Sep 22, 2015

Intestate Succession in Nigeria: What is the Status of Children Born Out of Wedlock?




Introduction
It is no longer unusual in Nigeria for a deceased who was married under the Marriage Act to have children out of wedlock. Whenever instances such as this arise, one of the major issues, which crops up is, who amongst the children of the intestate person are entitled to apply for letters of administration in respect of the estate of the intestate person. This is because by virtue of section 24 (1) of the Administration of Estates Law, Laws of Lagos State, Volume 1, CAP A3, the maximum number of persons who can apply for letters of administration is 4 (Four).

Our law reports are replete with cases where children of an intestate person who were born within wedlock were up in arms against children born outside wedlock in respect of the modalities for applying for letters of administration for their late parent’s estate.


This paper therefore seeks to explain the status of children born out of wedlock with regards to their right to apply for letters of administration in respect of their late father/mother’s estate.

There is no Legal Distinction Between Children Born Within and Outside Wedlock
Section 42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides, thus: “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
  
The effect of the provision of section 42 (2) of the Constitution is that there is no legal distinction between children born in a lawful wedlock and children born out of wedlock. This is because section 42 (2) specifically precludes discrimination against a child on the basis that he/she was born outside wedlock. 

The Supreme Court of Nigeria endorsed the position stated above in the case of Salubi v. Nwariaku (2003) 7 NWLR (Pt. 819) 426 where it held that the children of the deceased who were born within a lawful wedlock and the children of the deceased who were born out of wedlock are entitled in equal shares to the properties of the deceased. Ayoola, JSC captured this point beautifully when his Lordship held thus:

“It suffices to hold that the court below was right in holding that the trial court had jurisdiction to entertain the claim before it and that the two issues born out of wedlock are entitled in equal shares with the two other issues of the marriage of deceased and the widow.”
The implication of the foregoing is that the mere fact that a child was born out of wedlock will not be an impediment to the child getting an equal share of his/her deceased parent’s properties with the children born in a legitimate wedlock. 

Can a Child Born Out of Wedlock Apply for Letters of Administration?
Section 26 (1) of the Administration of Estate Law, Laws of Lagos State, Volume 1, CAP A3, 2003 provides as follows: 
“In granting administration the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof,… and any such administration may be limited in any way the court thinks fit—“ 

The effect of section 26 (1) is that all the beneficiaries or persons who have an interest in the estate of a deceased person can apply for the issuance of letters of administration in respect of the estate of the deceased person. This means that the surviving spouse and all the children of the deceased can apply for the issuance of letters of administration. Also, other relatives of the deceased such as his/her siblings, aunts, uncles, cousins and so on can also apply for the issuance of letters of administration. 

The crux of section 26 (1) in granting letters of administration is in the phrase, “rights of all persons interested”. Children born out of wedlock definitely fall within the category of persons interested. This does not however give room for all comers, as “any such administration may be limited in any way the court thinks fit”

It is submitted that a child who was born out of wedlock can apply for the issuance of letters of administration in respect of the estate of his/her deceased parent. This is because the provision of section 26 (1) of the Administration of Estate Law of Lagos State is encompassing and covers children born out of wedlock. Further to this, the provision of section 42 (2) of the Constitution of the Federal Republic of Nigeria also makes it unlawful for a child to be denied his/her right to be appointed as an administrator of his/her deceased parent’s estate just because he/she was born out of wedlock.

Again, it is important to note that the Court has a discretion regarding persons to whom letters of administration are to be granted and this discretion must be exercised on the basis of materials/evidence placed before the Court and with due regard to the rights of all persons interested in the estate of the deceased person or proceeds of the sale thereof. See: Asere v. Asere (1992) 6 NWLR (Pt. 197) 316.

 In the case of Chief J.L.E Duke v. Rev. (Dr.) Peter Etim Duke (2014) LPELR-23095 (CA), the Court of Appeal upheld the judgment of the trial Court where it granted letters of administration in respect of the estate of the deceased to both the Appellant and Respondent. Although the Appellant, who was born within the lawful wedlock of the deceased, had contended that the Respondent was not entitled to a grant of the letters of administration because he was born out of an adulterous relationship, the Court of Appeal held that this was not enough ground to refuse the Respondent his right to be appointed as an Administrator to his late father’s estate. The Court of Appeal also held that the Respondent could not be discriminated against based on the provision of section 42 (1) of the Constitution of the Federal Republic of Nigeria and that the Respondent was able to show that he had sufficient interest in the properties of the deceased. 

Also, in the recent case of Mgbodu v. Mgbodu (2015) 12 NWLR (Pt. 1474) 415 the Court of Appeal held that a child born out of wedlock must not be prevented from partaking in the sharing of his deceased father’s estate. His Lordship, Bolaji-Yusuff, JCA at page 439 paragraphs D-F held thus: 

“It has long been established that in this land, Nigeria, once a father acknowledges the paternity of a child whether born in or out of wedlock, the child is regarded as a legitimate child and is entitled to share in the estate of his/her father…This custom has now received a constitutional approval first through section 39 of the constitution of the Federal Republic of Nigeria, 1979 and now through section 42 of the 1999 Constitution (as amended) which provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

Conclusion
Whilst it is conceded that it might be emotionally traumatizing for the children of a deceased who were born within a legitimate wedlock to recognize the rights of their siblings who were born out of wedlock when applying for letters of administration, it is important to state that the failure to recognize the rights of the children born out of wedlock can lead to the nullification of any letters of administration, which was obtained without their knowledge, consent or input.

In the case of Mgbodu v. Mgbodu (Supra) the Court of Appeal set aside the letters of administration which was granted to the Appellant and his mother because they refused to include the Respondent’s name as one of the children of the deceased in the application for letters of administration on the ground that he was born out of wedlock.

Therefore, it is important for the beneficiaries of an intestate person to adopt the consensual approach to the administration of the estate and distribution of the assets of the deceased in order to prevent a protracted and unnecessary litigation over the assets of their deceased parent.

It should be noted that this article is for general information only. It is not offered as advice, on any particular matter, whether legal, procedural or otherwise. If you have any questions about this article, please contact the author.

By: Faruq Abbas 
Managing Partner at Abdu-Salaam Abbas & Co.
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