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IBIAM v. IBIAM & ANOR
CITATION: (2017) LPELR-42028(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON FRIDAY, 27TH JANUARY, 2017Suit No: CA/E/151/2006
Before Their Lordships:
IGNATIUS IGWE AGUBE Justice, Court of AppealJOSEPH TINE TUR Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal
BetweenPRINCE AKA O. IBIAM - Appellant(s)
And1. MRS. OBIAGELI AKANU IBIAM(Substituted by the Order of the Honourable Courton 11th of April, 2016)2. THE PROBATE REGISTRAR, ENUGU
- Respondent(s)
RATIO DECIDENDI1. CUSTOMARY LAW - NATIVE LAW AND CUSTOM: Whether native law and custom can be altered or abrogated
by legislation"...Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445 was a chieftaincy dispute coveredby the chieftaincy declaration, Karibi-Whyte, JSC held at page 465 as follows:"It is an elementary and fundamental principle of our law that an existing native law and custom may be alteredor entirely abrogated by a valid legislation in conflict with it. Accordingly, where the status regulated is not acreation of native law and custom, any native law and custom which has developed and grown around it can beabolished or indeed controlled by a suitable contrary legislation."Per TUR, J.C.A. (Pp. 35-36, Paras. D-A) - read in context
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2. EVIDENCE - DOCUMENTARY EVIDENCE: Whether a party can be compelled to produce document which hehas denied possession of"Admissibility of documents is required to prove relevant and pleaded facts. See Musa Sadau vs. The State(1968) 1 All NLR 124 at 129; Agunbiade vs. Sasegbon (1968) N.M.L.R 223 at 226 and ACB Ltd vs. AlhajiGwagwada (1994) 268 at 277. But a person not shown by credible evidence to be in possession of anydocuments cannot be expected to produce them at the trial. See Matori vs. Bauchi (2004) All FWLR (Pt. 197)1010 at 1055 Paragraphs "D"- "E" and Nlewedim vs. Uduma (1996) 6 NWLR (Pt. 402) 383. I do not see how the1st respondent can anchor his defence and claim remedies in the counter-claim by relying on documents allegedto be in possession of the appellant who has vehemently denied being in their possession. Section 146(1)-(2) ofthe Evidence Act, 2011 provides as follows:"(1) The Court shall presume every document purporting to be a certificate, certified copy or other document,which is by law declared to be admissible as evidence of any particular fact and which purports to be dulycertified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that suchdocument is substantially in the form and purports to be executed in the manner directed by law in that behalf.(2) The Court shall also presume that any officer by whom any such document purports to be signed or certifiedheld, when he signed it, the official character which he claims in such document."Per TUR, J.C.A. (Pp. 13-14, Paras. A-B) - read in context
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3. FAMILY LAW - ADOPTION: Meaning and scope of adoption"What is the meaning of "adoption," "adoptee", "adopted," "adoption by estoppel" or "fostered" child? Thelearned authors of Black's Law Dictionary, 9th Edition, pages 55 to 56 defines these terms as follows:"Adoptee:- A person who has become the legal child of one or two non-biological parents. Also termed adoptedchild.Adoption:- 1. Family law. The creation of a parent-child relationship by judicial order between two parties whousually, are unrelated; the relation of parent and child created by law between persons who are not in factparent and child. This relationship is brought about only after a determination that the child is an orphan or hasbeen abandoned, or that the parents' parental rights have been terminated by Court order. Adoption creates aparent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, andresponsibilities that attach to that relationship, though there may be agreed exceptions. Adoption isdistinguishable from legitimation and from fostering. Adoption usually, refers to an act between personsunrelated by blood; legitimation refers to an act between persons related by blood. Universally, a decree ofadoption confers legitimate status on the adopted child. Adoption is permanent; fosterage is a temporaryarrangement for a child's care. See adopted child, foster child under Child... "Although adoption is found in manysocieties, ancient and modern, primitive and civilized, and is recognized by the civil law, it was unknown atcommon law. Accordingly, adoption is entirely a creature of statute..." Elias Clark et al, Gratuitous Transfers:Wills, Intestate Succession, Trusts, Gifts, Future Interests, and Estate and Gift Taxation Cases and Materials73-74 (4th ed. 1999).Adoption by estoppel (1933) 1. An equitableadoption of a child by one who promises or acts in a way that precludes the person and his or her estate fromdenying adopted status to the child.2. An equitable decree of adoption treating as done that which ought to have been done. Such a decree isentered when no final decree of adoption has already been obtained, even though the principal has acted as ifan adoption has been achieved. A petitioner must show an agreement of adoption, relinquishing of parentalauthority by the child's biological parents, assumption of parental responsibility by the foster parents, and a defacto relationship of parent and child over a substantial period. Such a claim typically occurs when an adoptiveparent has died intestate, and the child tries to be named an heir. In a minority of states, adoption by estoppelmay be a basis for allowing a child to participate in a wrongful-death action. Also termed equitable adoption;virtual adoption..."Other forms of adoption are as follows:"Adoption by will: Roman Law. A posthumous adoption effected by a testator's written statement declaring theintention to adopt and naming the person adopted. The only legal effect of such an adoption was to entitle theadopted person to assume the