By Jacob Eze
Robert began his military services in February 1953 and rarely came home on furloughs except twice – October
and December when he spent eight and ten days respectively.Â Although Robert was intermittently home, the parties had no sexual affairs except for one time to be mentioned later.
In Robertâ€™s absence Joyce had dates with a man known as Andy with whom she danced in a tavern and went to a movie, said one witness. On March 12,Â 1954, Joyce, did as she told the witness, flew to San Antonio and met Robert there. The parties spent the night of the 13th in a hotel where they had sex relations.
The next day, 14th, Joyce told the husband that she did not love him and was going to divorce him on the grounds of cruel and inhuman treatment. Robert was served with court action on September 16,Â 1954 which included not only the allegations above but also that she was pregnant by Robert and demandedÂ support money.
The child was born 21stÂ November 1954 – (8 months after their one night meeting on the 13th March). Robert, on the 18, February 1955 filed his response denying the paternity of the new born and counterclaimed for divorce alleging cruel and inhuman conduct on the part of the wife. Before trial, two blood grouping tests were made of Mr. and Mrs. Prochnow and of the child, on March 21st and September 29,1955 respectively.
The tests results were all accepted in evidence, the experts equally testified that each test eliminated Robert as a possible parent of the said child. Joyce falsely testified that between December 1953 and May, 1954 she had no sexual intercourse with any man except Robert. The trial judge, Justice Brown held that Robert is the father of Joyceâ€™s baby, adding that â€œthe question is not whether, on this evidence, we would have so found, rather what we must determine is whether that finding constituted reversible error.â€
And he appealed. The statute provides: â€œwhenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting the illegitimacy of the child in such action should have the burden to prove beyond all reasonable doubt that the husband was not the father of the childâ€.
Against the background of this statutory provision is Wisconsin Statute relating to test of blood for paternity cases, which provides: â€œWhenever it shall be relevant in a civil action to determine the parentage or identity of any child,… the court ….may direct any party to the action and the person involved in the controversy to submit to one or more blood tests, to be made by duly qualified physicians.
Whenever such test is ordered and made the result thereof shall be receivable in evidence, but only in cases where definite exclusion is established.â€ It must be pointed out here that the above Statute lacked further force than mere directives that the test be received like any other evidence.
And inescapably the court decided that Robert is the father of the child despite the alarming expert evidence that stood uncontroverted. Justices Wingert, Chief Justice Fairchild and Justice Currie dissented stating in part: â€œIn our opinion the appellants, Robert Prochnow, sustained the burden placed upon him by the Statute, of proving beyond all reasonable doubt that he was not the father of the child born to the plaintiff.
To meet that burden, the appellant produces two classes of evidence: (1) Testimony of facts and circumstances, other than blood tests, which create grave doubt that appellant is the father and (2) The evidence of blood tests and their significance, hereinafter disclosed. In our opinion the blood test evidence should have been treated as conclusive in the circumstances of this case.
In the present case the evidence showed without dispute that the pertinent type of test were made of the blood of the husband , the wife and the child on two different occasions by separate qualified pathologist at separate laboratories, and that such tests yielded identical results, as follows: 3/17/55-9/29/55, Blood Types. 1. Robert Prochnow (Husband) AB, 2. Joyce Prochnow (Wife)O,Â 3. DavidrochnowÂ (Child) O. Two qualified experts in the field also testified that it is a physical impossibility for a man with type, AB, blood to be the father of a child with type ,O, blood , and therefore appellant is not and could not be the father of the child David.
There was no different opinion regarding these factors amongst the authorities doing this particular work. None whatsoever.â€
Neither the evidence thus summarized nor the qualifications of the experts in the field of blood testing was discredited in any way. Indeed, there was no attempt to discredit them except by the wifeâ€™s self-serving statement that she had no sexual relations with any other man during the period in question, an assertion that ran foul with evidence of her girl friend.
Yet the appellate majority held that Robert is the father of the child. Something must be there. The questions are:Â Â Did the majorityâ€™s decision to reject the conclusive proof of the blood tests rest on some value choices?
Or Upon what belief and rationale did the majority rest their decision? Apparently , the Statutes were clear and unambiguous, the evidential proofs very concrete and sound to reverse the verdict of the lower court, but that is not the point. The Justice of the case is that the infant David should have a father, which is a value widely shared by the community.
In Amaechi Vs INEC the supreme court was confronted with the question of which of the two disjointed paths leads to democracy which would reflect the peoplesâ€™ choice and simultaneously accord with the believes and value widely shared by the people? Rummaging through the latitude of its facts- freedom the Supreme Court reflected on the following principles: 1.Â Â (a) Political parties can make substitution but in accordance with theÂ Â prescribed rules (b) Such substitutions must be based upon the result of a primary. 2.Â Â If the law prescribes a method by which an act is to be validly done, and such method is not followed , it means such act could not be accomplished or effected. 3.
It is basically the parties that canvases and wins election within the spirit of the constitution. 4.Â No person can be a candidate who did not contest the primary nor can any become a governor without being a candidate.Â Critics say that the decision whichever way lays a precedent that seemingly interpret a disjointed perception, we agree, but the supreme court judgment, as it were, represents the value held by 90% of the society.
I think the supreme court decision accomplished the following values: (a) The hope of the common man is not yet conquered, afterall justice can be done and heavens remain where it is. (b) No body can grow above his nation, (c) Legitimacy is only derivable from the people and must ultimately reflect their will. At the supreme court, powerful vested interests had found a bulwark of defence in favour of subtle and skillful manipulation of democratic processes to achieve unsanctioned theories. But stepping into the shoes of Lord Denning in Parker Vs. Parker, the supreme court reiterated similar jurisprudential fulcrum, to the effect that â€œif we never do any thing which has not been done before we shall never get any where. The laws will stand still whilst the rest of theÂ world goes on and that will be bad for bothâ€.
The supreme court held in part: â€œwe know that Amaechi won the Gubber- primary election to emerge P.D.P Candidate and was illegally substituted. We admit that Omeha did not contest the party primary and was declared winner of the governorship election.
But we read the purpose of the law to favour intra-party democracy which is truly reflective of the peopleâ€™s choice, and we believe this value is a value widely shared in the communityâ€. The society is happy today that many who initiated and sponsored this rascality has been tumbled to restore the power to the people.