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DNA TEST AND THE RIGHT TO PRIVACY

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Dictum

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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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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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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CITIZEN’S RIGHT TO REMAIN SILENT

The citizen’s right to remain silent has for long been firmly recognised and established under the common law. In Rice v. Connolly (1966) 2 All E.R. 649 at p.652, the Lord Chief Justice opined: “The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority and refuse to accompany those in authority to any particular place short of course of arrest.” Today, this right has been expressly preserved under Section 33(11) of the Constitution of the Federal Republic of Nigeria 1979. If, therefore, the appellant was not on trial and an irrelevant question was put to him, even by a judicial authority, it would seem to me that the necessity or obligation to answer such question cannot arise. It is trite that relevancy of facts is of paramount importance in our adjectival law. That paramountcy has been given conspicuous expression in Part II, Sections 3, 6 to 13 and 15 to 18 of the Evidence Act.

– Achike JCA. Adeyemi v. Edigin (1990)

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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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CONSTITUTIONAL RIGHT OF ONE PARTY CANNOT DEPRIVE ANOTHER OF HIS CONTRACTUAL RIGHT

It is unfortunate that the 2nd defendant/respondent felt satisfied with the conviction for stealing the N9,600 and failed to file notice of appeal against the judgment. There is no doubt that from the facts on record in Exhibit ‘T’, he would have secured an acquittal and discharge from the High Court in its appellate jurisdiction. The failure to take advantage of his constitutional right of appeal cannot deprive the appellant of his contractual rights.

— Obaseki, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

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CHANGE IN LAW DOES NOT NULLIFY RIGHTS BASED ON THE OLD LAW

When the Supreme Court departs from its earlier decision on a point, the departure does not operate to generally overrule and nullify all previous decisions that followed the earlier decision it has departed from. The departure serves to chart a new direction to be followed without affecting the previous status quo. If the new decision is one on procedure including venue, pending and new cases at all levels will now be decided in accordance with the new decision. If the new decision applies the law on the existence of rights, interests and obligations differently, new and pending cases will be decided according to it depending on when the cause action arose or when the right, interest or obligation came into being. The general principle of law is that a change in law does not result in the nullification of rights and interests based on the previous law. That is why amending or repealing legislations provide for the saving of such rights and interests including ongoing situations that originated on the basis of the old law. On the basis of this general principle, it is the law prevailing at the time the right or interest accrued or at the time a situation arose and not the new law that determines its validity. In the light of the foregoing, I hold that the Learned respondent’s counsel reliance on the principle of ex nihilo nihil fit as espoused by the Legendary Lord Denning in MACFOY v. UAC (1962) AC, has no basis here.

– E.A. Agim, JCA. Ogidi v. Okoli [2014] – CA/AK/130/2012

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