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DNA TEST AND THE RIGHT TO PRIVACY

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Certainly, Appellant cannot be allowed such whimsical past time, as it has no place in law. It is unimaginable for a Court to order two unwilling adults or senior citizens to submit to DNA test, in defiance of their fundamental rights to privacy for the purpose of extracting scientific evidence to assist Appellant to confirm or disprove his wish that the 2nd Defendant – a 57 year old man -is his child, of an illicit amorous relationship! I think Appellant’s claim at the Court below, founded on an obscene and reprehensive immoral foundation, was a scandal and blackmail, which a sound lawyer would be ashamed to associate with … I think it is only the 2nd Respondent (a mature adult) that can waive his rights and/or seek to compel his parents (or those laying claim to him) to submit to DNA test to prove his root. Of course, where one is a minor (not mature adult) and his paternity is in issue, the Court can order the conduct of DNA test, in the overall interest of the child, to ascertain where he belongs. That is not the situation in this case, where Appellant has a duty to establish his claim on the 2nd Respondent, independently, and to produce such evidence to the Court. Of course, if he elects to use the DNA test, to establish his claim it is up to the Appellant to go for it on his own, and/or woo the Respondents to do so, without a resort to the coercive powers of the Court, to compel his adversary to supply him with the possible evidence he needs to prove his case. The law is that, he who asserts must prove!

— I.G. Mbaba, JCA. Anozia v. Nnani & Anor. (2015) – CA/OW/29/2013

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legal right

RIGHTS ARE QUALIFIED

IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held: “[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”

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WHEN A LACUNA IN LAW MEETS WITH THE RIGHT OF A CITIZEN

A lacuna is said to exist in law when there is a lack of specific and or general law or a law which is of universal application which can be applied in a matter or situation before the Court. Where there is no specific law but there are existing general laws enacted in respect of similar matters, the general principle is that the general law enacted in respect of similar matters or a law which is of universal application and which has provisions relating to a similar situation before the Court must be applied to resolve the situation. Even, where in very rare cases, there is no existing law regulating or relating to a particular situation brought before the Court, a citizen who has a genuine grievance and has approached the Court for a solution will not be left without a remedy. That is the purport of the Supreme Court’s decision in PDP v. INEC (SUPRA) AT 241 (D-F) where the Court per Uwais JSC held as follows: “For this Court to perform its function under the Constitution effectively and satisfactorily, it must be purposive in its construction of the provisions of the Constitution. Where the Constitution bestows a right on the citizen and does not expressly take away nor provide how the right should be lost or forfeited in the circumstance, we have the duty and indeed the obligation to ensure that the enured right is not lost or denied the citizen by construction that is narrow and not purposive. To this end the established practice of this Court is where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the Court to be creative in its decisions in order to ensure that it preserves and protects the right by providing remedy for the citizen.”

— M.O. Bolaji-Yusuff, JCA. CCB v Nwankwo (2018) – CA/E/141/2017

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WHEN IS THERE DISPUTE BETWEEN THE FEDERATION & A STATE

In Attorney-General of the Federation v Attorney-General of Imo State (1983) 4 NCLR 178, it was held that before the original jurisdiction of the Supreme Court can be invoked under section 212 of the 1979 Constitution, the following criteria must be satisfied:- “(1) There must be a justiciable dispute involving any question of law or fact. (2) The dispute must be:- (a) between the Federation and a State in its capacity as one of constituent units of the Federation; (b) between the Federation and more States than are in their capacities as members of the constituent units of the Federation; or (c) between States in their aforesaid capacities, and the dispute must be one on which the existence or extent of a legal right of a State in its aforesaid capacity is involved.” (Relied on in AG Kano State v AG Federation (2007) – SC 26/2006)

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CORPORATE BODIES HAVE THE RIGHT TO SUE FOR INFRINGEMENT OF FUNDAMENTAL RIGHTS

In Okechukwu vs. EFCC (2015) 18 NWLR (Pt 1490), the Court of Appeal held as follows – “Assuming a limited liability company is involved in a case where it was denied fair hearing, it has the right to sue for breach of its fundamental right to fair hearing. Again if the processes filed by the appellants were couched in such a way to show that the 1st Appellant’s ordeal and unwarranted arrests and detention was based primarily on the fact that he is the Managing Director of the 2nd appellant, then the 2nd appellant has a right to sue for the infringement of the fundamental rights of its managing Director.’

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TWO WRONGS DO NOT MAKE A RIGHT – GARBA’S CASE

As the students were wrong in going on a rampage, the University Authorities will on their own part be wrong in using means other than those allowed them by law in dealing with the disturbance. Two wrongs, they say, do not make one right. – Oputa, J.S.C. Garba & Ors. v. The University Of Maiduguri (1986) 1 NWLR (Pt.18) 550

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WHAT IS A LEGAL RIGHT?

In the case of AG of Lagos State Vs. AG FEDERATION (2004) LPELR – SC 70/2004, this Court aptly postulated: What is legal right? A legal right in my view, is a right recognisable in law. It means a right recognised by law and capable of being enforced by the plaintiff. It is a right of a party recognised and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff; even though no action is taken. The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action. Per Niki Tobi, JSC @ 97-98 paragraphs G — B.

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