➥ CASE SUMMARY OF:
Tony Anozia v. Mrs Patricia Okwunwa Nnani & Anor. (2015) – CA
by Branham Chima (SAL).
➥ COURT:
Court of Appeal – CA/OW/29/2013
➥ JUDGEMENT DELIVERED ON:
Friday, the 23rd day of January, 2015
➥ AREA(S) OF LAW
DNA test;
Proof;
Right to privacy.
➥ PRINCIPLES OF LAW
⦿ GROUND OF APPEAL MUST BE PREMISED ON RATIO DECIDENDI OF COURT
I have looked at the short Ruling of the trial Court on pages 29 and 30 of the Records, and could see no reference in the Ruling to the concerns expressed by the Appellant in grounds (IV) and (V) of the appeal (which are also the issues (IV) and (V)). That means, the grounds (IV) and (V) and the issues, therefrom, formulated by the Appellant were completely outside the contemplation and purview or reasoning of the trial Court when it reached its conclusions. The law is trite that an appeal (the grounds and issue therefrom) must be founded on and derived from a valid complaint touching on the ratio decidendi (live issue) of the decision appealed against. See the case of Obosi Vs NIPOST (2013) LPELR -21397 CA, where it was held: “An issue for determination of appeal must flow from or predicate on the ground(s) of appeal, which, in turn, must derive from or challenge the ratio decidendi or live issue in the judgment appealed against.” See also Unilorin Vs Olwawepo (2012)52 WRN 42, held 1; Alataha Vs Asin (1999)5 NWLR (pt. 601)32; Punch Nig. Ltd. Vs Jumsum Nig. Ltd. (2011)12 NWLR pt 1260)162. — I.G. Mbaba, JCA.
⦿ DNA TEST AND THE RIGHT TO PRIVACY
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.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita G. Mbaba, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
In person.
⦿ FOR THE RESPONDENT
A.O. Nwankwo Esq.
➥ CASE FACT/HISTORY
This is an appeal against the interlocutory decision of the trial Court in Suit No. HOG/1/2012, delivered on 7/11/2012 by Hon. Justice Goddy Onunihu, dismissing the application by the Appellant for: (1) An Order setting the suit down for an order of Court refering the parties to a DNA test and (2) To issue bench warrant for the arrest and detention of the 1st and 2nd defendants for their failure to react or respond to this suit, as prescribed in the High Court Rules… Appellant,in the main suit filed on 24/1/2012, had prayed for: (1) A declaration of paternity of the 2nd Defendant to wit: That the claimant is the father of the 2nd Defendant born in 1957 by the 1st Defendant, by reference of the parties to a laboratory for a DNA test and judicial pronouncement made of the result thereof (2) Consequential order directed to the 2nd Defendant to change to the surname of his Native father, Id est, Anozia Onowu of Umuosu Quarters of Oguta in accordance with Native justice, equity and good conscience.”
And in refusing the application, the learned trial Court said: “… If the Court is to embark on this exercise (ordering for claimant and 1st Defendant to be subjected to a DNA test to prove that he was responsible for the pregnancy that resulted in the birth of 2nd defendant), the Court will be leaving its role of adjudication to play the role of inquisition. The Court is a trial Court and not an investigative agency or body. What the claimant is asking the Court to do is to assist him to procure the evidence which he requires to prove his case, in view of his claim in this suit. That is not part of the duty of Court. Looked from another perspective, the claimant’s motion is intended to invoke the use of an interlocutory application to determine the substantive suit. This is not allowed…”
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether from the facts, state of pleadings and circumstances of this case, the trial Court ought to have acceded to the interlocutory prayers of the Appellant before proceeding to the hearing and determination of the substantive suit?
RULING: IN RESPONDENT’S FAVOUR.
A. THE COURT CANNOT ASSIST THE APPELLANT TO ESTABLISH HIS CLAIM
“Appellant even argued, under issue 2, that no amount of oral evidence can decide, conclusively, the issue of paternity, and queried: “What of a situation where a woman had sex with one man at 8pm and with another at 10pm. How is the paternity to be determined through HEARING? IT WILL BE IMPOSSIBLE. That is why DNA must be restorted to.” (See page 3 of the Appellant’s Brief). Of course, by so arguing, Appellant rather established the fears of the trial judge, that Appellant wanted to employ the Court to procure evidence for him to use for the substantive suit, and that he wanted to get the claims in the substantive suit determined via the interlocutory application! By insisting that the interlocutory application ought to have been granted, and implying that DNA test was indispensable in the circumstances, as oral evidence would never be conclusive to determine paternity of the 2nd Defendant, Appellant was admitting he had no evidence to establish his claim and so needed the Court to assist him extract a possible evidence from the Defendants, by ordering them to submit to DNA test to find possible evidence to support his claim. That means his whole case was founded on speculation and assumption that if the DNA test was ordered, the result was likely to favour him – Appellant! 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!”
.
.
.
✓ DECISION:
“I resolve this issue against the Appellant and hold that the Appeal is, completely, devoid of merit. It is, accordingly, dismissed with One Hundred Thousand Naira (N100,000.00) cost against the Appellant to the Respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
