This topic reminds me of primary school days. It was okay to call each other names such as big head, mad, stupid or even more painful things like fat and dumb but never ever call someone a bastard. It was offensive, derogatory and mean-spirited.
That was a taboo and only a child spoiling for a serious fight would go in that direction. Discrimination by circumstance of birth is however not limited to children bickering and it remains a glaring reality in our society, despite modernization and development.
Discrimination against children is wide-spread, hurtful and perverse. All kinds of discrimination are to be condemned, and although societal bias may always be a norm in our communities, this Article will focus on the legal disadvantages illegitimate children face with respect to succession.
Discrimination means the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex. It also includes discrimination due to disabilities, discrimination against the girl child and for the purpose of this discussion it refers to discrimination on the basis of the circumstances of one’s birth.
DEFINITION OF ILLEGITIMACY
The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth. (thefreedictionary.com)
An illegitimate child is therefore one born to parents who are unmarried at the time of his birth. At common law, such a child was legally known as a "filius nullius" or "child of no one." And the implication of that is that he/she was incapable of succeeding property or deriving other benefits from his/her parents. Even subsequent marriage of the child's parents was insufficient to render him legitimate.
COMMON LAW PERSPECTIVE
Over the years, the attitude of the Court has been that the legitimate children of a statutory marriage (i.e. a marriage under the Marriage Act) will inherit to the exclusion of any illegitimate children as some case law that will now be referred to will reveal.
In the case of ONWUDINJOH V ONWUDINJOH 1957 1 ENLR 1, the Court held that any custom according a right of legitimacy to an illegitimate child may be repugnant to natural justice or contrary to public policy. Thus, the Court rejected the claim of an illegitimate child to share in the intestate estate of his father on the ground that no evidence had been laid in support of such claim, but supported a claim by a child where paternity had been acknowledged.
It was further elucidated in the above authority that if a man celebrated an Act marriage and during its subsistence, purportedly celebrated a customary marriage, there could be no legitimating of the offspring of the purported latter marriage.
Similarly, the Supreme Court in the case of OSHO V. PHILLIPS (1972) A NLR page 279 held thus:-
'The Defendants being the legitimate children of the intestate by his legal wife under the Marriage Act they have a right under section 36 of the Act, to succeed to the deceased's property to the exclusion of the Plaintiff, who were as a result of the deceased's association with another woman during the subsistence of a legal marriage under the Act and are therefore illegitimate; and the fact that two of the defendants, as administrators, had distributed a portion of the deceased's personal property amongst the plaintiff as beneficiaries and invited them to the family meeting of the deceased's children does not stop the defendants from maintaining that the plaintiff are not legitimate children of the deceased'. Per ABOKI, J.C.A.(Pp. 69-70, paras. D-A).
It is apparent from the above authorities that the position of the law at the time was that illegitimate children could not lay claim with respect to inheritance thus making them highly disadvantaged; regardless of legitimization by their fathers.
One of the reasons why such a stringent position may have been obtainable is because promiscuity and adultery were highly condemnable. While this stance may have been laudable for moral reasons; the products of a union that was not validated by law had to suffer the consequences of actions they could not be blamed for.
There are varying authorities on the issue of intestacy and succession and while the common law approach has been accepted in some circumstances; there is a general variance with the strict approach that was obtainable in the past. IN MOTOH V MOTOH 2011 16 NWLR PART 1274 PAGE 474 @ 491 the Court held as stated below:
The custom of legitimation by acknowledgement of paternity places legitimated children in the same position for inheritance as children conceived in lawful wedlock. However, the custom of legitimation by acknowledgement can be allowed by the Court only in so far as it affects illegitimate children not born during the continuance of a statutory marriage.
The implication of the above authority is that a child born outside wedlock and during the pendency of a subsisting legal marriage cannot be legitimized and therefore will not be entitled to succession.
See also KEHINDE DA COSTA V FASHEUN where the Court held that the provision of the constitution did not intend to make the deceased property open for all both legitimate and illegitimate as doing so would be unfair and contrary to public policy.
