HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

LAMPTEY, J.A.

This is a very interesting and exciting case. It is interesting because of the issue of law raised for determination by this court. It is exciting because of the facts given in evidence. The claim of the plaintiff was for an order by the Tema High Court directing (1) that plaintiff, the defendants Roselyn Akweley Tetteh and Ben Annan be tested medically to determine the paternity of a recently born child by 1st defendant; (2) a declaration that plaintiff is the biological father of the said child; and (3) an order for damages against defendants jointly and severally. The writ was accompanied by a statement of claim. The defendants resisted the claim of the plaintiff. At the close of pleadings among the issues set down for trial were the following:—

“(a) Whether or not plaintiff and 1st defendant were lovers.

(2) Whether or not 1st defendant told the plaintiff that she was married to the 2nd defendant”.

In due course, on 31st May, 1995 hearing of the case commenced. The plaintiff gave evidence and called three witnesses and closed his case. The defendants opened their case. They each gave evidence and on their behalf three witnesses were called and closed their case on 24th April, 1997. The court notes after defendants closed their case read as follows:—

“Mr. Lumor: Then is the suggestion of blood test to be made

Mr. Adjetey: I am objecting once there is a marriage the court has no power to make such an order.

BY COURT: Adjourned to 27/5/97 for the issue of blood test to be fully argued.”

On the 26th May, 1998, the lawyer for the plaintiff filed a motion on notice seeking:—

“An order for blood test to be conducted on himself, the 2nd defendant and a child the subject-matter of this suit.” The reasons given in support of the application were stated in an affidavit at paragraphs 2 and 4 as follows:—

“2. That I have issued a writ of summons claiming paternity of a child in dispute and I wish blood test be conducted by an expert on myself, the said child and the second defendant to determine the paternity of the child as it is the best way to determine paternity in this case.

4.  That I am informed and verily believe that as a matter of law and fact I am the father of the child and therefore there is no need for blood test.”

5. That I am informed and verily believe that a blood test short of DNA is not conclusive proof of paternity and as such cannot be useful to the court.”

The trial court heard arguments and submission from counsel for parties. The trial judge delivered a Ruling in which he made the orders following.

“I accordingly order that a blood test be conducted on the persons named in this application in the absence of DNA test in this country. The plaintiff is to bear the expenses and costs involved in any medical examination to be consulted.”

The defendants were aggrieved by the Ruling and appealed to this Court.

The main ground of appeal was that:—

“the Ruling or order of the learned High Court Judge to the effect that the defendants and their child be subjected to DNA/ Blood test is erroneous in law.”

I do not propose to deal with the appeal on the merits in this judgment for the reasons I now give. In the first place, the application, the subject matter of the Ruling raised two serious issues of law which the trial judge failed and or omitted to consider and resolve. The applicant raised the issue whether or not 1st defendant was married to the 2nd defendant at paragraph 2 of his affidavit in support. The 2nd defendant in his affidavit in reply raised the issue of marriage between himself and the 1st defendant. This issue, namely, whether or not 1st defendant and 2nd defendant are a married couple was  raised under head (a) on the summons for direction. The trial judge had all the evidence on this issue before him since the parties had each closed their respective cases. He was enjoined to make a definite pronouncement on the issue of law raised on the evidence in a judgment. Indeed, the plaintiff in his affidavit made reference to the fact that there was evidence before the court as at the date of the application. He wishfully swore in his affidavit at paragraph 4 that there is no indication of marriage between the defendants. I am amazed that this offending paragraph (4) of plaintiff’s affidavit in support of his application was not struck out by the trial judge. The trial judge erred in ignoring evidence of the parties and permitting affidavit evidence which was not tested by cross-examination as the fact to support his Ruling. The hearing of the application was ultra vires the court since plaintiff had close his case, it cannot be supported by the rules of the High Court.

The other reason for my view that the appeal should not be heard on the merits is that the evidence sought, namely, evidence of and from blood test is only persuasive and not conclusive. On the writ of summons the relief claimed by the plaintiff at head (a) reads:—

“(a) an order of this court that plaintiff and defendants be  tested medically to determine the paternity of a recently born  child by 1st defendant.”

From the endorsement on the writ of summons the order sought by the plaintiff was for a test to be carried out on the plaintiff and the two defendants. It was not necessary for the trial court to be formally moved by application after the parties had closed their respective cases. In any case the plaintiff did not seek an order that the child, the subject-matter of the dispute be subjected to a blood test. In my view, the trial court had no power or right in law to order a blood test on the child since the plaintiff did not make this an issue. The trial court can properly and lawfully make such an order if the plaintiff obtained leave of the trial court to amend the writ of summons to reflect the order sought by the plaintiff. The plaintiff failed and or omitted to lawfully amend the endorsement of the writ of summons. In law, the trial judge erred in considering and determining a relief not sought by the plaintiff in his writ of summons. See the principle of law stated in the well-known case of Dam vrs: Addo (1962) 2 GLR. 200 S.C.

