➥ CASE SUMMARY OF:
Kayode Adeyemi & Anor. V. Alhaja Musinatu Wuraola Abayomi & Ors. (ID/2110/95, 18 Oct 2002)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Maternity;
Paternity of a child;
Custody of a child.
➥ CASE FACT/HISTORY
The facts of this matter from the pleadings and both the documentary and oral evidence adduced before the court are that both the 2nd plaintiff and the 3rd defendant both gave birth to baby girls within weeks of one another at OLUWASEYIFUNMI CLINIC AND MATERNITY HOME, which is owned and run by the 2nd defendant herein by name ESTHER KOBARI. The 2nd plaintiff had her baby on 17/12/94 whilst the 3rd defendant had her baby on 25/1/95. The 2nd defendant informed both women that their babies had died a few hours after their birth and had asked for certain sums of money from their spouses before she would release the corpses of the babies to them. The plaintiffs could not afford to give her the sum demanded and so they left the matter to rest. The father-in-law of the 3rd defendant managed to give her a fraction of the sum demanded only to be told that she had already buried the child. They also let the matter rest more so as the 2nd defendant and the 3rd defendant are close relations. Sometime in March 1995 the 2nd plaintiff saw the NTA programme NEWSLINE where the story of the miraculous birth of a baby girl to the 1st defendant who was at that time considered too old to have a baby, was aired. She recognised the 1st defendant as a friend of the 2nd defendant and recollected having seen her at her clinic where she lost her baby. The 2nd plaintiff immediately became suspicious of this birth and decided to investigate its circumstances and when she was satisfied that the said baby was indeed her baby she reported the matter to the Police and when they declared the 3rd defendant the mother of the child she and her husband initiated this action against all the defendants herein for certain declaratory orders, injunctive reliefs and damages.
The plaintiffs’ claims against all of the defendants herein are contained in paragraph 88 of the amended statement of claim aforesaid as follows, inter alia:
(1) A DECLARATION that the 1st and 2nd plaintiff are the biological Father and Mother respectively of the baby girl born at about 7.30 am on the 17th December, 1994 at the Oluwaseyifunmi Clinic and Maternity Home located at 19, Victoria Street, Ojota in the Lagos State and whose parentage has been subject to great contention between the plaintiffs and the 1st and 3rd defendants.
(2) AN ORDER granting to the 1st and 2nd plaintiffs the custody of the baby girl born at about 7.30 am on the 17th December, 1994 at the Oluwaseyifunmi Clinic located at 19, Victoria Street, Ojota in the Lagos State whose parentage has been subject to great contention between the plaintiffs and the 1st and 3rd defendants.
(3) AN ORDER directing the 2nd defendant to produce the corpse or body of first of the twins of the plaintiffs that was born on 16th December, 1994 and which baby has died by knocking her head on the bath tub due to the negligence and incompetence of the 2nd defendant but whose body the 2nd defendant has refused to produce or deliver to the plaintiff for appropriate burial.
(4) ₦5 Million being damages for the negligence of the 2nd defendant in handling the delivery of the 1st of the twins of the plaintiffs who was born on 16th December, 1994 and thereby causing her death and which has brought pain, anguish, sorrow and frustrations to the plaintiffs.
The 3rd defendant also counter-claimed against the plaintiffs and the 1st, 5th and 6th defendants as follows: – a. A Declaration that the 3rd defendant is the biological mother of the baby girl born at about 2.00pm on the 25th day of January, 1995 at Oluwaseyifunmi Clinic and Maternity Home. b. An order of custody to the 3rd defendant of the baby girl born at about 2.00pm on the 25th day of January 1995 at Oluwaseyifunmi Clinic and Maternity Home.