The above position is in the writer’s opinion contrary to the intendment of the constitution as provided for in Section 42 (2) of the Constitution of the Federal Republic of Nigeria which provides as follows:
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
On the contrary, the Court was of a different view in the earlier case of ANODE V. MMEKA 2008 10 NWLR PART 1094 PAGE 1 @ 5 where it was stated that by virtue of Section 42 (2), a citizen of Nigeria shall not be subjected to any form of disabilities or restrictions to which members of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject. In that case, the Court of Appeal held that the fact that the Respondent was born out of wedlock was totally irrelevant and could not deprive him from inheriting the estate of his maternal grandfather.
The Court further stated:
"I am aware of the principle of the decision in Muojekwu v. Ejikeme (2000) 5 NWLR (Pt. 657) 402 at 418, 422-423 where the custom of leaving a woman in her maiden home to procreate was held to be promiscuous, obnoxious, inconsistent with public policy and therefore repugnant. I may agree as I am bound by that decision. But rejection of a custom is one thing and the acceptance of the product of that custom is quite a different thing. Here we are dealing only with the custom not only simpliciter, but also with the product of that custom. A child is never thrown away with bad or polluted water. A child immersed in bad water is first brought out before the polluted water is thrown away. Even in the Muojekwu case the children who were held to be the products of the obnoxious" custom of Nrashi in Nnewi were still held to be entitled to inherit their mother's father's estate. I think that was the case of saving the child from the bad water. Here the same view will be held by me. Whatever view I take of the custom, it will not have anything to do with the position of the plaintiff as a human being who played no part in the existence of that custom and who is merely but the product of that custom."Per SAULAWA, J.C.A.(Pp. 15-16) (emphasis supplied)
THE DOCTRINE OF ESTOPPEL
In OGUNMODEDE V THOMAS SC FSC 337/1962, the deceased married under the Marriage Act and they bore a daughter. The husband acknowledged 16 other issues he had outside the marriage. The children were treated equally while the wife was alive. When she died, the husband tried to inherit her property to the exclusion of all the other children alleging that they were illegitimate in relation to the deceased and her property. The Supreme Court held that if they woman were alive, she would have been estopped from denying acknowledgment by conduct. They were thus entitled to share the property.
LEGITIMATION AND ACKNOWLEDGEMENT OF PATERNITY
Legitimation is a process whereby an illegitimate child is made legitimate either by acknowledgement or by subsequent marriage of both parents.
The Court in the case of ALAKE V PRATT 1955 15 WACA 20 approved the custom of legitimation by acknowledgement of paternity and placed legitimated children in the same position for inheritance as children conceived in lawful wedlock.
In Motoh v Motoh (supra) it was held that children who are not born in wedlock or who are not issues of a marriage under native law and custom, but are issues born without marriage can also be regarded as legitimate children if paternity has been acknowledged by the putative father.
In Section 69 of the Matrimonial Causes Act, a child of a marriage was defined to include the following:
(a) any child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) any child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and
(c) any child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, so however that a child of the husband and wife (including a child born before the marriage, Whether legitimated by the marriage or not) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage;
From the above, it appears that the intendment of the law is that once a child has been legitimated or acknowledged; he or she is to be treated as a child that was born in lawful wedlock.
It is apparent that customary law negates not just the principles enshrined in the Constitution but is also contrary to International Conventions against discrimination.
Article 3 of the African charter on the rights and welfare of the child states as follows:
“Every child should be allowed to enjoy the rights and freedoms in this Charter, regardless of his or her race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status”
Similarly, Section 10 of the Child Rights Act of Nigeria states :
“A child shall not be subjected to any form of discrimination merely by reason of his belonging to a particular community or ethnic group or by reason of his place of origin, sex, religion or political opinion.” and “No child shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” (emphasis supplied).
There is a need to promote fundamental rights recognized by national and international law. Many customary practices in Nigeria still encourage discriminatory practices with respect to succession and there are many grey and contradictory areas that are yet to be resolved.
Notwithstanding, it is glaring that the intendment of the law is that all forms of discrimination are eliminated; therefore it is expedient that further reforms are made to adequately address all aspects of intestacy and succession in a manner that harmonizes with the rules of natural justice and the objective of the law.
By - Motunrayo Olaleye
Legal Counsel at B. Ayorinde & Co.
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