In the event I am wrong in the view I have expressed above, I now consider the appeal. The issue raised is simply whether or not the trial judge has power to make the order he made, that is, whether or not the two defendants can be compelled to provide (medical or scientific) evidence for use by the plaintiff to prove and establish his case against them; evidence which in the nature of the plaintiff's claim would, without doubt, assist and enable the plaintiff to prove his claim against the defendants. The plaintiff by his application sought an order from the trial judge to compel the 1st defendant and the 2nd defendant each to submit to blood test that is to provide specimen blood to be tested and classified by an expert witness and thereafter a report on the findings by the expert witness presented to the trial court. There can be no doubt that the exercise by the trial court of a power and right to compel a person to submit to the infliction of pain and suffering on his person is clearly and plainly provided in the 1992 Constitution at Chapter 5. I do not find that in a case such as the instant one the Constitution 1992 and in particular Chapter 5 gave the trial court the power and right to compel each of the defendants to submit to pain and suffering in order to enable the plaintiff to prove and established his claim against the defendants. In my well considered opinion the trial judge fell into very serious error in law when he made the order.  The order must be set aside.

I do not wish to consider the interlocutory appeal on the merits because the issues of fact given in evidence during the trial by the parties are yet to be resolved by the trial judge. As stated elsewhere in this judgment, the parties had each closed their respective cases. The trial judge was to consider and read his judgment on the evidence having regard to the dictates of the summons for directions. He erred in hearing and determining the application. He did not have jurisdiction to do this. I would for the reasons above allow the appeal against the Ruling, I would set aside the order made by the trial judge. I would order the trial judge to write and read his judgment on the evidence on record at the close of the case for the parties.

G. L. LAMPTEY

JUSTICE OF APPEAL

WOOD, J.A.

This unfortunate case, is happily not one of the common cases that appear in our courts from time to time. My prayer, for the sake of the innocent infant in particular is that it be disposed of as quickly as possible, to enable all the key players get back to their normal lives.

The plaintiff/respondent claims that in 1993, he met and fell in love with the 1st defendant/appellant who introduced herself as a single woman. They cohabited for one full year during which they expressed a strong desire to have a child. By his account, visits to the herbalist yielded results as the 1st appellant became pregnant, whereupon he continued to play the role of a dutiful husband and accompanied her to the antenatal clinic.

According to him, in the course of time, she surprisingly turned round and denied he was the author of the pregnancy. When all attempts to claim the child born in due course had proved futile, he took out a writ of summons for the following reliefs.

“(1) An order that the plaintiff and defendants be tested medically to determine the paternity of a recently born child by 1st defendant.

(2) Declaration that plaintiff is the biological father of the said child.

(3) Damages jointly and severally against the defendants.”

That action was not only against the 1st respondent, the mother of the child, but also the 2nd defendant/respondent, a clerk with the A.M.A. who claims to be the father of the child. He not only, like the 1st respondent vehemently deny each and every material allegation on which the claim is founded but maintains proudly that he is the lawful husband of the 1st respondent, having married her under customary law. They both called upon the respondent to strictly prove the allegations made, contending that they had continuously lived as man and wife since 1992. Additionally, the 2nd appellant relying upon  the respondents own confession counter-claimed for an amount of ¢2,500,000.00 by way of damages. The basis of this claim, may be found in the paragraph 2 of the amended statement of defence, which reads as follows:—

“2.  The 2nd defendant says that by the pleading of the plaintiff he is asserting that he has committed adultery with 1st defendant, and this constitutes a tortious interference with 2nd defendants rights over his wife (1st defendant)—2nd defendant is entitled to claim adultery fee which 2nd defendant assesses at ¢2,500,000.00. The respondent in reply and more particularly in defence to the counter-claim averred that 1st respondent categorically told him she was unmarried “as her marriage with one Ato with whom she had 2 issues had been dissolved because of maltreatment at the hands of the said Ato.”

The matter therefore proceeded to trial with the following as some of the critical issues for determination.

(c) whether or not plaintiff was responsible for  the 1st defendant’s pregnancy.

(d) whether or not the plaintiff is the father of baby in  dispute.

After evidence has been led on both sides, the respondent through his counsel put in an application for an order “for blood test to be conducted on himself, the 2nd appellant and the child, the subject matter of the suit,” The main premises upon which the application was founded were the following:

(1) The experts evidence would help in the determination of the issue of the paternity of the child.

(2) It will be in the interest of the parties to the suit to be so tested.

(3) That from the evidence on record there is no indication of marriage.

(4) It will be unjust to rely on a legal presumption that defendants are married and as such 2nd defendant is the child’s father.

The 2nd appellant as he was perfectly entitled to do, opposed the application on two important grounds. Firstly, that as a matter of law and fact he is the father of the child and therefore there was absolutely no need for a blood test to help in the determination of a well settled question—the issue of the paternity of the infant. Secondly, that a blood test short of DNA is not conclusive proof of paternity and as such cannot be useful to the court.

The court however, thought otherwise. The learned trial judge after considering the matter granted the application “in the pursuit of truth and in the interest of justice.” He ordered the named persons i.e. the 2nd appellant, the child and the respondent to submit themselves for the test.

Aggrieved and clearly dissatisfied with the said order, the appellants have appealed to us in this court to set aside the entire ruling. They did so on only one ground, namely that the said ruling was erroneous in law. They did not, as they were enjoined under the rules of court, specify or particularise the error of law complained of. However, no objection has been voiced by the respondents to this breach, and we have therefore not  been invited to disregard  this ground of appeal.

Beyond commenting on the non-compliance of the rules, I do not think we would be justified in striking down their only ground of appeal for the reason that the respondents had a full and fair opportunity of being notified through their written submissions of the said error or errors complained and responded to the arguments raised accordingly. The non compliance has therefore not led to any miscarriage of justice.

It was submitted by the appellant counsel that since the 1st and 2nd appellants are lawfully married as man and wife, as a matter of law any child born during the subsistence of the marriage is presumed conclusively to be the child of the husband.

