Generally, where the paternity of an adult is in issue, court cannot order the conduct of a DNA test.

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.”

 

Blogger’s Note:

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 that “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.

Read the full Judgment 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.

Continue reading Generally, where the paternity of an adult is in issue, court cannot order the conduct of a DNA test.

A party is at liberty to correct errors revealed by a preliminary objection.

Shanu v. Afribank (Nig.) Plc [2000] 13 NWLR (Pt. 684) 392 at 404, para F, per Ayoola, JSC:

“The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the applicant’s appeal is without substance. The applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing.”

Blogger’s Note:

The Court of Appeal relied on the above case in Nabore Properties Ltd. v. Peace-Cover (Nig.) Ltd. [2015] 2 NWLR (Pt. 1444) 440 at 469.

This approach as approved by the Supreme Court is welcome. It is advisable that counsel should take advantage of this and seek to correct errors where necessary except where convinced that the preliminary objection is lacking in substance or that no error indeed arises. It is also important to note that it is only errors capable of being corrected that can be corrected. Certain errors, if incurably bad, can never be remedied. For instance, where the basis of the preliminary objection is that the writ of summons was not signed or was not signed by a legal practitioner known to law, there is hardly any remedy. See Okafor v. Nweke [2007] 10 NWLR (pt. 1043) 521 and FBN v. Maiwada [2013] 5 NWLR (pt. 1348) 444. Both cases and others were discussed in this article.

Non-compliance with the Rules of Court can amount to breach of right of fair hearing. However, not in all cases..

Nabore Properties Ltd. v. Peace-Cover (Nig.) Ltd. [2015] 2 NWLR (Pt. 1444) 440 at 464, paras. D-F, Iyizoba, JCA:

“The appellant in his reply brief cited the case of Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 as authority that a judgment or order of court given without compliance with the rules of court is a breach of the right of fair hearing. This of course cannot be. Every case of non-compliance with the rules of court cannot possibly result in a breach of the right of fair hearing. The facts of the above authority are that the Court of Appeal in error gave a judgment earlier than the date indicated and without an oral hearing. The decision of the Supreme Court is that a judgment which is given without compliance with Rules of court and which non-compliance has breached a fundamental human right such as the right of fair hearing, is a nullity.”

Blogger’s Note:

The above reasoning of the learned Justice of the Court of Appeal is a sound one. Interestingly, in the instant case, the Court found that there was no breach of the rules of court by the trial Judge. That notwithstanding, the Court found it imperative to straighten any misconception in the principle laid down by the Supreme Court in Okafor v. A.-G., Anambra State. 

A sheriff charged with the execution of judgment can be sued by the judgment debtor or judgment creditor.

Ibrahim v. Ojonye [2012] 3 NWLR (Pt. 1286) 108 at 130, paras. C-G, per Orji-Abadua, JCA:

“It is the law that the sheriff or bailiff or officer charged with execution of judgment can be sued by the judgment debtor or judgment creditor for:
(a) illegal execution, e.g., an error in the levy.
(b) irregular execution, e.g., levy by an unauthorized officer or
(c) excessive execution.
The officer charged with the execution can also be sued by the judgment creditor for failing to act promptly or for failing to protect his/her interests…”

Blogger’s Note:

Read the full Judgment here.
In stating the above position of the law, the Court of Appeal cited two foreign cases, Slated v. Hawley (1845) 15 M & W 757 and Pitch v. King (1844). Moreover, the Court made some findings which was to the effect that in the Supreme Court case of Saleh v. Monguno [2006] 15 NWLR (Pt. 1001) 26, the Deputy Sheriff of the High Court of Maiduguri and the individuals who purchased the auctioned property were all sued as parties in the case.

Another notable point from the Judgment of the Court of Appeal is that the Court again restated the status of a Sheriff, relying on Soyanwo v. Akinyemi [2001] 8 NWLR (Pt. 714) 95 where it was declared that a bailiff is an agent of the judgment creditor. To that extent, and as held by the Court of Appeal in Ojonye, non-joinder of the bailiff is not fatal to the action since the bailiff was an agent of a disclosed principal. Interestingly, it was convenient for the Court of Appeal to so hold because in the case, the Court found that the issue of wrongful, illegal, irregular or excessive execution did not arise. Therefor, the principle still remains that in deserving cases, a Sheriff can be sued.

