretly talk with them.
They complained of being tagged as saboteurs should they approach their Heads with their ideas on some issues.
One of the officers confided in me how he unearthed a high profile kidnapping gang that nailed a certain bigman. I mean a bigman with both wealth and honour. I looked at the fragile frame of mind of the officer and took his claims with a pinch of salt.
When other of his colleagues at different fora commended him on some hard job success, it then dawned on me that I was dealing with a senior intelligence officer. His challenge was not also far from the ones earlier enumerated by his colleagues .
Armed with the little information I have gathered about the Police and its challenges, I delved into personal investigation. I went round almost the big formations in the state. With utmost humility, I discovered that the government was unfair to the Police.
In some of the outfits, over ten (10) officers are squeezed into one office. About three (3) of them or so share one (1) table. One will begin to imagine what the occupants of such place will produce.
Even the big formations with big names are not better. They suffer even the worst. But as the big men they are, they stomached the whole thing and welcome you with a beaming smile.
If you are not of a good temperament, you may take him (the bigman officer), for an evil man who derives joy in suffering. Or was the foremost Afro Beat King , Fela Anikulapo Kuti right when he sang ‘Suffering and Smiling’?
I think it is about time those that head some big Police formations in the country begin to think on how to improve on their jobs. Those at the top are not too mindful of the welfare of others. I blame them not, because such is a typical Nigerian factor.
I can recall vividly well at a particular public function in Port Harcourt when one officer was introduced as the Financial Officer in charge of a certain Police outfit. The master of ceremony (MC), took it up. He (MC), was like “thank God oga will bless us today”, the officer in a quick reaction, gave it back to the MC, thus, please “I am sorry, we are only bearing the name, the real office is in Abuja”.
People took it as a joke including me, but when I dug into the situation, I knew what exactly the officer meant then. The narrative must change, if the police must perform to the taste of the common man.
The Police and its welfarism must not be gambled with. The government and its authorities should consider the need for Police reform and execute it with immediate alacrity.
This will also help the authority to place a plum line on the Police. I think part of the poor check on the side of the government on the Police is deliberate, in that the authority know that they have not performed their own part of the agreement hence, the ‘On Your Own’ kind of approach to issues.
The police, if well equipped, will do more than expected. The manpower to execute some tactical operations are within them, but lack of support for them remains a bane to their positive operations.
Another point to effective Policing in the country is , management of the Internally Generated Funds by the Police. If the Police are allowed to manage the funds they generate internally, it will go a long way in fixing things among them.
The issue of waiting for approval to fix even furniture in the office is a major clog in the system. At times, they are forced to ask for financial support from the suspects to enable them buy as little as writing materials.
Such ought not to be in that the risk of compromising the matter will be high. If the materials are so provided, the officer will have no option than to do the needful.
Another point is that of personal visit and inspection. The authority should make out time to visit the Police formations across the country. They should visit such places like the convenience, bathrooms, canteens, etc. When you pay some unscheduled visits to some of the mentioned places, you will agree with this piece to the extent of making a quick case for an improved welfare package for the police.
As a citizen of Nigeria, make a personal visit Police formation as part of your menu. Let the issue of the police harassment especially on the roads not deter you. By so doing, you will be armed with some information that will convince you that of a truth, the to any Police is really ‘Your Friend’.
The time to address the challenges of the police is now. No need to dwell on the past. Let’s stop the blame game and think of the way forward.
King Onunwor
The Rivers State Police Command says it has begun orderly room trial for the three erring personnel and has issued official query to three officers for allegedly extorting two young men of N4 million in Aba, Abia State.
The officers were identified as Assistant Superintendent of Police (ASP) Doubara Edonyabo; ASP Talent Mungo; and Inspector Odey Michael.
Addressing journalists while parading the three officers, the State Commissioner of Police, CP Olantunji Disu said immediate steps were taken to apprehend the officers and a thorough investigation was conducted to ascertain facts surrounding the incident
The State Commissioner of Police, who was represented by the command’s image maker, SP Grace Iringe-Koko, said $3,000 was extorted from the victims, equivalent to N4.2 million, stressing that the money had been recovered and released to the victims on January 18.
“Following a comprehensive inquiry, it has been established that the actions of the officers in question were in clear violation of the law and the ethical standards expected of members of the Nigeria Police Force. As a result, appropriate disciplinary measures are being taken to address this grave misconduct.
“The Rivers State Police Command is committed to upholding the highest standards of integrity, professionalism, and accountability. The behaviour exhibited by the implicated officers is completely unacceptable and does not represent the values and principles of our organisation. We deeply regret the negative impact that such misconduct may have on the reputation of the Rivers State Command and the Nigeria Police Force in general,” the spokesperson said.
She, however, stressed that the actions of a few individuals should not overshadow the dedication and sacrifice of the vast majority of officers who serve with honour and distinction.
She stressed that the Inspector General of Police has consistently articulated a zero-tolerance stance against corruption and misconduct within the Force, and that this incident does not reflect the aspirations of the Nigeria Police Force.
She assured that Rivers State Police Command would remain resolute in its commitment to serving and protecting the community with utmost professionalism and integrity.
Akujobi Amadi
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