➥ ISSUE(S) & RESOLUTION(S)
[CLAIM SUCCEEDS, IN PART]
↪️ I. Whether the 4th and 7th defendants are proper, necessary or desirable parties to this action and if the answer is in the negative whether or not they should be struck out of this suit?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE 4TH AND 7TH DEFENDANTS ARE NOT PROPER PARTIES IN THIS SUIT
‘The 4th defendant in this action is by name Mrs. Modupe Bakare. Mr. C. C. Nwachukwu of counsel represented her at first but he withdrew his appearance for this defendant mid-trial. The only reference made to this defendant during the trial was by the 2nd plaintiff who stated that she was the 4th defendant’s patient before she referred her to the 2nd defendant who is the 4th defendant’s sister a fact that the 2nd defendant confirmed under cross-examination by the plaintiff’s counsel. From the evidence before this court she had nothing to do with the birth of the 2nd plaintiff’s baby after she left her clinic. Similarly, she appears to have had nothing to do with the birth of the 3rd defendant’s baby, so one wonders why she was sued in the first place, as she is not a proper, necessary or desirable party. At best the 2nd plaintiff could have called her as a witness which option the 2nd plaintiff or the 2nd defendant did not deem it fit to take. I accordingly find that she ought not to have been sued as a defendant in this matter and do hereby make an order striking her out of this suit. The 7th defendant is the Chief Magistrate before whom the criminal charges preferred against the 1st and 2nd defendants were initially made. He has since been elevated to the higher bench since 1998 and has had nothing at all to do with this matter since then. He appears to be only a nominal party as no evidence has been led implicating him in this matter at all. He also is not a proper, necessary or desirable party to this action so I am of the view that he was improperly joined and so his name is also struck out. We are now therefore left with only 5 defendants.’]
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↪️ II. Whether the procedure adopted by the 5th and 6th defendants in determining the paternity of the disputed baby in this case was the proper procedure?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[NO PROVISION THAT A LEGAL PRACTITIONER MUST BE PRESENT DURING BLOOD TEST; NEITHER CAN A CHILD BELOW THREE MONTHS CANNOT BE TESTED
‘There is no provision in the above section or in section 20 for legal or medical representation other than the exception provided for in subsection (4) in regard to mentally incapacitated persons. Neither is it the law in England that babies less than 3 months old should not be tested. These sections of the law have been considered in the English courts in several matters. However this law is not without its problems as the courts have found it very difficult to comply with the above provisions and to lay down set principles compelling parties to litigation to comply with the order of court, for blood tests. Apparently in England a party in whose care or custody a minor is cannot be compelled to consent to blood samples being taken of their children. In S v. S (1970) 3 ALL ER 107 at 113 the House of Lords considered the criteria by which blood tests will be ordered on an infant and held that the court ought to permit a blood test of a young child to be taken unless satisfied that it would be against the child’s interest. See also the Court of Appeal decision in RE (1996) 4 ALL ER 28. In the more recent case of RE : O (2000) 2 ALL ER 29 which is a High Court decision Wall J held that a parent in control of an infant had the right to refuse to submit such a minor to blood tests for the purpose of determining paternity pursuant to section 21 of the 1969 Act and His Lordship commented that the 1969 law is in dire need of further reform by the English Parliament.’
IT IS THE COURT OF LAW THAT HAS POWER TO ORDER PATERNITY TESTS
‘One thing that is however clear from all of these authorities is that it is a court of law that is empowered in England to order these tests in any civil proceedings in which the paternity of any person falls to be determined by the court. These are all English cases that of course are of persuasive authority only. It is therefore time for our legislative houses to start considering the promulgation of similar legislation here in Nigeria. The 1969 law in England has already been amended to include what they call scientific tests and since therefore we have started to experience paternity disputes in this country, it is imperative that the proper statutes are put in place to assist the populace, the Lawyers, the Doctors, the Forensic Scientists and of course the Judges that will have to adjudicate on such matters. This is an opportune time to do so now that we are enjoying a democratic dispensation. A Government for the people is in place and we are no longer suffering under the yoke of dictatorship.’
HOWEVER, THE POWER TO ORDER BLOOD TEST IS NOT RESTRICTED TO THE COURTS ONLY
‘I however could not find any provision in this law in England that restricts the power to order blood tests to the court alone even though it is clear that in England and Wales it is usually the court that orders blood tests. In this instance however the police were faced with a situation where they had three possible mothers claiming the disputed child and before they could take any positive action on the complaint of the 2nd plaintiff they had to ascertain, as accurately as possible, the true mother of the child. Exhibit D7 shows that the test carried out before the DNA testing was done was inconclusive and from the evidence of PW3, the 3rd defendant and the 5th and 6th defendants along with the contents of Exhibits P6, D8-DI2, I am satisfied that the requisite consent was obtained from the plaintiffs, the 1st defendant and her spouse, the 3rd defendant and her spouse and the guardian of the disputed baby before the blood sample was taken from each of them. In fact, in the light of all the evidence before this court, I find that the 5th and 6th defendants have handled this matter very diligently considering the constraints they must have faced being confronted with a totally strange terrain in police investigation as I am not aware that the issue of determining the paternity of a child has ever been handled by the Nigerian Police Force before this case arose. I am therefore of the view that the 5th and 6th defendants did a thorough and commendable job in the handling of this matter and I cannot fault the steps taken by them after the complaint by the 2nd plaintiff to establish the true mother of the child. I accordingly hold that following the above provisions of the law they adopted the proper procedure in order to determine the true parents of the disputed baby.’]
