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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

COURT SHOULD PROVIDE REMEDY WHERE THERE IS A RIGHT

Both lower courts agreed that the factual situation in the transaction between the parties reveals a right vested in the appellant. The law is that the court must provide a remedy where the plaintiff has established a right. The court is also to look into the substance of an action and not the form. The appellant is entitled to a remedy and justice.

— O.O. Adekeye, JSC. BFI v. Bureau PE (2012) – SC.12/2008

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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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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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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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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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