testator's family name and be regarded as the testator's child. Because theadopted person was never subject to the testator's legal control (patria potestas), the person could not acquireagnatic rights or make a claim on the estate beyond any specific testamentary grants.Adult adoption:- The adoption of one adult by another. Many jurisdictions do not allow adult adoptions. Thosethat do often impose restrictions, as by requiring consent of the person to be adopted, but may not look tooclosely at the purpose for which adoption is sought... Agency adoption:- An adoption in which parental rights areterminated and legal custody is relinquished to an agency that finds and approves the adoptive parents. Anagency adoption can be either public or private. In all states, adoption agencies must be licensed, and in most,they are non-profit entities. Parents who voluntarily place a child for adoption most commonly use a privateagency...Closed adoption:- An adoption in which the biological parent relinquishes his or her parental rights andsurrenders the child to an unknown person or persons; an adoption in which there is no disclosure of the identityof the birth parents, adopting parent or parents, or child. Adoptions by stepparents, blood relatives, and fosterparents are exceptions to the no-disclosure requirement. Also termed confidential adoption...Cooperative adoption:- A process in which the birth parents and adoptive parents negotiate to reach a voluntaryagreement about the degree and type of continuing contact after adoption, including direct visitation or morelimited arrangements such as communication by telephone or mail, the exchange of either identifying or non-identifying information, and other forms of contact...De facto adoption:- An adoption that falls short of the statutory requirements in a particular State. The adoptionagreement may ripen to a de jure adoption when the statutory formalities have been met or if a Court finds thatthe requirements for adoption by estoppel have been met. Also termed adoption by estoppel."?In Osborn's Concise Law Dictionary by Sheila Bone, 9th Edition, page 19, also defined an"adopted child" and "adoption" as follows:"Adopted child:- A child in respect of which an adoption order has been made. See Adoption of children. Adoptionof children:- Adoption is effected by a Court order which vests parental responsibility for a child in the adopter(s)and extinguishes the parental responsibility of the birth parents (Adoption Act, 1976, Section 12(1)). The effectof an adoption order is that the child is treated as if born as a child of the marriage of the adopter(s) and not asthe child of anyone else, and is prevented from being illegitimate. The requirements for making adoption ordersare set out in the Adoption Act, 1976. See Freeing for adoption."Per TUR, J.C.A. (Pp. 14-19, Paras. C-D) - read in context
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JOSEPH TINE TUR, J.C.A. (Delivering the Leading
Judgment): Any determination of a Justice of the Court of
Appeal or the Supreme Court is either a “decision” or an
“opinion” as provided in Sections 294(2)-(5) and 318(1) of
the Constitution of the Federal Republic of Nigeria, 1999 as
altered to wit:
“294(2) Each Justice of the Supreme Court or of the
Court of Appeal shall express and deliver his opinion
in writing, or may state in writing that he adopts the
opinion of any other Justice who delivers a written
opinion:
Provided that it shall not be necessary for the Justices
who heard a cause or matter to be present when
judgment is to be delivered and the opinion of a
Justice may be pronounced or read by any other
Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one
Judge shall be determined by the opinion of the
majority of its members.
(4) For the purpose of delivering its decision under
this section, the Supreme Court, or the Court of
Appeal shall be deemed to be duly constituted if at
least one member of that Court sits for that purpose.
(5) The
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decision of a Court shall not be set aside or treated as
a nullity solely on the ground of non-compliance with
the provisions of Subsection (1) of this section unless
the Court exercising jurisdiction by way of appeal or
review of that decision is satisfied that the party
complaining has suffered a miscarriage of justice by
reason thereof.”
Section 318(1) of the Constitution reads as follows:
“318(1) In this Constitution unless it is otherwise
expressly provided or the context otherwise requires:
xxxxxxxxxx
“Decision” means in the relation to a Court, any
determination of that Court…”
Besides, each Justice of the Court of Appeal or the Supreme
Court is to render an opinion or deliver a decision and the
mind of the Court is to be by the majority of the Justices
that heard the appeal hence in my humble opinion, the
question of regarding any determination as the “lead”,
“majority” or “minority”, etc, does not arise. I shall now
render my “decision” having participated at the hearing of
this appeal with my colleagues.
This appeal was commenced by the
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appellant by a Notice of Appeal filed in the lower Court on
19th September, 2005 against the decision of Hon. Justice
B.C. Nosike J., of the Enugu State High Court of Justice
rendered on 18th October, 2004 in favour of the
respondent. The learned trial Judge held at page 129 lines
11 to 23 of the printed record as follows:
“With reference to Exhibits “D”, “E” and “I”, the
Books concerned the family of Ezeogo Akanu Ibiam,
his wife, and blood children. There is no evidence that
the authors were aware of the fact that Ezeogo Akanu
Ibiam, had fostered or adopted child. The books did
not advert to that aspect of the philanthropy of Ezogo
Akanu Ibiam. They are therefore irrelevant for that
purposes.
In view of the foregoing, this Court holds that the
claim of the plaintiff has not been proved. See Nig.