He further urged that as the question of whether or not there existed a lawful marriage (albeit at customary law) was one of the crucial issues for determination, he urged us to look at the evidence adduced at the trial and make a definitive finding on the issue in their favour.

But the more serious point urged upon us is that when this finding is made in their favour, as we are bound to do, by the mere fact of the existence of the said marriage any child born is conclusively the child of the 2nd respondent unless of course for reasons best known to himself, he denies or repudiates respondent. No other man on earth, it was forcefully argued can claim the child at law, even if biologically he were responsible for the pregnancy. Counsel urged that even in those cases where the husband of an existing marriage repudiates or denies paternity, the law puts the burden on him (the husband) to establish he was not responsible for the pregnancy.

Counsel therefore contends that it is under such circumstances that a court could compel a husband to submit to a blood test. The argument of appellant counsel therefore is that in this instant case where the 2nd appellant is not denying responsibility and is maintaining that he is the father of the child it would be erroneous in law and on the authority of Asumah vrs: Khair 1959 GLR. 353 to order a blood test to help in the determination of the issue of paternity for the simple reason that the conclusive presumption of law is that he is the father of the child.

Counsel also submitted another good reason why in his opinion 1st respondent cannot by any stretch of imagination be subjected to a “blood test of any sort by compulsion” i.e. an order of a court. Relying on the local case of Nyarkoa vrs: Mansa 1967 GLR 523, counsel’s argument as I see it is that the High Court in any case has no power to compel the unwilling 2nd respondent to undergo the test. This he maintains is because the court has no inherent jurisdiction to so order. Such a power, it was contended may be exercised only under express statutory authority. If my understanding of counsel’s argument is right, the point being made is that without statutory authority, the High Court has no jurisdiction to order the 2nd appellant who has clearly resisted the invitation, to submit himself, to a blood test. My understanding also of the appellant counsel first and main argument is that by the general rules of customary law any child born during the subsistence of a valid customary law marriage, irrespective of who the biological father is, belongs exclusively to the husband in that marriage. No other man can claim the child as his. The only exception to the rule is where the husband repudiates liability in which case the onus rests on him to establish the negative—namely that he was not responsible for the pregnancy that resulted in the birth of the child. Put in other words, where the male partner does not deny paternity the conclusive presumption of customary law is that the child is his.

Respondent counsel's response to these arguments are that:

l. The High Court has jurisdiction, under the Evidence Decree to order the testing of blood samples of the persons named. The relevant provisions which confer jurisdiction on the court were identified as the S.112 and S.114 of  the Evidence Decree, 1975 NRCD 323. This provision it was urged is akin to the practice that obtains in the English High Court and as outlined in the Supreme Court Practice 1995, the volume 2 at page 841.

Furthermore, it was contended that alternatively, in the absence of express statutory authority confering jurisdiction on the Ghanaian High Court, the court could by reason of order 74 of the High Court Civil Procedure rules rely on the English Family Law Act 1987 section 23 to compel the parties to submit to this test.

I had very little difficulty in dismissing this second argument. It does not afford a good answer to the jurisdictional issue.  The reason is not difficult to find. The English Family Law Act is inapplicable to Ghana.  The law can be of relevance to us only if we had a similar (either word for word or substantially) legislation in our statute books. Even so it is not the section itself which does bind us or are of persuasive effect. What may prove useful to us and would be of persuasive authority only as the decisions based on the provisions for, we can fall on them to guide us in their own interpretation of our corresponding legislation.

I will now proceed to state my opinion on the questions raised in this appeal. Again, I had no difficulty in resisting the applicant counsels invitation that we examine the record at this stage and determine the issue of whether or not a valid customary marriage subsisted between the parties prior to the conception up to when the infant was born. I can think of two reasons why such a cause of action is not open to us.

Firstly we as an appellate court, cannot determine such a primary finding of fact. See the case of Quaye vrs: Mariamu 1961 GLR 93, 95 and also Asiama and vrs: vrs: Adjabeng and others 1971 2 GLR. 171.  That function is the reserve of the trial court. We are only empowered to correct and so interfere with findings of fact when they have been determined by the court of first instance. Secondly, as a general rule of procedure, a court can only conveniently determine primary (and other legal and factual issues) issues at the conclusion of the entire case, when all the evidence, for both sides have been collected and made available to the trial court, for a determination not only of one fact but all the issues raised at the trial—these agreed upon at summons for directions as well as these that emanating from the pleadings and the evidence. A court would not as a general rule be entitled to determine in midstream some of the issues which have been set down for hearing.

One of the limited exceptions I can think of is where in course of a trial and upon application under order 25 rules 2 and 3 a court may dispose of a point of law under that rule then half way through a trial a point of law (not fact) which has been raised on the pleadings “shall be disposed of by a judge”. And if that point substantially disposes of the whole action or any distinct cause of action, ground of defence etc the judge may thereupon  dismiss the action or make any such order that may be just.

But in cases where issues of fact are clearly disputed, the proper procedure is for a trial court to make such definitive findings at the conclusion of the trial. In my view then, in this instant case, even if the appellants view of the law is correct, namely that the proof of a marriage raises a conclusive presumption in their favour, the proper procedure would nevertheless be for the court to make all the necessary findings of fact and law only at the conclusion of the trial.

