By Frank Tiet
Introduction
We at the Citizens Advocacy for Social & Economic Rights (CASER) are grateful to the organizers of the 2021 Nigerian Bar Association -Section of Public Interest and Development Law for their fine insight in bringing up this raging topic for discussion and for giving me the opportunity to restate our position on the issue of paternity fraud.
With the widely reported paternity scandals in the opening of the year, 2021 involving the managing director of one of Nigeria’s foremost commercial banks and another which centred around a judicial officer of the Delta State High Court who publicly declared the paternity status of his erstwhile children, whom he claimed were not his children based on the result of a DNA test results, the subject of paternity fraud has become a very fascinating and sensational topic of discussion.
Reality court TV shows like MGM’s Lauren Lake’s Paternity Court have become a regular fancy for many Nigerians who daily watch them on Facebook and YouTube and, are coming face-to-face with the otherwise shocking reality of how disputes over paternity of children are considered with an air of bizarre normality in the American culture. Well, it is just a matter of time before this neoliberal influence of the Western world catches up with us in Africa because of the powerful influence of the social media.
This presentation seeks to approach the so-called issue of Paternity Fraud from the standpoint of the law and practice as it they are in case law decisions and statutory provisions in Nigeria. It will consider the massive influence of Western popular culture that is currently assailing the Nigerian public through the social media.
The goal of this presentation therefore is to promote values that place the highest premium on the wellbeing of the human being, particularly, that of children in what is termed by the law as to be ‘in the best interest of the child’.
What is Paternity Fraud ?
Paternity Fraud is simply when a mother or father deliberately and falsely claim a man is (or isn’t) the child’s biological father 1 .
Contrary to widely, generally held beliefs that only women can commit Paternity Fraud, men, especially adult male children are as capable of committing Paternity Fraud as women. For example, a person, whether male or female that is born out of wedlock is required by Section 8 (3) of the Armed Forces Pensions Act CAP. A 23 L.F.N. 2004 to discharge the burden of proving paternity to collect the death benefits of a deceased parent who died in the service of the Nigerian armed forces. Anybody who therefore presents a false proof of paternity to collect such benefits would have indeed committed paternity fraud.
Therefore, in the typical sense of what constitutes fraud, a DNA testing laboratory also holds a strong potential to conspire to commit paternity fraud by deliberately tampering with samples taken/obtained from disputing parties in order to give misleading DNA test results of directly issuing false DNA test results..
False Claims about Paternity Fraud in Nigeria
There exist a lot of fallacies about the prevalence of paternity fraud in Nigeria. This is because of the sensational nature of the issue in the media. The social media was literally set on fire with what turned out to be fake news, a report by a reputable
Nigerian newspaper2 which titled one of its reports as follows: “Nigeria ranks 2nd highest in paternity fraud in the world”. That report went further in its sub-title to state alarmingly that: “…Three out of ten Nigerian men are not biological fathers of their children…” The said report also endorsed another foreign report which turned out to be fake news about a Zambian nurse who was said to have made a dying declaration that she swapped 5,000 newborn babies in course of her 12 year professional career as a nurse.3 Sadly, the only justification the Nigerian newspaper had in the body of its report to support its bogus headline on paternity fraud in Nigeria, was to state as follows:
- https://dnatesting.com/paternity-fraud/
- Nigeria ranks 2nd highest in paternity fraud in the world https://www.vanguardngr.com/2021/01/nigeria-ranks-2nd-highest-in-paternity-fraud-in-theworld/
- AFRICA FACT CHECK: No, a Zambian nurse didn’t swap 5,000 babies at birth for 12 years. Published on 31 May 2019
https://africacheck.org/fact-checks/fbchecks/no-zambian-nurse-didnt-swap-5000-babies-birth-
12-years
“….Reports have been making the rounds that Nigeria has the 2nd highest rate of paternity fraud in the world after
Jamaica.” 4
What this means is that there was no study or report whatsoever based on which that assertion was made by the newspaper. Thus, the entire feature report of the allegation by the highly respected national newspaper which stated that 30% of married men in Nigeria are not the biological father of their children is based on mere speculation and simply concocted for the effect of sensational journalism. And it amounted to downright fake news. There was neither any independent research nor any commissioned study on record, anywhere in the world, about paternity fraud in Nigeria. It is also sad that another highly respected national newspaper referred to and endorsed this false claim in one of its reports5. None of the two reputable Nigerian newspapers cited any study or report on which they based their news report.
