Is paternity fraud actionable under the law?

The ever-increasing rate at which men are defrauded of fake paternity by either their lawful wives or partners in coitus has become a serious cause for concern.

Unfortunately, various gender-based vices are overreached with publicity,, whereas paternity fraud is seldomly talked about,, even though it is one of the biggest, if not the biggest, matrimonial malpractices known to mankind.

In a nutshell, paternity fraud is described as an act of deceitfully leading a male spouse or male sexual partner by his female counterpart to assume or believe that he is the biological father of a child which in real sense does not belong to him.

Recent findings on social media, reveal that one out of every four tested men turned out not to be the biological father of their child(ren). Sadly, Nigeria is ranked as the second highest.

Curiously, the Matrimonial Causes Act (MCA) and the Matrimonial Causes Rules (MCR), which are the leading legal framework for matrimonial causes in Nigeria, failed to make provisions for such matrimonial wrongs. Whether it was an innocent omission or a deliberate exclusion borne out of the genuine desire not to rock the “sacred” institution of marriage remains doubtful. Similarly, the Criminal Code is also vacant on the issues. Nevertheless, Sections 387 and 388 of the Penal Code Act provides for imprisonment for two years and/or with a fine for adultery. But also remains copiously silent on the issue of “having a child outside wedlock and deceitfuly or fraudulently leading a spouse to believe that such child was his.”

The Court of Equity does not make a practice to suffer a wrong to be without a remedy. Therefore, it is my considered view that whereas the criminal laws in Nigeria do not consider paternity fraud as an offence, victims reserves a right of action in damages under the civil laws. Afterall, where there is a wrong, there is a remedy (“Ubi Jus Ibi Remedium”). Under this circumstances, remedies are usually a monetary compensations. A partner who was mislead to believe that he owns the paternity of a child and who relied on such impression to train and raise the child may recover as damages in a civil court, every financial loss and psychological pain incurred as a result of such deceit.

While it is agreed that punishment is not one of the weapons available for a civil court. Nevertheless, there are instances where damages may be used as punishment for a civil wrong. In Rookes Vs. Bernard (1964) AC 1129. Here, Lord Delvin while condemning the act of a Union who ensured that it’s member was sacked by his employer for disagreeing with it, embarked on a protest against the member’s employer which eventually saw him sacked, held that in punishing the act that, where a conduct is not Criminal, an award of punitive damages would serve a useful purpose in vindicating the strength of the law and providing a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal law.

Therefore, a Court called upon to decide matters bordering on injuries incurred as a result of deceit in paternity would always weigh the extent of the damages or injury suffered by the Claimant and the compensation which would be adequate to assuage the pain inflicted by the act of the Defendant. In most cases, exemplary and punitive damages are also awarded outside special damages just to inflict economic pain on the Defendant in order to send a message of deterrence to others to refrain from actions that would put a party in the position of the Claimant. Philip Moris USA Vs. Williams, 549 US 346 (2007) Here, the court held that punitive damages must be reasonably connected with the injury suffered by the Plaintiff. This Principle is in tandem with the judicial authorities in Nigeria regarding damages. See Iloabachie v. Iloabachie (2000), 5 NWLR (Pt. 656), 178 CA, @222 Para. C. Here, the Court of Appeal held that where no loss was incurred from a wrong or the wrong is excused under a legal defence, the Claimant is not entitled to damages.

Nonetheless, except for special damages, award of damages in any claim is at the discretion of the court which must considerably flow from the injury suffered by the claimant. Please see GTB PLC v. OBOSI MICROFINANCE BANK LTD (2018) LPELR 44518 (CA).G.K.F. INVESTMENT NIGERIA LIMITED v. NIGERIA TELECOMMUNICATIONS PLC (2009)13 NWLR (Pt. 1164) 376.

CONCLUSION

Victims of paternity fraud are not helpless except they choose to. While gender-based violence of any kind must be discouraged, paternity fraud should not be treated as an orphan. By this piece, I recommend a special legislation to be passed by the National Assembly purposely to address issues of paternity fraud and matters associated to it, in order to curb the social vice which is gradually gaining acceptance in Nigerian society.

M.O.Idam, Esq.
m.o.idammaduabuchio@gmail.com

Source: @BarristerNG