NA which for full stands for Deoxyribonucleic Acid test is alien to Africa. Before now, the courts determined paternity subjectively. There was no statutory provision for the use of scientific tests.
The customary law makes provision for settling paternity disputes. The Matrimonial Causes Act and the Evidence Act make provision for determining paternity dispute cases.
Under Customary law, all one needs to prove paternity is providing evidence that there is a valid subsisting marriage. Once there is proof that couples are legally and validly married, any child born during the subsistence of that marriage is presumed to be the product of that marriage.
An outsider cannot enter into a dispute with parties over paternity of a child. It is only the husband that can, on the motive of disowning a child, challenge paternity. A male adulterer cannot enter into Paternity dispute with the husband of the woman he committed adultery with.
“in any civil proceeding in which the paternity or maternity of a person falls to be determined by the court, the court may, on application by a party to the proceedings, give a direction for the use of scientific tests, including blood tests, and Deoxyribonucleic Acid (DNA) tests to show that a party to the proceedings is or is not the father or mother of that person”
This is because the fact of the validity and subsistence of a marriage creates a very strong presumption of paternity in favour of parties to the marriage. This presumption is only rebuttable at the instance of the husband of the marriage on providing valid evidence.
For marriages contracted under the Act, the Matrimonial Causes Act states that a child born during the subsistence of a marriage or within 280 days from its dissolution is presumed legitimate unless a spouse, with the intention of disowning the child in question, rebuts this presumption by providing evidence to show that there has been no sexual relationship between him and the wife.
Nigerian courts have ruled in many case , example in Egwunwoke v Egwunwoke, that where a valid marriage exists, any child born during the marriage is a legitimate child of the married couple. Even after marriage is dissolved a child born within 280 days from the date of dissolution is still a child of the marriage.
This principle applies equally to marriages conducted under native law and custom. This position and presumption stand even when the child biologically belongs to another man.
However, from 2003 statutory provision for scientific tests on paternity came alive with the Child’s Rights Act. The Child’s Rights Act has made statutory provision for a directive of the court to be sought and obtained for a child to be subjected to scientific tests in order to determine the paternity of the child. The scientific tests including DNA tests are believed to have the advantage of producing precise and exact results.
The position, therefore, is that “in any civil proceeding in which the paternity or maternity of a person falls to be determined by the court, the court may, on application by a party to the proceedings, give a direction for the use of scientific tests, including blood tests, and Deoxyribonucleic Acid (DNA) tests to show that a party to the proceedings is or is not the father or mother of that person”
Note please that the courts can only order a DNA test with respect to minors and not adults. This simply means that the courts will not order an adult who is not complaining about his parenthood to be subjected to DNA test. It will be a violation of the adult’s right to privacy. This much was stated in the case of Tony Anozia v Patricia Okwunwa (2015).
What about Musa Gowon the love child of General Gowon(Rtd) and late Edith Ike-Okongwu who got a court order for DNA test against General Gowon? Musa is an adult but he was complaining about his parenthood. So he deserved to know. General Gowon was not ordered to submit to DNA test with a view to establishing his own paternity; no, Gowon was not complaining about his own paternity. The test was to establish Musa’s paternity, not Gowon’s.
So all in all, the current narrative is that subsistence of valid marriage is no longer the only measure of paternity; the use of DNA test to determine paternity is now statutorily recognized and well accepted as precise means of settling paternity or maternity dispute; and the child goes to who the DNA test reveals as the father or mother. As stated by the supreme court in Okonkwo v Okagbue “awarding paternity to non-biological father is repugnant to natural justice, equity and good conscience… children should be made to know who their biological fathers are.”