And as I shall presently demonstrate, for the plaintiff the trial is not yet over. His contention is that the opinion of a blood analysis is one of the evidence that ought to be made available to the court. It follows that if we concluded that a blood test would help in the determination of the child’s paternity and so ought to be ordered either for all or some of the parties and the child, it would clearly be premature for us to determine this issue of the existence or non existence of a marriage. On these two grounds alone, having regard to the circumstances of this case; it would not only be premature, but a clear usurpation of the trial courts function we being an appellate court, if we proceeded to do what we have been invited to do.

Thirdly for my part, I do not think the current position of the law—customary law—on the question of who a child born during the existence of a customary marriage, belongs to, is as stated by appellant counsel. Put in other words, I do not agree with his view of the law.   Admittedly, if his views represents the correct position of the law, and a child born under the circumstances he describes belongs unequivocally to the husband, then no useful purpose would be served by ordering the parties to undergo a blood test. In actual fact, such an exercise would be a completely futile one, for no blood test nor DNA would change the fortunes of the husband even if the child were not his biological product. Under such circumstances, then, one may well understand a party’s or parties request to the trial court, for a determination of a primary issue of whether or not the two persons were married at the crucial period under consideration. One could liken such a situation to the circumstances under which parties may, upon an application invite a court to determine the question of capacity as a preliminary issue. But then, because I am of the view that the customary law position as stated in Asumah vrs: Khair no longer represents the present state of the law, I do not think the exercise we have been urged to undertake at this stage of the proceedings is at all necessary.   The Khair case may have been rightly decided some forty years ago, but I fear it does not reflect the current thinking of the law. I think the position of the law is that a child born during the existence of a marriage raises only a rebuttable (not conclusive) presumption of law that the child belongs to the husband of the mother at the time of birth.”

This in my view is the position of the law, even where the husband does not deny paternity. In other words, an unequivocal acceptance of the child by the husband does not raise a conclusive presumption of law such as would make the blood test, or for that matter any other evidence, including even a solemn confession by the child's mother absolutely unnecessary and immaterial. It raises only a rebuttable presumption, and if therefore there exists any burden on the husband to discharge it is only to prove the existence of a valid marriage. The onus then shifts on to the outsider claiming paternity to produce all such evidence as is permitted under the evidence decree, all in an attempt to rebut the presumption. His duty in such circumstances, is to prove that he indeed is the biological father of the child in question, and consequently that the child is his. And therefore, it is precisely because I am of the opinion that only a rebuttable presumption arises in his favour, that also I do think it is not at all necessary to have the question of the marriage determined. That finding of fact would not end the trial. It would not conclude the rights of the parties. The court would still have to consider all evidence led by the respondent who is asserting his right. And in my view one of such lawful evidence the respondent is entitled at law to produce in court is expert evidence. I shall deal with this question in some depth presently.

I base these opinions of the present position of the law on the S.32 (1) of the Evidence Decree 1975 NRCD 323. It provides:—

S. 32 (1) A child born during the marriage of the mother is presumed to be the child of the person who is the husband of that mother at the time of birth.

By the provisions of S. 32 SS (3) “The section applies both to monogamous and polygamous marriages”

But, how did I arrive at the conclusion that this presumption is rebutable merely and not conclusive. S. 30 of NRCD 323 provides the answer. It states:—

“Rebuttable presumptions include but are not limited to those provided in sections 31- 49 and 151 – 162”  

The Decree also provides for the distinction between rebuttable and conclusive presumptions which by S.24 (2) have been defined to “include, but are not limited to those provided in sections 25 – 29” By S. 24 SS.2 “where the basic facts that give rise to conclusive presumption are found otherwise established in the action, no evidence contrary to the conclusively presumed fact may be considered by the tribunal of fact.”

It follows that the legislature has brought a change in the law as existed under Asumah vrs: Khair (Supra). In other words Asumah vrs: Khair (supra) is no longer good law.

This then leads us to the most forceful argument submitted before us, namely that the High Court has no jurisdiction, that is to say no power to order the 2nd appellant to subject himself to a blood test. I would agree to this proposition if, and only if the understanding here is that the order is not compellable and therefore the court cannot attach the appellant for contempt if he refuses to so submit himself for the test. In 1967, Archer J (as he then was) in the case of Nyarkoa vrs: Mansa 1967 GLR 523 when faced with the question of whether or not the Ghana High Court has power to compel a party who is unwilling to submit himself to a blood test stated:

“but it seemed to me the Ghana High Court had no power and had never had such a power. I was also convinced that as the common law stood it was impossible even in the United Kingdom to compel the taking of a blood sample. See W vrs: W 1963 2 All ER. 841 CA where Wilmer LJ at P.843 said;—

“No power is conferred to make an order against a person who does not consent. It is thus clearly recognised, as it seems to me, by the legislature that without statutory power a test certainly could not be ordered as against an unwilling party.” And as Cairns J. said in the Court of first instance as quoted by Willmer LJ at p.842.

“It could not be contended that there was an inherent jurisdiction in the court to order blood tests. Such tests involved the puncture of the skin and the extraction of blood from the veins.  For the court to order such a procedure to be caused out upon an unwilling person precise statutory authority would be required.”

The trial judge did consider this opinion and dismissed it as he was perfectly entitled to do as not being “binding on him”.  It is true that the headnote clearly states this was obiter and so for us in this Court it would under normal circumstances be of little or no persuasive effect. But when viewed against English authorities it does fairly well represent the common law position until the English saw it fit to pass the necessary express or specific legislation empowering the courts to make compellable orders if the circumstances do justify. English authorities—text book opinions as well as decision of the courts, (particularly the courts) are of most persuasive value in helping us formulate our own opinions, particularly where there is a dearth of local authority as for example as considering this question of whether or not in paternity disputes a court has power to compel an unwilling party to submit to a blood test. I would wish to be guided by them.

