Olubunmi Cole And 2 Ors Vs P. A. Akinyele And 2 Ors (1960)

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BRETT, F.J

This is an appeal by the plaintiffs, who sued by their mother as next friend, against the judgment of Kaine, Ag. J., in the High Court of Lagos, dismissing their claim for a declaration that they are legitimate children of the late Albert Abimbola Cole, and entitled, as such, to share in the distribution of his estate.

In the course of his lifetime, Albert Abimbola Cole (hereinafter refer-red to as the deceased) twice entered into a marriage under the Marriage Ordinance. The first respondent is his sole surviving child by the first marriage, which was terminated by the death of the wife, and the second respondent is his widow by the second marriage. He died intestate and the third respondent is the administrator of his estate. In addition to these two marriages the deceased maintained for many years an irregular association with the mother of the two appellants; she asserts that during the subsistence of the first marriage he went through a ceremony of marriage with her under native law and custom, but Kaine, J., found that this was not proved, and if it had been the ceremony would have been of no effect, since s,35 of the Marriage Ordinance provided that any person who is married under the Ordinance shall be incapable, during the continuance of such marriage, of contracting a valid marriage under native law and custom.

What is at issue, however, is not whether the mother of the appellants was married to the deceased but whether the appellants are legitimate. The first appellant was born during the continuance of the first marriage and the second some six weeks after the death of the first wife and at a time when the deceased was a widower. It is not disputed that during his lifetime the de-ceased openly acknowledged the appellants as his children and treated them as such, and the submission made on their behalf is that that is sufficient under Yoruba law and custom to confer on them the status of legitimacy. In the court below it was submitted on behalf of the third respondent that there was no evidence that the deceased was a Yoruba, but the point was not raised in this court and I am content to assume, as Kaine, J., seems to have done, that he was one.

It is clear that neither of the appellants would be legitimate if his domicile of origin was England, but, as Kaine, J., pointed out, the law governing their status is the law of Nigeria. No attempt was made to call any evidence as to any rule of native law and custom which might apply to their case, but the court was invited to take judicial notice, under s. 14(2) of the Evidence Ordinance, of the rule under the native law. and custom of the Yoruba people which was held proved by Jibowu, J., and the West African Court of Appeal in Alake v. Pratt (1955) 15 W.A.C.A. 20, to the effect that if paternity of children is acknowledged by a man during his lifetime they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance. Kaine, J., distinguished between Alake v. Pratt and the present case on the ground that in Alake v. Pratt the legal wife of the deceased was dead, “and therefore he could go back to native law and custom if he chose,” and he refused to differentiate between the first and the second appellants on the ground that the second appellant “was already in being” at the time of the death of the first legal wife. If I understand his judgment correctly, his reason for dismissing both claims was that since the deceased could not have married the mother of the appellants at the time when the first was born or the second conceived, the acknowledgment of paternity did not avail to make them legitimate.

I would accept the decision in Alake v. Pratt as one of sufficient authority to enable the courts to take judicial notice of the rule of Yoruba law and custom which was there held proved, but there can be no warrant for extending it, without evidence, beyond the circumstances in which it has been held to apply. The judgment of the West African Court of Appeal in that case does not state that the wife by the lawful marriage was dead at any material time, and it is not clear what authority Kaine, J., had for distinguishing the case on the ground that she was, but equally the judgment does not state positively that the lawful wife was alive at the time when the claimants in that case were born. I am not prepared to treat Alake v. Pratt as authority for the proposition that while a man is married under the Marriage Ordinance he can make a child born to him during the continuance of that marriage by a woman other than his wife, legitimate by the mere acknowledgment of paternity, and I should regard such a rule as contrary to public policy.

