RIGHT TO PRIVACY IN NIGERIA

BY

YINKA OLOMOJOBI (PhD)1

ABSTRACT
With the world shrinking to a global village and the complexity of life, it seems that the individual is
perpetually connected to world. It is not surprising that the individual has become more sensitive about
his/her private life and in many ways attempts to set boundaries where he/she ‘wants to be let alone’. The
right to privacy is shrouded with complexity thus making it difficult to define and determine its scope. The
rationale for this apparent difficulty is not unconnected to the fact that the right is virtually unknown in
common law. In order to establish the right to privacy, common law sought to explore whether the individual
could establish whether there is a breach of confidentiality. It is then not surprising that the Nigerian courts
being strongly connected to the English common law have found it increasingly difficult to find an adequate
definition of the concept. This paper attempts to explore whether citizens have reasonable expectation of
privacy in private and public places. The paper explores the law relating to privacy as enshrined in
international, regional documents and national (Nigerian) legislation. The purpose of this paper is to
consider whether the law affords an objective norm which can be implored to protect the privacy of the
individual. It also seeks to explain the nature and extent of how the right to privacy is protected.

INTRODUCTION
‘The right to be let alone’,2 centers on the prerogative of individual freedom. The right to privacy is a
constitutional limit on the powers of the state. However, it is interesting to note that the private zone has now

1
Associate Professor, School of Law of Security Studies, Babcock University, Ilishan-Remo, Ogun State, Nigeria
2 Referred to as such by Justice Louis D Brandei in case of Olmstead vs US 277 US .438 [1928]

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taken up the infringement of the person’s privacy which was traditionally imputed to the government. In our
globalized world it seems that the ever-increasing threats to national security have prompted the innovation
of hi-technology vis-à-vis security [CCTV and biometric identification techniques] which restrains on the
right to privacy by the citizens in a state. Using the words of Jeremy M. Miller: 3 “It would be a good thing if
privacy could be protected, but the war and way of technology and the needs of security have de facto made
the right to privacy a dead letter.” In consequence, ‘‘Big Brother” [the state] seems to be intruding into the
lives of its citizens. Technology and Social Media are the major impediments on the right to privacy. An
example is Facebook and Instagram, which is a social media platform where personal information and
photos are shared. Technology has been used as a tool to manipulate certain information relating to a person
via so many means such as the electronic monitoring of people by intercepting other people’s emails, merging
of databases that contain personal information as practiced by many advertising and marketing firms
companies.

The right to privacy covers a wide range of issues such as confidential correspondence, email and internet
use, medical history, personal data, eavesdropping, sexual orientation and personal life styles. According to
Solove4 there are six components of privacy: [1] personal autonomy; [2] limited access to the self; [3]
confidentiality; [4] the management of personal information; [5] the right of individuality; and [6]
relationship. In sieving from these elements, it seems clear that privacy is only important when it seeks to
protect the rights of an individual which he/she intends to keep private i.e. that is events that are not meant
to be within the domain of the public. Therefore, it seems correct to argue that activities that an individual
does not want to protect from the public purview or from the society that he/she lives in would be deemed as
acts that are not covered by the right of privacy. Simply put, the right of privacy is considered as any activities
that are intended to be excluded from the knowledge of others. Solove further argues that:

3 Jeremy M.Miller. “Dignity As A New Framework, Replacing the Right to Privacy” 30 T. Jefferson L. Rev. 1 [2007-
2008]: 1
4 Solove, Daniel, J. Understanding Privacy. Cambridge, MA: Harvard University Press, 2008.

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 The value of privacy must be determined on the basis of its importance to society,
not in terms of individual rights. Moreover, privacy does not have a universal value
that is the same across all contexts. The value of privacy in a particular context
depends upon the social importance of the activities that it facilitates .5

The right of privacy implies the exclusion of the public eye from prying into an individual’s affair. Another
crucial aspect of the right to privacy entails the right to protect one’s image and personality and to have
unfettered access to control one’s zones of exclusivity, space and confidential information. The right to
privacy lies within the realm of self-ownership. It is the moral liberty of doing what an individual deems fit to
be down with his/her individualism and keeping others outside the sphere of his/her self-ownership

INTERNATIONAL PROTECTION

The Universal Declaration of Human Rights, [1948] Article 12 states that: “No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such interference or attacks.” In a
similar tone the International Covenant on Civil and Political Rights [1966] [ICCPR] affirms in Article 17 that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour and
reputation.