One of the most authoritative text books on the subject is Bromley’s Family Law 5th Edition by P.M. Bromley. The learned author, writing under the heading “Blood Tests” states at page 287.

“The common law position was eventually settled by the House of Lords in S. vrs: S. W. Official Solicitor 3. There is no power to order a blood test of an adult against his will, for this is a battery which however retrieval, no court may authorise.”

In  the case referred to by the text writer, the unanimous decision was in  the absence of express legislation, the court had no such power.

I would refer to Lord Macdermott’s speech on the issue (has the High Court jurisdiction to order that a blood test be taken of a person who is  suis juris and a party to proceedings before it). The learned justice opined:

“I think it must be accepted that, save where Parliament has otherwise ordained, the High Court has no power to direct that a person who is suis juris is to have a blood test taken against his will. That seems to have been the main reason why in W. vrs. W.   (No.4) 6 Cairns J. and the Court of Appeal (Willmer, Dankwerts and Diplock LJJ) held that the Court had no power to order blood tests for the purpose of determining the paternity of a child.”

I would thus think the position of the law is thus:

In the absence of express legislation, the High Court has no power, in paternity disputes, to order a blood test of a person who is suis juris and a party before it against his will. I would venture to say this ought naturally to apply with greater force to a husband of the mother of a child born during the subsistence of a marriage, and where the husband who the law presumes is the father of the infant child, is not denying paternity.

I have not been shown any legislation which expressly empowered the trial judge to so compel the 2nd appellant.  To that extend in so far as the order he made as against the 2nd appellant, on the face of it appear to be an imperative order and so compulsory, and one which could evoke the courts coercive powers either in its enforcement or in punishing him should he fail or refuse to comply with same, I would think the court, erred.

But, I would not stop at this conclusion, I have reached namely that the court has no power to make the compulsive order that it did against the unwilling 2nd appellant. I would now consider whether as contended by respondent counsel the court could give necessary directions under S.114 (1) of NRCD 323 and so “order’ the parties particularly the 2nd appellant in particular to submit to a blood test.

Again I would think that as against the 2nd appellant the “order” if any should be more in the nature of a “direction” rather than enforceable order that is to say that powers of compulsion are to be employed” (per Lord) Morris of Borth - y - Gest in S vrs: SC supra) The question which must be answered is what would be the result of the unwilling party’s refusal to comply?

In my opinion, if the result of the blood group testing turns out to be of some evidential burden to the court, the other side might urge the court to be guided by this wise counsel of Lord Denning (of blessed memory) in Re: 1968, AER.20 at 26 and affirmed in S vrs: Mc C (formerly S) and M (S intervening) Court of Appeal Civil Division 1970 1A ER. 62 at page 64:

“If an adult unreasonably refuses to have a blood test or to allow a child to have one I think that is open to the Court in any civil proceedings…….to treat his refusal as evidence against him: and may draw an inference therefrom.”

What then would be the legal justification for the courts intervention under S.114 of NRCD 323? the S.114 (1) and S.112 of the NRCD 323 the court has jurisdiction to use the evidence of any expert to arrive at the conclusion it has been Invited to reach. The powers so conferred are wide and would cover a very wide range of examinations or a blood test included.

All the same, in my view, it is not the type of legislation that empowers a court to order or compel an unwilling adult who is a party to proceedings to undergo a blood test. Thus S.112 and 114 of NRCD 323 is not the same as or akin to the specific legislation we have under the S.23 of the English Family Law Act, 1987 or the rule under the Supreme Court Practice 1995 Volume 2 which counsel has urged us to apply in this case. That English specifically empowers the High Court in “any civil proceedings in which the parentage of any person falls to be determined”……...to give a direction:

(a) for the use of scientific test to ascertain whether such test show that a party to the proceedings is or  is not the father or mother of that person and

(b) for the taking....... of bodily samples,  from all or any of the following namely: that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings.

I think it is because in our jurisdiction we have discovered a lacuna in our law that we have now provided a specific legislation empowering the family tribunal in appropriate cases to make the necessary order. I refer to S.42 of the Children’s Act 1998, Act 560 which states: 42 “Medical test.

The family tribunal may order the alleged parent to submit to a medical test and the tribunal shall on the basis of the evidence before it make such order as it considers appropriate.”

Even so we find that section which deals with the family tribunal not quite as exhaustive as the English provision. It is only the alleged parent who may be ordered to undergo the test. I think it is expedient to reproduce the S.112 and S.114 of the NRCD 323.

112 If the subject of the testimony is sufficiently beyond common experience, that the opinion or inference of an expert will assist the court or tribunal of fact in under standing evidence in the action or in determining any issue, a witness may give testimony in the form of an opinion or inference.

114 (1) In any action at any time, the court in its discretion may on its own motion or at the request of any party, appoint a court expert to enquire unto and report upon any matter on which an expert opinion or inference would be admissible under section 112  .......

(2)  ..............

(3) The report of the court expert shall be admissible to the same extent as the test of any other expert witness” evidence without.

(7) The Court expert may conduct such experiments and tests as he deems appropriate and he may communicate with the parties to arrange for the attendance of any person or the provision of samples or information or any similar matter, and failing agreement between the parties and court expert as to any of these matters they shall be determined by the court.”