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↪️ III. Whether from the oral and documentary evidence adduced in this case the plaintiffs are entitled to all their claims in their amended statement of claim dated 10/4/02?
RESOLUTION: SUCCEEDS, IN PART.
[THERE IS NO LONGER DOUBT AS TO WHO THE PARENTS (3RD DEFENDANT) OF THE CHILD ARE
‘The plaintiffs have made several claims against all the defendants in this suit. The 1st claim is an order that they be declared the biological parents of the disputed child. Their counsel has however conceded that in the light of the results of the various tests before the court, there is no longer any doubt as to who the parents of the disputed baby, are so that claim has been overtaken by events and is dismissed. Similarly the 2nd claim for an order for the custody of the disputed child has been overtaken by events and is also dismissed’
IT IS TOO LATE TO GRANT AN ORDER FOR THE PRODUCTION OF THE CORPSE
‘I therefore do believe that the plaintiffs delivered a set of twins at Oluwaseyifunmi clinic and maternity home, Ojota, Lagos the establishment owned by the 2nd defendant on 16 and 17/12/94 and I do so hold. However I am of the view that it is too late for them to now demand the production of the corpse of the first of the twin babies, as both of them are sure that it died at birth. It would be futile to grant them this order as by now the corpse would have totally decomposed and that is not a sight for any mother to behold. I accordingly refuse that claim and it is dismissed.’
‘However in regard to the 9th claim for an order directing the 2nd defendant to return their baby girl delivered on 17/12/94 I believe there is merit in this claim and I will grant it. It strikes me as odd that the 2nd defendant’s baby was the same as the way she handled the birth of the 3rd defendants baby. I will still examine this further whilst considering the 3rd defendant’s counterclaim. Suffice it to say for now that I am satisfied that this claim should be granted and I so grant it.’
CLAIM FOR LOSS OF CHILD IS GRANTED
‘Lastly, the plaintiffs have claimed ₦10 million from the 2nd defendant for depriving them of their child. No amount of money can replace the love and affection of a child for its parent. Giving birth to a child and watching him, her or them grow into an adult to my mind is the most rewarding experience in life, more especially when they reach heights that one has only dreamed of. Many children actualise the dreams of their parents and make them very proud especially when their parents are from very humble beginnings and struggle to ensure that they educate and train their children to better their lot in life. These beautiful experience cannot be quantified in monetary terms. However since I have found that the 2nd defendant has not adequately explained the whereabouts of the 2nd baby delivered by the 2nd plaintiff on 17/12/94 1 find that she is liable to pay damages to the plaintiff for so depriving them of this child born in her clinic. I accordingly award them the sum of ₦5 Million damages against the 2nd defendant for this unjust deprivation of their daughter born on 17/12/94.’]
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↪️ IV. Whether from the oral and documentary evidence adduced before this court the 3rd defendant has shown that she is entitled to her claims in her counter-claim dated 28/6/96?
RESOLUTION: SUCCEEDS.
[THE CHILD BELONGS TO THE 3RD DEFENDANT
‘The 3rd defendant in this suit I must state is the lucky one here as both the results of the DNA testing carried out in the United Kingdom (exhibit D17) and the results of the Parentage Dispute Testing ordered by this court and carried out at the Lagos University, Teaching Hospital (exhibit D18) have confirmed that both she and her partner Ganiyu are indisputably the biological parents of the disputed baby or baby controversial as some would term her. From today therefore, the baby in dispute in this suit ceases to be a disputed child and becomes the child of Kikelomo and Ganiyu.’]
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✓ DECISION:
‘IT IS ACCORDINGLY ORDERED AS FOLLOWS:
The plaintiffs claims Nos. 1, 2, 3, 4, 5, 6, 7 and 8 in their amended statement of claim are refused and dismissed.
