Saturday, 18 March 2017

HIV STATUS AND INTENDING SPOUSES; CONFLICT OF HUMAN RIGHTS


HIV STATUS AND INTENDING SPOUSES; CONFLICT OF HUMAN RIGHTS




BY



BATTA SONNY MICHAEL
DE:2005/0935


BEING A PROJECT SUBMITTED TO THE
FACULTY OF LAW, RIVERS STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, NKPOLU,  PORT HARCOURT. IN PARTIAL FULFILLMENT  OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B) DEGREE.



SUPERVISOR:
BARR. (MRS) F.O. AKAAKAR



SEPTEMBER, 2011
 CERTIFICATION
This is to certify that this research work was written by BATTA SONNY MICHAEL, DE2005/0935, under the able supervision of Barr. (Mrs.) F.O. AKAAKAR, the Dean faculty of law.

____________________ _______________
BATTA SONNY MICHAEL DATE
 (Student)


__________________________              ______________
BARR. (MRS) F.O AKAAKAR DATE
(Supervisor)


____________________                _____________
BARR. G.A OKPARA DATE
(H.O.D)


____________________              ______________
BARR. (MRS)F.O AKAAKAR DATE
(Dean)




DEDICATION
This project work is heartily dedicated to none other but the King of Kings and  Lord of Lords.
 ACKNOWLEDGMENT  TABLE OF CONTENT
Title page: - - - - - - - - i
Certification: - - - - - - ii
Dedication: - - - - - - - iii
Acknowledgment: - - - - - - iv
Table of content: - - - - - v
Table of Cases: - - - - - - -       vii
Table of Statutes: - - - - - -       x
International Covenants: - - - - -     xi
Abbreviations: - - - - - - - xii
Abstract: - - - - - - - - xiv

CHAPTER ONE
1.1 Introduction; - - - - - - 1
1.2 Background: - - - - - - 4
1.3 Scope: - - - - - - - 4
1.4 Objective of the study: - - - - 5
1.5 Research Methodology: - - - - 6
CHAPTER TWO
2.1 History, Origin and nature of HIV Epidemic: 8
2.2 Modes of transmission: - - - - 11
2.3 Signs and symptoms: - - - - - 16
2.4 Diagnosis: - - - - - - - 19
2.5 Politico-Social & other implications of HIV/AIDS: 21
2.6 The Roles and interventionist activities of foreign
Agencies in the management and control  of the scourge: - - - - - - 22
2.7 National responses to stem the scourge: - 25
2.8 Efficacy of the actions: - - - - 28

CHAPTER THREE: INTENDING SPOUSES
3.1 Marriage: - - - - - - - 31
3.1.1 Marriage as an Institution: - - - - 32
3.1.2 Marriage as a contract: - - - - 33
3.1.3 Statutory Marriage: Historical Development: 35
3.1.4 Requirements/essentials of a statutory Marriage: 36
3.1.5 Church Marriage: - - - - - 40
3.1.6 Voidable, void marriages: - - - - 45

CHAPTER FOUR: HUMAN RIGHTS: INTERNATIONAL LAWS; MUNICIPAL LAWS: CONFLICTS AND RESOLUTION
4.1 Definition/Introduction: - - - - 59
4.2 Classification of Human Rights: - - - 60
4.3 International laws: - - - - - 64
4.3.1 Overview: - - - - - - - 64
4.4 Conflict of Humans Rights: - - - 66
4.5 Resolution of Conflicts of human Rights: - 69
4.6 Intending Spouses: - - - - - 72  

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion: - - - - - - 74
5.2 Recommendations: - - - - - 75
Bibliography: - - - - - - 76

 TABLE OF CASES
1. Smith V. Handcock (1944 46) WALR 21
2. Adelaide Company of Jehavah’s witnesses V. the commonwealth
3. Victorian Chamber of manufacturers V. the commonwealth (1943)69 CLR 413…
4. Badejo V. Minister of Education (1996)9-10SCNJ 51…
5. Medical and Dental practitioners Disciplinary Tribunal V. Emewulu & Anor. (2001) 3 SCNJ 106
6. Mordaunt V. Mordaunt (1870) L.R. 2 P & D 109, 126…
7. Hyman V. Hyam (1929) A.C. 601
8. Orient Bank Plc V.  Bilante INT’L (1997)8 NWLR (Pt. 515)37 at 70……
9. Harvey V. Johnson (1929) A.C 601
10. Okobule V. Oyagbola (1990)4 NWLR (PT. 147)723…
11. Currie V. Msa (1879) L.R. 153
12. Harrod V. Harrod (1854) IK & 74
13. Hyde V. Hyde (1860) LRI PD 130
14. Agbo V. Udoh (1947) 18 NLR 152…
15. Obiekwe V. Obiekwe (1963) ENLR 196…
16. De Renville V. De Renville (1948) ALL ER 56 at 60…
17. D.E V. A-G (1845) ER 1039
18. Baxter V. Baxter (1948) AC 274…
19. R.V.R. (1952), ALL ER 1194…
20. Akpan V. Akpan Suit No. WD/12/67 (unreported), High Court of Lagos 27/7/68…
21. SY. V. SY. (1863) 37 C.A…
22. Harthan V. Harthan (1949) 115 CA…
23. Anthony V. Anthony (1919) 35TLR 203…
24. C.V.C. (1962) 106…
25. Hedley Byrn & Co. Ltd V. Heller & Partners Ltd (1964)
AC 465…
26. Courturier V. Hastue (1856) 5 HLC 673…
27. Udogu V. Oki (1990) 5 NWLR (Pt.153) p. 721…
28. Wharton V. Lewis (1824) ER 1303…
29. With V. O’Flanagan (1936) CA 575
30. John Holt & Co. Ltd. V. Oladunjoye (1936)13 NLR 1…
31. Arior V. Elemo…
32. Kim V. State (1992) 48 CNJ 81..
33. Agbai V. Okogibue (1991)9-10 SCNT 49
34. Fawehinmi V. Abacha (1996)9 NWLR (pt 475) 10…
35. Smith V. Hand Cock  (1944)46 WALR 21…  

STATUTORY AUTHORITIES

1. Matrimonial Causes Act (Cap. 220) LFN 1990
2. Marriage Act
3. Constitution of the federal republic of Nigeria of Nigeria 1999
4. Criminal Code Cap 77 LFN 1990
5. Land Use ACT   1978 (Cap. 202) LFN 1990
 INTERNATIONAL COVENANTS
1. Universal Declaration of Human Rights.
2. International Covenant on Economic, Social and Cultural Rights.
3. International Covenant on Civil and Political Rights.
4. African Charter on Human and Peoples’ Rights.
5. Convention on elimination of all forms of discrimination against women.
6. Convention of the rights of the child.
 TABLE OF ABBREVIATIONS
HIV - Human Immunodeficiency virus
AIDS - Acquired immune deficiency syndrome
ELISA - Enzyme-link immunosurbent assay.
NACA - Nation Action Committee on AIDS
SACA - State Action Committee on AIDS
LACA - Local Government Action Committee on AIDS
NASCP - National AIDS/STD control programme
STD - Sexually Transmitted Disease
ART - Anti Retroviral Therapy
WHO - World Health Organization
U.N - United Nations
UNAID - Joint United Nations programme on HIV/AIDS
FCT - Federal Capital Territory
HEAP - HIV/AIDS Emergency Action Plan
NSF - National Strategic Framework
CSO - Civil Society Organizations
NGO - Non-Governmental Organization
FBO - Faith Based Organizations
MCA - Matrimonial causes Act
LFN - Laws of the Federation of Nigeria
MA - Marriage Act
LUA - Land use Act
CC - Criminal Code
OVC - Orphans and vulnerable children
U.K - United Kingdom
S.C - Supreme Court
WALR - West African Law report
NWLR - Nigeria Weekly Law Report
NLR - Nigeria Law Report
KJV - King James Version (of the Holy Bible).
ERNLR - Eastern Region of Nigeria Law Report
ALL ER - All England Report
C.A - Court of Appeal
ER - English Report
CFRN - Constitution of the Federal Republic of Nigeria
SCNJ - Supreme Court of Nigeria Judgment
ECOSOC - Economic and Social Council
ACHPR - Africa Chapter an Human and People Rights
Ed’n - Edition
ANC - Antenatal clinic
ILO - International Labour Organization
UNESCO - United Nations Education Scientific and cultural
Organization.
UNHCR - United Nations High commission on Refugees
ABSTRACT
Due to its deadly nature, HIV has become the most dreaded epidemic in Human History. It has, over the years deferred medical attention, apparently turning medical practice into shreds. Unarguably, every human enjoy some rights designated fundamental human rights because of its inalienability and indispensability. These rights, however cannot be absolute in order to also give way to other humans enjoy their own rights within the ambits of the law. In this way, it has become utmost necessary for intending spouses to undergo a comprehensive diagnostic medical laboratory examination prior to their marriage contract. This is borne out of the challenges encountered by spouses due to the eventual demise of a partner immediately after a valid marriage had been contracted. This is because the HIV/AIDS, as seen in this research work is, irrespective of the petro-dollars invested and divested into its policies annually, it has remained incurable. Thus putting the global community on a serious threat. The incurability of this  ailment  may therefore be a basis for slipping out of a marriage proposal relying on S. 36(1) (a) MCA worsened by refusal to submit for medical laboratory examination which find expression in S.36(1)(b) and (c) MCA (supra). Or should the fundamental human rights of an HIV sterile person be sacrificed on the altars of an HIV sero-positive patient who hold tenaciously to his right to private and family life?. Or should an HIV sero-positive patient rely on the principles of confidentiality or non mandatory HIV screening to cause untold hardship to someone else after marriage? These and other topical issues informed the basis of this research work and the recommendations proffered herein which if strictly adhered to will inject decency into relationships and cut down on the level of HIV/AIDS-induced deaths.


