- February 10, 2017
- Posted by: Stephen Azubuike
- Category: Case Law Blog
Anozia v. Nnani [2015] 8 NWLR (Pt. 1461) 241 at 256-257 paras. H-B, per Mbaba, JCA:
DNA, that is, “deoxyribonucleic acid” is a molecule that contains the genetic code of any organism. It is hereditary and has become an euphemism for scientific analysis of genetic constitution to determine one’s roots. I doubt whether that form of proof can be ordered or is necessary to determine the paternity of a 57 year old man who does not complain about his parenthood… 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.
Notes:
The facts of the case are that the Appellant filed a suit against a married woman (the 1st Respondent) and her son (the 2nd Respondent) seeking for a declaration of the paternity of the 2nd Respondent. His case was that he had sexual intercourse with the 1st Respondent sometime in 1957, at a time when the 1st Respondent’s husband was terminally ill and incapable of performing sexual acts. The Respondents denied the claims. While the matter was yet to be tried, the Appellant filed an application seeking for an order of court referring parties for a DNA test. The trial court refused the application on the ground that granting same would amount to allowing the Appellant to use the interlocutory application to realise the relief he sought in the main suit. The Appellant’s appeal to the Court of Appeal was unsuccessful. In upholding the decision of the trial Judge, the Court of Appeal stated the above position of the law and also held (at page 254, paras. F-G):
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 the 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 reprehensible immoral foundation, was a scandal and blackmail, which a sound lawyer would be ashamed to associate with.
The learned Justice of the Court of Appeal again restated the principle which supports the presumption that a child born within wedlock is a product of the marriage. According to his Lordship:
The law has always acknowledged the right of a woman to say who the father of her child is, and of course, where a child is born within wedlock, the presumption is conclusive that the child is the seed or product of the marriage. See page 256, paras. C-D of the report.
The above decision must be understood in the context of the facts of the case. It does not therefore serve as an authority to the effect that whatever a woman says regarding the paternity of her child holds sway. Far from it. In deserving circumstances, the presumption can be rebutted if compelling facts emerge. That the presumption is conclusive does not mean it is absolutely irrebuttable in all cases.
Read the full Judgment of the case here. You may read also the article, Determination of Paternity of A Child or An Adult in Nigeria: Is There Any Justification for the Distinction?, where the above Judgment was critically discussed.