On the need for our courts to always do justice – Notable pronouncement by Nnamani, JSC

Erisi v. Idika [1987] 18 NSCC (Part II) 1201 at 1208 para 20, per Nnamani, JSC:

“The courts are courts of law but may the day never come when they cease to be courts of justice…”

 

Blogger’s Note:

May that day never come!

It is in keeping with the spirit of justice that the courts are always willing to apply rules of equity whenever necessary. For instance, section 13 of the High Court Law of Lagos State, Ch. H5, Laws of Lagos State 2015 provides that where there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail in the High Court so far as the matters to which those rules relate are cognisable by the court. 

Use of abbreviated names by legal practitioners appears risky but the Supreme Court has come to the rescue.

Dankwambo v. Abubakar [ 2016] 2 NWLR (Pt. 1495) 157 at 208, paras. C-F, per Ariwoola, JSC:

“There are many senior legal practitioners and Judicial Officers whose first name as it appears on the roll of legal professionals of the Supreme Court of Nigeria has been abbreviated as it stands today, yet that abbreviation has not robbed and could not rob them of their status as legal practitioners nor can it be said that they have contravened the Legal Practitioners Act. Many first names such as Oluwole, Olukayode, Akinolu, Christian, Okechukwu, Joseph, Samuel, Emmanuel, Omotayo, Olajide, Oladele, Olabode, appear in the roll but today stand abbreviated as first name of legal practitioners as Wole, Olu, Akin, Chris, Okey, Joe, Sam, Emma, Tayo, Jide, Dele, Bode. Until the contrary is proved, abbreviated first name or initials before family name used on documents for filing processes in court or announced as appearing for litigants remain valid and proper forever.”
Sanusi, JSC at page 215, paras. D-H added:
“To my mind, the provisions of section 2(1) of the Legal Practitioners Act simply prohibit persons who have not been called to the bar or registered as legal practitioner to practice law in any respect. Once a person whose competence or eligibility is tested and evidence abound that he is a registered Legal Practitioner, it will be absurd or injustice to deny him the permission to exercise his functions as a legal practitioner, simply because he decides to abbreviate his name….”

Blogger’s Note:

The above position taken by the Supreme Court is quite commendable. Read the full Judgment here. It is important to note that the Supreme Court made a clear distinction between an abbreviated name and alias. The Court adopted the definitions as contained in dictionaries and concluded that an ‘alias’ is a false, assumed, or different name used when a person, especially a criminal or actor, is known by two names. Abbreviated name is one which is either shortened by removing some letters or by the use of initials. According to the Court, abbreviated name is legal and permissible. The implication therefore is that the use of ‘alias’ is not legal and therefore impermissible. Finally, the names listed by learned Justice Ariwoola in his Judgment are clearly for examples only.

 

In the absence of a Reply pleading, a plaintiff may adduce evidence to deny fact pleaded in a defence.

Ogundalu v. Macjob [2015] 8 NWLR (Pt. 1460) 96 at 118, paras. B-C, per Rhodes-Vivour, JSC:

“The position of the law is that where the defendant avers to a fact in his statement of defence and the plaintiff fails to file a reply to deny the averment, the plaintiff may lead evidence to deny the averment in the statement of defence.”

Blogger’s Note:

The learned Justice of the Supreme Court relied on B.C.C.I. v. D. Stephens Ind. Ltd. [1992] 3 NWLR (Pt. 232) 772 and Sketch Publishing Co. Ltd. v. Ajagbemokeferi [1989] 1 NWLR (Pt. 100) 678.
At a glance, the above principle of law may be difficult to digest in view of the principle of law which states that failure to file a reply to deny an averment in a statement of defence means that the plaintiff has admitted the averment. See Ansa v. Ntuk [2009] 9 NWLR (Pt. 1147) 557 at 590, paras. C-D. However, with the above principle, it appears all hope is not lost as the plaintiff is allowed to produce evidence at the trial to deny such averment. Nevertheless, it is better and safer to file a reply as provided for in the various rules of court.

The Federal High Court lacks jurisdiction over civil claims arising from insurance matters, section 97 of the Insurance Act, 1997 notwithstanding.