 CHAPTER ONE
1.1 INTRODUCTION

The HIV1 /AIDS2 pandemic has constituted the greatest health challenge of our time. By the end of 2003, Nigeria was adjudged to have the third highest burden of HIV in the world after South Africa and India3.

Since the first reported case of HIV/AIDS in Nigeria in 1986, the huge blow on the nation with about 2.09 million Nigerians currently infected4. To respond to this epidemic, the Federal Government of Nigeria put in place various programmes aimed at controlling and mitigating its impact5.  Some of these programmes include the continuous monitoring of the HIV/AID epidemic through a biennial sentinel survey among pregnant women attending antenatal clinics in Nigeria (as one its health system approaches), the introduction of the agencies like national Action committee on AIDS (NACA), state Action committee on AIDS (SACA) and local Government Action committee on AIDS (LACA) at all the three tiers of Government-National State and Locals respectively, National AIDS and reproductive Health survey (NASCP), National, AIDS/STD control programme (NASCP), family life and HIV/AIDS education, etc, etc.
A part from the health sector approach, there is also the multi sectoral approach which is public sector driven. In the analysis of this, the role of CSOs (NGOs) FBOs and philanthropists come in handy. This closes chapter two of the work.
In chapter three however, marriage as defined in the case of HYDE V. HYDE as the voluntary union for life of a man and a woman to the exclusion of all others, takes precedence. Here we shall see marriage both as an institution and a contract. As a contract specifically, we shall view in a concise form, the application of the elements of a valid contract.
Extensive and indepth analysis of statutory marriage through judicial and statutory authorities will be brought to the fore. Void, voidable marriage and conditions occasioning same shall be discussed with special emphasis on inability to consummate the marriage, venereal/sexually transmitted diseases and infections including the HIV/AIDS, syphills, Gonorrhea, etc will be relied upon. To this end, the following judicial and statutory authorities, due to their relevance will be extensively canvassed: SS.3(1)(b) and (d), 36(a)(b) and (c), 5(1)(c), 11(i)(d), 36(1)(a) and (b) MCA; and DE. RENVILLE V. DE RENVILLE, D-E V. D-G, BAXTER V. BAXTER, AKPAN V. AKPAN, ANTHONY V. ANTHONY HARROD  V. HARROD, etc, etc. and some Biblical allusions.
Finally, who is competent to bring and action for nullity, in each of the cases of marriage defects if finally closes with fraudulent misrepresentation and concealment of vital facts as vitiating elements of a marriage contract.
The project work shall, in its chapter four look at Human rights in its historical perspective; human right as a concept: promotion and protection of same. Sub-topics shall be created, for international laws, treaties conventions. How human rights are brought into conflict and the possible resolution of same with relevant provision of our CFRN 1999. This masterpiece shall be brought to its terminus with chapter five capping in a conclusion, recommendation and bibliography.      

1.2 BACKGROUND
The background of this research work centres on the uncertainties in life expectancy occasional by the deadly HIV/AIDS epidemic especially when would be-couples indulge in and take   coverage under non mandatory HIV/AIDS screening to cause untold suffering to the other party.
The possible development of the instrument of social engineering to sanitize this apparent apaque area of human existence resolving attendant conflict for the common good of humanity.

1.3 SCOPE
The scope of this study has HIV/AIDS, the pivotal importance and usefulness attached to intending spouses knowing their status. How human Rights are brought into conflict  in the event of each intending party to a marriage contract invoking his/her rights to the fullest; invocation of the instrumentality  of the law such as the decision in AKPAN V. AKPAN, S. 36(1)(a), (b), (c) MCA and S. 45 CFRN 1999 others, to resolve the conflict. The study will here deal with the provision of international laws including the universal declaration on human rights, African charter on Human and peoples’ rights, amongst others

1.4 OBJECTIVE OF THE STUDY
The objective of this study is to establish that HIV/AIDS is a problem that is assuming a generational status which transcends the first infected partners to the affected society generally.
Consequently, this bring to the fore, the need to down play on ethical and strict legal issues as they affect rights. Further, to catalyze the non insistence on consent for surglo medical procedure though a holistic multi-sectoral and multidimensional approaches with the sole aim of conducting medical examination before the actual union of intending spouses as the only panacea  for decreasing and cutting down on the number of HIV/AIDS infected and affected: and orphans/vulnerable children in the society considering its health and social implications.

1.5 RESEARCH METHODOLOGY  
In this research work, reference shall be made of visits to the central library for research materials, documents on the subject matter of HIV/AIDS and human rights.
Secondly, a full fledged visit to the officer in charge, local Action committee on AIDS (LACA) Gokana Local Government
Council. Hence, issues on HIV/AIDS, full action committees from local to National levels were highlighted. Also statistical information and data were accessed and assessed. The research initiation of 2005 Federal Ministry of Health sentinel report on HIV/AIDS conducted on pregnant women attending antenatal clinics were extensively scrutinized and collated.
Another follow-up care was made through phone call to the librarian, College of Health Science and Technology Library, Rumueme Port Harcourt; all in a conscious effort to extracting relevant and authentic facts on the subject matter of HIV.
Finally,  indenting spouses, a topical issues in family law and its attendant literature survey was done at faculty of law reading and research libraries.
 CHAPTER TWO
2.1 HISTORY, ORIGIN AND NATURE OF HIV EPIDEMIC
Best known by its acronym, HIV is the causative virus of AIDS6. Most times, the two terms are used together, HIV/AIDS. The virus has been referred to as the real global terrorist of the present; and compared to the great plagues of the past in that it appears to be spreading unchecked and has, as yet no cure. Like other infectious diseases which have reached epidemic or pandemic proportions HIV/AIDS has given rise to a great deal of fear and stigmatization. It is a fatal disease.
Historically, the view of scientists on how, where and when the scourge emanated is multifaceted and indeed, divergent some hold that the disease is zoonotic. However, researchers have shown that HIV-17 and HIV-28 are more closely related to simian immunodeficiency viruses which infect monkeys and apes, than to each other. Thus it has been suggested that HIV evolved from viruses that originally infected monkeys and apes in Africa and where somehow transmitted to people. In 1999, researchers in United States of America found evidence that HIV-19 most likely originated in a population of chimpanzee in West Africa. The Virus may have been transmitted to people who hunted, butchered, and consumed the chimpanzee for food.
Scientists believe HIV infection became widespread after significant social changes took place in Africa during the 1960’s and 1970’s. Large numbers of people moved from Rural areas to cities, resulting in crowding, unemployment and prostitution. These conditions brought about an increase in cases of sexually transmitted diseases including AIDS.
HIV may have been introduced into industrialized nations several times before transmission was sustained and because wide spread. They also posit that AIDS was first identified as a ‘new’ disease by physicians in LOS Angeles and New York City in 1980 and 1981. The doctors recognized the condition as something new, because all the patients were previously healthy, young homosexual men suffering from otherwise rare forms of cancer and pneumonia. The name was adopted in 1982. Scientists soon determined that AIDS occurred when the immune system became damaged, and that the agent that caused the damage was spread through sexual intercourse, shared drug needles, and infected blood transfusions.
Other scientists opine that it was first recognized in 1981 as a cluster of related symptoms in a group of male homosexuals with profoundly depressed immune function. Patients with similar symptoms were later found among intravenous drug abusers, hemophiliacs, transfusion recipients, female and male sex partners of people with AIDS, and infants of infected mothers. The AIDS virus was isolated at the Pasteur institute in France in 1983. A diagnostic test suitable for the screening of blood and organ donors, was developed in the United States at the National Institute of health in 1984 and was rapidly adopted in North America and most European countries.
2.2 MODES OF TRANSMISSION  
The first stage of HIV infection occurs when the individual is infected with HIV through an exchange of body fluids and/or blood with an infected individual. Sexual contact and blood-to-blood contact are known as horizontal methods of transaction, i.e they move across one individual to another.

