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.