While I agree that under these general provisions a party may apply to the Court to appoint an expert to conduct such scientific blood analysis of the parties and the infant whose paternity is in issue, for the purpose of helping the court determine that issue, nowhere does the legislature give power to the court to order or compel an unwilling adult who is a party to the proceedings undergo such a test. In my view then, notwithstanding the fact that under SS. (7), failing agreement between the parties and the court expert “on matters like the collection or provision of blood samples”, these matters shall be determined by the court, the court would nevertheless have no jurisdiction to compel an unwilling party to have his blood or other bodily samples extracted. I certainly think if the report turns out to be of some value to the willing party I think he is entitled to invite the court to draw the necessary inferences from his opponents blatant refusal to submit himself to the test. On the other hand if the report so received is of no evidential value to the court, neither would it be of any profit to the willing adult, needless to say, the weight to be attached to the report can only be determined upon its receipt. It follows that, the legal position remains the same even under S.112 and 114 of NRCD 323, namely that the High Court, against from drawing inferences against the unwilling party, has no power to compel him party to undergo a blood test. The order so made against the 2nd respondent in so far as it is of a compelling nature is wrong in law and the same ought to be set aside.

With regard to the child however I think the order is justified and the same ought to stand. Given the position of the law, namely the presumption that arises in favour of husbands, in circumstances such as the one we have before us, given also the fact that the third party in the marriage is entitled by law to displace the presumption by placing before the court all such evidence as would be permitted under the Evidence Decree, NRCD 323 including the physical presence of the child himself and scientific tests to help the court determine such a delicate issue which is, of course invariably beyond common experience, I do think the judge acted properly. In matters like this the overriding principle should be as Lord Denning succinctly expressed in S. vrs: Mc (formerly S) and in  (intervening) supra, the interest of justice. To borrow his words: “There is one overriding interest which must be considered. It is the interest of justice.  Should it come to the crunch then the interests of justice must take first place. I would adopt the words which Lord Summer used many years ago in Russel vrs: Russel.

………“My own view is that in the administration of justice, nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth……...It is best that truth should come out and truth should prevail.” In my opinion, when a court is asked to decide whether a child is legitimate or not, it should have before it the best evidence which is available. It should decide on all the evidence and not half of it. There is at hand in these days expert scientific evidence—by name of blood test, which can in most cases resolve the issue conclusively.

In the absence of strong reason to the contrary, a blood test should be made available. The interest of justice so requires.”

I think in circumstances, such as the one before us on the assumption even the child was born during the existence of a valid marriage the interest of justice makes the order lawful and expedient. I do not think judges should be seen as promoting evil in the society or encouraging unfaithfulness in marriage. We are merely under such circumstances carrying out our judicial duty to do justice to all manner of persons without fear or favour, ill will or affection.

In the result I would allow the appeal with respect to the 2nd respondent. I would wherever affirm the order with respect to the child and the respondent.

MRS. G.T. WOOD

JUSTICE OF APPEAL

BROBBEY, J.A.

The facts in this case are fully set out in the judgment of the president of this panel.  I have decided to skip the fact as they have been fully stated in his opinion. Rather, I will adopt the facts as contained in his judgment in order to avoid repetition. After the trial had been concluded but before addresses could be submitted, counsel for the respondent filed a motion for an order that blood tests be conducted on the respondent, the second appellant and the child who is the subject matter of the action. Counsel for the appellant opposed the motion. It was fully argued, after which the trial High Court ruled that all three should undergo blood tests.

It was against that ruling that the appellant have appealed to this Court on the sole ground that the order that the second appellant and the child be subjected to blood test is erroneous in law.

In this appeal, counsel for the appellants has strennously argued that the High Court has no jurisdiction to order blood tests to be conducted on the two persons.

My view is that when the general jurisdiction of the High Court is seriously considered, that contention cannot be correct.

The 1992 Constitution, article 140(1) sets out the jurisdiction of the High Court as follows:—

“The High Court shall subject to the provisions of this Constitution, have jurisdiction in all matters and in particular civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this constitution or any other law.”

This provision has more or less been repeated in the Courts Act, 1993 (Act 459), S. 15 (1) which states that:

“15 (1) The High Court shall, subject to the provisions of the Constitution, have:

(a) Original jurisdiction in all matters and in particular, in Civil and Criminal matters.”

The case before the High Court which culminated in this appeal is a civil one. The order for blood test was made in Civil proceedings. By virtue of these general provisions, the High Court has jurisdiction over the instant case. Why do I hold this view? It is simply this: The well established rule of law is that the High Court has jurisdiction in all matters except those expressly excluded by the Constitution or any other enactment. The clarest authority one may find this view is Timitimi vrs: Chief Amabebe 14 WACA 374. In that case it was held that an inferior or lower court can be said to have any jurisdiction only if an express statute confers that jurisdiction on that Court or tribunal.

In the case of Superior Courts such as the High Court in the instant case, the position is that there is jurisdiction conferred on the Court unless and until it is excluded and the jurisdiction covers all matters including civil and criminal cases. To argue that the power to order blood test can be exercised only when expressly stated will amount to equating the status of the High Court to that of the status of inferior court, which with respect is not correct. My view is that it is because the High Court has the power that in the Childrens Act 1998 (Act 556), S.42 grants the power specifically to the Family Tribunal since it has only such jurisdiction as conferred on it. What, then will be the meaning to be given to the provision that “the High Court has jurisdiction in all matters civil and criminal, except as excluded by the Constitution or other statute.” There must be a statute to take the jurisdiction away from the High Court. There is no statute which takes away the jurisdiction of the High Court over cases of paternity or blood test. By necessary implication therefore, the High Court has jurisdiction over cases involving blood test.

