Tony Anozia V. Mrs Patricia Okwunwa Nnani & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A.(Delivering the Leading Judgment)

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.” (See Page 1A of the Records).

Appellant had filed his statement of claim, which was stoutly denied by the Defedants, who also filed their defence. Without allowing the hearing of this rather strange claim, Appellant brought an application on 3/7/12, seeking the orders (earlier reproduced in this judgment). 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…” See page 30 of the Records.

That is the Ruling Appellant appealed against as per the Notice of Appeal, filed on 7/11/12, wherein he disclosed 5 grounds of Appeal. Appellant filed his brief on 4/2/13 and distilled five issues for determination, as follows:

(1) Whether there is a more empirical way of determining paternity than reference of parties to a DNA test

(2) Whether from pleadings and depositions of parties and sui generis nature of the controversy. HEARING of oral evidence should ever be contemplated.

(3) Whether the claim in the substantive suit is same as the prayer in the MOTION on Notice thus, invoking the principle of non determination of the substantive suit at the interlocutory stage.

(4) Whether non conformity with the Oaths Act in the affidavit in support of the motion is not deemed to have been waived when the Respondent took steps in the proceedings by filing a counter affidavit and joining issues with the Appellant.