THE LEGAL STATUS OF A BASTARD AND HIS INHERITANCE RIGHT IN NIGERIA

OlufemiAbifarinPh.DFaculty of Law Edo State University Iyamho

Abstract

In this paper, we examined the legal status of a bastard otherwise known as illegitimate child. We discussed the customary, common law and Islamic law position of an illegitimate child before the provision of section 42 (1) of the 1979 Constitution which is adumbrated by the 1999 Constitution, we also looked at the Lagos state Administration of Estate law which further elaboration the right of an illegitimate child now legitimated to join in application for letter of Administration of the deceased father who died interstate. The paper concluded that an illegitimate or a bastard child who is a victim of circumstance not created by him/her should not be deprived of his/her right only because of the circumstances of his/her birth. The spirit and the letters of the constitution of Nigeria should be respected and obeyed by all and sundry.

Who is a bastard?

A bastard is defined linguistically as (old fashioned) someone who was born to parents who were not married.[1] While Black described bastard as a child born to a married woman whose husband could not be or is otherwise proved not to be the father.[2] It is also described as children out of wedlock.[3] It is now commonly known as illegitimate child. An illegitimate child is a child born to a married woman whose husband is not the father of the child.[4] The rebuttable presumption is generally that a child born of a marriage is the husband’s child.[5] This presumption is rebuttable because of infidelity in marriage. Incidence of adultery and fornication are rampant in marriages and has led to divorce or separation of spouses.[6]

An illegitimate child is a child who was not conceived or born in a lawful wedlock nor later legitimated.[7] At common law, such a child was considered the child of nobody (nullius filius) and had no name except one was gained by reputation.[8] Being no one’s child, an illegitimate child could not inherit, even from the mother, but maternal inheritance is now allowed in all states in America.[9] In cases such as Levy v. Loisiana[10] and Ghana v. American Guar & Liab Insurance Co. [11]the Supreme Court of America held that limitations on a child’s right to inherit from his or her mother were unconstitutional. As a result, states change their laws to permit full maternal inheritance. Full maternal inheritance is permitted if the child can prove paternity in accordance with state law. This burden of proof uniquely imposed on an illegitimate child is constitutionally permissible.[12] An illegitimate child is also termed bastard, child out of wedlock and non-marital child.[13]

A legitimate child on the other hand is the child conceived or born in lawful wedlock. Modernly, a child conceived or born in lawful wedlock or legitimated either by the parents’ later marriage or by a declaration or judgement of legitimation.[14]

Introduction

Ordinarily both parents are supposed to have a common home, thereby having their children with them or in their custody in the matrimonial home or matrimonial domicile.

However, certain conditions or circumstances may prevent this. Such condition or circumstance may emanate from non-marriage between lovers. Two lovers who are desirous of marrying one another may be prevented from marriage by the parents who refused to give consent to the marriage on ground of prohibited decree of consanguinity or affinity or due to cultural or traditional taboo while the man has impregnated the woman. If the pregnancy is not aborted, there will be problem of single parenting after the birth of the baby and his paternity may be questionable. Religious difference may also prevent such marriage.[15] In Nigeria, non-marriage relationship such as trial marriage, live-in-lover or co-habitation, campus couple, illicit sex between boyfriends and girlfriends, concubinage and other extra marital relationship have led to the incident of illegitimacy of a child.[16]

Legitimacy and Illegitimate child

The necessity to examine the law relating to illegitimate arises from the fact that the rights of illegitimate child are controversial. Further, the presumed rights of the illegitimate child may possibly conflict with the succession rights of legitimate children of the marriage, whether under the Acts or the customary law. This point is evidenced in the statement by kasumu,[17] that “most of the cases on illegitimacy deal with the rights of illegitimate children to succeed the property… it is in that area…that the consequences of illegitimacy are being greatly felt.”