Transmission through Sexual Contact
Unprotected vaginal or anal intercourse is the most common means by which HIV can be transmitted from an infected to a non-infected person. It is difficult to determine absolutely whether other intimate sexual activities, e.g oral sex, can transmit the virus as they do not often occur in isolation. However, some individual cases have been reported.10


Transmission through Blood and Blood Products
Blood transfusion: – the spread of HIV in Western countries that have sophisticated blood transfusion services has been greatly reduced since the rigorous screening of donors was instituted in most countries in 1985. This development is not the same in third world countries where transmission though this mode is on the high side. Those suffering from transmission through sharing of equipment-HIV can be transmitted through   the sharing of syringes, needles and other blood giving equipments. In the Western World, this commonly occurs through the illicit, intravenous use of drugs. Here the probability of infection is often increased with the user ‘flushing’ the syringe with their blood before injection. In poorer countries, it also occur where there is reuse of medical equipment and insufficient sterilizing facilities. The mode of transmission is the same in both cases.



Percutaneous needle stick Injuries
There have been very few proven cases of infection by this mode. A study of 3000 incidents where individuals were exposed HIV puts the risk of seroconversion from a contaminated needle stick at 0.3% only 92 cases of occupational infection with HIV have been reported world wide11.

Transmission through Skin Piercing Procedures
Transmission is certainly a theoretical risk from procedure such as tattooing12 and cases have been reported of transmission by body piercing13 and skin grafting.
Others
Transmission through other body fluids, infection with HIV takes place only when there is sufficient concentration of the virus. Infection through saliva, for instance, is therefore considered unlikely worldwide. Retrospective studies have shown that the number of workers contracting the virus through urine, faces or saliva, for example, has been extremely small14.

Mother-to-child transmission
This form of transmission is known as ‘vertical’ transmission, i.e from an infected mother to her child in the womb, or during delivery. When the mother’s blood and the child’s blood become mixed there is a possibility that transmission through amniotic third and (‘horizontally’) through breast milk may also take place15.
From birth until 11-18 months the body will carry the mother’s antibodies including HIV. Therefore, all babies born to HIV-infected mothers are bound to be HIV antibody-positive. At about 11-18 months, the baby will loose the mother’s antibodies and go on either to being HIV antibody-negative, i.e not carrying the virus, or to developing their own antibodies.
A few of these babies go on to become HIV antibody-negative but positive to another test which isolates antigen (particles of the actual virus), so that they are carrying the virus but not the antibodies.
A side from the particularities above, some researchers identified three main ways in which HIV is transmitted. These are sexual intercourse, direct contact with infected blood, and transmission from an infected women to her fuctus or unborn  baby. The most common way of becoming infected is through sexual intercourse with an HIV-infected person. Some authors put  the percentage of transmission through this mode at 95%.
In third word countries which are characterized by denegrating  poverty, population explosion/over crowding, and lack of access to quality health care, people even have the virus without taking notice there of. By so doing, they become vectors and even transmit the deadly virus to an apparent healthy population without knowledge of it. This pathetic condition is worsened by its complication that eventually end in death. It is therefore worthwhile to look out for its immediate observable signs; otherwise known as signs and symptoms in order not to further enhance the spread unnoticed.  

2.3 SIGNS AND SYMPTOMS
People infected with HIV eventually develop symptoms that also may be caused by other less serious conditions. With HIV infection, however, these symptoms are prolonged and often more severe. They include enlarged glands, tiredness, fever, loss of appetite and weight, diarrhea, yeast infection of the mouth and vagina and night sweats HIV commonly causes a  severe wasting syndrome  resulting in substantial wait loss, a general decline in health, and, in some cases, death. The virus often infects the brain and nervous system. There, HIV may cause dementia, a condition characterized by sensory, thinking, or memory disorders, HIV infection of the brain also may cause movement or coordination problems.



Testing and Screening      
HIV/AIDS testing involves analysis for HIV antibodies. Testing for the actual virus, ie testing for HIV core antigen,. Particles of the virus is used for clinical prognosis and management, not generally for diagnostics purpose. Blood samples are used at present for all forms of testing, although urine and saliva tests are being developed, especially for use and screening.

Screening      
The term ‘screening’ is generally used, in the context of HIV, to refer to the process by which blood samples undergo laboratory analysis by enzyme-linked immunosorbent   assay (ELISA). This procedure is carried out in several samples at once and is used to find out the prevalence of HIV antibodies in a batch of samples.  as in the case of among mous prevalence surveys. The screening assay has a built-in false-positive rate which ensures that there are no false-negative readings. The analysts know the percentage false positive rate of assay and so, when confronted with a batch of positive results, can make mathematical adjustment to get an accurate picture of the prevalence of HIV in the group.

Individual Testing:
While ELISA is an efficient method of mass screening, it is far from satisfactory for testing an individual, for whom a false positive result would be devastating. Therefore in individual testing, the sample first undergoes ELISA, and then immunobletting or  the Western blotting method, accurate to within thousands of 1%, to confirm the diagnosis. This method is more complex and is available only in sophisticated laboratories. In poorer countries, samples may undergo repeated ELISA procedures instead of Western blotting to achieve maximum accuracy in difficult circumstances.

Forms of HIV Testing
There are various forms of HIV testing, some of which may, depending upon circumstances be controversial. For the purpose of this project, mere reference shall be made of flow. They include:
Named voluntary testing with pre-aud post-testing counseling.
Named voluntary testing with minimal or no counseling.
Conditional named voluntary testing
Local anonymous HIV seroprevalence surveys.
National amonymous survey of the seroprevalene of HIV.

2.4 DIAGNOSIS
Both definitive and presumptive diagnoses are acceptable. HIV wasting syndrome. Weight loss of more than 10% boy weight, plus either unexplained chromic diarrhea/more than one month), weakness and unexplained prolonged fever (more than one month) HIV encephalopathy, clinical findings of disabling cognitive and/or motor dysfunction interfering with activities of daily living,  progressing over weeks and months, in the absence of a concurrent illness or condition other than HIV  infection which could explain the findings.  Reproduced with permission from the world health organization (2003).
A patient is diagnosed as having AIDS only if he/she is HIV antibody- positive and have one of the designated  infection or diseases associated with AIDS. The classification of these diseases devised by the centres for diseases control (CDC, 1987) in U.S.A is used globally. Also current is the World Health organization clinical staging system for HIV infection and disease16.
It is important to understand the following relationship between HIV antibodies and AIDS. Everybody who has AIDS is HIV antibody-positive, but not every body who is HIV antibody-positive has AIDS. It should be pointed out that an individual who has a positive HIV antibody status sometimes become ill without been diagnosed as having HIV antibody –positive has AIDS. It should be pointed out that an individual who has a positive HIV antibody status sometimes become ill without been diagnosed as having AIDS.
This may be because they have not yet contracted one of the infections/diseases on the classified list but are ill for some   other reasons or because they are experiencing side-effects of, for instance, antiretroviral treatment [Nursing practice, hospital-home, churchill living  Stone: 2001:1170).

