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The Voice Of Discrimination Against The Adopted Child And The Child Born Out Of Wedlock Under Igbo Customary Legal Jurisprudence: A Constitutional And Judicial Perspective

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(1)Perhaps, the Igbo tradition values a child more than any other thing. Where the Child turns out to be a son the value becomes highly elevated. An adopted son under most Igbo customs can hardly be vested with the custody of the offor (symbol of authority) of the family. The discrimination has now stretched to the position of 1st son (Okpara) even where the adopted son is the first in timer (that is where the adopting family later begat sons after the arrival of the adopted child).Sometimes the biological offspring go as far as disinheriting the adopted son(s) from their father’s estate. It also appears for a biological child to be entitled to inheritance under Igbo Custom the bride price of the mother of the child must have been paid or the traditional right of fathering the child (Immansi) must have been performed by the Father. Where such traditional rites are not performed the paternity of such child reverts back to the father of the mother. In such case the child born out of wedlock shall be deemed to have lost his biological paternity, and as such shall be customarily estopped from right to inheritance or right to 1st Son as the case may be in his biological father’s estate. Such child is most likely to be treated disdainfully like the adopted child.

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(2)Customary laws are generally binding in Nigeria especially when one accepts such custom as his personal law. Such custom when accepted shall be used as parameters in sharing ones estates among his survivors where one dies intestate. Thus, in Zaidan v. Mohsse (1973) NSCC 516 wherein the fact in dispute is whether the Lebanon Muslim tradition should be used to determine the sharing of the estate of Late Y.K Zaidem situate at Warri.Ellias CJN ruling in her favor said:

We are of the view, that, in this context, customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. We are also of the view that anybody subject to such law is excluded from the operation of section 49 of the Administration of the Estate Law (Cap 1) of Western Nigeria 1959 applicable in Mid-Western of Nigeria.

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It follows that not even the doctrine of lexsitus (the doctrine that the prevailing custom where an immovable property is situated should determine the sharing of the estate of the testator) can defeat such personal law of the testator; provided such customary law is not inconsistent with the Constitution of Nigeria or repugnant to the principle of natural justice, good conscience and equity. In Olowu & Anor v Olowu [1985] 12 SC Pt. 1 @ 85 Per Obaseki JSC said:

The Court which have been established by the British Government has the duty of enforcing these native laws and customs, so far as they are not barbarous, as part of the law of the land.

(3)It appears that where a child has been properly adopted all rights due to such child cannot be defeated by the personal law (customary law) of the adapter where such personal law is barbaric or inconsistent with section 42(2) of the Constitution of the Federal Republic of Nigeria (as amended), 1999(Hereinafter referred to CFRN) which prohibits the discrimination of any Nigerian by whatever name including by reasons of the circumstances of one’s birth. By the combine reading of s.1 (1) & (3) of CFRN which places the constitution supreme to every other law(s) or custom(s) renders the efficacy of that custom impotent. It follows that any law or customs that discriminates an adopted child or a child born out of wedlock from his rightful position whether as 1st Son or in the inheritance from his father’s estate is ineffective.

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(4)In Aduba v Aduba [2018] LPELR-4576(CA) wherein the right of inheritance of an adopted child (now an adult) was in issue. The Appeal Court said:

I think once it is shown that a child was intentionally accepted and integrated into the family, and made to feel a sense of belonging by the adopting Parent(s) or Person(s),nobody should or can rise up to question the good gesture of the adopting parent(s) or person(s) and deny the child(now adult) in covering,gains,benefit or liabilities accruing from the common patrimony of the estate of the adopter(s) or person(s),who adopted the child. To that extent I do not think that the appellant has the vires to reject the Respondent and strip him off the covering, protection and legacy which their parent(s) bestowed or transferred to the Respondent by reason of his acceptance, adoption, training and nurturing as a son of the Family. Appellant, in my opinion lacked the power to overrule their father in death.

It follows that where the adopted son is the first in timer the benefit accrual to him as a 1st son cannot be divested from him. Doing so will violently offend section 42(2) of the CFRN that detests discrimination on the circumstances of one’s birth. Same also applies to a child born out of wedlock. In Ukeje v Ukeje 224/2004 the Supreme Court (Per Ogunbiyi JSC ) said:

I hold did rightly declare unconstitutional, the law that disinherit Children from their deceased father’s estate. It follows that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefits of their father’s estate is conflicting with s.42 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

It also seems the sex of such child at least for the purpose of inheritance is immaterial whether adopted or born out of wedlock. The entire attack by the Igbo customs on female right to inheritance will also founder. The Supreme Court of Nigeria speaking through Rhodes Vivour JSC in Ukeje v Ukeje (supra) echoed:

No matter the Circumstances of the birth of a female child, such child is entitled to an inheritance from her late father’s estate.Consequently,the Igbo customary law which disentitle a female child from partaking in the sharing of her deceased father’s estate is in breach of section 42(1)&(2) of the Constitution, a fundamental right guaranteed to every Nigerian.

(5)It appears mare adoption as envisaged in Aduba v Aduba (Supra) does not inure the adopted son all benefits that ought to go to him. Thus, in Olaiya v. Olaiya [2002] 12 NWLR (PT 782) wherein Emmanuel Olaiya and Sairah Olaiya jointly adopted by Solomon Olaiya and Cornelia Olaiya were refused right of inheritance by the Supreme Court on the strict ground that their adopter- mother could neither produce an adoption order or lead evidence to that effect. The case of Aduba v Aduba (Supra) turned out successful for the adopted child (now adult) because all documents validating his adoption were produced. The Appeal Court in Aduba v Aduba (Supra) retorted:

Appellant had placed reliance on Olaiya v. Olaiya [2002]12 NWLR (PT 782) @625 to say that the Respondent did not prove that the adoption complied with the law. I rather think that the case of Olaiya v. Olaiya (Supra) supported the case of the Respondent, as the Exhibit Produced in the case had indicated the registration number of the little boy (Respondent) at the Ministry of Health and Social Welfare of East Central State,Owerri,as No. 2/53/108.That in my view, was a trace to the official register to the Homeless Children custodied by the Ministry of Health and Social welfare and the Exhibit F was a proof that Respondent was lawfully and officially given to Aduba’s for adoption, though the form filled was “Foster Care Agreement Form”

(6)In the light of the above authorities it is trite that a child whether male or female born out of wedlock or adopted is entitled to inheritance from their father’s estate contrary to the Igbo customary law. Where such adopted Child or child born out of wedlock is a first son he shall so be entitled to all privileges due to the position of 1st son. Doing otherwise will do violence to provisions of section 42 of the CFRN which prohibits discrimination of Nigerian Citizen by whatever name. To that extent, the Igbo custom which discriminates against an adopted child and a child born out of wedlock is null and void.

Chike h. Izuegbu,Esq. B.Sc.(Hons),LL.B(Hons),BL,Dip.(Mgt.).AIBA.ASM,GMNIM is a Nigerian Lawyer with a bias in International Law and Diplomacy.He is a Law Practitioner with B.S.Nwankwo SAN & Co. Nnewi

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