2. Everyone has the right to the protection of the law against such interference or
attacks.

It is important to note that the ICCPR does not contain a limitation clause. It seems that this informs us of
the significance of the clause. The importance of the right to privacy is exemplified by providing children with
the right. The Convention on the Rights of the Child [1989] taking cognizance of ICCPR states in Article 16:

5 Solove, Daniel, J. Understanding Privacy. Cambridge, MA: Harvard University Press, 2008. 39

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 1. No child shall be subjected to arbitrary or unlawful interference with his or her
privacy, family, or correspondence, nor to unlawful attacks on his or her honour
and reputation.

2. The child has the right to the protection of the law against such interference or
attacks.

REGIONAL PROTECTION

The African Charter on Human and Peoples’ Rights does not have a direct clause on the right to privacy. It
may be argued that this situates the Charter to be derisory in nature. However, this inadequacy is evoked in
the Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples'
Rights, [2002] Banjul, The Gambia. Article 2 states:

Interference with Freedom of Expression

1. No one shall be subject to arbitrary interference with his or her freedom of

expression.

2. Any restrictions on freedom of expression shall be provided by law, serve a

legitimate interest and be necessary and in a democratic society.

Notwithstanding, the omission of the privacy clause in the Charter, the African Charter on the Rights and
Welfare of the Child [1990] provides the child with privacy rights. Article 10 states:

No child shall be subject to arbitrary or unlawful interference with his privacy,

family home or correspondence, or to the attacks upon his honour or reputation,
provided that parents or legal guardians shall have the right to exercise reasonable
supervision over the conduct of their children. The child has the right to the
protection of the law against such interference or attacks.

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National Protection
The right to privacy is one of the fundamental human rights entrenched in the Nigerian Constitution. Section
37 of the 1999 Constitution provides that: “The privacy of citizens, their homes, correspondence, telephone
conversations and telegraphic communications is hereby guaranteed and protected.”

The entrenchment of this right in the Constitution is very important. This reason is that Nigeria being a
common law country does not have effective legal regime for the protection of individual privacy in her legal
system. At common law, the only actions for trespass, copyright infringement and probably passing off are
the only ways one can obtain relief for violation of one’s privacy. 6 Thus modern developments like telephone
tapping and hacking would not have been remedied had this provision not been included in the
Constitution.

Construing the bounds of the right to privacy under Nigeria law is not an easy one due to the absence a
universal definition of the concept of privacy. This fact was alluded to in the Australian case of Australia
Broadcasting Commission v. Lenah Game Meats Pty. Ltd7 where the court recognizing the hardship posed by
an attempt to define privacy stated as follows:

There is a large area in-between what is necessarily public and what is necessarily
private. An activity is not private simply because it is not done in public… Certain
kinds of information about a person, such as information relating to health,
personal relationships or finances may be easy to identify as private… The
requirement that disclosure or observation of information or conduct would be
highly offensive to a reasonable person of ordinary sensibilities is in many
circumstances a useful practical test of what is private.

6 J.O Akande, Introduction to the Constitution of Federal Republic of Nigeria 1999 [Lagos: MIJ Publishers, 2000]:
85.
7 [2001] 185 ALR 1

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To Kirby J in Grosse v. Purvis8, an actionable right to privacy accrues where a person intentionally intrudes in
a way that is seen as very offensive to a reasonable man of ordinary sensibilities and which results in the
claimant suffering mental, psychological or emotional harm or distress or which inhibits the claimant from
engaging in an act which he is legally entitled to engage in. Thus, the test for what amounts to a violation of
the right to privacy is objective rather than a subjective one.

The right to privacy is essential to the sustenance of a modern democratic society and it is also an imperative
for individual welfare and well-being.9 Despite this obvious fact, violation of privacy is not a well litigated area
in Nigeria. This is due to the fact that Nigerians tolerate a lot of things which normally should constitute a
violation of their privacy. The learned author, Lloyd Megwara 10 provides a broad exposition of what the right
to privacy guaranteed by the Constitution entails in the following words:

The right to private life encompasses the right to live in isolation of others, [a
reclusive life if you like], the right to protect one’s social, interpersonal relationships,
[inclusive of sexual and marital relationships] the right of concealment of one’s
nudity, [body anatomy] from public glare and the right of an individual over his
own body [inclusive of what goes in and out of his body]. It follows that the right to
privacy implies the right to protect one’s body from unauthorized intrusion or
invasion.