Airways Ltd. vs. Abe (1988) 4 NWLR (Pt.90) 52 ratio
9. The same is therefore accordingly dismissed. The
counter-claim has been found proven. Judgment is
therefore given to the 1st defendant against the
plaintiff. It is therefore hereby ordered that the 1st
defendant having been adjudged an adopted son of
Ezeogo
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Akanu Ibiam should be involved in the application for
letters of Administration of the Estate of Ezeogo
Akanu Ibiam. The caveat entered by the 1st defendant
has been overtaken by this judgment.”
The appellant was the plaintiff while the 1st respondent
was the 1st defendants/counter-claimant in the Court
below. The 2nd respondent was the Probate Registrar of
the Court below. The appellant commenced proceedings in
the Court below on 23rd December, 1999 by a Writ of
Summons supported by a statement of claim. The 1st
respondent filed a defence/counter-claim prompting the
appellant to file a reply to the counter-claim. In the course
of proceedings, the parties amended their respective
pleadings. The appellant relied on a “Further Amended
Statement of claim” and the 1st respondent on a
“Further Amended statement of defence”. The
appellant’s original statement of claim sought the following
reliefs against the 1st and 2nd respondents jointly and
severally at page 6 of the printed record to wit:
“1. A declaration by the Honourable Court that the
plaintiff is entit led to a grant of letter of
Administration in respect of
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the estate of his late father Eze-ogo Dr. Akanu Ibiam.
2. An injunction restraining the 1st defendant from
interfering with the duties of the 2nd defendant in
processing the application of plaintiff for the said
letters of Administration and the issuance of the same
to the plaintiff.
3. An order discharging the notice to prohibit grant
and directing the 2nd defendant to proceed to
process and issue the said letters of Administration to
the plaintiff.”
Pages 19-20 of the printed record contained the “Further
Amended Statement of Defence.” The parties relied on
oral and documentary evidence in support of the cases each
presented before the learned trial Judge.
Seven grounds accompany the Notice of Appeal. Paragraph
4 in the Notice of Appeal claims the following reliefs if the
appeal is determined in favour of the appellant to wit:
“4. RELIEF SOUGHT FROM THE COURT OF APPEAL:
That the judgment of the Enugu High Court delivered
on the 18th day of October, 2004 including the order
joining the 1st defendant in the application for letters
of Administration in respect of the estate of the late
Eze-Ogo Dr. Akanu
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Ibiam be set aside, the counter-claim dismissed and
judgment entered for the plaintiff/appellant.”
When the appeal came up for hearing on 31st October,
2016 the appellant adopted his Amended brief of argument
which had been filed on 24th May, 2016. The 1st
respondent, reported dead had been an order of substituted
by this Court on 11th April, 2006. Obiageli Akanu Ibiam
proceeded with this appeal. The 1st respondent’s Amended
brief was filed on 3rd June, 2016 pursuant to the order of
substitution. The briefs were adopted on 31st October,
2016 by learned Counsel. Appellant’s learned Counsel
distilled the following issues for determination:
“1. Whether there was any evidence the Ezeogo Akanu
Ibiam adopted the 1st defendant.
2. Whether the learned trial Judge was right to have
based his decision on unpleaded and unproved
evidence.
3. Whether the learned trial Judge was correct in
awarding the 1st defendant relief not specifically
sought for.”
4. Whether it was proper for the learned trial Judge
not to make his ruling or refuse to give reasons for
his rulings and refuse to hear the motion pending
before
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embarking on hearing the suit.”
The 1st respondent distilled the following issues for
determination:
“1. Whether under Native Law and Customs or
Statute Law, the late Ezeogo Dr. Akanu Ibiam adopted
the 1st defendant/respondent.
2. Whether in the circumstances of this case, there
has been substantial compliance with the Adoption
Law (Cap.6), Laws of Eastern Nigeria, 1956, by the
plaintiff’s father when he applied for the adoption of
the 1st defendant and carried out his obligations
under the law.”
No brief was filed by the 2nd respondent. I have read the
facts upon which the parties predicated their grievances in
the Court below. I have also read the reasoning of the
learned trial Judge for dismissing the appellant’s claims but
rendering a decision in favour of the 1st respondent in
respect of the counter-claim. The 1st respondent had
sought the following remedies in the counter-claim:
“WHEREFORE the 1st defendant claims against the
plaintiff as follows:
(a) A declaration that the 1st defendant is a son of
late Dr. Akanu Ibiam by legal adoption.
(b) A declaration that the 1st defendant is
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a son of late Dr. Akanu Ibiam by customary adoption
and in accordance with the custom and tradition of
Unwana.
(c) An order of perpetual injunction restraining the
plaintiff, his servants, agents or privies from
compelling the 1st defendant to change his family
name from Akanu Ibiam or ejecting him from the
family house of late Dr. Akanu Ibiam.”
The principal question the learned trial Judge had to
determine in respect of the Further Amended Statement of
claim was whether the appellant is the only biological male
child of late Dr. Francis Akanu Ibiam. This was not in
dispute. Also not in dispute is the fact that late Akanu Ibiam
had two daughters, who are married and live with their
respective husbands. What the appellant is disputing is the
1st respondent claim that he is an adopted son of late Dr.
