The role of DNA evidence in civil jurisprudence

In evidence, the proposition he who asserts must prove has stood the test of time for eternity.

Statutory reinforcement for this foundational hypothesis is explicated in sections 131 (1) and (2) of the Nigerian Evidence Act 2011.

The provisions stipulate that whoever desires any court to give judgment as to any legal right or disability depends on the existence of facts, which he asserts, shall prove those facts exist. The cases of Okoye & 6 Ors v Nwankwo (2014) 6-7 S.C. Part II, 29; Odom & 2 Ors v People’s Democratic Party & 2 Ors (2015) 2 S.C. Part 1, 1; also illustrate the point.

First off, what is meant by evidence? Sidney Phipson in the Law of Evidence (1892) defines it as that which may be placed before the Court to enable it to decide the issues of fact. Evidence may be classified as direct; indirect, circumstantial or presumptive and real evidence.

Direct evidence simply means the substantiation of a given fact proved by its actual production, or by the testimony of admissible declaration of a person who has directly perceived it. Indirect, circumstantial, or presumptive evidence implies that other facts are established, from which a given fact, maybe logically deduced. Real evidence on the other hand implies material objects as distinguished from documents.

Essentially, they provide that whoever desires any court to give judgment as to any legal right or disability depends on the existence of facts, which he asserts, shall prove those facts exist. In other words, the evidential burden lies, at law, on the person asserting a fact or what is claimed to be a “fact”.

The standard of proof in civil cases is on a balance of probabilities, which means that on its scale probative value, a given set of facts is more believable than not. Conversely, in criminal cases, the standard of proof rests on the canon: beyond all reasonable doubt. Thus, the evidential threshold in civil cases can be considered lower, albeit no less significant, than in criminal cases.

That foundation laid, the province of this article is the application of DNA evidence in civil jurisprudence in Nigeria and other common law jurisdictions. DNA is an abbreviation for deoxyribonucleic acid, which warehouses the genetic code of the human anatomy.

The attraction of DNA evidence lies in its uniqueness to each person (excepting identical twins who share the same DNA because they came from the same cell), its underpinning scientific validity and reliability. Thus, DNA is increasingly utilised in criminal investigations, paternity testing and identity validation. It has equally gained traction in divorce litigation, where DNA forensic experts could assess DNA evidence for proof of infidelity in monogamous unions; genetic ancestry, prenatal testing, space research and more.

In the case of Ibeabuchi v Ibeabuchi (2016) L.P.E L.R. 41268 C.A., on probative value, the Court established that “evidence is said to preponderate where it is relevant and credible evidence, that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case at hand.”

In resolving paternity disputes, the case of Olayinka v Adeparusi & Anor (2011) L.P.E.L.R. 8691 (C.A.) established that “if a party is claiming paternity, it is trite that a Court of law should be allowed to determine same on proof of evidence relating to paternity, which could only be done by referral for a DNA test of the parties involved. After such a test, the Court has a duty to declare, the actual father of the child in dispute in consonance with the evidence at its disposal.”

Further afield, common law jurisprudence attests to the fact that the standard of proof in civil cases is on a balance of probabilities, a much lower standard than is required in criminal cases which is, and remains, beyond all reasonable doubt. Reinforcing this proposition is the case of Borscius v Fern 613 A. 2d 17, 314 Pa. Super 34 where the Superior Court of Pennsylvania decided, inter alia, that evidence of paternity is established by a preponderance of the evidence.

The facts and conclusions of the English case Nield-Moir v Freeman [2018] EWHC 299 (Ch) are quite striking in this regard. Briefly, in a thorny dispute the Court ordered the respondent, Lorraine Karen Freeman, who was one of the two daughters of the decedent, Colin Birtles; to take a DNA test for the purposes of establishing paternity aimed at determining an inheritance debacle. Ordinarily, strictly on human rights grounds, a court might be extremely reluctant to compel a litigant to undertake a DNA test in a complex paternity dispute. Not so in this case!

The Court held that it had the inherent jurisdiction to direct the respondent, Lorraine Freeman, to give DNA samples for the purposes of establishing paternity and that “if science can help, it should”! More striking is the fact that the Court further directed that if within 28 days, the respondent failed to give the samples, it would be at liberty to draw an adverse inference against the respondent.

In other words, the court was prepared to find against Lorraine Freeman if she failed to submit to DNA testing as a means of proving her paternity. Thus far, the case is yet to be successfully appealed in the English Courts and remains the leading authority within the province of DNA scientific analysis pertaining to inheritance disputes.

Turning to the question of human rights, the appellate case of Tony Anozia v Mrs Patricia Nnani, Ignatius “Nnani” [2015] 8 NWLR part 1461, establishes the principle that an unwilling adult or senior citizen cannot be compelled to submit to a DNA test. Thus, the case is distinguishable from the aforementioned Nield-Moir v Freeman case.

Notwithstanding the seminal relevance of DNA in civil and criminal cases, it springs ethical issues as it relates to human rights violations, its relative statistical accuracy given the fact that it relies a great deal on probability, a potential conflict of interests by testing laboratories adopted by a party, fairness in the litigation arena, breach of confidentiality and the cost of conducting the tests. Furthermore, DNA evidence is useless if not properly collected, retained and tested.

The foregoing invokes these concluding policy recommendations in jurisdictions demonstrably committed to advancing the rule of law.

One, establish and embed best practices in forensic science, which enables the adoption of highly effective and up to date DNA techniques in civil cases. Two, each state or federating unit should establish modern DNA and forensic analysis centres where samples can be securely collected, tested and preserved. Three, the iconic Lagos Central Library on Broad Street which stood for decades, and which later metamorphosed into the Lagos State DNA and Forensic Science Centre, which was burnt to ashes in the October 2020 #End SARS riots, should be rebuilt, refocusing on its original raison d’etre: enhancing public safety and helping in criminal and civil investigations.

Four, practically explore opportunities to develop effective and robust international collaborations with organisations like the US Justice Department, Food and Drug Administration, Interpol, the World Health Organisation, and leading think tanks, to name a few at the cutting edge of framing the policy and developing the science on DNA analysis.

Finally, forensic science ought to be added to the national curriculum and taught as a degree programme in public and private universities. That implies adequate resources and capacity building for the lecturers and forensic science subject matter experts who can meaningfully teach the module.

In turn, that will help immensely in criminal and civil inquiries including, but not limited to, advances in medical research and organ matching, early detection of diseases and, by extension, increase the probability of treatment and life expectancy; the foundational validity of true identification, paternity disputes, prenatal genetic testing and much more. There is of course the potential multiplier effect of job creation given changing demographics.

Ojumu is Principal Partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.