Lawyers weigh criminalising paternity mistake, fraud

Today in Nigeria, there is not a single known case of a criminal conviction for paternity fraud although there is a growing demand that paternity fraud should be criminalised. There are stories of some high-profile men finding out that they are not the real fathers of the children they have raised, some into adulthood. Some […]

Today in Nigeria, there is not a single known case of a criminal conviction for paternity fraud although there is a growing demand that paternity fraud should be criminalised.

There are stories of some high-profile men finding out that they are not the real fathers of the children they have raised, some into adulthood.

Some lawyers at the just-concluded conference of the Nigerian Bar Association (NBA) Section on Public Interest and Development Law (SPIDEL), 2021 in Ibadan, Oyo State, took time to deliberate on this issue.

The Executive Director, Citizens Advocacy for Social and Economic Rights (CASER), Frank Tietie, said many cases referred to as paternity fraud are really paternity mistakes or ‘presumptuous paternity.’

“There are several circumstances where a woman, whether married or not can have multiple sexual partners.

“Whereas such act by partners or married couples, particularly the female partner is referred to as adultery or cheating and however condemnable such acts are by the mores of the Nigerian society, it is not an outright criminal offence and, by our matrimonial laws, can even be condoned within a marriage relationship,” he said.

“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’.”

It is beyond any doubt that one fundamental element of proving a crime is the possession of a ‘guilty mind’ (mens rea). Thus, both the criminal act (actus rea) and the guilty mind must be present before a crime could be said to have been committed.

A woman, according to Frank Tietie, who reasonably believes that one of the men (including her husband, if married) whom 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.

On the issue of contributory negligence, he said, “where a man who is often separated from his wife, exposing her to the temptation of adultery and when presented with 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.”

He said sexual faithfulness in marriage should be promoted but the peculiarities of life throw up many circumstances and realities that leave married and unmarried couples open to having multiple sexual partners.

He mentioned the case of Idahosa v. Idahosa in 2020, decided by the Supreme 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, where she later fell in love and had two children for another man.

Lawyers are of the opinion that although paternity fraud may not survive as a crime, there are, however, collateral issues connected with paternity frauds which pass for crimes such as criminal deceit or perjury occurring out of paternity proceedings or knowingly making false statements on a public document such as a birth certificate amounting to a criminal offence.

For example, to name someone who is not the biological father of a child as the biological father of that child in a birth certificate may amount to a crime. It is not the paternity fraud itself that is the crime but the act of making the false statement.

In a related development, there are situations of what is generally termed “baby factories” operated by persons, usually nurses or medical doctors, who take care of young women who “accidentally” get pregnant or, to use a more usual language, women who find themselves with “unwanted pregnancies” that they are unable to abort and their circumstances are such that they cannot take care of themselves.

It is gathered that these operators eventually sell the babies, at times to couples that are unable to procreate. Such children can never know who their real parents are. They are victims of parental fraud since the persons they regard as their parents based on the representation, are not their parents. And as nobody will tell them, they remain perpetual victims of the fraud.

On his part, Miakpo Emiaso, a retired Area Customary Court Judge, currently a lecturer at Novena University and a doctoral scholar at Delta State University, said society and the law especially have taken the evil of paternity fraud (which he describes as a “woman’s offence”) too casually for too long.

The element of deceit, he said, is fundamental to paternity fraud since paternity fraud is an act of deceit deliberately foisted on the victim by the perpetrator. Without deceit, the fraud of paternity is not grounded.

According to Miakpo Emiaso, the word “fraud” is usually associated more with a crime or some ignoble conduct. In Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91, 110 paragraph A-B, Tobi JCA (as he then was) stated that “Fraud has the element of deceit, imposture, a snare, a deceptive trick. It also colloquially connotes a cheat and a swindler.”

He submitted that under our laws, any form of intentional deception with a view to securing unfair and unlawful advantage or benefit over a victim or to deprive such victim of a legitimate right will amount to fraud.

“Fraud is generally understood as entailing insincerity and dishonesty which a perpetrator employs to secure undeserved advantage,” Emiaso said.

“Our laws are replete with crimes having the element of fraud. The infamous Section 419 of the Criminal Code is basically a crime which deals with fraud.”

SPIDEL chairman, Monday O. Ubani in a communique at the end of the conference expressed deep concern at the numerous reports of incidents of paternity fraud in Nigeria and called for caution in the handling of each such situation.

He decried the indiscriminate carrying out of DNA tests to determine paternity often without any order of the court and maintained that there was the need to have laws regulating DNA testing in order to protect the rights of the Nigerian child.

The participants, therefore, resolved that rather than concentrating on the criminalisation of paternity fraud, the Nigerian society must deal with the causes of such acts from the root by eradicating certain laws against women.

Can the husband victim sue for damages? The general principle of the law is that ubi jus ibi remedium (where there is an injury there is a remedy). All that expense in raising another man’s child under a grand deception? Shouldn’t the court order a refund of all that expense?

The law of torts is a wide and fertile terrain under which all manner of actions can be raised in a civil claim.