2.5 POLITICO-SOCIAL & OTHER IMPLICATIONS OF HIV/AIDS
AIDS has been refered to as “the real global terrorist” of the present and compared to the great plagues of the past in that it appears to be spreading unchecked and has, as yet no cure. Like other infectious diseases which have reached epidemic and pandemic proportions, HIV/AIDS has given rise to a great deal of fear and stigmatization. In formulating health and social policies in response to AIDS, governments have a duty not only to safeguard the health and well-being of their populations as a whole, but also to protect the rights of those individuals affected by the disease (churhcil living stone…).
The foundation for political and social responses to HIV/AIDS is provided by the work of epidemiologists, who define the disease, describe its typical progression and determine its national and international incidence. Also relevant is its prevalence within particular groups. On the basis of these findings, predictions are made as to the future impact of the disease17. Armed with this knowledge, nursing, medical and scientific practitioners along with the individuals and groups affected endeavour to raise awareness of HIV/AIDS and to lobby governments to take appropriate action.
Although cases of HIV/AIDS were known in 1981, it was not until 3 years that HIV appeared officially to be recognized as a threat to the whole community. Various media campaigns were instigated from 1985 onwards and the first full debate in the U.K was help in the House of commons in November 1986 (Hansard 1986).
2.6 THE ROLES AND INTERVENTIONIST ACTIVITIES OF FOREIGN AGENCIES IN THE MANAGEMENT AND CONTROL OF THE SCOURGE
Overview:- Foreign  agencies and bodies are actively involved both in partnership and direct interventionist activities and programmes in Nigeria to respond to the scourge.

This is done through sero-survellance, identification, recommendation, mobilization, information and data collation awareness creation and management initiatives.
The United Nation Organization: World Health Organization
The U.N through the agency of the world health organization (WHO) had embarked upon lots of programmes and activities geared towards the control and management of few HIV/AIDS      epidemic all over the world including the west African sub-region. This include identification/spotting out of avenues for effective control and persuading governments of members states including Nigeria to implement world policies/programes on HIV/AIDS. e.g It emphases on the practical implementation or treatment for the vast members of people with HIV and its related illnesses in financially poor and developing counties, particularly Africa. Progress is slow, but gathering momentum. The WHO’s (2003a) 3 by 5’ campaign, which is aimed to treat 3 million people by 2005, is in stark contrast to previous ideals and policies…
Provision of ART subsidizing same to poorer countries of the world:-
Lack of access to ART is global health emergency…to deliver ART to the millions who need it, we must change the way we think  and change the way we act (WHO 2003b).

3. Identification of areas that need improvement in policies and activities of governments of states and making recommendations through active involvement. Eg the WHO clinical staging system for HIV infection and diseases (WHO 2003c).
4. Recruitment of personnel, training them on the latest developments and sending them to retrain others for effective service delivery.
5. Providing latest information on diagnosis thereby equipping medical  personnel for efficiency
6. Identification of higher risk zones and population for possible assistance.
ii. USAIDS18
This is another arm of the UN that manage HIV/AIDS eg the HIV sentinel sero-surveillance survey in Nigeria bienmially is based on the recommendations of USAIDS
iii. The U.S centres for Disease control and prevention etc.

2.7 NATIONAL RESPONSES TO STEM THE SCOURGE      
As part of federal government efforts to address the problems posed by HIV/AIDS, the following responses were instituted.
1. (NACA)19 with the following functions:-
i. To coordinate and facilitate coherent and realistic strategy.
ii. In the “start up” phase, the committee should over see a situation  analysis (what is currently being done, what are the gaps etc) develop a strategy and implement plan for a comprehensive federal government response as well as coordinate, monitor and evaluate its implementation within the federation.
To mobilize resources to implement the federal government strategic plan as well as coordinate and monitor HIV/AIDS resource utilization.
To coordinate the implementation of the federal government agencies as well as NGO’s and internationally based organizations as appropriate.
To identify and work with focal points/offices in all federal government departs and CSOS responsible for the implementation of HIV/AIDS activities in the federation and monitor their progress.
To facilitate communication and reporting on the federal HIV/AIDS response through out the federal and to the broader public.
To serve as a forum for problem solving in relation to obstacles that may arise in implementing federal response to HIV/AIDS.
To manage, monitor and report to any specific funding (in life associated requirements) which has been allocated via the committee to the federal government HIV/AIDS response.
To promote the development of a larger “representative work” of individuals and organization, not necessarily currently involved in HIV/AIDS activities, but with potential to support the work of the committee such as technical experts, or decision maker from key sectors.
To meet with team/coalitions from states/municipalities to share resource learned.
2. SACA20
The counterpart of NACA at the state level is the SACA. This has its main functions as those performed by the NACA at the federal level. Therefore,  while NACA coordinates at the federal level, SACA do same functioning at the state level.
Coordination of action plan for infective implementation of government HIV policies.
3. LACA 21            
As pointed out above, all functions of NACA/SACA are implemented by LACA at the Local Government level. Therefore to ensure an organized HIV/AIDS service delivery, LACA coordinates the policies as relates to action on AIDS, bridging the gap between the state and the local communities. It follows therefore that the state actions are duplicated and replicated at the LGA level.
2.8 EFFICACY OF THE ACTIONS
In 2003, it was estimated that about 3.2 to 3.8 million persons were living with HIV/AIDS in Nigeria22.
To respond to the epidemic, the presidential council on AIDS and the NACA23 were established in 2000. These bodies have facilitated a coordinated multisectoral response through provision of comprehensive  prevention and care services within the context of the HEAP24, HIV/AIDS Health sector plan and NSF25.
HIV sentinel surveillance was established to monitor trends in the epidemic and assess the impact of the response…the 2005 sentinel survey involved 36, 93, pregnant women attending antenantal clinics in 160 sites (86 urban and 74 rural ) in 36 states and the FCT26. The survey was managed by a survey management team set up by the federal ministry of health under the chairmanship of the Director of public Health. The NACA27, UN agencies, bilateral agencies and other stakeholder participated as members of the committee…
The HIV prevalence among pregnant women aged 15-49 years has declined over the last few years (5.8% in 2001 to 5% in 2003 and 4.4 in 2005). The same trend has been observed among young pregnant women internal aged 15-24 years.
Several factors may explain the observed deceive including the effect of the ongoing intervention efforts, the increase in the number of rural survey sites, and death of those previously infected.
Based on the current HIV prevalence in the country, it is estimated that about 2.9 million people are presently living with HIV/AIDS. Although there is decline in HIV/AIDS prevalence 28….          



 CHAPTER THREE
3.0 INTENDING SPOUSES
Rights, duties, obligations, etc of would be spouses: vitiating factors of a marriage arrangement –voidable, void marriages.

3.1 MARRIAGE
Marriage is the relationship between a husband and a wife29.  It has also been defined as the voluntary union for life of a man and a woman to the exclusion of all others30. It also31 said ibid “…” customary law or traditional marriage is polygamous and therefore a union between one man and several women or between one man and one woman with the man having a right to take on more women during the subsistence of the marriage”.
From the above positions, marriage could either be monogamous or polygamous depending on whether it is statutory/Christian, or customary/Islamic, as would be seen later on  in this work.
Marriage could also be seen as an institution or contract depending on the prevailing citcumstances32.

3.1.1 MARRIAGE AS AN INSTITUTION
“Marriage is a universal institution which is recognized and respected all over the world. As a social institution, marriage is founded on and governed by the social and religious norms of society. Consequently, The sanctity of marriage is a well accepted principle in the world community. Marriage is the root of family and society33. with due respect, due to the relevance of the project topic, recourse shall be had to extensive discussion on marriage not as an institution34; but as a contract with emphasis on statutory marriage.