Evidence of blood test is scientific evidence. It is evidence which is given by an expert after the expert has conducted scientific experiments or investigation with the aid of scientific instruments. The Evidence Decree, 1975 (NRCD 323), contains provisions on how the Court trying a case should approach the reception of such evidence. It states in section 112 that:

“If the subject of testimony is sufficiently beyond common experience that opinion or inference of an expert will assist the court or tribunal of fact in understanding evidence   in the action or in determining any issue, a witness may give testimony in the form of an opinion or inference concerning any subject of which the witness is qualified to give expert testimony.”

To the extent that evidence of blood test will be expert evidence, the court has the power under this section to accept evidence on blood test from an expert. The only two conditions under which the court may be precluded from invoking section 112 are either (1) that evidence of blood test is not scientific or is not expert evidence or (2) that the constitution, some statute or NRCD 323 itself excludes the application  of S.112 evidence of blood test. None of these two conditions has been established. To the extent that, the trial judge in his ruling made no reference to any of these conditions and statutory provisions concerning the jurisdiction of the High Court, his ruling cannot be justified under them.

In my view, the blank statement that the High Court has no jurisdiction to order blood test should be considered as erroneous unless some statute takes that jurisdiction out of the general jurisdiction of the High Court. This is the rule applicable to all matters civil or criminal which may be the subject matter of litigation before the High Court. Where the High Court is to exercise no jurisdiction, it is expressly stated in the Constitution, the Courts Act or some other statute, like the Chieftaincy Act, 1970 (Act 37), which excludes from the jurisdiction of the High Court any Chieftaincy dispute strictly so called:

The simple rationale for this is that the High Court is not like the inferior or lower courts or even this Court of Appeal which can only exercise jurisdiction on matters expressly provided by statute.

If they are not covered by those statutes, they cannot assume jurisdiction over any such subject matter.

In other words, inferior or lower courts and the Court of Appeal assume such jurisdiction as can be found spelt out or necessarily implied in a statute. The High Court, on the other hand, has jurisdiction in all matters unless some statute takes away that jurisdiction. As counsel for the applicant has not been able to point to any statute which takes away that jurisdiction from the High Court, it has to be asserted positively that the High Court has jurisdiction over all issues of blood test.

The decision that the High Court has jurisdiction over issues of blood test is one thing; whether the High Court will order blood test to be conducted on any individual person is another factor.  In considering whether or not to order blood test, all the circumstances of each case should be taken into account.

In the instant case, the ruling of the trial court was that the respondent, the child in dispute and the second appellant should undergo blood test. The question is not whether the High Court had power to order blood test. It surely had the power to order blood test. The real issue, to my mind, is whether blood test should be ordered in this particular case to cover all three persons.

No difficulty arises in respect of the respondent because he has consented to submit himself to blood test.  The child should also be ordered to undergo blood test. This is because he is the subject matter of the suit. The 1992 Constitution, article 125 (3) vests judicial power in the Judiciary of which the High Court is obviously part. When a court has been seised with a case it is expected to do justice. The expectation implies that the court should assume full control over the subject matter of the case before it can administer meaningful justice to the parties. It is incongruous to argue that the court has jurisdiction to do justice in the case but at the same time the court had no control or power over the very subject matter of the case. That would have amounted to conferring judicial power on the court with the left and turning round to take that power away with the right hand.

The subject matter in this case is the child.  It is he whose paternity has to be decided. The court has the power to adopt any measure sanctioned by the law in deciding on paternity. In the instant case, the High Court could order the child to undergo that test if it took the view that that was the only way or the best way to do justice in the matter. It made the order which its general jurisdiction empowered it to make. The order in respect of the child was in order and should be carried out.

The position in respect of the second appellant is different. He has been sued by the respondent who was the plaintiff in the trial court. He is not the subject matter of the suit. This point should be clearly born in mind. He is a party in the position of a defendant. The rule is that the person who goes to court as the plaintiff, “no matter what his claim is, must make a good case for the court to consider, otherwise he fails “as was put in Nartey vrs: Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 GLR 314 at p. 344, S.C.

In other words the onus is on the plaintiff to prove his claim on the strength of his own case. This meant that he has the duty firstly to rely on probative value and merits of the evidence he adduces in court. If he has no evidence to prove it or if he believes that the evidence available to him is insufficient to establish his case, he has to throw in the towel and abandon the claim. Another rule on proof is that the plaintiff can take advantage of the weakness of the case for the defendant after the defendant has testified but the authorities are now quite clear that that advantage can be taken only after the plaintiff has made his own case on the basis of the evidence he adduces or arguments he canvasses. These will be found well clarified in Odametey vrs: Clocuh [1989-90] 1 GLR 14 at 28-29.

This rule does not enjoin the defendant to testify in support of the plaintiff’s case. There is no rule like that and there can be no rule like that. Even where a litigant has to rely on evidence of an opponent who will only turn out to ruin the case for him, the law excuses       the litigant from calling such a witness as it was held in Barima Gyamfi vrs: Amaadu [1963] 2 GLR 596 S.C. In that case the only evidence available was with the opponent himself. It was held that the plaintiff did not have to call such witnesses because they were the very people with whom he was litigating over title to land and “it would be nothing but madness for a party to a suit to rely on his opponent to prove his case.”