It is a well-established rule of law that a child born during the subsistence of a customary or statutory marriage between his/her parents is legitimate. However, where a child is born to a legally married man by extra-marital relations, the question of illegitimacy arises. More often than not, the mothers of this class of children in Nigeria believed that their children, though born outside marriage, have the same inheritance to the estate of their father, as do the children of the marriage. This inevitable leads to litigation, during which the court, in applying the law attempts to reconcile it with social realities. This recalls the statement that:

Illegitimacy as a social problem is as old and unsolved as human existence itself. In attempting to a legal solution, the courts have allowed strict legal rule to override policy and social consideration.[18]

However, in consideration of the dual marriage system, the Supreme Court in Adeyemi v. Bamidele made it clear that: …legitimacy in England is a different concept to legitimacy in Nigeria.[19]

Legal Status of an illegitimate child

The question of legitimacy is principally connected with status.[20] According to Kasunmu and Salacuse[21] legitimacy is the status acquired by a person who is born in lawful wedlock, and such a person is regarded as been legitimate from birth. Since lawful wedlock includes marriage under the Act, as well as customary law, which included Islamic marriage, any child born during the subsistence of either of these aforementioned marriages is legitimate.[22] Also, if the child is within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will apply to the child. Under Islamic law, a child is presumed to be legitimate once he is conceived during the subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved. In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with illegitimacy. At common law, an illegitimate child had no right whatsoever, with regards his parent. He is described as filius nullius. The illegitimate was a stranger in law not only to his father but also to his mother and all other relatives. He thus, has no right to succeed to their property, to receive maintenance[23] or other benefits deriving from the status of the parent and child.[24] Also, an illegitimate has no right to participate in the intestacies of either of his parent. Likewise, neither of his parents has right to succession on the intestacy of the illegitimate child. He has no right to take on the intestacy of a grandparent or brother or sister (whether legitimate or not) and vice versa.[25]

In Adeyemi v. Bamidele (supra)[26] the Supreme Court held that “legitimacy in England is a different concept to legitimacy in Nigeria.” Thus, the Legitimacy Ordinance of 1929 has modified this common law position.[27] Thus section 10 of the Ordinance, where the mother of an illegitimate child died intestate after 17 October 1929, leaving real or personal property, but not survived by any legitimate child, the illegitimate child or if he is dead, his issue, is entitled to take any interest in the estate to which he or his issue would have been entitled to if he had been born legitimate.[28] Also where an illegitimate person who has not been born legitimated dies intestate in respect of all or any of his real or personal property, his mother, if surviving shall be entitled to take any interest in his estate to which she would have been entitled to if the child have been born legitimate and she would have been the only surviving parent. It has been argued that this Ordinance provided partial remedy to the problem created by the common law rule concerning illegitimacy.[29]

A Legitimate Child: Common law and Customary Law position Contrasted

A legitimate child is one who is born of parents lawfully married to each other.[30] A child is legitimate at birth if born in a lawful wedlock. To be legitimate at birth, the parent of the child must be lawfully married either at the time of his conception or at the time of his birth. For instance, a child may be regarded as legitimate even though the natural parents are not married to each other and with respect to who the child is legitimate is not its father. In Ibo custom, for instance, a man who has no male child may persuade one of his daughters to stay behind and not marry; the purpose of such agreement is for her to produce a male successor to her father, and thereby save the line from threatening extinction thus any child she bears while remaining with her parents is considered legitimate child of her father at birth. Any male child so produced has full right of succession to the grandfather’s land and title.[31] Again, a barren wife may, in an effort to fulfil her obligation to bear children for her husband, marry another woman for her husband –that is, provide the bride price for the marriage. Children of the other wife are regarded as the legitimate children of the husband. There are also instance of a child been regarded as the legitimate child of a man who is not his natural father. For instance, a widow remains in her late husband’s home without remarrying and her marriage with her late husband is not formally dissolved, any child she bears post humously is regarded has the legitimate child of her late husband at birth. This custom was judicially approved in Nwarbe v President Oru District Court & Anor[32] as not been contrary to natural justice and equity. In this case the husband of Oyibo died and she continued to live in the matrimonial home, in the family of the deceased. She became pregnant by the applicant, Nwarbe, while she’s still leaving there, but before delivery she left she left there and went to stay with her parent. Subsequently, she took an action in the customary court for a formal divorce. The court held that marriage to the deceased, Obiora, was not dissolved by death in 1952, and awarded Oyibo’s child to brother of the deceased. Although the applicant did not participate in the customary court proceedings, he challenge the decision of the court as being contrary to natural justice and equity. Egbuna, J. distinguished the case before from Edet v Essien[33] on the ground that in that case under consideration Oyibo continued to reside in her late husband’s house after his death and became pregnant while staying there. There was no question of claim to the child on the basis that the late husband was not refunded the dowry, aswas the case of Eddet v. Essien. Moreover, the learned judge argued that the applicant did not contest the issue of the custody of the child in the customary court proceedings, and he was aware and admitted in the affidavit that by custom of his locality the child was that of Oyibo’s late husband, he therefore held that that custom was not contrary to natural justice and equity.