The right to privacy is surprisingly omitted from the African Charter on Human and Peoples Rights. It has
been suggested that the right to privacy was omitted for the purpose of promoting of promoting of African
values and tradition which is characterized by communitarianism, as visible in almost all the provisions of
the Charter and this is countered by the right to privacy which tends to promote individualism which is
unknown to Africans. 11

8 [2003] QDC, 151

9Per Justice Cobb in Pavesich v. New England Life Insurance Company [1904] 122, Ga. 190, 201
10 Lloyd Megwara, Op. cit, p.202
11 See Akin Ibidapo-Obe, Essays on Human Rights Law in Africa [Lagos: Concept Publications Ltd, 2005]: 260;

Osita Ogbu, Human Rights Law and Practice in Nigeria, 2nd revised edition [Enugu: Snaap Press Ltd, 2013]:280-281

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Privacy of Home and Correspondence

Section 37 of the Constitution guarantees the right of every person to his home and correspondence. Homes,
correspondence, telephone conversations and telegraphic communications of individuals are protected under
this section and are inviolable. The court in Ezeadukwa v. Maduka12 affirmed this view. By virtue of this, it is
illegal and unconstitutional for the police or any other security official to search any person’s residence
without lawful warrant, they have no right to search any individual’s body on the road, seize and search a
person’s telephone etc. To invade a person’s home or correspondence, the authorities must obtain a warrant.
It is unconstitutional to carry out surveillance activities in and around a person’s home or over his telephone
and other correspondences except such is justifiable under section 45 of the 1999 Constitution. The eviction of
families and individuals from their homes has been held to amount to a violation of this right. 13

Homosexualism and Lesbianism

This is one of the most controversial issues with respect to the right to privacy. The scope of this disputation
cannot be discoursed in this text. However, the most contending issue is whether the right to privacy protects
the activities of lesbians, gays, bi-sexuals, and transsexuals, [LGBT]. In many western countries, it has been
established that the punishment of these range of activities by penal laws is a contravention of the right to
privacy.14 But in a case where the applicant challenged the decision of the authorities not to alter his birth
certificates to reflect his transsexual status, the court held that that decision does not violate his right to
privacy.15 International law still permits laws that prohibit activities considered to be a breach of a public
morality. A whopping 92 percent of Nigerians were shown to be in support of this ban on same sex
marriage.16

12 supra
13Kokoro-Owo& Ors v. Lagos State Government & Ors; See Osita Ogbu, op. cit,p.281-282
14 See generally the European Court of Human Rights decisions in Dundgeon Case Series A No. 45; Norris Case
Series A No. 142
15 Series A No. 106
16 NOI Polls on Anti Same-Sex marriage quoted in Osita Ogbu, Op. cit, p. 280

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In Nigeria, the law still punishes offences against public morality. Chapter 21 of the Criminal Code which
operates in the Southern parts of Nigeria provides for offences against public morality. Section 214 of the
Code provides that:

Any person who-

[1] has carnal knowledge of any person against the order of nature; or

[2] has carnal knowledge of an animal; or

[3] permits a male person to have carnal knowledge of him or her against the order
of nature; is guilty of a felony, and is liable to imprisonment for fourteen years.

Indecency is also a criminal offence in Nigeria. The Criminal Code provides that:

Any male person who, whether in public or private, commits any act of gross
indecency with another male person, or procures another male person to commit
any act of gross indecency with him, or attempts to procure the commission of any
such act by any male person with himself or with another male person, whether in
public or private, is guilty of a felony, and is liable to imprisonment for three years. 17

Section 284 of the Penal Code [applicable in northern Nigeria] also criminalises homosexual acts. It provides:
“Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be
punished with imprisonment for a term which may extend to fourteen years and also be liable to fine.” In
Magaji v. Nigerian Army18 the Supreme Court affirmed a conviction handed down by the lower courts on the
appellant for sodomy. Moreover, the controversial Same-Sex Marriage [Prohibition] Act, 2013 criminalizes
same marriages and unions. The Act recognises only marriages contracted between a man and a woman is
valid in Nigeria.19 The Act also criminalizes social association between homosexuals and lesbians. 20 However,
the question remains whether the Act contravenes section 42 of the Constitution 1999 [as amended].

