➥ CASE SUMMARY OF:
Chief Vero Smooth V. Chief Tunde Smooth (CA/B/47/2012, 10 November 2015)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Ordering DNA;
Clarification of evidence.
➥ CASE FACT/HISTORY
This appeal emanated from the Judgment of Delta State Customary Court of Appeal holden at Warri in Appeal No. DCCA/35A/2010 – CHIEF VERO SMOOTH v. CHIEF TUNDE SMOOTH delivered on 13th day of July, 2011 wherein the appeal of the Appellant was dismissed.
The facts of the case are that the Petitioner married the Respondent under the Ijaw Native Law and Custom in 1984 at Okerenkoko in Warri South-West Local Government Area of Delta State.
Due to disagreement between the parties, the Respondent instituted an action against the Appellant in the Customary Court of Delta State of Nigeria in the Warri South-West Area Customary Court, holden at Ogbe-Ijoh, and by a Further Amended Petition for dissolution of Customary Law Marriage, the Petitioner/Respondent claims against the Appellant/Respondent as follows: – (1) Dissolution of the Customary Law Marriage the Petitioner contracted with the Respondent sometime in the year 1984 at Okerenkoko, in Warri South-West Local Government Area of Delta State, a place within the jurisdiction of this court. (2) A declaration that the Petitioner is not the biological father of the twin babies purportedly given birth to by the Respondent sometime in the month of January 2010. (3) A declaration that the Respondent is not the biological mother of the Twin Babies. (4) A refund of the bride price paid by the Petitioner to the Respondent and her family in compliance with Ijaw Native Law and Custom. (5) An order of Perpetual Injunction restraining the Respondent and any other person from claiming that the Petitioner is the biological father of the Twin Babies purportedly given birth to by the Respondent sometime in month of January, 2010. (6) An order of Perpetual Injunction restraining the Respondent from claiming that she is the biological mother of the Twin Babies. (7) An order of Perpetual Injunction restraining the Respondent from further bearing the name of the Petitioner as her husband. (8) Any other relief appropriate in the circumstances of this case.
At the conclusion of hearing at the trial court, the court ordered as follows, inter alia: – (1) The parties in this case – Chief Tunde Smooth (JP) Petitioner and Chief (Mrs) Vero Smooth – Respondent and the twin babies allegedly given birth to by the Respondent – Chief (Mrs) Vero Smooth sometime in January 2010 should and must undergo a DEOXYRIBO NUCLEIC ACID (DNA) TEST BETWEEN WEDNESDAY 22ND and FRIDAY 24TH SEPTEMBER 2010 at the expense of Chief Tunde Smooth (JP) – Petitioner at the LAGOS UNIVERSITY TEACHING HOSPITAL (LUTH) IDI-ARABA, LAGOS to determine the paternity and maternity of the TWIN BABIES – the subject matter of the suit.
The Appellant who is dissatisfied with the order for DNA test appealed to the lower Appellate Court. At the conclusion of hearing, the lower Appellate Court i.e. the Customary Court of Appeal, Delta State, holden at Warri in its Judgment dismissed the appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Was the learned Justices of the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court regarding the maternity of the children and consequently ordering the Respondent/Appellant herein to go for a DNA test with the twin babies to determine the suit at the lower trial court after entering Judgment in favour of the Petitioner/Respondent that he is not the father of the children and also not the husband of the Respondent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[BOTH PARTIES HAVE INTEREST OVER THE RESULT OF THE DNA TEST
‘When the evidence set out above is perused, I am of the view that the court can only arrive at a just decision by using the result of the DNA test to corroborate the evidence proffered by either of the parties. A careful reading of the entire evidence of the parties before the trial court as contained in the Record of Appeal would reveal that both the Appellant and the Respondent have substantial interest over the outcome of the DNA test, which is to determine whether the Appellant is the biological mother of the Twin Babies.’]
.
.
↪️ II. Was the lower Appellate Court right in upholding the decision of the Warri South-West Area Customary Court when the said court suo motu ordered for a DNA test against the backdrop of overwhelming evidence?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE TRIAL COURT CAN ORDER FOR EVIDENCE TO CLARIFY A DISPUTE
‘In this case, there is a dispute arising from the evidence placed before the trial court and the court, as an unbiased umpire, has a duty to resolve the dispute. And it can do this by calling for further evidence to clarify the evidence already led before the court. It is my view that by making the order, both the trial court and the Lower Appellate Court’s intention were geared towards doing substantial justice. The DNA test is to reveal the maternity and paternity of the twin babies and this is in relation to reliefs 3 and 6 of the Further Amended Petition before the trial court.’
‘The learned counsel for the Appellant misconstrued the situation when he contended that Judgment had been delivered. It is after evidence has been concluded in a case that counsel for the parties would address the court. In this case, the trial court will still receive the result on the DNA test and if necessary take further evidence before final addresses of counsel would come up before Judgment is delivered. This is evident from the statement made by the trial court on Monday the 20th day of September 2010, when it stated as follows:- (See page 55 lines 17 – 21 of the Record of Appeal). “…A close perusal of the evidence before us will reveal that we cannot do justice to this case without an order for DNA test which has to be conducted before Address/Judgment, hence we have decided in the interest of justice, to suo motu order as follows: – …” The lower Appellate Court did not decide the petition before the trial court, it merely sent it back to the trial court i.e. Warri South-West Area Customary Court Ogbe-Ijoh for the court to complete the determination of the case.’
‘Consequent upon the foregoing, it is my view that the Lower Court was right in upholding in part, the order of the trial court ordering a DNA test to be conducted to determine the maternity of the twin babies. The order does not occasion miscarriage of justice.’]
.
.
.
✓ DECISION:
‘In the result, this appeal lacks merit and it is hereby dismissed. The decision of the Delta State Customary Court of Appeal in Appeal No. DDCA/35A/2010 – Chief Vero Smooth v. Chief Tunde Smooth delivered on the 13th day of July 2011 is hereby affirmed. There shall be (N50,000.00) Fifty Thousand Naira costs in favour of the Respondent and against the Appellant.’
➥ FURTHER DICTA:
⦿ ADDRESS OF COUNSEL CANNOT REPLACE EVIDENCE OR LACK THEREOF
It is important to point out at this juncture that addresses of counsel as important as it may be, cannot take place of pleadings or evidence because cases are decided on credible evidence. No amount of brilliance in an address can make up for lack of evidence to prove and establish a case or disprove and demolish a point in issue. An address may make a good impression on the Judge but it certainly cannot make up for lack of evidence, and cases are decided on credible evidence. Address by counsel is only a forum where the law is brought in, not only to interprete the facts before the court but to edify them in lucid persuasive style of advocacy. — J.O. Bada JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jimi Olukayode Bada, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