Francis Akanu Ibiam who died intestate in 1995. The 1st
respondent had the onus of pleading and proving he is an
adopted son of the late Dr. Akanu Ibiam. 1st respondent
pleaded in Paragraph 6 of the original statement of defence
that, “...In further answer to Paragraph 7 of the
statement of claim the 1st defendant avers that the
Exhibits
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contained in the 1st defendants affidavit of interest,
particularly Exhibits “A” and “A1” are evidence that
adoption/fit persons order with respect to the 1st
defendant was duly processed.” In Paragraph 7, the 1st
respondent pleaded that, “....when Dr. Akanu Ibiam died
in 1995, the plaintiff took possession on and control
of all the deceased documents, including the
processed adoption/fit persons order of the 1st
defendant and has been withholding same.” The 1st
respondent again pleaded in Paragraphs 17 (a)-(d) of the
statement of defence as follows:
“17. In further answer to the statement of claim the
1st defendant avers and shall at the trial led evidence
as follows:
(a) The 1st defendant is an adopted son of Dr. Akanu
Ibiam and that adoption/fit persons order was
processed, to the knowledge of the plaintiff.
(b) The said adoption/fit persons order is in
possession of the plaintiff who is withholding it.
(c) A certificate of adoption is merely a conclusive
proof of adoption and not only means of proving
adoption.
(d) The plaintiff’s intention in instituting this suit is
only to be
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granted the letter of administration to enable him
dispose of the estates of late Dr. Akanu Ibiam and to
the prejudice of the 1st defendant.”
In Elias vs. Omo-Bare (1982)1 All NLR (Pt.1) 75, the
Supreme Court held per Udo Udoma, JSC at pages 83
to 84 as follows:
“The issue of boundaries is most crucial in a case of
this nature, because, according to the testimony of
Momodu Ilo (PW3), accepted by the learned trial
Judge and as pleaded in Paragraph 5 of the amended
statement of claim, the portion of land sold to the
appellant and covered by the deed of conveyance,
Exhibit “A” was only a part of larger area of land
originally the property of Oshoja family, the said
larger area having partitioned on the death of Oshoja
among his four children. The portion sold to the
appellant was said to be the portion which fell to the
share of Talabi and of which Talabi was seised in
accordance with “Yoruba native law and custom.”
It is for these reasons that the averments contained
in Paragraph 2 of the amended statement of claim
become most relevant and important and, indeed,
vital to the case of the appellant. The necessity
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to produce at the trial a proper plan of the land
claimed by the appellant and in dispute prepared by a
licenced surveyor, and on which should have been
delineated certain prominent features found thereon
including the particular portion on which the house
of the respondent had been erected as being within
the area acquired by the appellant must have been
fully appreciated when pleadings were settled. It was
in consideration of that fact, it must be presumed,
that the appellant promptly and properly pleaded in
Paragraph 2 of his statement of claim by way of
notice to the respondent that he would produce at the
trial a plan of the land in dispute showing the area
upon which the respondent had committed acts of
trespass of which the appellant was complaining.
I agree with learned Counsel for the respondent that
the averment contained in Paragraph 2 of the
amended statement of claim was tantamount to an
undertaking binding upon the appellant, a breach of
which was not only evidence of bad faith, but also
most embarrassing to the respondent, thereby placing
an obstacle in the way of a proper defence to the
action.”
The 1st respondent referred to a
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“certificate of adoption” in Paragraphs 11 of the original
statement of defence and Paragraph 43 of the counter-
claim as the documents upon which he shall disprove the
appellant’s claim and establish the facts pleaded in the
counter-claim. These averments are tantamount to an
undertaking on the part of the 1st respondent to produce
either the originals or secondary evidence of these
documents at the hearing in the Court below in view of
Paragraphs 21-22 of the appellant’s reply to the counter-
claim. The failure to produce these pleaded documents in
the Court below is evidence of bad faith on the part of the
1st respondent.
Sections 131 and 134 of the Evidence Act, 2011 provides as
follows:
“131(1) Whoever desires any Court to give judgment
as to any legal right or liability dependent on the
existence of facts which he asserts shall prove that
those facts exists.
(2) When a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on
that person.
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134. The burden of proof shall be discharged on the
balance of probabilities in all civil proceeding.”
It
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is the 1st respondent that will fail if he cannot prove that he
was an adopted son of the late Dr. Akanu Ibiam.
Admissibility of documents is required to prove relevant
and pleaded facts. See Musa Sadau vs. The State (1968)
1 All NLR 124 at 129; Agunbiade vs. Sasegbon (1968)
N.M.L.R 223 at 226 and ACB Ltd vs. Alhaji Gwagwada
(1994) 268 at 277. But a person not shown by credible
evidence to be in possession of any documents cannot be
expected to produce them at the trial. See Matori vs.
Bauchi (2004) All FWLR (Pt. 197) 1010 at 1055
Paragraphs “D”- “E” and Nlewedim vs. Uduma (1996)
6 NWLR (Pt. 402) 383. I do not see how the 1st
respondent can anchor his defence and claim remedies in
the counter-claim by relying on documents alleged to be in
possession of the appellant who has vehemently denied
being in their possession. Section 146(1)-(2) of the
Evidence Act, 2011 provides as follows:
“(1) The Court shall presume every document
purporting to be a certificate, certified copy or other
document, which is by law declared to be admissible
as evidence of any particular fact and which purports
to be duly certified by any officer in
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Nigeria who is duly authorized in that behalf to be
genuine, provided that such document is substantially
in the form and purports to be executed in the
manner directed by law in that behalf.