17 Section 217 of the Criminal Code

18 [2008] 8 NWLR [Pt. 1038] 338
19
See Section 3; see also Hyde v. Hyde LR 1 P AND D 130 [1866]
20
See Section 4[1]

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Right to reject medical treatment

Inherent in the right to privacy is the right of an individual to choose which treatment a hospital should give
him, whether to undergo surgery or not, which type of medication that must be used in his treatment etc.
This was the position of the Supreme Court in Medical and Dental Practitioners Disciplinary Tribunal v.
Okonkwo.21Mrs. Martha Okorie gave birth in a Maternity and was admitted at Kanayo Hospital for 9 days.
Diagnosis at the hospital revealed that she was severely ill and blood transfusion was recommended by the
hospital a day after she was admitted. The patient and her husband objected to this and refused to give
informed consent to authorize the blood transfusion on religious reasons. Both were members of the religious
sect Jehovah Witness which believes that blood transfusion is prohibited by God. The patient averred that a
compulsion to undergo blood transfusion which is against the religious beliefs of the Jehovah Witness which
the patient belongs is a violation of her right to religion and privacy. She was discharged by the hospital and
her husband took her away. She was brought to the respondent hospital, the respondent being a member of
Jehovah’s Witness and he went ahead to treat the patient without blood transfusion until she died later. The
respondent was charged before the tribunal for negligence and was found guilty. He was suspended for a six
month period on each of the charges against him which resulted in an appeal to the Court of Appeal. The
Court of Appeal set aside the decision of the appellant tribunal and the appellant appealed to the Supreme
Court. The Supreme Court dismissed the appeal and found in favour of the respondent. The court held that
the right of the patient to object to medical treatment or particularly as in this case to blood transfusion on
religious grounds is founded on fundamental rights protected by the 1979 Constitution as follows: right to
privacy and right to freedom of thought, conscience and religion in sections 34 and 35 of the 1979
Constitution which are now contained in sections 37 and 38 of the 1999 Constitution. Ayoola J.S.C [as he then
was] in his judgment stated as follows:

The right to privacy implies a right to protect one’s thought; and one’s body from
unauthorized invasion… The sum total of the rights of privacy and of freedom of
21Supra

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 thought, conscience or religion which an individual has, put in a nutshell, is that an
individual should be left alone to choose a course for his life, unless a clear and
compelling overriding state interest justified the contrary.

In Re Yetter22 the patient also refused treatment. The court in evidence found that the patient was a
competent adult and held that the right to privacy includes the right of a mature adult who is competent in
law to refuse treatment which may prolong his life. It is irrelevant that the refusal is foolish and unwise to
others. The court in Sideway v. Board of Governors, Bethlehem Royal Hospital23 established the rationale
behind this position of the law. According to Lord Scarman: “…the court should not allow medical opinion of
what is best for the patient to override the patient’s right to decide for himself whether he will submit to the
treatment offered him.”

Lord Templeman further said in this case that:

The patient is free to decide whether or not to submit to the treatment

recommended by the doctor…If the doctor making a balanced judgement advises
the patient to submit to the operation, the patient is entitled to refuse the advice for
reasons which are rational or irrational or for no reason. 24

In all medical treatment, the patient’s consent is paramount irrespective of how trivial the treatment or
therapy seems. The doctors have no right to choose and enforce which drugs a patient should take. It has
been argued that an extension of this position of the law will mean that an individual has the right to die in
Nigeria since he can refuse life support medical treatment which will prolong his life but there is no judicial
authority in support of the argument. 25

This position might lead to difficulties in circumstances of epidemic. This will lead to endangering of public
health and safety. However, by virtue of section 45 of the Constitution, public safety and health will prevail
over this aspect of the right to privacy.

22 [1973] 62 pa D &C 2d, 619

23 [1985] 1 All ER 645
24Ibid, p.666.
25 See Lloyd Megwara, op.cit,p.207.

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Right to Privacy and Illegally obtained evidence

One aspect of the right to privacy that has attracted much interest in Nigeria is unlawful searches of homes,
offices, phones, etc. and seizures of a suspects property by the police in order to obtain evidence. This was
mostly common during the military era when many prominent Nigerians had their residences, offices and
documents searched and seized illegally. Also meetings taking place in private homes were disrupted
without regard to the rule of law. The security agencies carry out these illegal acts under allegedly under
sweeping powers granted them by some enabling laws. 26 These legislations confer on these agencies sweeping
powers of arrest, search, seizure and detention. The police for instance have powers of arrest, detention, and
search, take finger prints of suspects etc.