A necessary corollary from this principle is that no defendant can be compelled to testify to support  the case made by the very person who has sued him in court. That would be tantamount to the defendant digging the ground under his own feet or shooting his own foot in order to assist his opponent to defeat him. That will be an affront to common sense.

Similarly, the defendant cannot be compelled to undergo blood test if the plaintiff needs that evidence in order to win the case against the defendant.

Indeed, another well established principle is that a person who has been sued in a civil case is not bound to go to court at all: He may ignore the writ and face whatever consequences that will flow from his failure to go to court. If the defendant cannot be compelled to go to court to defend a suit, how can it be argued that he can be compelled to give evidence? He has to go to court first. If he can get away by not going to court, he should be able to go to court and refuse to testify. This is democratic privilege or fundamental freedom of action consistent with article 21 (1) especially (a) (b) and of the 1992 Constitution.

In fact Nyamekye vrs: Ansah [1988-90] 2 GLR C.A. has laid down the principle that the defendant does not even need to give evidence by himself. In that case it was held that, it was in order that a defendant failed to testify by himself, but chose to rely, for his defence, on evidence given by a co-defendant and that he could not lose the case merely because he failed to testify.

The court may draw inferences or deductions from the failure of the defendant to testify as will be found in the Childrens Act (Act 556); especially when a person fails or refuses to undergo blood test. But the possibility of adverse inference is no authority for compelling the defendant to provide evidence.

In this era of democratic dispensation, if a person has no obligation to defend himself or to testify or to provide evidence in court, that person cannot be compelled to undergo blood test when it has been generally accepted that blood test is another form of evidence.

If one is not careful, the precedent which will be set will be this: A person who has been sued can refuse to defend himself or refuse to give evidence. Nevertheless that person can be compelled to give evidence if it concerns blood tests. That cannot be right, especially when the view is taken that the defendant may not merely refuse to testify but he can refuse even to attend court altogether. If the court cannot sanction or penalise him when he refuses to attend court altogether in a civil case, it cannot be right to assert that he can be ordered to testify in court at the pain of being found liable and being punished as for contempt of court if he disobeys the order of the court to provide evidence by way of undergoing blood test.

In my view, the second appellant, in his capacity as defendant cannot be ordered to undergo blood test because that will amount to compelling him to attend court or compelling him to testify or compelling him to give evidence which will be in flagrant breach of his fundamental freedom to litigate or not to litigate.

The fundamental issue in this case is paternity. The trial court had to decide whether it was the respondent or the 2nd appellant who was the father of the child. Paternity could be provided by a myriad of ways, and by several pieces of evidence. Blood test is one of the pieces of evidence which may be considered in deciding on paternity. The fact that the parties were married or not married may also help as one of the process of evidence which may be considered in deciding on paternity. Credibility of parties and their witnesses, evidential value of exhibits and a whole host of other factors will be considered in arriving at the final conclusion whether or not paternity has been established. There are distinct and separate process of evidence which should all be considered in the judgment. If one set of evidence is decided, that does not mean that issue of marriage or the other issue have been decided.

At this stage there is only one of the many issues which have come up for consideration in this appeal. It is the issue relating to blood test. The issue of marriage between the two appellants is one which has to be resolved. It is totally different and distinct from the issue of blood test. Granting that the parties were lawfully married, that does not preclude them from undergoing blood test if the law allows that to be ordered. In effect, a determination of the issue of marriage will not resolve the issue of blood test. This is particularly the case when one considers the fact that the fact of the marriage merely raises a presumption. Needless to say, it is a rebutable presumption.

It is even possible that the issue of blood test can effectively rebut the presumption raised by the fact of marriage. This could happen  if hypothetically, the blood test results were to be like this: The respondent’s blood group were to be O, the second appellant’s blood group were to be X and the child’s blood group were to be AB: It would clearly show that in that event, the child could not be the child of the respondent or the 2nd appellant.

For these reasons, my view is that the issue of marriage at this stage cannot stop the enforcement of the order for blood test. Evidence has already been given on the issue of marriage and that issue will be resolved at the appropriate time.

I have read the decided cases referred to in statement of cases of counsel for the appellants and the respondent. They are at best opinions of other judges on the issue of blood test. They are all of persuasive effect only and do not bind this court. The line of reasoning adopted in this opinion makes it unnecessary to consider those cases.

In sum, my conclusion is that the High Court has jurisdiction to order parties before it to undergo blood test. Whether the order will be made or not depends on the facts of each case. Each case will obviously depend on its own facts. The ruling of the trial High Court in respect of the child was in order.

Both the respondent and the child should undergo blood test. Those in physical control of the child should be made to suffer the consequences if they knowingly make it impossible for blood test on the child to be concluded. If the child is that of the second respondent that maybe confirmed by the blood test. To refuse to allow the child to undergo blood test will five the impression that the appellants are apprehensive of the consequences of the blood test, as trial judge intimated in his ruling.

The ruling in respect of the 2nd appellant is not maintainable in law and I will positively order that it should be set aside. The second appellant quo defendant, cannot be compelled to go to court, cannot be compelled to litigate, cannot be compelled to testify and cannot be compelled to provide evidence, whether the evidence may favour him or may be against him,

S. A. BROBBEY

JUSTICE OF APPEAL