Proof of Paternity in Nigeria232 views
By Amusan Tawfiiq ’Lekan
For several reasons— extending but not limited to social-political— there may be a need for a person to want to trace their paternity route whenever such is in doubt or being subjected to scrutiny. The law has then put in place, a number of means by which a deserving attention could be given to such voyage of discovery. Over the years, the court has been presented with variegated issues bordering on paternity involving both the child and an adult, and has, through the instrumentalities of law, come up with certain principles which are thought to be capable of settling those ever-rising issues of paternity.
This is a terminology which simply means the state or fact of being the father of a particular child. It will thus be accurate to say or posit that any issue (yearning verification) which is connected with paternity is one aimed at proving that a man is the actual and biological father of a particular child. In view of that, most of those means recognized by (the Nigerian secular) law through which such issue could be verified are hereby considered hereunder.
PROOF OF PATERNITY IN NIGERIA
- Proof By Acknowledgement
This is a means by which the father of a child whose issue of paternity is up for determination could be said to admit (whether by act or conduct) to being the biological or legally recognized father of the child in question— notwithstanding the fact that the said-child was born either outside wedlock or even before the marriage, which is mostly the case. And this is because of the fact that there is no child without biological parents or, to be more specific to the topic under discourse, a child without a father.[i] Generally, issues of paternity by acknowledgement are resolved during the lifetime of the parties concerned[ii], but critical circumstances arise when controversies of paternity throng up upon the death of the father in question.
In order to constitute acknowledgement, the act or conduct of the father must be such as to indicate or establish his acceptance of the child’s paternity[iii]. It may and may not be frequent; all that is relevant is its evidential worthiness of being construed as the father’s acceptance of (the child’s) paternity. Acts such as attending child dedication, taking photos with mum and child, writing letters to mother, consistent visits to mother and child, providing financial support for the child, performing the naming ceremony, writing letters to the relatives or traditional rulers acknowledging paternity of the child, arranging medical attention for the child and paying the child’s school fees etc. have all been held as prima facie evidence of acknowledgement, though rebuttable by contrary evidence[iv].
- Proof By Presumption
This is another method by which paternity could also be proved or established in Nigeria. By this principle, and unlike the principle of acknowledgement, a valid marriage must be in existence between the mother and the man who may be said to be or not to be the father of the child in question. The intervention of law in this regard, therefore, is that, even though a woman has the right to say who the father of her child is, where a child is born within wedlock, the presumption is conclusive that the child is the seed or product of the marriage.[v] The case of Ibeabuchi v. Ibeabuchi[vi] is also one of the judicial endorsements on this principle that has its paternity rooted in the provision of section 165 of the Evidence Act, 2011 which provides as follows;
“Without prejudice to sec. 84 of the Matrimonial Causes Act, where a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, the court shall presume that the person in question is the legitimate child of that man.”
However, and as held by the Court of Appeal in Anozia v. Nnani & Anor[vii], this principle is merely a rebuttable presumption of law which, like every other rebuttable presumption, is liable to wither and give way upon the presentation of clear and irrefutable evidence to the contrary. So, unless there is that irrefutable evidence pointing to the contrary, the man to whom a woman is validly married or got divorced from and remaining unmarried for a period not longer than 280 days as at the birth of the child will always be the legitimate father of the child in question under the presumption of law. It is also noteworthy to state as a final point under this paragraph that any evidence for such rebuttal of paternity requires proof beyond a reasonable doubt.[viii]
- Proof By Adduction of Evidence (With the Aid of Court)
A lot comes to mind under this periscope, but what it will be limited to addressing is just the proof by DNA. DNA, that is, “deoxyribonucleic acid” is a molecule that contains the genetic code of any organism. It is hereditary and has become a euphemism for scientific analysis of genetic constitution to determine one’s roots[ix]. The application of this principle before the Nigerian Courts in establishing paternity is a qualified one— which is the reason that makes it to be a principle not readily available to all manner of people and in all manner of situations. Sec. 63(1) (a) of the Child’s Rights Act, 2003 provides generally for the use of the scientific test. For the sake of clarity, the section provides as follows;
“In any civil proceedings in which the paternity or maternity of a person falls to be determined by the court, the court may, on application by a party to the proceedings give a direction for the use of scientific tests including blood tests and Deoxyribonucleic Acid tests to show that a party to the proceedings is or is not the father or mother of that person.”