Also a statutory law marriage that is void has its own implication on legitimacy.in Nigeria, prior to the enactment of section 39(2) of the 1979 constitution[34], any child born of a void marriage was illegitimate.[35] Finally, children of a voidable marriage are not considered illegitimate because such a marriage is voided at the instance of any of the parties. Again, under customary law, any child born illegitimate can be legitimated by subsequent acknowledgement. More so, there is a general presumption of legitimacy under the common or statutory law,[36] in favour of children born in the subsistence of the relationship considered or believed to be valid and up to 280 days after the situations of voidable marital union under customary law, if the marriage is subsequently voided at the instant of any of the married partners, any child born, or any pending child to be born, from a prevailing pregnancy before decree absolute voiding the said marriage, remains legitimate.

Legitimation of a child

Legitimation is the process by which a child who has not been born legitimate acquires legitimate status. The process of legitimation may be achieved by the subsequent marriage of the parents or his acknowledgement, that is, by recognition of the paternity of the child by his natural father. Legitimation by subsequent marriage can be achieved either under the statutory law or under the customary law.

Testate succession right of a bastard child

The right of a bastard or illegitimate child to inherit his father or mother by will is not contestible since the testator has the right to give any of his properties to his child or anybody whatsoever, whether the child is born within or out of wedlock or not born by him at all.

The Supreme Court has held that “the chief if not the only aim of making wills is to allow owners of property or rights to indicate how their affairs on their death could be given or those to succeed them otherwise, for instance, the nature and quantum of the interest which could go to a beneficiary can be attained by testamentary disposition. In other words the testator can appoint as head of his family, a person other than his eldest son, or extend the category of the beneficiaries beyond his nuclear family.”[37]

From the above statement of the court, it is clear that a testator determines who takes what under his will. It is necessary to make a will in order to avoid the problems of intestacy, to have choice as to who will administer the testator’s property, to confer extended powers on the executor/executrix among other reasons. Under the will’s Act, a testator can freely dispose of his properties and make his will without any hindrance prescribed by the statute custom or religion.[38] Because of the hardship this rule can occasion on the relatives of a testator, a caveat has been devised to ensure that reasonable financial provision is made to the testator’s dependants. Customary law and Islamic law are also accommodated,[39] since a testator can make his will freely and give to his children, it is logical that he will give to his children out of wedlock in his will as long as he acknowledges the paternity of the child in his lifetime.

Intestate Inheritance Right of a bastard child

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 is 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 is of Estate law of Lagos, only four persons are allowed to apply for letters of administration.[40]

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 parent’s estate.

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. Nwariaka,[41] 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 n 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 below 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 children born in a legitimate wedlock. Devolution follows the blood. This new rule as a result of both the Constitution and administration of estate law is capable of encouraging promiscuity and multiplying children outside wedlock. It is also discriminatory against women.