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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

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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IMPROPER & IRREGULAR EXERCISE OF RIGHTS CONSTITUTES ABUSE

As I have observed, it is not the exercise of the right, per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities, involved in the aims and purposes of the application which constitute the abuse. Otherwise, where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. The proposition has been aptly expressed by Lord Halsbury in Mayor & City of Bradford v. Pickles (1895) AC at p.594 when he said, “If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me absolutely irrelevant.”

— A.G. Karibe-Whyte, JSC. Saraki v. Kotoye (1992) – S.C. 250/1991

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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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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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RIGHT VS PRIVILEGE

I hold that when a claim of right metamorphoses into one of supplication, it ceases to wear the clothe of a right but a mere privilege. In this case the appellant was literally begging the respondent for mercies.

– Pats-Acholonu, JSC. ADECENTRO v. OBAFEMI (2005)

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