This method of proving paternity is mainly determined on the two-tiered considerations of right to privacy, as guaranteed by section 37 of the 1999 Constitution (as amended), and the “child’s best interest” principle as required by the provision of section 1 of the Child’s Rights Act. As a general rule, the court considers an issue of paternity or parenthood as one within one’s private life over which one has a constitutional cover. In other words, unless one voluntarily submits to taking the test, the court will not as a general rule, (on the application of the applicant) make an order compelling a party to submit to the taking of the test— for the fear of being in defiance of the constitutional right to privacy of such an unwilling party.[x] This, therefore, is what leads us to the classification of “adult and child” as parties before the court and in seeing how the court applies section 1 of the Child’s Rights Act vis-à-vis section 37 of the CFRN.
Where it’s an adult person that is alleging that a party to the proceedings is their father, or it’s a party to the proceedings that is alleging that they are the biological father of an adult person, the court will not make an order for scientific test on the purported father or adult person, as such order would not only enable the asserter(s) (in each case) use the court to procure evidence in proof (or disproof) of their claim but would also be a breach of the right to privacy of each of the parties from the other end.[xi] It should however be noted that the court will still readily exercise its adjudicatory power where, despite the alleged child being an adult person— and just as advised by the Court of Appeal in Anozia’s case— the parties to the proceedings could get each other to willingly and voluntarily submit to taking the test without resulting to the coercive power of the court.[xii]
However, this is where a purposive construction of the provision of sec. 37 of the CFRN is usually made, where it is a child that is asserting that they are the biological child of a party to the proceedings, or it’s a party to the proceedings that is alleging that they are the biological father of a child, the court can make an order for scientific tests to establish that fact. Even where any person is asserting that a child is not the biological child of a party to the proceedings, the court will still readily make same order despite the fact that it violates the evidential principle of “he who asserts must prove”[xiii]. And this is because doing same is an act capable of enabling the child to know where they belong[xiv] and; thus, in tune with the provision of sec. 1 of the Child’s Rights Act.
Therefore, in this case— where a child, as contemplated by sec. 277 of the Child’s Rights Act (an under-18), is involved— the court will be soft in its construction of sec. 37 of the Constitution of the Federal Republic of Nigeria as it relates to whomever the other party in the proceedings is (depending on the circumstances of the case) and, as well, be unmindful of the fact that it technically helps a party before it to secure evidence in proof of the claim it has brought before it for adjudication. And, in doing all of that, the court’s only place of finding solace is the Child’s Rights Act of 2003— particularly under the section 1 of it, which provides that, “In every action concerning a child, whether undertaken by . . . or a court of law, the best interest of the child shall be the primary consideration”.
Having examined the various common ways by which the paternity of an individual could be proved in Nigeria, it’s thus crystal clear now that even the fact that a child was born either outside wedlock or before the marriage doesn’t actually take much away from the proof of their paternity other than the mere presumption that they may be illegitimate. But such a presumption stands dislodged— particularly as it relates to paternity— the moment the child in question is “brought in” through the process of acknowledgement by his biological father.
Amusan Tawfiiq ’Lekan is a 500L Student of the Faculty of Law, Bayero University, Kano. He can be reached via firstname.lastname@example.org as well as +2348108012253.
[i] Anode v Mmeka  9 CMLR 160, 166
[ii] Rone Orugboh v Rone Orugboh  4 UILR (Pt 1) 120.
[iii] SO Tonwe and OK Edu, Customary Law in Nigeria (Renaissance Law Publishers Limited, 2007) 175
[iv] Philips v Philips (1946) 18 NLR 102; Abisogun v Abisogun (1963) 1 AII NLR 237; Young v Young (1953) 4-5 WACA;
[v] Tony Anozia v. Mrs Patricia Okwunwa Nnani & Ignatus “Nnani” (2015) 8 NWLR (Pt. 1461) 241
[vi]  JELR 48635 (CA)
[vii] Supra (n v)
[viii] Supreme Court per J.I. OKORO JSC in SGT. STEPHEN IDAHOSA V. CHRISTOPHER IDAHOSA (2020) Legalpedia (SC) 12669
[ix] Anozia (n v) 256, Para. H.
[x] Ibid, 254, Paras F-H
[xii] Ibid, 257, Paras B-C.
[xiii] Sec. 131(1) of the Evidence Act, 2011
[xiv] Okonkwo v. Okagbue  9 NWLR (pt 368) 301-346