3.1.2 MARRIAGE AS A CONTRACT
Marriage is a contract whereby the parties thereto enter into legal relations involving rights and obligations. This statement is true of both the monogamous and the polygamous systems of marriage. But the contractual   aspects of the two systems differ in material aspects. In monogamous marriages, the contractual elements are fully developed on the term of the English law of contract. But in customary law marriages the applicable rules are undeveloped and uncertain because customary law has not developed on precise rules governing contractual relations. Like ordinary contracts, a monogamous marriage is consensual in origin34a. It   is the mutual consent of the parties that bring the agreement into being.
Such agreement as was held in the case of MORDAUNT V. MORDAUNT35 , require special forms and ceremonies for its solemnization. It is also held  Ibid… and in the case of HYMAN V. HYMAN36 .
It will be safe at this point to mention that marriage is subject to most of the elements of any valid contract-offer37 and acceptance38, consideration39, intention to enter into legal relations40, etc.
Further, the contract to marry, like ordinary commercial contracts, may be created orally or in writing. In the latter case, the contract need not be a formal document embodying the mutual promises of the parties. The contract comes into existence by the mutual exchange of promises by the parties to marry each other41. At this point, there is consensus ad idem. Thus in this contract, there is exchange of promises   ie the promise of one party is given in consideration of the promise of the other party. It was held in the case of  HARVEY V. JOHNSON42 that there is valuable consideration  where at the request of the defendant and on a promise of marriage, the plaintiff travels a long distance for the marriage.
Having established that marriage is a specie of contract and therefore subject to the terms of any valid contract, I shall vow examine statutory marriage as a “concept.

3.1.3  STATUTORY MARRIAGE: HISTORICAL DEVELOPMENT
For the purposes of brevity, I shall lump together marriage both at common law and under statute.
With the merger of Lagos colony and the protectorate of southern Nigeria  in 1806, the marriage proclamation was  repealed and the 1884 ordinance  applied to the whole of the new political and administrative entity pursuant to the marriage proclamation 1906 (No. 10 of 1906) and marriage ordinance (No. 95 of 1908). Meanwhile the protectorate of northern Nigeria was left out of these developments. Unstill 1907, there was no provision for statutory marriage in that part of Nigeria. But in that year, the defect was made good by the issue of marriage proclamation 1907 for the Northern protectorate. This piece of legislation, like the Southern counterpart, was similar to the 1884 ordinance.
The merger of Northern and Southern Nigeria in 1914 made it imperative to streamline the marriage laws in the new political entity called Nigeria.
This was achieved through the marriage ordinance of 1914, which applied throughout Nigeria. It repealed the marriage ordinance 1908, the marriage proclamation 1907, and the foreign marriage ordinance 1913. with minor amendments. This statute still continues to regulate the celebration of monogamous marriages in Nigeria pursuant to marriage Act Cap. 115, laws of the federation of Nigeria 1958. The 1914 statute is substantially similar to 1884 ordinance and based on the same principles of  monogamy as the English law of marriage pursuant to the provision of the marriage Act 194943.

3.1.4 REQUIREMENTS/ESSENTIALS OF A STATUTORY
MARRIAGE  
I shall examine only those requirements of  relevance
(a). Age the marriage Act makes no stipulation as to marriageable age in Nigeria. Consequently, resort shall be had to the common law rule. This is because the matrimonial causes Act in its S. 3(1)(e)44 merely  render  void marriage between parties who either of their ages is not of “marriageable age” but fail also to specify the actual marriageable age. The common law rule, as part of the statutes of general application, puts it at “puberty’. Thus in the case of HARROD V. HARROD45, the age of puberty is pegged at fourteen  years for boys and twelve years for girls.
b) Consent of the parties: the definition offered in the case of HYDE V. HYDE46, to the effect that marriage is the voluntary union for life of one man and one woman to the exclusion of all others; is relevant.
The reference to the phrase “voluntary union” is in tandem with the provision of the MCA. Accordingly to S.3(1)(d)47: the consent of either of the parties is not a real consent:-
It was obtained by duress or  fraud; or
That party is mistaken as to identify of the other party, or as to the nature of the ceremony performed.
(c) Prohibited Degree of consanguinity and affinity S.3(1)(b)48 and S.4 MCA prohibits marriage within the said degree except upon application.
(d) Absence of the prior or existing marriage.  BY the provision of the matrimonial causes Act49, that neither of the parties to the intended marriage is married by customary law to any other than the one with whom such marriage is proposed to be contracted.
Also50, no marriage in Nigeria should be valid where either of the parties thereto at the time of the cerebration of such marriage is marriage under customary law to any person other than the person with whom such is contracted.
e) Sanity:- S.11(i)(d)MCA
f) Consent of parents: In the case of Agbo v. Udo51, the plaintiff contracted a statutory marriage with his wife. He latter petitioned the court for the dissolution of the marriage on the ground of his wife’s adultery with the co-respondent. The co-respondent contended that the wide was a minor at the time the marriage was celebrated, and that no parental consent was obtained, as required by the law. Consequently there was no valid marriage between the applicant and his wife which the count might dissolve.
It was held that notwithstanding the absence of parental consent the marriage was valid under S.33(3) of the marriage Act. While the absence of parental consent does not vitiate the marriage; according to S.49 of the marriage Act, it is an offence punishable with two years imprisonment for any person fully aware of the absence of such consent to marry or to assist or procure any other person to marry the minor.
3.1.5 CHURCH MARRIAGE        
Having examined briefly the concept of statutory marriage, it is worthy of note that church or Christian marriage being monogamous, qualify as marriage under the Act. Thus David Wodo, said,
“the main advantage in the church is that it allows those involved to make solemn promises to each other in love before friends and most importantly, in the presence of God. The accepted belief is that a couple getting married under Christian norms have agreed to live by the doctrine of the Holy Bible as it applies to marriage union. They have agreed to leave their mothers and fathers and cleave to each other as one flesh51a “.

Even though the position of Nwogugu52 appear not to support the above hypothesis in view of his extensive deliberations, inclinations to the contrary, my proposition in paragraph  one above is with due respect, maintained. Reason being that the learned author based his deliberation on a case of the   Roman Catholic church amongst so  many, which may be a fallacy of hasty generalization and a negatively schewed analysis. May, I therefore ask what of other cases of the Roman Catholic Churches that may not follow that pattern? What about other orthodox churchers-Anglican, Baptist, etc and what about the entire Pentecostals, the charismatic, the evangelicals etc. Christian marriage is monogamous with the following Biblical  allusion, “therefore shall a man leave his father and mother, and shall cleave unto his wife: and they shall be one flesh53. “To buttress this fact, the teaching of Jesus on divorce is most illuminating54. “The Pharisees also come unto him, tempting him, and saying unto Him, is it lawful for a man to put away his wife  for every cause?. And he answered and said unto them, have ye not read, that he which made them at the beginning made them male and female. And said, for this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together let not man put asunder.
They said unto him,   why did Moses then command to give a writing of divorcement, and to put her away? He saith unto them, Moses because of the hardness of your hearts suffered (ie allowed or permitted)55 you to put away your wives: but from the beginning it was not so.
And I say unto you, whosoever shall put away his wife…and shall marry another, commit adultery: and whoso married her which is put away doth commit adultery. And his disciples say unto him, if the case of the man be so with his wife, it is not good to marry”.
Also, it is said56, “for the woman which had an husband is bound by the law of her husband so long as he liveth: but if the husband be dead, she is loosed from the law of her husband31. From the above, it is seen that Christian/church marriage is monogamous. Infact, separation is not allowed as could be seen thus, “and unto the married I command, yet not I, but the lord, let not the wife depart from her husband57.
Also from the provision of the MARRIAGE ACT58. It is held, “A minister shall not celebrate any marriage if he knows of any just impediment to such marriage, nor until the parties deliver to him the registrar’s certificate or the licence issued under S. 13. Default in the above provision is punishable with five years imprisonment pursuant to S.4359. At common law, in the case of OBIEKWE V. OBIEKWE60; palmer, J61 was called upon to determine the validity of a marriage celebrated at the Holy Ghost Roman Catholic Church, Enugu, on 30 December 1961, without the parties thereto complying with the provision of the marriage Act. The learned Judege, after remarketing or the indifferent attitude of the officiating priest to the Law pointed out that:
As the law of Nigeria confers upon priest and ministers of religion the right to officiate at marriages recognized by the state, it is their duty to make themselves familiar with the ordinance and to see that people who come to them to be married understand their legal position.
With regard to the validity of church marriage, Palmer, J. enunciated the law succinctly thus:
A good deal has been said about “church marriage” or ‘marriage under Roman catholic law’. So far as the law of Nigeria is concerned, there is only one form of monogamous marriage, and that is marriage under the ordinance. Legally a marriage in a church or any denomination) is either a marriage under the ordinance or it is nothing. In this case if the parties had not been validly married under the ordinance then either they are married under native law and custom or they are not married at all.  In either case the ceremony would have made not a scrap of difference or to their legal status.
One may therefore be tempted to ask “what is the purport of marriage under the Act” is it to avoid the offence of Bigamy, or to preserve the sanctity of the marriage contract or its monogamous nature? Then the Christian/church marriage qualifies.
Finally, to the extent that marriage has been expressed to be a contract op.cit, the representations occasioning CONDITIONS AND WARRANTIES must be dependable, reliable, unshakable and devoid of fraud, duress, and undue influence and misrepresentations.