A highly informed debunker6 on the above claims, expressly regarded the journalists who wrote those reports about the non-existent rate of paternity fraud in Nigeria, were simply patronizing falsehoods and bandying fake news on the subject.
However, it must be quickly pointed out and highly commendable for that matter that Thisday newspaper subsequently devoted much of its own resources to x-ray the subject matter in its cover story of 16th February, 2021 by examining paternity fraud in Nigeria from different socio-legal perspectives, including Islamic law7
The submission here in the above regard is that DNA testing in Nigeria is essentially a private and confidential matter. There is not to the public knowledge, at the moment, any coordinated study by the Federal or any States’ ministry of health to determine the rate of paternity fraud in Nigeria.
- Supra
- ‘Why Paternity Fraud in Nigeria is Second Highest Globally’ November 8, https://www.thisdaylive.com/index.php/2018/11/08/why-paternity-fraud-in-nigeria-issecond-highest-globally/
- FACT CHECK: How true is claim Nigeria has second highest paternity fraud rate in the world? https://dubawa.org/how-true-is-claim-nigeria-has-second-highest-paternity-fraud-rate-inthe-world/
- Determining the Paternity of a Child https://www.thisdaylive.com/index.php/2021/02/16/determining-thepaternity-of-a-child/
It can therefore be surmised that the government does not even have the exact number of certified DNA testing centres in Nigeria which submit report to the health authorities. In addition, public declarations of DNA test results are mostly infrequent. Therefore, it is not easily accurate, presently to determine the rate of paternity fraud in Nigeria owing to scarcity or non-existence of data.
How fraudulent is Paternity Fraud? – Is it Really Criminal?
There are several circumstances where a woman, whether married or not can have multiple sexual partners. Whereas such an act by partners or married couples, particularly the female partner is referred to as adultery or cheating however, condemnable are such acts by the mores of the Nigerian society, it is not outrightly a criminal offence and, by our matrimonial laws, can even be condoned within a marriage relationship.
In the case of a married woman who has had sexual intercourse with her husband and another man during the likely period of conception, would she be considered to have committed paternity fraud for reasonably making a mistake as to the identity of either of the men who is responsible for her pregnancy? Respectfully, our laws do not punish such mistakes as crimes and neither do the laws also, refer to them as fraudulent because they are mistakes in the true sense, being without the intention to deceive. Therefore, many of the reported cases of paternity fraud, should actually be rightly referred to as Paternity mistakes or ‘Presumptuous Paternity’8.
One fundamental element of proving a crime is the possession of ‘guilty mind’ (mens rea). A woman who reasonably believes that one of the men (including her husband, if married) that she slept with is the father of the child born of her, the fact of which is later proven otherwise, cannot be said to have committed fraud when she had no intention to mislead but only made a mistake in her identification of the man who impregnated her. There is therefore the existence of a thin line of intention to deceive that distinguishes between a Paternity Fraud and a Paternity Mistake.
Sexual faithfulness in marriage should be promoted but the peculiarities of life throw up many circumstances and realities which open married and unmarried couples to having multiple sexual partners.
For a view of the intricacies and complexity of paternity fraud, it is instructive to consider the recently decided case of Idahosa v. Idahosa9 in 2020, by the Supreme
- HENRY, RONALD. (2006). The Innocent Third Party: Victims of Paternity Fraud. Family Law Quarterly – FAM LAW QUART. 40. 51-79.