(2) The Court shall also presume that any officer by
whom any such document purports to be signed or
certified held, when he signed it, the official
character which he claims in such document.”
What is the meaning of “adoption,” “adoptee”,
“adopted,” “adoption by estoppel” or “fostered” child?
The learned authors of Black’s Law Dictionary, 9th
Edition, pages 55 to 56 defines these terms as follows:
“Adoptee:- A person who has become the legal child
of one or two non-biological parents. Also termed
adopted child.
Adoption:- 1. Family law. The creation of a parent-
child relationship by judicial order between two
parties who usually, are unrelated; the relation of
parent and child created by law between persons who
are not in fact parent and child. This relationship is
brought about only after a determination that the
child is an orphan or has been abandoned, or that the
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parents’ parental rights have been terminated by
Court order. Adoption creates a parent-child
relationship between the adopted child and the
adoptive parents with all the rights, privileges, and
responsibilities that attach to that relationship,
though there may be agreed exceptions. Adoption is
distinguishable from legitimation and from fostering.
Adoption usually, refers to an act between persons
unrelated by blood; legitimation refers to an act
between persons related by blood. Universally, a
decree of adoption confers legitimate status on the
adopted child. Adoption is permanent; fosterage is a
temporary arrangement for a child’s care. See
adopted child, foster child under Child…
“Although adoption is found in many societies,
ancient and modern, primitive and civilized, and is
recognized by the civil law, it was unknown at
common law. Accordingly, adoption is entirely a
creature of statute…” Elias Clark et al, Gratuitous
Transfers: Wills, Intestate Succession, Trusts, Gifts,
Future Interests, and Estate and Gift Taxation Cases
and Materials 73-74 (4th ed. 1999).
Adoption by estoppel (1933) 1. An equitable
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adoption of a child by one who promises or acts in a
way that precludes the person and his or her estate
from denying adopted status to the child.
2. An equitable decree of adoption treating as done
that which ought to have been done. Such a decree is
entered when no final decree of adoption has already
been obtained, even though the principal has acted as
if an adoption has been achieved. A petitioner must
show an agreement of adoption, relinquishing of
parental authority by the child’s biological parents,
assumption of parental responsibility by the foster
parents, and a de facto relationship of parent and
child over a substantial period. Such a claim typically
occurs when an adoptive parent has died intestate,
and the child tries to be named an heir. In a minority
of states, adoption by estoppel may be a basis for
allowing a child to participate in a wrongful-death
action. Also termed equitable adoption; virtual
adoption…”
Other forms of adoption are as follows:
“Adoption by will: Roman Law. A posthumous
adoption effected by a testator’s written statement
declaring the intention to adopt and naming the
person
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adopted. The only legal effect of such an adoption was
to entitle the adopted person to assume the testator’s
family name and be regarded as the testator’s child.
Because the adopted person was never subject to the
testator’s legal control (patria potestas), the person
could not acquire agnatic rights or make a claim on
the estate beyond any specific testamentary grants.
Adult adoption:- The adoption of one adult by
another. Many jurisdictions do not allow adult
adoptions. Those that do often impose restrictions, as
by requiring consent of the person to be adopted, but
may not look too closely at the purpose for which
adoption is sought…
Agency adoption:- An adoption in which parental
rights are terminated and legal custody is
relinquished to an agency that finds and approves the
adoptive parents. An agency adoption can be either
public or private. In all states, adoption agencies
must be licensed, and in most, they are non-profit
entities. Parents who voluntarily place a child for
adoption most commonly use a private agency…
Closed adoption:- An adoption in which the biological
parent relinquishes his or
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her parental rights and surrenders the child to an
unknown person or persons; an adoption in which
there is no disclosure of the identity of the birth
parents, adopting parent or parents, or child.
Adoptions by stepparents, blood relatives, and foster
parents are exceptions to the no-disclosure
requirement. Also termed confidential adoption…
Cooperative adoption:- A process in which the birth
parents and adoptive parents negotiate to reach a
voluntary agreement about the degree and type of
continuing contact after adoption, including direct
visitation or more limited arrangements such as
communication by telephone or mail, the exchange of
either identifying or non-identifying information, and
other forms of contact…
De facto adoption:- An adoption that falls short of the
statutory requirements in a particular State. The
adoption agreement may ripen to a de jure adoption
when the statutory formalities have been met or if a
Court finds that the requirements for adoption by
estoppel have been met. Also termed adoption by
estoppel.”
In Osborn’s Concise Law Dictionary by Sheila Bone,
9th Edition, page 19, also defined an
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“adopted child” and “adoption” as follows:
“Adopted child:- A child in respect of which an
adoption order has been made. See Adoption of
children.
Adoption of children:- Adoption is effected by a Court
order which vests parental responsibility for a child in
the adopter(s) and extinguishes the parental
responsibility of the birth parents (Adoption Act,
1976, Section 12(1)). The effect of an adoption order
is that the child is treated as if born as a child of the
marriage of the adopter(s) and not as the child of
anyone else, and is prevented from being illegitimate.