3.1.6 VOIDABLE VOID MARRIAGE
Certain situations can render a marriage, as in any contract,  voidable, void depending on the circumstances and indeed, the representations and obligations  of the parties thereto.
It is therefore highly imperative for intending spouses, especially parties to any marriage in this computer and jet age to, as a matter of duty be honest in their representations, their Health/HIV status, financial status, etc. In fact, be sincere not to conceal any vital information that could mar and not make the relationship workable.
(i) Voidable marriage:- A voidable marriage is regarded at law as valid and subsisting until  it is set  aside by the decree of a court of competent jurisdiction. It is said that a voidable marriage, being a valid and subsisting marriage until set aside, can only have the decree for such nullity instituted by par5ties thereto. The decision in the case of DE RENVILLE V.  RENVILLE63 provide a succinct distinction between void and voidable marriage thus:
A void marriage is one that will be regarded in every court in any case in which the existence  of the marriage is in issue as never having taken place and can be so treated by both parties to it without the recessity of any decree annulling it.
A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.
There are certain essentials inherent in a voidable marriage thus:
The validity of a marriage alleged to be voidable can only be challenged by parties to it.
In a voidable marriage action to annul it must be commenced during the lifetimes of both parties. The death of one or all of the parties bars the right of action.
The doctrine of approbation (ie affirmation or acquiescence ) apply to voidable marriage.

Grounds Rendering Marriage Voidable
Pursuant to S.5 matrimonial causes Act, a marriage would be voidable in the  following circumstances,
where either of the parties to the marriage is incapable to consummate the marriage;
where either party is:
Of unsound mind;
A mental defectives;
Subject to recurrent attacks of epilepsy or  insanity
Either of the parties is suffering from a veneral disease of a communicable form .
The wife was at the time of the marriage pregnant by a person other than the husband…


Void Marriage
A void marriage is one that has never been in existence. Such a marriage is void ab initio, and the parties thereto have never acquired  the status of husband and wife. Thus in the case of DE. RENVILLE V. DE RENVILLE 64 , court held…. A void marriage is one that will be regarded by every court in any case in which the existence of the of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it…

Essentials of a voidable marriage
Any person  can present a petition for nullity of a void marriage provided he or she has an interest in having the marriage annulled.
Action can be brought to annual a void marriage after the death of one of the parties, as opposed to a  voidable marriage
The doctrine of approbation (ie affirmation or acquiescence) does not apply to a void marriage.

Grounds Rendering a Marriage Void
S.3(1) of matrimonial causes Act lay down conditions that could render a marriage void thus:
(a). Either of the parties is at the time of the marriage already married to someone else.
(b) The parties are within the probated degrees of consanguinity and affinity;
(c) The marriage is not valid due toe failure to comply with the formalities laid down under the law of the place where the marriage was celebrated;
(d) The consent of either to the of the parties is not real consent because it was obtained by:
(i) Fraud or duress; or
(ii) That party was mistake as to the nature of the ceremony or as the identity of the  other party or
(iii) That party was mentally incapable of understanding the nature of a marriage contract;
(e) either of the parties was not of marriageable age65
Grounds that render a marriage voidable/void
1. Incapacity to consummate the marriage

A marriage is voidable where either of the parties to it is incapable of consummating the marriage pursuant to S. 5(1)(a)66. In capacity to consummate a marriage means that the party in question is impotent which is distinguishable from sterility. There must be full penetration to amount to consummation of the marriage according to the decision in D-E  V. A.G67, per Dr. Lushington. Also, by the decision in the case of BAXTER V. BAXTER68; the House of lords held that a marriage is consummated where the spouses use contraceptive sheaths or other mechanical forms of contraception. Penetration without ejaculation may be sufficient to constitute consummation. This explains the decision in R.V.R . (1952)1 ALL ER 1194.
The incapacity to consummate must exist both at the time of the marriage and the hearing of the petition, pursuant to S.5 (1)(a) and 36(1) MCA. The decision in S.V.S (orse W)  (1962)3 WLR 396; if the  incapacity  is cured before the hearing  of the petition, it will not render the marriage voidable.
Most importantly, where a marriage is not consummated after a reasonable period  and the respondent refuses to submit to medical examination, there may be a presumption that the respondent is incapable.
Thus in AKPAN V. AKPAN69  the parties were married in London on 28 January, 1965.  throughout  the period of their co-habitation in England and journey back to Nigeria, they shared the same bed but there was no sexual  intercourse. The respondent attempted several times to have intercourse but was never successful. On each occasion, he could have no erection. The medical inspectors’ report and the medical evidence established that the petitioner was able to consumable the marriage. But the husband respondent refused to submit to medical examination. It was held that failure to consummate the marriage was due to the incapacity of the respondent.
Before the marriage is declare voidable on the    ground of incapacity to consummate the court must be satisfied that the defect is incurable. By the provision by 36(1) (a)70. A decree of nullity of marriage   shall not be  made on the ground that the marriage is voidable by virtue  of S. 5(1)(a) of this Act, unless the court is satisfied that the incapacity to consummate the marriage also existed at the time when the  Hearing of the petition commenced and  that:
The incapacity is Not CURABLE, or
The  respondent refuses to submit to such MEDICAL EXAMINATION as the court  considers necessary for the purpose of determining  whether the incapacity is  CURABLE; or
The respondent refuses to submit to proper treatment for the purpose of curing the incapacity.
Where the     incapacity is  not curable by medical   treatment, the decree comes in handy. This was canvassed in SY. V . SY (1963) P. 37 (CA).
It  is worthy of note that even an impotent person may, as in the case of  HARTHAN V. HARTHAN71  petition for nullity on the ground of  his impotency if it is  proved that he was not aware of the incapacity at the time of the marriage.
By the express provision of S. 3572 . A Decree for  nullity of marriage shall not be made upon the petition of:
(a) The party suffering from the incapacity to consummate the marriage, on the ground that   the marriage is voidable by virtue of S. 5(1)(a) of this Act, unless the party was not aware of the existence of the incapacity at the time of the marriage; a decree for nullity subsists due to the petitioners lack of knowledge of the incapacity at the time of contracting the marriage.
 (2) Veneral Disease
 What it is
It is disease that is caught by having sex with an infected person72a.
Veneral  diseases are basically sexually transmitted disease or infections. They include infections/diseases like Gonorrhea, syphilis,  chanchroid,, clamydia, herpes, simplex,   HIV/AIDS etc.
In the case of HARROD V. HARROD73, it was held that  a marriage is voidable where at the time of its celebration either party was suffering from a veneral disease of a communicable form.
A marriage is therefore vitiated where at the time of the celebration of the marriage one of the parties was suffering  from a veneral disease of a communicable form, it has to be shown that the party was suffering from the veneral disease at the time of the marriage.
The party alleging the veneral disease may prove it in various ways including the calling of medical evidence. However,  it the party proves that he or she is suffering from veneral disease and that he or she has not had any intercourse with any other person a reputable resumption is raised that the veneral disease was contracted from other spouse. The respondent could rebut the prima facie case against him by medical proof that he is not suffering from the disease alleged. This way the principle canvassed in case of ANTHONY V. ANTHONY74
An Application for Nullity Must Prove to the Court:-
i. The applicant must satisfy the court that at the time of the marriage the petitioner was ignorant of the facts constituting the grounds, C.F  S. 37(a) MCA; otherwise it will   be taken that he approbated the disease.
ii. By the provision of S. 37(b) MCA the application must be field within the reasonable time, usually 12 months.
By the provision of S. 37(C) must and  the case of C.V.C75 for the decree of nullity to lie, it has to be provid that sexual intercourse has not taken place with the consent of the petitioner since he discovered the existence of the facts constituting the  ground.