- SGT. STEPHEN IDAHOSA v. CHRISTOPHER IDAHOSA (2020) LPELR-52018(SC)
Court which examined how a married woman, left her matrimonial home in Lagos because of sickness, and went back to her father’s house in Benin city for treatment. [Full citation is provided, and effort is made to avoid mentioning the names of the parties].
Thus, after the treatment of the woman, her father (the father-in-law) demanded of the husband of the woman (his son-in-law) that until the son-in-law (the husband of the woman) paid the cost of treating the wife’s sickness, his wife would not return to him. In that period of waiting and separation, the woman fell in love with another man in Benin City with whom she had two children, a male and female. Subsequently, her original husband came to Benin, settled with the father-in-law, and took his wife with him back to Lagos. Upon the death of her husband, the woman presented the two children whom she had with the estranged man as among the children that she had for her original husband who had just died. This made the son that she had born for the estranged man to claim to be the son of her original husband and therefore laid claim to the inheritance of the Igiogbe, the traditional family compound of the deceased according to Bini customary law. The twist of the facts was when the woman made a dying declaration a day before her death where it was claimed that she told one of other sons that she had for her original husband that indeed, she had the so-called first son with and for an estranged man. The matter was reported to the Oba’s Palace and before a decision was reached at the Palace, the said first son rushed to court against the other acclaimed son of the original husband to claim amongst others, his rights to inherit the Igiogbe. Though the trial court (court of first instance) dismissed the claim of the so-called first son to the paternity of the original husband of his mother, the Court of Appeal set aside the judgment. And on appeal to the Supreme Court, Mary Ukaego Peter-Odili. JSC, in the lead judgment, upheld the decision of the Court of Appeal, which affirmed the paternity of the so-called first son on the basis that a man cannot be denied his paternity simply based on an uncorroborated dying declaration made by his mother which amounted to hearsay evidence that is inadmissible in law. In concurring with the lead judgment of her learned brother, John Inyang Okoro, JSC wondered out loud why it had to take about 20 years of litigation over paternity when all the parties could have done to determine the paternity of the so-called first son was to simply administer a DNA test? In his words:
May I also state that our world today has shifted significantly to science and scientific analogies. I wonder why parties in this appeal never considered subjecting themselves to a medical test, to wit: a DNA test, to ascertain the paternity of parties rather than resort to litigation which has lasted this length of time.
For all I have said above, I hold that the court below was right to hold that the presumption of legitimacy inures to the benefit of the respondent (the so called first son)
[emphasis mine].10
- Ibidem
The Mischief of Paternity Questioning
Does it not appear that questioning paternity only breeds, distrust, confusion, and acrimony? What therefore has the woman in the above case of Idahosa v. Idahosa achieved with her dying declaration, if true, except creating confusion and pain? The truth about paternity must be told but how and when should it be told without creating more harm than good?
Families that were once closely knit in love were shattered into dreadful splinter groups in needless contentions because of knowledge about birth status, initiated by a personal quest to ascertain the paternity of a child. Is it not sufficient that the child that has been born is a human being and that it must and should be celebrated and valued above what else?
We must therefore now agree and acknowledge that the law is indeed wise by the principle of Presumption of Legitimacy as provided for in Section 165 of the Evidence Act, 2011 which states as follows:
Without prejudice to section 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,
The above provision confers legitimacy on any child that is born during the pendency of a marriage and within the period of 9 months after divorce between a husband and wife. Paternity is legally conferred on children born within a marriage. This is to silence and put to end all unnecessary guesswork and speculation over the paternity of children born within wedlock. The above provision invokes the sacrosanctity of marriage to sanctify and legitimise any child born within wedlock, whether he is the biological child of the husband of the marriage or not.