The requirements for making adoption orders are set
out in the Adoption Act, 1976. See Freeing for
adoption.”
The learned trial Judge held at page 126 lines 3 to page
127 lines 1-20 of the printed record as follows:
“I have carefully considered the evidence adduced by
parties in this case together with the exhibits
tendered. I have also considered the ebullient
submissions of learned Counsel on both sides. In the
course of the evidence in chief of PW1, Exhibit “L”
was conditionally admitted. This Court is now
satisfied that
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Exhibit “L” was properly admitted and marked. The
claim of the plaintiff against the defendant is for an
order compelling the 1st defendant to remove the
caveat to prohibit grant entered against the plaintiff’s
application for letters of Administration of the Estate
of Late Ezeogo Isiala Akanu Ibiam; and also to compel
the second defendant to process the said Application
of the plaintiff. It is in evidence and admitted by both
parties that after Late Ezeogo Akanu Ibiam picked the
1st defendant from a refugee camp as an infant he
contacted the Social Welfare which left the child with
him as a Foster parent. See Exhibit “J” and “K”. This
Court found also that as time went on, no further
payment were shown as made to Ezeogo, being
maintenance allowance for fostering the 1st
defendant. The Report from the Social Welfare,
Exhibit “G1” talks of the 1st defendant having been
adopted by Ezeogo Akanu Ibiam. This Court has been
strongly urged to reject Exhibits “G-G3” as forgeries,
by the plaintiff’s Counsel. The irony of it all is that
the said exhibits were tendered by the plaintiff. There
is a
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serious criminal allegation by the plaintiff against the
Welfare Office Miss R.N. Ede who signed the said
Exhibits for Social Welfare Officer. It is however trite
law that a criminal allegation in civil proceedings
must be proved beyond reasonable doubt. See Falae
vs. Obasanjo (1999) 68 LRCN 601 at 619; Benson
Ikokwu vs. Enoch Oli (1962) 1 All NLR 194 at 199;
Nwankere vs. Adewunmi (1996) All NLR 129 at 132
and Nwobodo vs. Onoh (1984) 15 NSCC 1. The
pleadings and evidence of plaintiff in support of the
serious allegations of forgery made against the Social
Welfare Officer, fell far short of the standard required
in law to establish the same. The records of the Social
Welfare Officer, tendered by the plaintiff as Exhibits
“G-G3” as it concerned the 1st defendant must in the
present circumstance, be regarded as certified copies
of the records of the Social Welfare Zone of Anambra
State Ministry of Local Government and Social
Development.
The plaintiff’s Counsel had submitted that Exhibits
“G-G3” was not the “Adopted Children’s Register”
enjoined to be produced in Court under Section 16 of
the Adoption Law
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(Cap.6), Laws of Eastern Nigeria. The Court with
respect does not accept that submission, as certified
copy of entries in the said Register or other records
kept by the Registrar-General could be produced in
Court. See Section 16(3) of the Law (supra). The
Court has however observed that the Adoption
Certificate Order was not included in the Records of
the Welfare tendered in Court. It is nevertheless
pertinent to note that the responsibility for
compliance with the procedure for adoption of a
juvenile under the Adoption Law, fell on the
applicant. From the records of the Social Welfare
tendered in Court, this Court in the peculiar
circumstances of this case, is left in no doubt that the
applicant who signed the Adoption Bill into law,
complied with all the prerequisites of that law for the
fostering of the 1st defendant, and subsequently for
adoption of the 1st defendant.”
There is a wall of difference between “adoption” and
“fostering” a child. The two concepts are not the same as I
have shown above. The 1st respondent pleaded “adoption”
not “fostering” hence the learned trial Judge and the
parties
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are bound by the pleadings. See African Continental
Seaways Ltd. vs Nigerian Dredging Road & General
Works Ltd. (1977) 5 SC 235 at 250 and Temco
Engineering Co. Ltd. vs. S.B.N. Ltd. (1995) 5 NWLR
(Pt. 397) 607. Any evidence on “fostering a child” goes
to no issue and is expunged from the findings or holdings
by the learned trial Judge. See Wayne vs. Ekwunife
(1989) 12 SCNJ 99 at 112; Dina vs. N.N.N. Ltd (1986)
2 NWLR (Pt. 22) 353 at 364; George vs. Dominion
Flour Mills Ltd. (1963) 1 All NLR 73; and Emegokwe
vs. Okadigbo (1973) 4 S.C 113 at 117 and Slee
Transport Ltd. vs. Oluwasegun (1973) 3 ECSLR 1176
at 1183.
Sections 3-7 of the Adoption Law (Cap.7), Revised Laws of
Enugu State of Nigeria, 2004 Vol.1 is couched as follows:
“3(1) Subject to this Law, the Court may, upon an
application made in the prescribed manner, make an
order authorizing the applicant to adopt a juvenile.
(2) An adoption order may be made on the application
of a man and his wife authorizing them jointly to
adopt a juvenile.
(3) An adoption order may be made authorizing the
adoption of a juvenile by the mother or father of the
juvenile either alone
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or jointly with her husband or his wife, as the case
may be.
