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HIGH COURT OF BENUE STATE (MAKURDI)
24TH NOVEMBER 1976
CWLR (1976) 5
CHILDREN AND WOMEN LAW:- Women and Justice Administration – Pregnant woman who left an existing customary law ‘marriage’ for another – Where both unions are declared invalid by court – Effect on rival claims pertaining to paternity and custody of child – Whether Court can order an adult woman to live with a lover/husband against her will – Women and customary Law – Validity of marriage – Failure to observe constitutive rites and ceremonies – Whether cannot be cured by intention of parties, cohabitation and birth of child
CHILDREN AND WOMEN LAW:- Children and Justice Administration – Custody of child whose gestation coincided with different marriages/cohabitation of mother with two different men – Determination of paternity – Implication for custody – Whether it is in the best interest of child of disputed paternity to leave the question unresolved
BEFORE THEIR LORDSHIPS:
ADESIYUN, C. J.,
KANAM, GRAND KHADI,
CUSTOMARY LAW:– Validity of Marriage & Paternity/Custody of child – Tiv customary law – Role of dowry, Father’s consent and Marriage guardian
FAMILY LAW:- Validity of marriage and Paternity of Child – Two rivals who disparately cannot prove validity of marriage to a woman lay claim to paternity of her child – Paramount of interest – Whether it is in the best interest of the child to merely grant custody to mother without determining who the father is
FAMILY LAW:- Dispute over paternity of Child and equitable principles – where there are equal equities the first in time prevails,” – Effect where two rivals lays claim to child of woman they had lived with as ‘wife’ under invalid customary law marriages
ADESIYUN, C.J. delivered the judgment:
This is an appeal against the decision of the Upper Area Court, Makurdi which reversed the decision of the Grade I Area Court, Makurdi where the present appellant sued the present respondent with two others demanding his wife and child from them.
The appellant said that the 1st defendant is the father of his wife but he married the disputed wife from the 2nd defendant who is the marriage guardian and who received dowry from him. His wife lived with him for seven years. When he impregnated her in 1974, she left his house to join the 1st defendant i.e. her father.
In 1975, the 1st defendant told him that his wife has married the 3rd defendant while she was still under his pregnancy. On hearing this, he took Court action against the 3rd defendant at Naka Grade II Area Court where the 3rd defendant said that it was the 1st defendant who gave the woman to him in marriage. He then sued the 1st defendant in the same Court where the 1st defendant was the marriage guardian who gave his wife away to the 3rd defendant. He was about to argue with the 1st defendant when the Court sent him away. He has not divorced his wife, but the 1st defendant sold his wife together with his child.
The appellant said that he paid the actual dowry to the 2nd defendant. The 2nd defendant admitted that he gave the disputed wife in marriage to the appellant and how the 3rd defendant later married her he does not know. The 3rd defendant i.e. the present respondent said that he paid dowry of N120 which the 2nd defendant carried away in the presence of the 1st defendant. He paid the dowry through Amee. When he was asked by Court whether before he married the disputed woman he saw her with certificate of divorce, the answer was no. The trial Court said at page 8 lines 35 to page 9, line 4 thus:
“Hence the 2nd defendant is the marriage guardian and he is responsible for anything upon this woman by custom, we declare that the 3rd defendant did not marry the woman. The 1st defendant and the 3rd defendant had contravened Tiv native marriage law and custom but we are not going to comment on it hence the 2nd defendant is the marriage guardian.”
At page 9 from lines 8-10, the trial Court said thus:
“The 2nd defendant to return to plaintiff his wife Irkwase and a child forthwith plus summons fees of N3.70k”
The appellant before us in the absence of the respondent (but who was served with hearing notice) said that the Upper Area Court was wrong to take away his child from him because it did not take into consideration his evidence and those of his witnesses including that of his wife, his father-in-law and his brother-in-law. He urged the Court to reverse the decision.
In its judgment at page 3 lines 6-10, the Upper Area Court wrote: “On the 1st ground, he urged that there was no proof of a valid marriage existing between the first respondent and the second respondent in accordance with Tiv (Native Marriage Law and Custom) Order, 149 of 1955 and as such the lower Court was wrong to give judgment for him.” At page 4 from lines 3-11 the same Court wrote thus:-
“Before 1st respondent could obtain judgment in this case, he should have proved that he had fulfilled all the conditions which fall under this section, but in the lower Court, he proved that he had fulfilled other conditions but failed to prove that he did register the marriage between him and the 2nd respondent in the Area Court in accordance with section 2(e) of the above quoted law while he had every opportunity to prove it. 1st respondent also failed to prove the same thing, and as far as this law is concerned both marriages are invalid.”
Again at page 4 from lines 20-30, the same Court said thus:
“Since both marriages were invalidly contracted the Court should have awarded the custody of the disputed child to mother. Since the mother of the disputed child had expressed her willingness to have custody of her one year old child we have also taken into consideration his interest and welfare under section 23(1) of the Area Courts Edict No.4 of 1968 and award the custody to the mother (2nd respondent). Grounds 2 also succeeds because since the 2nd respondent is an adult there was no need ordering her to go and live with the 1st respondent. She is therefore free to live with any person of her choice.”
While we agree with the interpretation of section 2(e) of the Schedule of the Native Authority (Declaration of Tiv Native Marriage Law and Custom) Order 149 of 1955 dealing with conditions of valid marriage, and its holding that there is no valid marriage between the disputed wife and the appellant on one hand, the disputed wife and the respondent on the other hand, we do not agree with its interpretation of section 23(1) of the Area Courts Edict, No.4 of 1968 which reads:-
“23(1)—In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.”
It is our view that the Upper Area Court merely considered a short term policy of the child in dispute. How can a child be without determining who his father is? Can a woman have a child alone on her own? The Upper Area Court in our view wrongly awarded the child to the mother alone. We have no doubt in our minds and applying the doctrine of Equity which says “where there are equal equities the first in time prevails,” that the appellant is the father of the child now with Irkwase Kaun (daughter of Kaun Mbashinchu) and we so declare. We order Irkwase Kann to hand over the child to the appellant when at the age of 4 years. The appellant should always allow free access to the child by the mother i.e. Irkwase Kaun.
We allow the appeal and set aside the decision of the Upper Area Court, Makurdi and substitute the order as stated above concerning only the child in dispute.