Saturday, 20 October 2018

CAN THE PATERNITY OF A PERSON BE QUESTIONED?

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I was in court waiting for my matter to be called when I watched a drama unfold in court.  A litigant was asking the court to compel the defendant to submit himself for DNA testing in order to ascertain his paternity. The defendant on his part was asking the court to strike out the suit since the claimant not being his father had no right to question his paternity. The court adjourned to give its ruling on a latter date.   This propelled me to write on this issue.

Questions about a person’s paternity are often raised in Succession matters; that is to determine who is eligible to partake in the sharing of a deceased’s estate; especially where the deceased died intestate (without making a will)

Generally, the law does not permit a person’s paternity to be questioned if the person was born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage, if the woman remained unmarried within that period.  The courts have also stated that ‘it is most undesirable to enquire into the paternity of a child’[1].However, where there exist special circumstances which deserve consideration by the court, the court will enter upon an inquiry to determine the paternity of a person. Some exceptional circumstances which the courts have recognised as justifying an inquiry into the paternity of a person include;
  • Evidence of Non-Access : this means that during the relevant time within which the woman conceived, the husband of the woman had no access to her sexually either because of sickness, impotence, distance or even the woman’s refusal to have sexual relations with her husband.
  • Any Evidence which tends to prove that the husband and wife did not or could not have sexual relations.
Evidence which seeks to destroy the presumption that a child born during the continuance of a valid marriage is the legitimate child of that marriage and the legitimate child of the husband of that marriage ‘must be strong, clear and conclusive as to lead to the irresistible conclusion that the child is not the offspring of the husband. The presumption cannot be displaced by mere…..circumstances casting doubt.’[2]
 
When questions are raised about a person’s paternity, the courts tread with utmost caution recognising its sanctity. Indeed the courts have held that "Paternity of a child…….. is as important as life itself, if not more. This is because it affects the life span, status and style of the child in question. It makes the child in the eyes of the public either great, respectable and honourable or as the case may be, low and disgraceful. Paternity is an inalienable right of the child as every child must have a father, and one father only.[3]

In the case of a child born out of wedlock who is legitimated by his father acknowledging him, his paternity cannot be questioned; this is because if a man has acknowledged a child to be his, no one can question that child’s paternity or demand that the child proves his paternity.
A person who is born during the subsistence of a valid marriage or a child who is legitimated by his parents subsequent marriage or by his father’s acknowledgment of him as his child cannot be required to prove his paternity; this is because he is deemed to be a legitimate child of the husband of that marriage or the legitimate child of a father who acknowledged him. This however, does not preclude a person from disputing the paternity of a child born during the subsistence of a valid marriage or a legitimated child and asserting himself as the biological father of that child if he has cogent and compelling evidence to prove his assertions.

It is the Law that even infidelity on the part of the woman and the fact that the husband and wife lived apart during the subsistence of the marriage do not displace the presumption of legitimacy which a child born during the subsistence of a valid marriage enjoys. However, a presumption of legitimacy can be displaced by evidence of non-access (sexually).

Every person has a right to the dignity of his person and a right to privacy, accordingly, the courts would not compel a person to submit himself for DNA testing in order to assist a Claimant challenging the paternity of a person in proving or disproving the paternity of a person. In a certain case[4],  a man was claiming paternity of a 57 year old man, and he prayed the court to compel the defendant (the man whom he claimed was his son) to submit himself for a DNA Test. Here is what the court had to say about that
 
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!

There are a few instances where the court may compel a person to submit to a DNA Test in order to ascertain paternity. One of such instances is where the paternity of a minor (not a mature adult) is in issue, the Court can order the conduct of DNA test, in the overall interest of the child, to ascertain who the child’s biological father is. The Child’s Right Act also permits the court to make such an order in the interest of a child.
A person may also willingly submit himself for DNA Testing without being compelled by the courts to do so.

It is the law that he who asserts must prove; if any person chooses to question the paternity of a person, the Law imposes a duty on him to prove his assertions, where he fails to do so, an aggrieved person who has suffered embarrassment to his person by having his paternity questioned may seek some compensation under the law against the person who caused him such embarrassment.

[1] Oduche V. Oduche (2005) LPELR-5976(CA)
[2] Oduche V. Oduche
[3] Rabiu v. Amadu (2002) LPELR-9161(CA)
 
[4] Anozie V. Nnani (2015) LPELR-24277(CA)
 

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