Misrepresentation
A misrepresentation  is an untrue statement made by one party (to a contract-having already established that marriage is one) to the other before  or at the time of making the contract, with regard to some existing facts or to some past event which is one of the causes that induced the contract.
Misrepresentation can therefore  form the basis of an action both in tort (for the tort of deceit) or fraudulent misrepresentation  in contract. These principles could be gleaned from the case of HEDLEY BYRN & CO. LTD V. HELLER & PARTNERS LTD76 .
Also, it should be noted that a misrepresentation can also take the form of mistake as was canvassed in COURTURIER V. HASTIE77

Fraudulent Misrepresentation
In the case of UDOGWU V. OKI78; the court of appeal defined fraudulent misrepresentation thus:
What constitutes fraudulent misrepresentation and the remedy against it…” if two people enter into   a contract and if one of them for the purpose of inducing the other to enter with him, states that which is not  true, in point of fact which he knew at the time to be untrue, and if upon the false statement the contract is  entered into by other party, then generally an action at law is open to the latter for damages upon the deceit and there will be a relief in equity to the same party to escape from the contract”.

Fraudulent Misrepresentation as Vitiating Factor to A Marriage Contract
In the case of WHARTON V. LEWIS79 ; the defendant in an action for breach of  promise  {of marriage) successfully pleaded that he had made his promise under fraudulent and false representations about the plaintiff’s  former situation and the circumstances of her family. Abott, C.J, found that the plaintiff’s  representation that her father would leave property   for her on his death whereas in fact the father had recently compounded with his creditors induced the plaintiff to  make his pest in this decision is that where the plaintiff, in a contract of marriage…the promise was accordingly vitiated.
Concealment of Vital Facts or Failure to Disclose Same
The case of WITH V. O. FLANAGAN80
JOHN HOLT & CO. LTD VS. OLADUNJOYE81
 CHAPTER FOUR
HUMAN RIGHTS: INTERNATIONAL LAWS; MUNICIPAL LAWS: CONFLICTS AND RESOLUTION

4.1 DEFINITION/INTRODUCTION
The freedoms, immunities and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in the society in which they live82. Also, convention signed and ratified by members of the council of Europe in November 1850 and in force since September 1953. Rights and freedom it purports to protect include;  right to life, freedom from torture and slavery; right to liberty and fair trial; freedom of thought and religion; etc. under the convention were created the commission on human rights and the court of  Human rights83.
Generally, human rights today is understood as those rights contained in international laws and instruments such as the international bill of rights and the convention on the rights of the child as well as other regional human rights and treaties like the African charter on human and peoples’ rights.
Today the concept of human rights is closely linked to the “state” or an organized society with a government. The concept of human Rights  now refers to the relationship between the individual and the state or its government; their rights to political emancipation, the freedoms that the individual should enjoy and  their claims on the state most especially with regard to the provision of basic needs of life, education, health84etc.
Going by the above explanations, our constitution85 can be safely regarded as having these human rights subsumed threin86. This  finds expression in our chapter iv.87
4.2 CLASSIFICATION OF HUMAN RIGHTS
Human rights are classified differently by different authors thus;
Sebastine Tar. Hon:
The procedural variant
the substantive or enforceable variant ….these are the rights that can be enforced pursuant to S.46 CFRN 1999
classification based on waiver:
In ARIOR V. ELEMO, the Supreme Court classified.
Fundamental rights into 2 groups: those that can be waived and those that cannot e waived. It hold that those that can be waived are those that  only for the benefit of, or affect the person entitled thereto, while those that such a person will enjoy with others, or those that  affect other persons or cover public and state interest cannot be waived.
However, that by Ige and Lewis88 (1995:213) is to be preferred:
1. CIVIL RIGHTS:
(a) Right to life;
  (b) Right to freedom of thought, conscience, religion and
Expression
(c) Right to marry anybody (without discrimination)
(d) right of every child to necessary  measures of protection
(without discrimination)  

2. ECONOMIC RIGHT
a. Right to freely dispose of natural wealth and resources;
b. Right to free choice of jobs,
c. Right to equal pay for work;
d. Right to join any (lawful) union;
e. Right to social security (including social insurance)
f. Right to adequate standard of living.

3. POLITICAL RIGHTS
a. Right of every citizen to take part in the conduct of public affairs;
b. Right to vote and be voted for;
c. Right to have access to general terms of equality to public services of ones country;
d. Right to enjoy the benefit of one’s own research and creative activity.

4. CULTURAL RIGHTS
a. Right to take part in cultural life;
b. Right to enjoy scientific discoveries;
c. Right to freedom of scientific research and creative activity;
d. Right to enjoy the benefit of one’s own research and creative activity
3. DR. WIGWE, C.C89
a. Legal Rights
KIM V. STATE90
Where the supreme court held,…in the administration of justice, a trial judge have the duty to be impartial as the concept of fair hearing  with the contemplation of the constitution of Nigeria is a manifest epitome of even handed justice.


b. Moral Rights
Agbai V. Okogbue91, S.C also held, “our laws have conceived to agreements as the important and potent of all piscidity acts in the law. There is hardly any rights which cannot be acquired by agreement; also rights can be acquired through the assent of those or from whom the correlative duties are imposed”.

c RELATIVE AND ABSOLUTE RIGHTS
Rights cannot be absolut92. Duties are impose on parents to provide necessaries and to look after their young ones93
d. perfect rights
e. imperfect rights
f. positive rights
g. negative rights
…Derogatory provisions in S.45 CFRN 1999
h. Rights in REM
i. Rights in personam
j. Proprietory rights
k. Personal rights
l. Principal rights
m. Accessory rights
n. Primary and sanctioning rights
o. Human rights: generally
Articles 1-30 universal declaration of human rights
In article 194, it says: “All human beings are born free and equal  in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

4.3 INTERNATIONAL LAWS
4.3.1 Overview
Briefly, international law is defined thus95, the corpus of legal rules applying between foreign states, known as  public international law.  2 the body of rights and duties of citizens of different sovereign states towards one another, known as private international law…or conflict of laws. And the particular nature/status of international laws was given credence by the supreme court of appeal in FAWEHINMI V. Abacha96.

