<\/p>\n\n\n\n
By Olumide Babalola<\/em><\/strong><\/p>\n\n\n\n In Nigeria, while the case law is somewhat settled on the powers of the court to order DNA tests to prove paternity on the application of the parties, the law is still shaky on the privacy implications of such order especially where a parent objects. In the last decade, the Nigerian Court of Appeal has delivered two contradictory decisions concerning the issue of whether an adult can be compelled to undergo a DNA test. The rulings, while addressing similar issues, have brought into sharp focus the balance between an individual\u2019s right to privacy and the state\u2019s interest in compelling a person to submit to genetic testing.<\/p>\n\n\n\n On Sunday, the 1st day of December 2024, while watching Manchester United\u2019s demolition of Everton FC when Mr Folabi Kuti, SAN graciously sent me copy of judgment of Supreme Court of India in Firodia v Firodia SLP (C) No.9855\/2022 where the court held that resort to DNA test ought not be exclusively used to prove adultery in divorce cases. In that case, the court interestingly held that the mother of a child could, in deserving circumstances, oppose the conduct of DNA test on her child.<\/p>\n\n\n\n In Tony Anozia v Mrs Patricia Nnani (2015) LPELR \u2013 24277(CA), a man who was never married to a woman sued her and her 57-year-old son seeking declaration that the applicant was the biological father of the grown-up. The applicant consequently sought an order referring the woman and her son for DNA test upon which the court would make a declaration of paternity. Interestingly the Applicant also sought an order issuing bench warrant against the 57-year-old and his mother to participate in the suit. In the case, the High refused to order the mother to present herself for DNA test because, according to the Court of Appeal, the courts lack such powers. For full measure, the Court of Appeal, per Mbaba, JCA elaborately held that:<\/p>\n\n\n\n \u201cBy 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 case was founded on speculation and assumption that if the DNA test was ordered, the result was likely to favour him \u2013 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 In his concurring judgment, Raphael Agbo, JCA (of blessed memory) held that:<\/p>\n\n\n\n \u201cIn this appeal the Appellant is challenging the refusal of the trial Court in an interlocutory application to order the 2nd Respondent to subject himself to a medical In a later case of Peace Izontimi v Steven Izontimi (2017) LPELR-45004 (CA), a man filed for divorce wherein he denied fathering the children of the marriage. Before the matter got to trial, the man filed an application for the court to compel his wife and the infant children to submit themselves to DNA test. When the trial court granted the application, the woman appealed to the Court of Appeal where she formulated as issue on \u201cWhether considering the circumstances it was proper for the court to order for DNA test against the Appellant\u2019s will?\u201d<\/p>\n\n\n\n On the appeal, the appellant\u2019s counsel argued that an order compelling an adult to submit to DNA test violates the right to privacy under section 37 of the Constitution and also referred the court to its earlier stance in Anozia\u2019s case, but the court went ahead to resolve the issue from an evidential point of view to the exclusion of privacy discussion thus:<\/p>\n\n\n\n \u201cI am still of the firm but humble view that maternity or paternity of any children in a marriage cannot be determined by the mere ipse dixit of the disputants but Here, the court curiously alluded to the court\u2019s power to compel a child\u2019s mother to submit to DNA test as a matter for judicial discretion even where the mother opposes such a test. The Court of Appeal\u2019s approaches in these two cases are at loggerheads. While in Anozia, the court clearly ruled that an adult cannot be compelled by the court to submit to DNA test, in Izontimi a later case, the court affirmed a High court\u2019s order compelling a mother to submit to DNA test.<\/p>\n\n\n\n Since the Court of Appeal avoided the issue of privacy in Izontimi, the conclusion in Anozia\u2019s case which acknowledged the violation of the right to privacy is preferable as it reinforces the Supreme Court\u2019s decision in Okonkwo v MDPDT v Okonkwo (2001) 7 NWLR (Pt. 711) 206 where the apex court defines privacy to mean: \u201cright to protect one\u2019s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one\u2019s body from unauthorised invasion. \u2026The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.\u201d (Emphasis mine)<\/p>\n\n\n\n In this context, forcing an adult to submit to a DNA test constitutes an infringement on their personal autonomy, bodily integrity, and privacy. Admittedly, the state may have a legitimate interest in determining paternity or resolving inheritance issues, such matters should not override an individual\u2019s right to bodily autonomy, especially where no immediate or overriding public interest is at stake. Forcing an adult to submit to a DNA test was likened to subjecting someone to unwanted medical procedures, which is a breach of privacy rights.<\/p>\n\n\n\n In the second case, where the Court of Appeal was silent on the potential violation of the right to privacy, the outcome raises important questions. The failure to address the privacy concerns leaves the legal landscape unclear and creates a precedent that could potentially undermine privacy rights in similar cases. While it is possible that the Court intended to focus on the essentiality of DNA tests and necessity of evidence of paternity, its failure to deal with the constitutional issue of privacy could lead to confusion in future cases. Without a clear stance on privacy, the legal system may struggle to navigate the tension between the state\u2019s interest in solving certain legal questions (e.g., determining paternity or inheritance rights) and the individual\u2019s constitutional right to privacy. Moreover, the absence of a detailed examination of privacy rights leaves room for future cases to potentially erode the protections afforded to individuals in relation to their bodily autonomy.<\/p>\n\n\n\n Conclusion By Olumide Babalola In Nigeria, while the case law is somewhat settled on the powers of the court to order DNA tests to prove paternity on the application of the parties, the law is still shaky on the privacy implications of such order especially where a parent objects. In the last decade, the Nigerian Court […]<\/p>\n","protected":false},"author":9,"featured_media":48335,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[11,5],"tags":[],"class_list":["post-87629","post","type-post","status-publish","format-standard","has-post-thumbnail","category-techlaw-digest","category-news"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t
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!\u2026I 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.\u201d<\/p>\n\n\n\n
procedure which he calls DNA test to enable the Appellant to prove that the 2nd Respondent is an illegitimate child. The Respondents have no duty to help the
Appellant to establish his case. That remains squarely his responsibility. The Appellant was asking the trial Court to encroach on the privacy of a citizen, a right
entrenched by Section 34 of the Constitution of the Federal Republic of Nigeria. The prayer is scandalous in the extreme and must be deprecated. The trial judge was right in refusing the application.\u201d<\/p>\n\n\n\n
by evidence \u2026 I have considered and taken into account the place of DNA tests in bringing about evidential facts by way of expert and scientific evidence and its relevance in the circumstances of the instant appeal. Even though, the discretion to grant or refuse the application of the Petitioner\/Respondent to order for DNA tests, is primarily that of the lower court to exercise\u2026 The ruling of the Bayelsa State High Court delivered on 18th December, 2015 in Suit No. BHC\/ID\/2015 is affirmed.\u201d<\/p>\n\n\n\n
The conflicting decisions from the Nigerian Court of Appeal on whether an adult can be compelled to submit to a DNA test underscore the ongoing debate over the right to privacy and individual autonomy in an age of advanced forensic technology. While one decision clearly protects the right to privacy, the other leaves the issue unaddressed, highlighting the need for greater clarity in both judicial reasoning around privacy and DNA tests. As genetic testing becomes more prevalent in legal and societal matters in Nigeria, the courts must strive to always balance the complex intersection of burden of proof and the right to privacy. Through judicial decisions, it is essential that privacy rights are preserved while ensuring that the law can effectively address the growing role of DNA testing in contemporary legal disputes.<\/p>\n","protected":false},"excerpt":{"rendered":"