4(1) An adoption order shall not be made unless the
applicant or, in the case of a joint application, one of
the applicants-
(a) Has attained the age of twenty-five and as at least
twenty-one years older than the juvenile; or
(b) Has attained the age of twenty-one and is a
relative of the juvenile; or
(c) Is the mother or father of the juvenile.
(2) An adoption order shall not be made in favour of a
sole applicant who is male unless the juvenile is a son
of the applicant or the Court is satisfied that there
are special circumstances which justify, as an
exceptional measure, the making of an adoption
order.
(3) Except as provided by Subsection (2) of Section 3,
an adoption order shall not be made authorizing more
than one person to adopt a juvenile.
(4) An adoption order shall not be made in respect of
a juvenile unless-
(a) The applicant and the juvenile reside in Enugu
State; and
(b) The juvenile has been continuously in the care
and possession of the applicant for at least three
consecutive months immediately preceding the date
of the order, and
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The applicant has, at least three months before the
date of the order, notified the Chief Welfare Officer of
his intention to apply for an adoption order in respect
of the juvenile.
(5)(1) Subject to this Section, an adoption order shall
not be made except with the consent of every person
who is a parent of the juvenile.
(2) The Court may dispense with the consent of a
parent if the Court is satisfied that he has abandoned,
neglected or persistently ill-treated the juvenile or
that he cannot be found or is incapable of giving his
consent or that his consent is unreasonably withheld.
(3) Where, in the case of an application made within
one year from the date of commencement of this Law,
it is shown to the satisfaction of the Court that during
the period of two consecutive years immediately
preceding that date the juvenile has been brought up,
maintained and educated under a de facto adoption
(whether by one person or by a husband and wife
jointly) the Court may dispense with the consent of
any parent of the juvenile.
(4) A consent under this Section may be given (either
unconditionally or subject to condition with respect
to the religious
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persuasion in which the juvenile is to be brought up)
without knowing the identity of the applicant for the
adoption order; and where consent so given to any
person is subsequently withdrawn on the ground only
that he does not know the identity of the applicant,
his consent shall be deemed for the purposes of this
Section to be unreasonably withheld.
(5) While an application for an adoption order in
respect of a juvenile is pending in a Court, a parent of
the juvenile who has specified his consent to the
making of an adoption order in pursuance of the
application is not entitled, except with the leave of
the Court, to remove the juvenile from the care and
possession of the applicant; and in considering
whether to grant or refuse such a leave, the Court
shall have regard to the welfare of the juvenile.
6(1) Where it appears to the Court that a person who
is not the parent of the juvenile has, under an order
of a Court or agreement, or under customary law, or
otherwise, any rights or obligations in respect of the
juvenile the Court may, if it thinks fit, require that
person’s consent be obtained before the adoption
order is made.
(2) Where a
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married man or woman is the sole applicant for an
adoption order, the Court may, if it thinks fit, require
that the consent of any wife or husband of the
applicant be obtained before the adoption order is
made.
(3) The Chief Welfare Officer shall in every case
prepare a report to assist the Court in an application
for an adoption order to determine whether any
person who is not a parent of the juvenile has any
rights or obligations in respect of the juvenile and
whether the consent of that person ought to be
obtained.
7(1) The Court before making an adoption order shall
be satisfied that:-
(a) Every person, where consent is required under
Sections 5 and 6 and where consent is not dispensed
with, has consented to and understands the nature
and effects of the adoption order and in particular, in
the case of a parent, understands that the effect of
the adoption will be permanently to deprive him of his
parental rights;
(b) The order if made will be for the maintenance,
care, education and welfare of the juvenile, due
consideration for these purposes being given to the
wishes of the juvenile having regard to the age and
understanding of the
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juvenile.
(c) The applicant has not received or agreed to
receive, and no person has made or agreed to make to
the applicant, any payment or other reward in
consideration of the adoption except such as Court
may sanction; and
(d) The applicant is a person of good repute and
commendable character.
(2) The Court in an adoption order may impose such
terms and conditions as the Court may think fit and
in particular may require the adopter by bond or
otherwise to make for the juvenile such provisions (if
any) as in the opinion of the Court are just and
expedient.�
Section 2 of the Law is the definition Section. The Law
defines the following words and phrases to wit:
�2. In this Law-
�Adoption Order� means an order made under
Subsection (1) of Section 3;
�Court� means a Court having jurisdiction to
make adoption orders under this Law;
�Father� in relation to an illegitimate child
means the natural father;
�Juvenile� means a person who is under the age
of seventeen years;
�Parent� includes father as defined by this Law
and a guardian.�
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The onus was on the 1st respondent/counter-claimant to
produce an “adoption order” as defined in Sections 2 and
3(1)-4(1)-(4) of the Adoption Law to prove he was and
adopted son of the late Dr. Akanu Ibiam for him to be
entitled to the remedies the learned trial Judge granted him
in the Court below. In the absence of an adoption order
from a competent Court of record, it cannot be said that the
1st respondent was entitled to the remedies he claimed in
the Court below.
Section 11-13 of the Adoption Law (supra) provides as
follows:
“11(1) Subject to any Rules made under this Section
an application for an adoption order may be made to
the High Court or at the option of the applicant to a
Magistrate’s Court within the jurisdiction of which
the applicant or the infant resides at the date of the
application.
