➥ CASE SUMMARY OF:
Remilekun Olaiya v. Mrs. Cornelia T. Olaiya & Ors. (2002) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.190/1999
➥ JUDGEMENT DELIVERED ON:
Friday, the 10th day of May, 2002
➥ AREA(S) OF LAW
Child adoption;
Evidential burden;
➥ NOTABLE DICTA
⦿ HE WHO ASSERTS ADOPTION MUST PROVE
The Adoption Law of Lagos State (Cap.5) which came into force on 21st September, 1968 was the only applicable law on adoption in Lagos at the material time. It has not been shown that the said adoption of Emmanuel and Sarah was done under that law. If that had been so, the best evidence would have come from the Adopted Children Register established under section 16 of that law. The burden is on the respondent to produce that evidence. The law is that he who asserts the affirmative has the onus of proving it by virtue of section 135 of the Evidence Act. – Uwaifo, JSC.
⦿ ADOPTION OF A CHILD IS A SERIOUS MATTER
The issue of adoption of a child and the consequences of it cannot be so casually disposed of by a court of law as the court below seemed to have done. No one will lightly permit a stranger to claim his or her family lineage and inheritance unless through entitlement by blood or genuine adoption. Since the respondent failed to discharge the burden of proving adoption, there can be no basis for including the said Emmanuel and Sarah as beneficiaries of the estate of Solomom Kayode Olaiya (deceased) as was done in the judgment of the trial court. – Uwaifo, JSC.
➥ PARTIES
Remilekun Olaiya (Otherwise known as Oluremi Olaiya, an infant by Miss Ronke Funsho – her next friend)
v.
1. Mrs. Cornelia T. Olaiya
2. Benjamin Olaleye Olaiya
3. Godfrey Olayinka Olaiya
➥ LEAD JUDGEMENT DELIVERED BY:
A. O. Ejiwunmi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Professor Taiwo Osipitan .
⦿ FOR THE RESPONDENT
– A. Ajayi.
➥ CASE HISTORY
The plaintiff, Mrs Cornelia Titilola Olaiya, married the deceased, Solomon Kayode Olaiya on the 28th December, 1963 under the marriage act in the district of Islington, U.K. Following the marriage, it would appear that they established their matrimonial home in London before proceeding to Nigeria. It does appear that in Nigeria, they lived together in Kano at 100 Lamido Crescent, and in Lagos at 2 Ogabi Street. They lived together at the above address until the husband died on the 24/2/81 in that address. There was no biological child between them during the marriage. But the plaintiff claimed that they adopted two children, namely Emmanuel Olabunmi Olaiya, and Sarah Olufunmilayo Olaiya. The third child Remilekun Ajayi claimed by the defendant to be the only child of his brother, was first seen by the plaintiff at the grave side during the burial ceremony of her husband.
The plaintiff/respondent who by paragraph 20 of her statement of claim sought for the following reliefs, inter alia, from the trial court. They read as follows:- “A. A declaration that the plaintiff along with the children of Solomon Kayode Olaiya (deceased) viz (i) Emmanuel O. Olaiya (ii) Sarah O. Olaiya (iii) Remilekun Olaiya are the exclusive beneficiaries of the estate of the said Solomon Kayode Olaiya (deceased) who died intestate on 24th February, 1981.
The Plaintiffs reliefs were granted and judgment given in their favour.
Being dissatisfied with the judgment of the trial court, the appellant obtained the leave of the court below, to appeal against the judgment as an interested party. The appellant was there described as Remilekun (otherwise known as Oluremi) an infant by Miss Ronke Funso her next friend.
The Court below dismissed the said Appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED]
I. as between the plaintiff and the defendants before the trial court who had the burden of proving the adoption of Emmanuel and Sarah? And whether the person with the burden discharged the burden?
RULING:
I.A. It follows that in respect of the question as to whether Emmanuel and Sarah were indeed children of the deceased was certainly an issue, upon the pleadings and the evidence on record. It is also manifest that from the record, the only evidence proffered in their behalf to justify the claim was that they were the adopted children of the deceased.
There can be no doubt that the question with regard to the adoption of Emmanuel and Sarah cannot be said to be a new issue that the appellant had raised in the court below.
I.B. I have adverted earlier in this judgment, in Lewis & Peat (N.R.I.) Ltd. (supra) that the plaintiff/respondent had the burden of establishing her claim that Emmanuel and Sarah are the adopted children of the deceased husband. Plaintiff/respondent ought to have given evidence of the kind that would put the adoption of Emmanuel and Sarah beyond question. Unfortunately, that evidence was not made available in this case by the plaintiff/ respondent in the course of her testimony in support of her claim. It was evident that the plaintiff was conscious of this hence, in giving evidence of her own marriage to the deceased, she tendered her own marriage certificate to prove beyond doubt that she was legally married to the deceased. With regard to the appellant, her certificate of birth was also duly tendered and admitted in evidence. In other words, what I am saying in my respectful view is that the plaintiff failed to give such evidence, which will show quite clearly when and how Emmanuel and Sarah were adopted.
I.C. You cannot pick children any how. Since Sarah and Emmanuel are not biological children of the plaintiff and her late husband evidence of adoption was material. Proof of adoption is essential both for the adopter and the adopted person or any other person for the purpose of devolution of property on the intestacy. From the pleadings, the burden of proof rested on the plaintiff/respondent who substantially asserted the affirmative of adoption of Sarah and Emmanuel. This forms an essential fact of the case of the plaintiff and if she could tender a certified true copy of the marriage certificate between her and the deceased husband, it was strange that she was unable to tender any documentary evidence establishing the adoption or offering any acceptable evidence to that effect. The burden of proof lies on him who affirms a fact, not on him who denies it.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ IMPORTANT POINTS ON BURDEN OF PROOF
In the case of Lewis & Peat (N.R.I.) Ltd. v Akhimien (1976) 10 NSCC 360 at 365. They are: (1) “Where there is no issue the question of burden of proof does not arise. (2) On the burden of proof on the pleadings: the rule is that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmative of the issue in Joseph Constantine Steamship Line v. Imperial Smelting Corporation (1942) AC 154 at 174. (3) On the burden of adducing evidence: Used in this sense the burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all or no more evidence, as the case may be, were given, on either side. In other words, it again rests before evidence is taken by the court of trial on the party who asserts the affirmative of the issue …”
➥ REFERENCED (OTHERS)