Under the old Nigerian Evidence Act,27all evidence was admissible once they are relevant irrespective of
whether the means through which they were obtained is unconstitutional or illegal. The Nigeria courts under
the old Evidence Act followed the old English position established in the case of Karuma v. The Queen.28The
case of Musa Sadau v. The State29adopted this position in Nigeria. The facts were that an improperly executed
search warrant was used by the Police and in the process, incriminating evidence was obtained. The accused
person was convicted based on that evidence. On appeal against his conviction, on the ground that the
evidence used in convicting him was illegally obtained, the Supreme Court held that the evidence was
admissible because it was relevant. It is worthy of note that despite the fact that the defence counsel alluded
to section 23 of the 1963 Constitution which provides for right to privacy, he did not submit that the illegal
search was a violation of the accused’s right under the Constitution, thus, the court did not rule on that.
Coker JSC said:

There is no general rule of law in civil as well as criminal cases that evidence which
is relevant is excluded merely by the way in which it has been obtained. This is

26 See generally Sections 20-26 of the Police Act Cap. 359 Vol. XX LFN 1990, Sections 6,25-26 of EFCC Act Cap. EI
Vol.5 LFN 2004 etc.
2713Cap E14, Laws of the Federation of Nigeria, 2004. The Act has no specific provision on the admissibility of

illegally obtained evidence, hence the courts resorted to common law.

28 [1955] 1 All ER 236, 239
29 [1968] N.M.L.R. 208

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 subject in criminal cases to the discretion of the trial Judge ‘to set the essentials of
justice above the technical rule if the strict application of the latter would operate
unfairly against the accused’ [See per Viscount Simon in Harris v DPP [1952] AC
694 at 707]. This means that the judge can where the interests of justice demand it
exclude evidence which would otherwise be relevant considering the circumstances
of its discovery and production.

This has been modified by the provisions of the 2011 Evidence Act. Section 14 of the 2011 Evidence Act
empowers the court to exclude any evidence that was obtained illegally where it is desirable. It states as
follows:

Evidence obtained - [a] improperly or in contravention of a law; or [b] in

consequence of an impropriety or of a contravention of a law, shall be admissible
unless the court is of the opinion that the desirability of admitting the evidence is
out - weighed by the undesirability of admitting evidence that has been obtained in
the manner in which the evidence was obtained.

In determining whether to admit illegally obtained evidence, section 15 provides that for the purpose of
section 14, the court shall consider the following factors:

[a] the probative value of the evidence;

[b] the importance of the evidence in the proceeding;

[c] the nature of the relevant offence, cause of action or defence and thenature of
the subject matter of the proceeding;

[d] the gravity of the impropriety or contravention;

[e] whether the impropriety or contravention was deliberate or reckless;

[f] whether any other proceeding [whether or not in a court] has been or is likely to
be taken in relation to the impropriety or contravention; and

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 [g] the difficulty, if any, of obtaining the evidence without impropriety or
contravention of law.

According to Oke,30 though this provision seems innovative, it is nothing but a reinstatement of the common
law. This is because, at common law the judge still retains the discretion to admit or not admit illegally
obtained evidence “where the interests of justice demand it exclude evidence which would otherwise be
relevant …’.31 Hence, the improvement is a negligible one.

The provision of the Evidence Act on the admissibility of illegally obtained evidence has been criticized for
sacrificing human rights on the altar of judicial discretion.32 Accordingly it has been submitted that:

Allowing a discretion to admit evidence obtained in breach of fundamental rights

[guaranteed by the constitution] is tantamount to a judicial sanction of the breach,
especially in a jurisdiction like Nigeria, where law enforcement agencies are
infamous for their disregard for the fundamental rights of individuals. This
submission is notwithstanding the option a party has to seek redress in a civil
action or to commence fundamental rights enforcement proceedings.33

The position of the law on the admissibility of illegally obtained evidence seems to be justifiable under section
45[1] of the Constitution which permits the enactment of laws which are justifiable for the protection of
public safety, defence, health, morality etc. However, it is arguable that the position does not fall under any of
the ambit of the derogation in section 45[1] of the Constitution. In fact, the position is a contradiction of
public order and safety for the law to encourage security agencies to invade the homes of citizens in violation
of their fundamental right to privacy in as much as they can come out with relevant evidence. 34 Section 45 [1]
can be used to justify provisions of the law that permit police to conduct searches using search warrants but
not without warrants as that will not be reasonably justifiable in a democratic society. Hence the admissibility

30Stephen Oluwaseun Oke , “The Nigerian law on the admissibility of illegally obtained evidence: a step further in
reform” Commonwealth Law Bulletin, 2014, 40:1, pp.3-16
31Musa Sadau& Anor. v The State [1968] ANLR 125, 129
32Stephen .Oke, Op. cit, pp. 3-16.
33 Ibid.
34 Ibid.