The above provision being a rebuttable presumption of law, such a rebuttal can only be according to law and specifically by the use of scientific test such as DNA tests. The DNA test has come to stay in Nigeria as the ultimate settler of issues of paternity. This enjoys both statutory and judicial support that apply to children (persons under the age of 18 years) and adult persons. The use of DNA tests to determine paternity is not in any way in doubt under extant Nigerian laws. However, there are standards to be strictly followed in the application of DNA tests to determine paternity.
Therefore, in the case of a child, Sections 63 to 67 of the Child Rights Ac, 2003 which is in pari materia with the Child Laws of 24 other states of the Federation, make provisions for the conditions and processes for the application of scientific tests in determining paternity or maternity, etc.
By the provision of Section 63 of the Child Rights Act, there must first be a dispute as to the paternity of the child before an application would be made to the court to order the use of scientific tests such as blood tests or DNA tests. Therefore, it is untenable to rely on any form of scientific or DNA tests that were conducted unilaterally and without the direction of the court. In the case of Izontimi v.
Izontimi11 , the Respondent being doubtful of the paternity of the set of twins said to be his children, according to his wife, had already caused a DNA Test to be secretly carried out on them but he couldn’t declare the results but had to apply by Motion on Notice to the Bayelsa State High Court for an order directing the selection of one DNA testing laboratory from a list of many other laboratories brought before the court, in order to conduct a court directed DNA test on the twins. This gave opportunity to the Appellant to raise objections of privacy rights and presumption of legitimacy against the motion which were dismissed by the trial court and the Court of Appeal.
It amounts to utter recklessness, deserving of serious punitive damages for any party to proceed to unilaterally conduct DNA test on any child when there is no dispute as to paternity. Thus, whenever circumstances suggest doubt in the mind of a party as to as to the paternity of a child, such a party must make an application to court for DNA testing, putting on notice all other parties that are likely or will possibly be affected by the outcome or the result of the DNA tests.
The reasons for high number of reported cases of paternity fraud in certain climes like the United States of America is attributable to the strict enforcement of the payment of child support by fathers who are tied by blood relationship (paternity) with children born within or without wedlock and, failure of which is met with stiff punishments including jail terms. That is most often, the reason why men elicit for paternity tests to ascertain the paternity in certain circumstances of birth. The propensity to commit such form of paternity fraud for pecuniary gain is quite rare in Nigeria. This is attributable to the lax enforcement of standards in payments of childcare support and orders for maintenance.
It is however not unusual for a woman, in most cases, an unmarried woman to knowingly foist a pregnancy on a man whom she knows is not the owner of the pregnancy, simply because she wishes it to be so for many reasons, including avoidance of shame, the need for adequate provision of care and support for her and the expected baby and to coax the man into marriage.
- PEACE OKIEMUTE IZONTIMI v. STEVEN BULO IZONTIMI (2017) LPELR-45004(CA)
Therefore, timing in the use of DNA tests to determining pregnancies and children born in and out of wedlock must indeed be reasonable at the instance of any man who is alleged to be responsible. Where such a man fails to determine at a reasonable stage, whether he is the owner of the pregnancy or the father of a child born from such in and out-of- wedlock relationship, it should be regarded that he has accepted responsibility for the child when it was born and must therefore continually remain the father of the child. A subsequent DNA test of paternity, even when it proves negative i.e. that he is not the biological father of the child. That should only suffice for the sake of knowledge alone, but the outcome of the DNA test would not discharge him from parental responsibility towards the child. Thus, once a man has/had accepted and held out himself as the father of a child, a DNA test result however negative it turns out, cannot deprive the child of his right to parental care, protection and maintenance. This is based on the legal principle of estoppel as stated in Section 169 of the Evidence Act, 2011 as follows:
When one person has, either by virtue of an existing court judgment deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest to deny the truth of that thing.
