The right to inherit: illegitimacy and Constitutional Liberation in Nigeria – just a legal shield?

Abstract

Claims to a right to inherit from a property owner-parent by children born out of wedlock have usually been challenged by extended family members on the footing that these persons were illegitimate. Many commentators agree that disinheriting these persons may offend s. 42(2) of Nigeria's 1999 Constitution – the non-discrimination clause. However, opinion is polarized as to whether the 1999 Constitution completely abrogates the concept and status of illegitimacy or simply provides a legal shield against discriminatory inheritance practices. This article argues that the parent-centred interpretation of decisions from the highest courts, even by pro-abrogation scholars, ignores the reality that the wider family contexts, indirectly recognized in these decisions, in which children's rights are currently defined in many jurisdictions, make the status of illegitimacy otiose. It re-examines these decisions from the child's perspective to conclude that more than just providing a legal shield, s. 42(2) completely abrogates the status of illegitimacy in Nigeria.

Keywords::

• inherit
• illegitimacy
• discrimination
• constitution
• courts
• abrogation

Notes

^1. Email: [email protected]; [email protected]

^2. ‘Children’ as used here is not limited to the technical legal definitions (e.g. of a person below a particular age) but is used generally to indicate a potential heir or successor in title. Issues of inheritance affecting a child (a person aged below 18) may not arise until he attains majority. However, many times disputes involve legal ‘children’.

^3. Section 39 of the 1979 Constitution.

^4. The legislative history of this clause began in October 1975 when the Constitutional Drafting Committee (CDC)'s sub-Committee on Citizenship, Fundamental Rights and Electoral System recommended that a number of additional rights be written into the Draft Constitution. As a result the Draft Constitution provided that ‘no citizen of Nigeria shall be subject to any disability or deprivation merely on the ground that he was born out of wedlock’. The rationale for this clause was that it was unjust to accord an inferior status to persons who were not in any way responsible for the situation in which they found themselves, and was in accordance with equity and natural justice. Following controversies around the clause, it was deleted in the Constituent Assembly. However, on 1 May 1978, JO Aghimien proposed this clause which became s. 39(2) of the 1979 Constitution and presently s. 42(2) of the 1999 constitution (see Federal Ministry of Information, 1976, Vol. I, p. XVIII, Vol. II, p. 175, 1976, Cols 221, 224, 268, 408, 688, 697, 856, 1034, 1254–1255, 1506; Nwogugu, 1990, pp. 308–310). The point of the above is that the protectionist policy behind the clause originally targeted illegitimate children.

^5. Contrast, for example, the decisions in Olulode v Oviosu (unreported) High Court of Lagos State, Suit No. M/133/81 delivered on 27 November 1981, Onalaja J with the decision in Da Costa & Anor v Fasehun & Ors (Unreported) High Court of Lagos delivered 22 May 1981, Oladipo Williams J. and the trial court's judgment in Salubi v Nwariaku, (infra).

^6. Cap M7 Laws of the Federation 2011. This is the only matrimonial causes legislation in the country and applies to the whole Federation.

^7. A ceremony performed by a man without male children, in presence of his relations, in which he persuades one of his daughters not to marry but to remain in the family with the hope of bearing a male heir, to ensure the continuation of the family line (see Mojekwu v Ejikeme below).

^8. Under Customary law, a child born out of wedlock can be legitimated by acknowledgement even where the parents have never married each other: Lawal v Younan [1961] 1 All NLR 245, 250 per Ademola CJF. This involves the putative father doing something overtly by which he recognizes the child as his. This could take varying forms: performance of the child's naming ceremony- Phillips v Phillips (1946) 18 NLR 102; arranging medical attention for him – Phillips (supra); paying the mother's maternity bill – Savage v McFoy (1909) 1 Renner's Gold Coast Report 504; informing his friends and relatives – Abisogun v Abisogun [1963] 1 All NLR 237; registering the child with the father's name (birth certificate) – Akerele v Balogun [1964] LLR 99, 102–103, etc.

^9. For a time following the above decisions it appeared that these two discriminatory customs were dead; in fact one writer opined that the ‘oli-ekpe custom is no longer a valid custom’ (Fekumo, 2012, p. 355; see also Nweze, 2004, p. 1).

^10. Cap M7 Laws of the Federation of Nigeria 2011, (hereinafter, MCA).

^11. These are the domestic contexts in which the status finds expression.

^12. MCA s. 70(1); see Hall, 1990, p. 413. He discussed the English Court of Appeal decision in Re Spencer dec'd [1990] 2 W.L.R 1430 asserting that void marriages could have major consequences and can endow a child of the parties with the status of legitimacy under s. 1(1) of the English Legitimacy Act 1976. See further the Family Law Reform Act 1987, below.

^13. Kafi v Kafi (supra), Acquah v Acquah (1985) HCNLR 3, where the principle in s. 72 was correctly stated and applied, (cf. Ayangbayi v Ayangbayi (1979) 10–12 CCHCJ 1); and Egunjobi v Egunjobi (1976) 2 FNLR 78 where s. 17 was applied. In Oghoyone v Oghoyone [2010] 3 NWLR (Pt 1182) 564 both sections were applied to a situation where the parties were ‘husband’ and ‘wife’ in a ‘purported marriage that is void’ under s. 69 of the MCA. But see Amadi v Nwosu [1992] 5 NWLR (pt 241) 273 – the Supreme Court held that the Act was inapplicable to a customary law marriage. Sadly, it is solely women in this class that need the protection of the law, as customary law of property adjustment between spouses is less than satisfactory: see Emeke, 2001, p. 72; Nwanya v Nwanya [1987] 3 NWLR 699; Aderoumu v Aderoumu [2003] 2 NWLR (Pt 803) 1; for criticism of some of these judgments see Arinze-Umobi, 2002, p. 188; Uzodike, 1989, p. 105.