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of illegally obtained evidence amounts to putting a judicial stamp on illegality. Therefore, there is a need to
amend the provisions of the evidence act to correct this anomaly.

Right to Privacy and Anton Pillar Order

Anton pillar order35is an injunctive relief available mostly in intellectual property proceedings. 36 It is an order
of court which permits the plaintiff or his agents and his solicitors to gain access to the premises of the
defendant and conduct a search for any evidence of infringement of copyright that may be found
there.37Questions have been raised as to whether it is compatible with the right to privacy under section 37 of
the 1999 Constitution. This is because it allows the plaintiff to conduct search in the homes and offices of the
defendant without putting him on notice. Lord denning justifying the order had stated as follows:

Many frauds or other wrongs have been committed in secrets; the offenders have
the papers or things in their possession. If forewarned, they will dispose of them. To
prevent this, the court has had recourse in the flexible remedy of injunction.38

The issues surrounding Anton Pillar Order vis-à-vis the right to privacy was examined in the case of Sony
Kabushixi Kaisa v. Shani & Co Ltd39 by the Federal High Court Lagos Division. The applicants were the
proprietors of a registered trademark for radios and television transmission and receiving sets. This included
tape recorders, video tapes and other electronic communication machines etc. The appellants found out that
the defendants had imported some tapes into Nigeria which the applicants contended infringed their rights.
They sought the following relief such as that Pursuant to order XX rule 1 that the defendants and each of
them by themselves or by the person appearing to be in charge of the defendant’s premises…do permit such
persons as may be duly authorized[including any Police officer] on any week day between the hours of 8
O’clock in the morning and 6 O’clock in the evening for the purpose of searching and for the removing into
custody of the plaintiff’s solicitors any of the following articles, that is to say any tapes, cartridges or cassettes
35 Took its name from the English case where it was invented Anton Pillar v. Manufacturing Process Ltd, [1976] Ch.
55.
36 Section 22 of Copyright Act, Cap.C28 LFN 2004
37Obafemi Ogunkeye “The legal Remedies for Copyright” in E.E. Uvieghara [ed], Essays in Copyright Law and

Administration in Nigeria, Year Books, 1992, p.110.

38 Lord Denning, Due Process of Law, London: Butterworths, 1980,p.125
39 FH CL/L35/81

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etc. The court, per Belgore J. dismissing the application held that an order to search the defendant’s premises
is against the provision of the Constitution since the defendant was not given fair hearing before granting
such orders and that granting the order will contravene the principle of privilege against self-incrimination.
The court further remarked that such orders cannot be granted exparte and in camera. Belgore J. stated that
in Nigeria where most business premises also serve as living accommodations, Anton pillar order will amount
to infraction of one’s privacy which is incompatible with section 34 of the 1979 Constitution now section 37 of
the 1999 Constitution.40

In granting the relief of an Anton Pillar order the courts must ensure that harm will not be committed
against the premises of the defendant. In Akuma Industries Ltd & Orsv. Ayman Enterprises Ltd,41 Pats-
Acholonu, J.C.A stated that:

It must be pointed out that Anton Pillar injunction by its very nature is exfacie
subversive of the provision of Section 33 of the former constitution but it is allowed
by the Court in extreme cases having regard to the urgency of the situation. It must
not be granted where it is possible that no appreciable harm will be done if the
parties are given to argue the merit of the case. Thus in the case of Thermax Ltd. v.
Schott Industrial Class Ltd. [1981] FER. 289. Brown-Wilkinson J. said this: "As time
goes on and the granting of Anton Pillar ordered become more and more frequent
there is a tendency to forget how serious on intervention they are in the privacy and
rights of the Defendant.

Commenting on the constitutionality of Anton Pillar order with respect to the right to privacy in Nigeria,
Chief Afe Babalola, SAN42 admitted that section 22[1] of the Copyright Act which empowers the court to grant
Anton Pillar Order conflicts with section 37 of the 1999 Constitution. The learned silk however noted that the

40 See generally T.F. Yerima “Fundamental Issues and Human Rights questions: The Relevance of Sony Kabushixi
Kaisa v. Shani& Co ltd in the Application of Anton Pillar Order in Copyright matters in Nigeria” `Business Law Journal
Vol. 1, No 2 2008:187-195
41
[1999]6 NWLR [Pt. 633] CA
42Afe Babalola“Injunctions and Enforcement of Orders” [Ife: OAU Press, 2004], p.141, see also Peter Ocheme, The
Law and Practice of Copyright in Nigeria, [ABU, 2000], pp.99-104.