A child cannot be led on by a man to believe that the same man is his father for years, only to come and disclaim that fact based on DNA test results that turned negative. Yes, the truth will remain therefrom that based on the DNA test result he is not the biological father of the child, but he will remain the child’s parent at least, until the child attains majority. The said man may proceed to file for divorce against the mother of the child but he would be made to pay maintenance for the child continually, having made the child to believe that he is his father. There is a plethora of decisions in foreign jurisdictions which support the above position that is based on the application of the ‘best interest’ rule and the reasoning that the misidentification of paternity leading to the initial acceptance of a child’s paternity by a man is a shared responsibility and irresponsibility for the woman’s paternity mistake or paternity fraud, whether married or not.
Contributory Negligence?
Thus, for example, a man who is often separated from his wife, exposing her to the temptation of adultery and when presented with a pregnancy in doubtful circumstances yet failed to initiate a DNA test but initially accepts the pregnancy or the child that is born thereafter, if ever it later turns out to be a paternity mistake or a paternity fraud, such a man must be held to have contributed to both the fraud and the mistake. He must be held responsible for his irresponsibility in the whole scheme and consequently he cannot escape parental responsibility for that child.
This is more so that we do not have a functional social welfare system that provides care for children in Nigeria. If a man cultivated a healthy and faithful relationship with his partner, there is less likelihood of adultery and if a man TIMELY conducts a DNA test on a pregnancy or newborn, the woman may easily identify the true father of the child, timely. Allowing time to pass after initial acknowledgment of the child, only to disclaim the child based on a correctly conducted DNA test, is irresponsible. Call it a form of contributory negligence. The principles of law should be applied across issues.
Conclusion
The above position however disagreeable it may appear leads us to examine the Call for Mandatory DNA Test at birth. Section 1 (b) of the National Population Commission Act mandates the National Population Commission (NPC) to establish and maintain a machinery for continuous and universal registration of births and deaths, throughout the Federation. In discharge of this function, the NPC has been issuing birth certificates through hospitals and birth clinics. The contents of the birth certificates issued by the NPC include the information on who father of the child is. Once inscribed, the person named and registered on the birth certificate as the father of the child must remain so for all intents and purposes. Such responsibilities which go with declaration of fatherhood in the NPC birth certificates must be enforced against the person named thereon. Therefore, the information of who the father of child is, must be stated with a sense of certainty and not levity or carelessness.
Therefore, compulsory DNA tests at birth as a state policy is not inappropriate. However, should the policy of compulsory DNA testing at birth be accepted for implementation, it should have an option of waiver that is exercisable by the man who so wishes to be so registered as the father of the child, but on the condition that once a man has exercised that waiver, he is estopped for life from conducting any further DNA test to determine the paternity of that child. If he ever does so, he cannot disclose it since it will unnecessarily destroy and disrupt many things, including the psyche with the immediate and future wellbeing of the child
(children).
There is no doubt that DNA tests can be accurate in the determination of paternity. Our superior courts have attested to that in many instances. However, Paternity tests should be discouraged. They fuel distrust, confusion, and detraction from the wellbeing of affected children in and out of wedlock, especially in a country as ours, which has insufficient policies and structures for the promotion of the children’s welfare.
Paternity tests however accurate are still subject to fraud and manipulation therefore, if ever in extreme cases, that they must be conducted, they should be done under the strict supervision of the High Court as provided for in the Child Rights Act, as stated above.
The application of the principle of presumption of legitimacy which unconditionally identifies and determines the legal the paternity of children born within wedlock is a strong panacea to enhancing the value of the human person irrespective of the circumstances of birth. Section 165 of the Evidence Act contemplated the present mischief of indiscriminate and sensational issue of Paternity Fraud as we now have it. Therefore, our Courts should demand strong and high standards of rebuttal of the presumption of legitimacy as that will do well to promote the overall best interest of children in Nigeria.
I thank you for listening.
▪︎Tietie, a Human Rights Lawyer & Executive Director,
Citizens Advocacy for Social & Economic Rights (CASER), delivered this paper at the NBA 2021 Annual Conference Section on Public Public Interest and Development Fund