I would hold, therefore, that the fact that the deceased acknowledged the first appellant as his son when he was born, and attended the ceremony of his baptism, did not serve to make him legitimate. The evidence is that the deceased continued to treat the first appellant as his son after the death of his first wife, and indeed right up to the time of his own death, and it is necessary to consider whether this makes any difference. In Bamgbose v. Daniel, (1954) 14 W.A.C.A. 116, the Judicial Committee cited and reaffirmed a passage from the earlier judgment of the Board in Khoo Hovi Leong v. Khoo Hean Kwee (1926) A. C. 529, in which it was pointed out that “it is a possible jural conception that a child may be legitimate though its parents were not and could not be legitimately married,” and since the enactment of the Legitimacy Ordinance (Cap.111) in 1929 it has been possible in Nigeria for an illegitimate child whose parents were not and could not lawfully have been married at the time of its birth to become legitimated by their subsequent marriage under the Marriage Ordinance. The first appellant could, therefore, have become legitimated if the deceased had married his mother under the Marriage Ordinance after the death of his first wife, and the question is, whether he has been legitimated by any alternative method under Yoruba law and custom.

In my opinion he has not. The judgment in Alake v. Pratt does not go into the question of what constitutes a sufficient acknowledgment by the father to make a child legitimate, nor does it decide whether the acknowledgment must be given at the time of the child’s birth, or whether it may be given at any time during the joint lives of the father and the child, and no evidence has been called in this case to suggest that the fact that the deceased continued to treat the first appellant as his child after the death of his first wife could constitute, as it were, a fresh acknowledgment on which the first appellant could rely. I prefer, however, to base my judgment not on the failure to prove any applicable rule of Yoruba law and custom, but on the ground that such a rule would be contrary to public policy. On the death of his first wife it would have been open to the deceased to legitimate the first appellant by marrying his mother under the Marriage Ordinance. He did not do so, and although he was entitled, in the words of Kaine, J., “to go back to native law and custom if he chose” in his personal relationships I would hold it contrary to public policy for him to be able to legitimate an illegitimate child born during the continuance of his marriage under the Ordinance by any other method than that provided for in the Legitimacy Ordinance. When a man who might have married under native law and custom has voluntarily accepted the obligations imposed by a marriage under the Marriage Ordinance it seems no undue hardship upon him to hold that in order to legitimate the children of an adulterous union he must follow the same procedure as a person to whom a marriage under the Ordinance is the only form of lawful marriage open; indeed to hold otherwise would almost be to reduce the distinction between the effects of the two forms of marriage to a matter of words.

I now turn to the second appellant. When a man indulges in irregular unions, no rule regarding the legitimacy or legitimation of his children, how-ever liberal, can altogether avoid anomalies. It goes without saying that the two appellants are equally free from blame for the circumstances of their birth, and in the present case the conduct of their father and mother was morally and legally neither more nor less culpable when the first appellant was conceived than when the second appellant was. Nevertheless, it did so happen that before the birth of the second appellant the lawful wife of their father, the deceased, had died, and I feel bound to hold that the rule adopted in Alake v. Pratt applies to the second appellant. Kaine, J., excluded it be-cause the second appellant “was already in being” when the lawful wife died, but under the law of England legitimacy by birth depends on being born after a marriage between the parents, not on being conceived in wedlock, and I cannot believe that the rule of Yoruba law on which the second appellant relies introduces a refinement of this kind, when in the ordinary case of a child born out of wedlock it treats acknowledgment by the father as the only test. In Re Adadevoh (1951) 13 W.A.C.A. 304, Sir John Verity, C.J., pointed out that the encouragement of promiscuous intercourse must always be contrary to public policy, but the law both of England and Nigeria, including the presumptions as to the legitimacy of any child born by a married woman, clearly leans against holding anyone to be a bastard, filius nullius, and I know of no principle of public policy to exclude the rule under which the second appellant, as the acknowledged son of his father, born at a time when his father was free to marry who he chose, is to be regarded as legitimate.

On these grounds I would dismiss the appeal of the first appellant and allow that of the second appellant. I would set aside the order of the court below as regards the second appellant and substitute one granting him the declaration he seeks.

The next friend of the two appellants is the person liable for their costs. This being so, I would make no order as to the costs of the appeal, since one appellant has failed and one succeeded. I would award the second appellant costs in the court below of 25 guineas, payable out of the estate.

Appeal of 1st appellant dismissed.

Appeal of 2nd appellant allowed.

Other Citation: (1960) LCN/0866(SC)