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provision is saved by the by section 45 of the 1999 Constitution which qualifies the right by making it subject
to any law which is reasonably justifiable in a democratic society for the purpose of guaranteeing the freedom
and rights of other people.

Therefore despite the fact that the order is apparently inconsistent with the right to privacy, the fact that the
right to privacy under Nigerian law is not absolute makes the order constitutional.

This is in line with the decision in Chapel v. United kingdom43 where the court was called upon to determine
whether Anton Pillar Order was inconsistent with Article 8 of the European convention on Human Rights,
1950, the court held that the Order is justifiable on the ground that it is meant for the protection of the rights
of other persons. The South African case of Debelstem v Hill44 adopted this reasoning of the European
Human Rights Court.

Emanating from the above, it seems clear that the right to privacy is not an absolute right. In line with, the
Supreme Court in the case of FRN V. Daniel45 "Per Saulawa, affirmed that:

Undoubtedly, by virtue of the provision of section 37 of the 1999 constitution, the

privacy of every Nigerian Citizen, the home, correspondence, telephonic and other
telegraphic communications are cherishingly guaranteed and protected. It was
submitted on behalf of the Respondent that the fundamental rights which cannot
be waived However, notwithstanding the provision of section 37 [supra], section
45[1] of the 1999 constitution has provided in unequivocal terms that nothing in
sections 37, 38, 39, 40 and 41 thereof shall invalidate what appears to be reasonably
justifiable in a democratic society - [a] in the interest of defence, public safety,
public order, public morality or public health; or [b] for the purpose of protecting
the rights and freedom of other persons. ln view of the unequivocally far-reaching
provision of section 45[1] of the 1999 constitution as alluded above, I think it would

43 [1990] 12 EHRR, p.1

44 [1996] S.A. 42
45
[2011] LPELR-4152[CA]

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 be apt to hold, as rightly contended by the Appellant's learned counsel, that section
41 of the National Drug Law Enforcement Agency Act, CAP. N30, Laws of the
Federation of Nigeria 2004, is reasonably justifiable in the interest of public safety
and public health.46

Abortion

The question of whether abortion should be prohibited apart from its direct implication for right to life also
has direct implications for right to privacy. The arguments of the different schools in support and against
abortion have been under right to life. However, the pro-choice camp justifies a woman’s right to undertake
abortion on the ground of privacy. In Roe v. Wade47, it was established that the right of a woman to undergo
abortion can be predicated on her right to privacy. Justice Blackmun delivering the court’s opinion stated
thus: “This right to privacy…is broad enough to encompass a woman’s decision whether or not to terminate
her pregnancy.”

This however is not the position in Nigeria. In Nigeria abortion is illegal. Section 228 of the Criminal Code Act
of Nigeria clearly provides that:

Any person who, with intent to procure miscarriage of a woman whether she is or is
not with child, unlawfully administers to her or causes her to take any poison or
other noxious thing, or uses any force of any kind, or uses any other means
whatever, is guilty of a felony, and is liable to imprisonment for fourteen years.

Also, any woman who, with intent to procure her own miscarriage, whether she is or is not with child,
unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses
any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of
a felony, and is liable to imprisonment for seven years. 48

46
Ibid at Pp. 21-23, paras. E-C]
47 410 U.S. 113 [1973]
48 Section 229 of the Criminal Code

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The law however, provides for an exception which is where the abortion was undertaken to preserve the life of
the mother. Section 297 of the Criminal Code Act states that:

A person is not criminally responsible for performing in good faith and with
reasonable care and skill a surgical operation upon any person for his benefit, or
upon an unborn child for the preservation of the mother's life, if the performance of
the operation is reasonable, having regard to the patient's state at the time and to
all the circumstances of the case.

In the case of R v. Edgal,49 the court interpreted the word ‘unlawful’ in section 297 of the Criminal Code and
held that it possess similar meaning as it has at common law which is that abortion is prohibited and
unlawful except it is carried out for the purpose of preserving the life of the mother. Prohibition of abortion is
not a violation of the right of women to privacy by virtue of section 45 of the Constitution which permits
derogation from human rights for the purpose of protecting public morality.