SOME INTERNATIONAL LAWS REGULATING TRANSACTIONS BETWEEN NATIONS OF THE WORLD

(A) UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR): This is the basic international pronouncement of rights that cannot be taken away from all members of the human family97
Its provisions are divided into sections called ARTICLES, numbered 1-30. These, in most countries of the world operating written constitutions including Nigeria, have incorporated same into their corpus juris by virtue if reception clauses.
Bodies that  monitor U.N. treaties
(a). The economic   and social council (ECOSOC)
b. the united nations commission on human rights; this in itself is an arm of the ECOSOC with the following functional commissions
- Commission on crime prevention and criminal justice
-  The commission on narcotic drugs;
- The commission on the status of women,
- The commission on sustainable development;
- The commission on transitional corporations;
- The commission for social development;
- The population commission;
- The statistical commission.
There is also sub-commission on prevention of discrimination and protection of minorities
International Covenant  On Economic, Social and Cultural Rights (ICESCR)
International Covenant on Civil and Political Rights
African Charter on Human and Peoples’ Rights (ACHPR)98
Convention on the Elimination of all forms of discrimination against women.
Convention on the rights of  the child  (CRC)
ILO, WHO, UNESCO, UNHCR, NGOs…
4.3    CONFLICT OF HUMAN RIGHTS
According to Oxford advance learners dictionary99, it is  a situation in which people, groups or counties are involved in a serious disagreement or argument….(3)a situation in which there are opposing ideas, opinions, feelings or wishes; a situation in which it is difficult to choose.
According to Blacks law100, curzon101 and part of oxford’s definitions, the issue of human rights law, properly so called, may well be out of the regime of municipal law. To a large extent, this may not be the purport of this project work.
However, I shall outline few areas of conflict arising both in municipal (eg family) and international circles (lumping them together):
(a). During marriage proposals  ones test HIV antibody  positive, the other negative;
(b) Also in marriage proposals, one submitting for concise medical examination, the other not submitting,
(c) In  family affairs, some going extra-legal while others soft pedaling and going moral, ethical and fair.
(d) In international circles, conflicts arising over state boundaries; eg Nigeria and Cameroon over Bakassi peninsula; Iraq and Kuwait, etc.
(e) Internationally, political conflict arising from misrule   tyranny and autocracy.
(f) Inability of Home governments to respect the rights of its citizens.
(g) Religious conflicts arising from intolerance
(h) Terrorism
(i) Chieftaincy wrangling in communities.
(j) State apparatus with the citizens
(k) Oil companies and host communities
(l) Amongst sovereign nations of the world arising out of international politics
(m) Violence and discrimination against women
(n) Maltreatment and highhandedness of children.
(o) Racial discrimination
(p) Irresponsible governments and mal-administrations, insensitivities to plights of the citizenry
(q) Conflict over land boundaries
(r) Amongst regional and state governments: boundary adjustment
(s) Inability to provide necessaries by family head S. 300-305 CC102
(t) Amongst couples

4.5 RESOLUTION OF CONFLICTS OF HUMAN RIGHTS
No right has ever been absolute anywhere under the sun. This informs the qualifications, exceptions, exemptions, and in fact, derogations in the provisions in our laws. In the CFRN 1999 for instance, it finds expression in S.45 and others.
At the international arena,    properly so called, the conventions, treaties, covenants, etc (outlined in 4 3.1 A-F, ibid…) regulate transactions; except to the  extent received into our laws.
At home, S.45 (1) CFRN: Nothing in sections 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society.
In the interest of defence, public safety,  public order, public morality or public health; or
For the purpose of protecting the rights and freedom of other persons.
2. Act of the Nation of assembly shall not be invalidated by reason only that it provides for the taking, during the period of emergency of measures that derogate from the provisions of section 33 or  35 of this constitution, but no such measures shall be taken in pursuance of any such Act  during any period of  save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency: provided that nothing in this section shall authorize any derogation from the provisions  of S.33 of this constitution, except in respect of death resulting from acts of war or authorize any derogation from the provisions of section 36(8) of this constitution.
3. In this section a “period of emergency” means…

Consequently, in the Australian case of Smith V. Handcock103 it was held that executive restrictions on religion were proper on the overall interest  of national security.
Also in Adelaide Company of Jehovah’s Witnesses V. The Commonwealth104It was held that although S. 116 of the commonwealth constitution guaranteed freedom of worship, that section should be interpreted as precluding the advocacy or principles which, though meant for religions instructions only, were prejudicial to the prosecution of the 2nd world war.
Similarly, it was held amongst others in, Victorian chamber of manufacturers v. The comonweath105 . That defence powers in war times must be justified in so far as they can “conceivably” be required to meet an abnormal  and temporary crises”.
In Badejo V. Minister of Education106 . The complaint of the appellant was that though she had passed her common entrance examinations very well, she was demised admission on the ground of “quota system” which ensured preference for candidates from educationally disadvantaged states. At the Supreme Court, it was argued on her beheld that all the interviews conducted for admission of students into schools from the date appellant was denied admission be cancelled, as they were based on wrong premises. The supreme court rejected this prayer, saying that putting the Federal Republic of Nigeria at the Mercy of the appellant would amount to a total “brutalization”   of other people’s fundamental rights in favour of one person’s rights. The court concluded that although a fundamental right stands above the country, state or people.
Medical & Dental Practitioners Disciplinary Tribunal VS. Emewulu and Anor107. The Supreme Court reached similar decision.
On land matters, by S. 28(1)108 land use Act 1978: it shall be lawful for the governor to revoke a right of occupancy for over riding public interest. Also, by S. 49 LUA even though all lands by S. 1109  LUA it state are vested in the governor but exclude federal lands.

4.7 INTENDING SPOUSES
To the extent that HIV/AIDS has been variously described as the great plague of the 21st century; a terminal disease, a fatal disease, the greatest health challenge, etc, its sterile status is vital to my marriage. Consequently, by the effect of S. 45 CFRN the right of intending spouses are equally not immune.
HIV/AIDS is incurable, therefore by S. 36(1)110 , the ailment being incurable the sterile party can back out of such proposal.
Also by S.5(1)(C)111 where one party refuses, declines, objects to a holistic diagnostic medical laboratory examination, the adverse part can back out of the relationship. This position  is true according to the principles in Badejo V. Minister of Education (supra).
Finally, in the case of Harrod V. Harrod (supra) , it was held that  a marriage is violable where one of the parties, at the time of celebration of he marriage, was suffering from a veneral disease.  
 CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1 CONCLUSION
From statutory and judicial authorities extensively canvassed  in this research work and indeed, the medical/health statistics available,  and other literature, an HIV/AIDS sero-positive patient is medically handicapped. Even though he should not be discriminated against on other grounds, but when it comes to marriage considering the right to life of others, his right could be curtailed, nay, impeached under the derogatory provisions of our laws especially S. 45 CFRN and section 5, 36 MCA and in the case of HARROD V. HARROD (supra). If the patient conceals this vital information, worsened by fraudulent misrepresentation in applicable cases, the adverse party is at liberty to back out of the proposed relationship pursuant to the case of HEDLEY BYRN & CO. LTD V. HELLER & PARTNERS.


5.1 RECOMMENDATIONS    
Intending spouses should be honest with each other.
They should submit to diagnostic medical laboratory examination prior to their marriage.
Spouses should down play on consent for surgio-medical procedures.
They should also be aware that human rights are not absolute.
The government should come up with specific legislative framework on HIV/AIDS control.
There should be more health talks, community mobilization and information dissemination on HIV/AIDS.
The functions of NACA, SACA, LACA, etc should be made community based.
Government should inject more funds into the sub sector.
Orphans and vulueration children, and the affected relations of HIV/AIDS victims should be identified and cared for properly.
The government of Nigeria and others should improve on their human rights records.  
BIBLIOGRAPHY
Books
Sebastine Tar. Hon (2004): Constitutional Law and Jurisprudence in Nigeria.

Churchill Livingstone (2006): Nursing practice, Hospital and Home,
2nd edn.

Prof. Itse Saya (        ) Family Law in Nigeria.

Leesi Ebenezer Miitee (1999) Nigerian Legal system  1st edition

Henry J. Abraham & 69 Ors (    )  Encyclopedia- Americana

Dr. G.C Ejeckam (1992): Essentials of Medico-legal Antopsy. 1st
edn

Gerald L. Mandel, Michael Rein (    ): Sexually Transmitted diseases
3rd Ed’n.

Mary Alice & 6 Ors.. (    ) World Book 7th ed’n

Black’s Law Dictionary 10th ed’n

A.S Hornby: Oxford Advance Learners’ Dictionary 8th Ed’n

Tokumbo Ige & Olumide Lewis (1995): Human Rights made Easy

E.I   Nwogugu (    ) family law in Nigeria

Constitution of the federal Republic of Nigeria (1999).

Criminal Code Cap. 77 LFN 1990

Land Use Act (1978) (Cap. 220) LFN 1990

G.A Okpara (      ) Family law in Nigeria

Dr. Wigwe C.C (2011) Lecture note

T.O Elias & M.I Jegede (1995): Jurisprudence in Nigeria.

L.B Curzon: Dictionary of law, 5th ed’n

King James Version of the Holy Bible


PAMPHLETS
Federal Ministry of Health technical Report (2005): National  HIV/syphilis Sero-prevalence sentinel survey among pregnant women attending ante-natal clinics in Nig.


INTERVIEWS

Officer in charge LACA, Gokana Local  Government Council.

Chief Library Assistant Rivers state library Board, Bernard carry, Ph.

Phone Interview with a Librarian, College of Health Science & Technology, Port Harcourt.

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