The plaintiffs claim No. 9 is granted and the 2nd defendant is ORDERED to IMMEDIATELY produce the baby girl born to the 2nd plaintiff at OLUWASEYIFUNMI CLINIC AND MATERNITY HOME at 19, Victoria Street, Ojota, Lagos on 17/12/94.
The plaintiffs are awarded the sum of ₦5 Million against the 2nd defendant as damages for depriving them of the custody of their child born on 17/12/94.
The counter-claim of the 3rd defendant succeeds in its entirety and it is hereby declared that KIKELOMO OBIKOYA and GANIYU BALOGUN are the biological parents of the disputed baby in this suit.
The 5th and 6th defendants are accordingly ordered to begin the gradual process of relinquishing the custody of this child to the 3rd defendant immediately and this is to be done under the supervision of the appropriate Division of the Lagos State Department of Social Services. The Lagos State Head of Service is to assist in this process by providing the necessary professional help to this family by detailing the appropriate officer to monitor the process as set out in 5 above for as long as it takes for this family to settle down.
All interim orders made by this court restricting the access of the 3rd defendant to the child, the subject-matter of this suit, are hereby vacated and it is ordered that she and any member of her family with the exception of the 2nd defendant may have free access to the child from today forth.
The 5th and 6th defendants are commended for facing up to the challenge this matter posed to them squarely and for taking the best action despite the fact that it meant a great expense.
I also thank them for looking after the child, the subject-matter of this suit so well up to now.
The 2nd defendant shall pay the sum of ₦25,000.00 costs to the plaintiffs and ₦25,000.00 costs to the 3rd defendant. Plaintiffs’ claims granted in part, 3rd defendant’s counter-claims granted.’
➥ FURTHER DICTA:
⦿ APOLOGY FOR DELAYED TRIAL; THE WHEELS OF JUSTICE SHOULD GRIND FASTER IN NIGERIA
The subject-matter of this suit is a female child who is now an infant. At the time this suit was instituted in 1995, she was however a baby of just a few months old. It has taken us all just over 7 years to reach the end of this matter in the High Court and for this delay I apologise. The wheels of justice grind very slowly in this country of ours and it is about time something concrete is done by all of us that serve at the Temple of Justice to ensures that matters filed in court are dealt with speedily especially matters such as this one where the life and the stability of a new born child are at stake. Without the necessary sanctions in our Rules of Court there is precious little a Judge can do to ensure that there are not unnecessary delays occasioned by the absence of counsel and unwarranted requests for adjournments without being accused of sacrificing justice and the right to be heard at the altar of haste. Once again therefore, I apologise for the delay in coming to the end of this matter and hope that the affected families involved will be able to put the trauma this matter has caused them behind them and be able to move on from here. — A.A. Phillips J.
⦿ COMMENT ON THE MISCONDUCT OF THE 2ND DEFENDANT
I find the similarity in these two accounts from two women who have never met before this case too much of a coincidence to be untrue. The 2nd defendant no doubt has spent a long time eating fat off the misery and anguish of hepless men and women who have entrusted their lives and that of their unborn babies to her in a clinic that she is not even qualified to operate. She has preyed on their ignorance and inability to afford the proper care in a registered hospital and converted same to her private gain until her collusion with the 1st defendant in regard to the 3rd defendant’s baby was blown open by the NTA. This indeed has proved to be the last straw that has broken the camel’s back and she has now been exposed. I find this act of the 2nd defendant most despicable and base, especially as she has testified that she is a mother herself. She is a pariah amongst women and a disgrace to all women and mothers in this country. It should be noted that in each case she sent the member of the family of each of these women away on an errand so she can alone hatch and carry out her dastardly plan of deprivation, anguish and sorrow on her unsuspecting prey in the person of her patients and to think that the 3rd defendant is her close relation. The mind boggles to imagine how many women she has treated in this sorry fashion and got away with it. She needs to ask forgiveness from God for all these terrible acts. Needless to say I reject all the evidence she has adduced before this court, as she is not a witness of truth. She has lied in her testimony before this court. I will say no more, as I am aware that there is still a criminal suit pending and would not like to prejudice the outcome of that matter. — A.A. Phillips J.
➥ LEAD JUDGEMENT DELIVERED BY:
A.A. Phillips J.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Taiwo Kupolati.
⦿ FOR THE RESPONDENT(S)
Mr. K.A. Omojoye;
Mr. C.C. Nwachukwu;
Mr. Mike Okoye;
Mrs. M.U. Isichei.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)