In support of this position in Nigeria, Justice Oputa, formerly of the Supreme Court of Nigeria disagrees with
the view that women should have the freedom to decide whether to do abortion or not. He submits from a
religious point of view that:

Few words today are as abused and misunderstood and therefore misapplied as the
word “freedom”. The body is mine and I am free to do what I like with it”. This is the
popular saying by women who advocated abortion. Is the body really hers? Did she
create the body? Has the Creator any purpose for that body? Has that body a soul?
Is she really and truly free to do what she likes with her body? What then is
freedom from the Christian point of view? Freedom does not mean or imply the
right to whatever we please, even if it is evil. True freedom is the right to do whatever
we ought. The right to do whatever we please reduces freedom into license. It
confuses freedom within the law, including God’s laws, with freedom from those

49 [1938] 4 WACA 133

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 laws. Real freedom implies that we are masters of our judgements; that we make
correct choices and that we act responsibly. And choice is a free act of man in search
of an end or purpose. We are often quite prepared to sacrifice “freedom” for what
we believe to be more precious or more enduring. True spiritual liberty and freedom
exist when two values are acquired.50

Conclusion
The right to a private life is connected to human dignity and personal autonomy as it derives from the right
to be let alone. It is the right of people to live to the exclusion from public perlustration and the ability to
control the boundaries of public interference. In other words the right of privacy allows the individual to live
a fulfilled life. However, it should be noted that a state where there is a complete disrespect for the right of
privacy would be unbearable Furthermore a state where is absolute privacy would be difficult to function as a
state. Thus there is the crucial need that a balance is achievable. For instance, as the world is shrinking, the
essence of privacy becomes diminished to some extent. Social media such as Facebook have information
about a vast number of people.

50Oputa, C. A “ Abortion and Total Vision of the Human Life” in Okeke, C. ed. Towards Functional Justice: Seminar
papers of Justice Chukwudifu A. Oputa [Ibadan: God Press Limited, 2007]:pp. 285-286

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 References

Akande, J O. Introduction to the Constitution of Federal Republic of Nigeria 1999. Lagos: MIJ publishers,
2000

Babalola, Afe. Injunctions and Enforcement of Orders. Ife: OAU Press, 2004

Denning, Lord, Alfred Denning, and Baron Alfred Thompson Denning De. The Due Process of Law. London:
LexisNexis UK, 1980

Ibidapo-Obe, Akin. Essay on Human Rights Law in Africa. Lagos: Concept Publications Ltd, 2005

Megwara, Lloyd. The Law and Practice of Human Rights in Nigeria. Akure: Olive Printing &Publishing
House, 2010

Miller, Jeremy M. “Dignity as a New Framework, Replacing the Right to Privacy by Jeremy M. Miller: SSRN.”
May 6, 2008. Accessed June 22, 2016. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1127986

The Guardian Newspaper,. “Sun 15 Dec 2013.” January 29, 2014. Accessed June 22, 2016.
https://issuu.com/theguardian-ngr/docs/dec201315.

Ogbu, Osita Nnamani. Human Rights Law and Practice in Nigeria: 2nd revised ed. Enugu: Snaap Press Ltd,
2013

Ocheme, Peter. The Law and Practice of Copyright in Nigeria. ABU, 2000

Ogunkeye, Obafemi “The legal Remedies for Copyright” in E.E. Uvieghara [ed], Essays in Copyright Law and
Administration in Nigeria, Year Books, 1992

Oke, Stephen Oluwaseun. “The Nigerian Law on the Admissibility of Illegally Obtained Evidence: A Step
Further in Reform.” Commonwealth Law Bulletin 40, no. 1 [August 27, 2013]: 3–16.
doi:10.1080/03050718.2013.827582

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Oputa, C. A “Abortion and Total Vision of the Human Life” in Okeke, C. ed. Towards Functional Justice:
Seminar papers of Justice Chukwudifu A. Oputa [Ibadan: God Press Limited, 2007]:pp. 285-286

Polls, NOI. “NOI-Polls: About 9 in 10 Nigerians Support the Proposed Anti-Same-Sex Marriage Bill.” 2014.
Accessed June 22, 2016. http://www.noi-polls.com/root/index.php?pid=287&ptid=1&parentid=66

Solove, Daniel. Understanding Privacy. n.p., 2008. http://www.usdrinc.com/downloads/Privacy.pdf

Yerima,T.F. “Fundamental Issues and Human Rights questions: The Relevance of Sony Kabushixi Kaisa v.
Shani& Co ltd in the Application of Anton Pillar Order in Copyright matters in Nigeria” `Business Law
Journal Vol. 1, No 2 2008:187-195

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