^14. ‘In any question between husband and wife as to the title to or possession of property either party may apply … to a judge and the judge may make such order with respect to the property in dispute as he thinks fit.’

^15. Because under s. 69 of the MCA, marriage is defined to include a ‘purported marriage that is void’ for purposes of financial and property adjustment.

^16. Id, at 584, it therefore drew a legal line between this void marriage and mere cohabitation in a manner that relegated cohabitation to a legally inconsequential behaviour.

^17. Non-access in this context means absence of sexual intercourse.

^18. MCA, s. 114; this law was firmly endorsed by the Court of Appeal in its recent decision in Ugbah v Ugbah (2009) 3 NWLR (Pt 1127) 108, 123–124, 125 per Adamu JCA.

^19. Statutory marriages are marriages celebrated in accordance with the provisions of the Marriage Act 1914 Cap M6 LFN 2011.

^20. This is so because it is the regular High Court that has jurisdiction under the MCA. Under the Child's Rights Act 2003 where an independent action is possible only the Family Court established under that Act or Law as the case may be, can assume jurisdiction. Thus an action under the CRA cannot be brought in the High Court.

^21. See, for example, the facts in Ogbole v Onah (1990) 1 NWLR (Pt 126) 357.

^22. The custom would have legitimized the first defendant.

^23. Under the rules of legitimation, X could not legitimize these children by simple acknowledgement since this is a concept known to customary law; he could not also do so under the relevant legitimacy law (by subsequent marriage to the mothers of these children: s. 3(1) Legitimacy Law, Laws of Bendel State) since there was a subsisting monogamous marriage.

^24. Cap 115 LFN 1958. This provision was omitted in the both Cap 218 LFN 1990 and Cap M6 LFN 2011. Interestingly, the Supreme Court discussed the legal status of this provision. Those volumes contained only federal statutes in consonance with the legislative lists of the Constitution which made succession a residual matter in the exclusive legislative competence of the states: at 449–450. Thus the section would cease to have legislative force in any state with its own law on succession.

^25. Justice of the Court of Appeal. The Court of Appeal is next to the Supreme Court in the hierarchy of courts in Nigeria. Appeals lie from the High Court to the Court of Appeal.

^26. See Probert, 2009, p. 12 for statistics in the United Kingdom up to 2007.

^27. For a sketch of the legal and social battles that encapsulated the current position of same-sex couples at par with marriage in Belgium, see Borghs & Eeckhout, 2010, p. 1.

^28. See, Bruch, 1981, p. 217. The author traces the developments in legal treatment of non-marital cohabitation in four common law countries; Barlow & James, 2004, p. 143; Law Commission, 2002. In August 2007 the English Law Commission published a report: Law Commission (2007) Cohabitation: the Financial Consequences of Relationship Breakdown, LC No. 307, London (or Law Commission Consultation Paper No. 179). It followed widespread responses to the Commission's earlier consultation paper and numerous calls for Parliament to review the current law affecting the property rights of cohabiting couples. Also see, Freeman and Sevitt (2008, p. 31) for a summary of the basis of the proposed adjustive scheme and recommendations of the Commission. Also see, Australian Law Reform Commission (1991); Bridge (2006, p. 641); Law Reform Commission (2004). Stretching the boundaries of family regulation, laws have even enabled same-sex marriage across Europe and the Americas.

^29. For an examination of a clash of this right in relation to children and other rights, see Fenwick (2004, p. 889).

^30. Johnson v Ireland (1986) 9 EHRR 203; Also see, Berrehab v The Netherlands [1989] E.H.R.R 322 – married couple and children; Keegan v Ireland [1994] 18 E.H.R.R 342 – cohabiting partners and children; Probert (2009, p. 19).

^31. S. 45 contains a proviso similar to Art. 8(2): ‘nothing in s. 37 … shall invalidate any law that is reasonably justifiable in a democratic society (a) … public morality … This public morality clause has been used against legalizing same-sex marriage in Nigeria; see the Same-Sex Marriage (Prohibition) Act 2013.

^32. Strictly, cohabitation could arise in other customary settings. Woman to woman marriage (customary surrogacy) (Nwogugu, 1990, 63–64); Meribe v Egwu (1976) 1 All NLR 266 at 275 held that there was nothing immoral in the transaction and that calling this ‘marriage’ in the context is only colloquial. See generally, Attah (2012, p. 162).

^33. ‘No duty or obligation shall arise between any child born as a result of the artificial insemination of a woman and any person whose gamete or gametes have been used for such artificial insemination and the blood relations of that person except where (a) that person is the woman who gave birth to that child; or (b) that person is the husband of such a woman at the time of such artificial insemination.’

^34. Under the common law, an illegitimate child was not put on the same footing on intestacy of ancestors and collaterals. However, under s. 14 of the Family Law Reform Act 1969, (for deaths occurring after 1969) an illegitimate child took on the intestacy of each of his parents as if he had been born legitimate and vice versa.

^35. The nature of evidence which the Supreme Court was looking for was documentary.

^36. See the table of distribution under s. 120 of the ASL; s. 49(1)–(5) of the Administration of Estates Law, Cap 2 Laws of Bendel State 1976, applicable in Edo and Delta States. Its provisions are similar to Administration of Estates Laws of states created out of the former Western, namely: Ekiti, Ogun, Ondo, Osun and Oyo States.