Sun Insurance (Nig.) Plc v. U. E. C. C. Ltd. [2015] 11 NWLR (Pt. 1471) 576 at 612, paras. F-H, Kekere-Ekun, JSC:

“The issue to be determined therefore, is whether the Insurance Act of 1997, being an existing law by virtue of section 315(1)(a) of the 1999 Constitution, confers such exclusive jurisdiction on the Federal High Court. Notwithstanding the fact that in section 97 of the Act, “court” is interpreted to mean the Federal High Court, the sections of the law, which refers to the court do not confer exclusive jurisdiction on the Federal High Court nor oust the jurisdiction of the State High Courts to entertain matters relating to simple contracts of insurance. In other words, by virtue of section 272(1) of the Constitution, the State High Courts are fully competent to hear and determine claims arising from simple contracts of insurance.”

Blogger’s Note:

The unanimous Judgment of the Supreme Court above is clearly to the effect that the Federal High Court does not have exclusive jurisdiction to entertain civil claims arising from insurance contracts. One pertinent point to note is that in spite of Section 97 of the Insurance Act No. 2 of 1997, the Supreme Court maintained that the Federal High Court does not have jurisdiction over civil claims bordering on insurance. Looking at the Insurance Act, one may be tempted to assume that perhaps, both the Federal High Court and the State High Courts should exercise jurisdiction over such matters. However, the Supreme Court did not leave anyone in doubt. No jurisdiction, whether exclusive or additional, is conferred on the Federal High Court over civil claims on insurance matters. Fabiyi, JSC at page 602-603 of the report, paras. G-C put it clearly thus: “In short, it is clear that a simple insurance contract matter does not fall within the jurisdiction of the Federal High Court. It is not expressly imbued with jurisdiction to entertain such a matter… The appellant also attempted to hide under the umbrage of the provision of section 251(1)(s), CFRN, 1999. In the lead Judgment it is shown that the provisions of the Insurance Act No. 2 of 1997 did not confer exclusive or additional jurisdiction to entertain simple claims on insurance contracts on the Federal High Court. The subject matter of such claims remains under the jurisdiction of the State High Courts under section 272(1) 1999 CFRN. I agree with; and respectfully adopt same.”

Continue reading The Federal High Court lacks jurisdiction over civil claims arising from insurance matters, section 97 of the Insurance Act, 1997 notwithstanding.

Failure to join INEC in an election petition case is fatal!

A. D. C. v. Bello [2017] 1 NWLR (Pt. 1545) 112 at 132, paras. B-E, per Okoro, JSC:

“By the above provision of the Electoral Act (supra), INEC is not only a necessary party but a statutory party. Having agreed with the two courts below on the issue, all the flamboyant arguments of counsel for the appellant on this issue are of no moment. Having challenged the actions/decision of INEC in the Kogi State Governorship election held on 21st November, 2015 and 5th December, 2015, it was necessary to make the Commission a party to the petition as it would have been unfair and impossible to determine the issues raised by the appellant in the absence of INEC.”

Blogger’s Note:

The Supreme Court relied on Section 137(3) of the Electoral Act, 2010 (as amended) which made it mandatory for INEC to be made a party where complaints are made against it or its officials in an election petition.

Statement on Oath filed in support of a Claim or Defence is valid and operative even if the Claim or Defence is later amended without new oath filed.

Dunalin Inv. Ltd v. BGL Plc [2016] 18 NWLR (Pt. 1544) 262 at 326, paras. E-G, per Augie, JCA (as he then was):

“An amendment dates back to the date the document amended was filed, and the action continues as though the pleadings had been in the original form right from its original date… In this case, the appellant is not contesting the fact that the 1st respondent attached DW1’s witness statement on oath to its initial statement of defence, which it later amended, and applying the same logic, the statement on oath is still valid and operative, thus, its argument to the contrary is of no moment.”

Blogger’s Note:

While we support the above position, what is left to be said is that although the earlier statement on oath remains valid, the party who fails to file fresh oath to support the amended process stands the risk of not supplying enough evidence to support facts pleaded in the said amended process. It is trite that facts not supported by evidence are deemed abandoned. Conversely, evidence led to facts not pleaded goes to no issue. The only remedial step again (in the latter case) would be to apply for further amendment of the pleadings in order to bring evidence in line with pleadings. In the case of the former, an application may be brought to recall the witness. However, the courts are not often inclined to recall a witness already discharged.