Encomium
THE Chika Mbonu/Doreen and Henry Bassey adultery saga is far from over. This week, we asked some lawyers to educate us on the likely legal implications –and the trio of Tunde Braimoh, Edwin Anikwem and Monday Ubani did just that…
‘Henry Bassey can sue, but his chances are very slim’
- Tunde Braimoh
“In Southern Nigeria, adultery is not a crime. It’s not an illegality, although it’s an immorality and sinful. Our jurisprudence does not rebuke immorality unless it doubles as illegality.
Although the former father (Henry Bassey) may choose to go to court under the omni bus inherent jurisdiction, his chances, if any, are very slim.
What the court considers here mostly is the interest of these kids. Would the former father (Henry Bassey) have any natural love and affection for them? Would he now do as he wishes with them, for example, traffic in them or enslave them to recover his investments?
The only legal tests of fatherhood are biological and adoption. While the former is simple, the latter is very complex.
An old Igbira native law and custom that awarded the paternity of children of a failed marriage, whose mother or new husband cannot refund the dowry paid by the former husband to the former husband, was declared unconscionable, unreasonable and repugnant to natural justice by the Supreme Court in 1947.
Although, the man (Henry Bassey) may sue under the law of equity for restitution of expenses, his claims, like all others in equity, will be at the judge’s discretion, the chief consideration of which shall be the ability of the defendants to pay.
The dictum, ‘Ibi jus ibi Remedium, meaning where there is a right, there is a remedy may be invoked by the former father in seeking redress, but his chances, if any, are really slim.”
Monetary or pecuniary consideration could not be used as a yardstick to award paternity but rather natural love and affection which flows freely from a parent to his or her offspring.
Monetary considerations may re-enact the obnoxious slave trade.
It is unfortunate that he has expended a lot of money and emotions on the children. He cannot do anything about that money. Maybe under civil suit, he can ask for compensation. But if they don’t have money to pay, he cannot compel them to pay.
Adultery is not a crime. If he takes the woman to court, on what ground would it be? Adultery is a moral or civil case. It is not really a legal case. The court does not recognize it here. If it is penal code of Islamic law, we can go to court and they will award him damages. Under our native law too, it is tenable. But under our legal system, the criminal code we use here, he doesn’t have any legal remedy.
Marriage is a voluntary union of two people and social contract within a family. Unfaithfulness or adultery is a shameful thing, but it is not legal. So, there is nothing he can do, it is unfortunate.”
‘Legally, Henry is no longer their father’
- Edwin Anikwem
“Custody of the children should be with the mother. Because one, they are still young and the law is that if the children are of tender age, the law is concerned about their welfare and interest. When you are talking of custody, the interest of the child is paramount and the interest of the child is not only in terms of money, but the psychological well being of the child. The law presumes the child will be happier with the mother.
Under this quagmire, the mother is the proper person to deal with the custody until the whole issue is resolved.
Legally, Henry Bassey is no longer their father. Therefore, he cannot be talking about their custody any longer. He is not the biological parent. But if the mother of these children and Chika Mbonu are not prepared to take the custody of these children, the man (Henry Bassey) can apply under the Child Right Act. The court can grant the custody of these children under the Child Right Act. In other words, he will now apply as a guardian to these children. I pity the man (Henry Bassey).
Yes, he (Henry) can sue Chika Mbonu for depriving him of his wife’s wifely services or lack of consortium. That is, his wife’s wifely duties. He can maintain an action against Chika Mbonu.
Chika Mbonu should be taught a lesson. The man can go to court to claim a lot of damages, claim a lot of money from him. I understand Chika Mbonu is a pastor. That tells you what goes on in some of our churches. The man should take Chika Mbonu to court.
In fact, it will be public interest litigation. Chika Mbonu has made the man empty and that is why he should go to court and claim a lot of damages. There is nothing he can get from the woman if he takes her to court. It is Chika Mbonu. He loved the woman, and it is the man who lured the woman that should be punished, not the woman.
There must be precedent, it is only not current. I cannot lay my hands or think of any now.
There is none to my knowledge now that happened in recent time. But I know that he can maintain an action against Chika Mbonu.”
‘To get damages, it has to be proved’
- Monday Ubani
“Yes, of course, he can claim the custody of the children since he is the one who is legally married to the woman and has paid her bride price. So, he can lay claim to whatever is in the womb of the woman.
And going by the investment he must have made on these children in terms of money and emotions expended on them, he has every right to claim their custody, if he wants.
Yes, he (Henry Bassey) can also claim for damages too. When you are divorced, it is on that ground you can claim damages.
When you are divorced, it is always a ground to claim damages. Their ground for divorce is adultery. You can also bring a claim for damages. If it is proved that the woman actually committed the adultery while in marriage, yes there is a claim for damages.
The one that is involved in the adultery is the one that pays for the damages. Yes, you can also make damages against the man. One of the things you do in divorce on the ground of adultery is that the man or the woman that is involved with your wife or your husband can also be joined as a party. For the man to succeed in this case of adultery, Chika Mbonu must be joined as a party in the suit. It is a matter of civil action. I don’t think there is a criminal suit against adultery because it is not under our criminal code. Adultery is not criminalized. It is only in civil case you can succeed in making claims against the parties who have now injured you while you are legally married to your woman. But you must also succeed in proving that. It is a matter of proof. You must succeed in proving that the woman and man actually committed adultery. When you succeed in doing that, you now make a claim.
There had been cases like that in the past, except that they are not too pronounced like this. Most of them happened abroad. And it is just now that Nigerians are beginning to do DNA.
Hitherto, those machines were not here. You don’t begin to suspect your wife and go and do DNA. Most of the legal precedents happened abroad in western society.”
This story was first published in ENCOMIUM WEEKLY magazine edition of Tuesday, October 5, 2010