(2) The Chief Judge may make rules in regard to any
matter to be prescribed under this Law and dealing
generally with all matters of procedure and incidental
matters arising out of this Law or for carrying this
Law into effect.
(3) Rules under this Section shall provide for-
(a) The proceedings to hold
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otherwise than in open Court and, where the
application is made to a Magistrate�s Court, the
hearing and determination of the application in a
juvenile Court, and may make provision for excluding
or restricting the jurisdiction of any Court where a
previous application made by same applicant in
respect of the same infant has been refused by that or
other Court;
(b) The admission of documentary evidence of any
consent required under Section 5 or 6;
(c) Requiring the Chief Welfare Officer to represent
the interests of the juvenile in any proceedings with
respect to an adoption order or an interim order;
(d) Requiring the Chief Welfare Officer to prepare for
the consideration of the Court on an application for
an adoption order, report for the assistance of the
Court in determining whether the order will be in the
overall interest and for the welfare of the juvenile,
having regard to the ability of the applicant to
maintain, care for, and educate the juvenile.
12. On any decision by a Magistrate�s Court on an
application for the making of an adoption order,
other than a decision to postpone the application and
make an interim
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order, a person aggrieved may, subject to rules of
Court, appeal to the High Court.
13(1) Upon the adoption order being made-
(a) All rights, duties, obligations and liabilities,
including any arising under customary law, of the
parents of the juvenile or any other person, in
relation to the juvenile (including all rights to appoint
a guardian and to consent or give notice of dissent to
marriage) shall be extinguished; and
(b) There shall vest in, and be exercisable by and
enforceable against, the adopter all such rights,
duties, obligations and liabilities in relation to the
future custody, maintenance and education of the
juvenile as if the juvenile were a child born to the
adopter in lawful marriage.
(2) In respect of custody, maintenance and education
the juvenile shall stand to the adopter exclusively in
the position of a child born to the adopter in lawful
marriage.
(3) In a case where a man and his wife are the
adopters, they shall in respect of the custody,
maintenance and education of the juvenile, and for
the purpose of the jurisdiction of any Court to make
orders as to the custody and maintenance of an rights
of access to
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the juvenile, stand to each other and to the juvenile in
the same relation as they would have stood if they had
been the lawful father and mother respectively of the
juvenile and the juvenile shall stand to them in the
same relation as to a lawful father and mother
respectively.
(4) For the purpose of the law relating to marriage
(including customary law marriage) there is hereby
deemed to ex i s t a proh ib i t ion degree o f
consanguinity:-
(a) Between an adopter and the person whom he has
been authorized to adopt under an adoption order;
and
(b) Between persons adopted by the same adopter
under the same or different adoption orders; and
(c) Between an adopted person and a son or daughter
of the adopter, and in relation to Paragraph (a) the
provisions of this subsection shall continue to have
effect notwithstanding that some person other than
the adopter is authorized by a subsequent order to
adopt the same infant.”
For the purposes of the remedies, the 1st respondent
sought and was granted in the Court below the answer lies
in Sections 14-15 of the Law reads as follows:
“14(1) Where at any time after the making of
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an adoption order, the adopter or the adopted person
or any other person dies intestate in respect of real or
personal property, that property shall devolve in all
respects as if the adopted person were the child of the
adopter and were not the child of any other person.
(2) In a disposition of a real or personal property
made whether by instrument inter vivos or by will
after the date of an adoption order:-
(a) A reference (whether expressed or implied) to
child or children of the adopter shall, unless the
contrary intention appears, be construed as, or as
including a reference to the adopted person; and
(b) A reference (whether expressed or implied) to the
child or children of the adopted person’s parents or
either of them shall, unless the contrary intention
appears, be construed as not being, or as not
including, a reference to the adopted person; and
(c) A reference (whether expressed or implied) to a
person related to the adopted person in any degree
shall, unless the contrary intention appears, be
construed as a reference to the person who would be
related to him in that degree if he were the child of
the adopter and were not
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the child of any other person.
15(1) For the purposes of the application of the Law
in force in Enugu State on the administration of
estates to the devolution of property in accordance
with the provisions of Section 14, and for the purpose
of the construction of such disposition as is
mentioned in the section, and adopted person shall be
deemed to be related to any other person being the
child or adopted child of the adopter or (in the case of
a joint adoption) of either of the adopters:-
(a) Where he or she was adopted by two spouses
jointly, and that other person is the child or adopted
child of both of them, as brother or sister of the whole
blood;
(b) In any other case as brother or sister of the half
blood.
(2) For the purposes of Subsection (2) of Section 14, a
disposition made by will or codicil shall be treated as
made on the date of the death of the testator.
(3) Notwithstanding anything in Section 14, trustees
or personal representatives may convey or distribute
real or personal property to or among the persons
entitled thereto without having ascertained that no
adoption order has been made by virtue of which a
person is or
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may be entitled to an interest therein, and shall not
be liable to the person of whose claim they have not
had notice at the time of the conveyance or
distribution; but nothing in this subsection prejudices
the right of such person to follow the property, or
other property representing it, into the hands of a
person, other than a purchaser, who may have
received it.”
Sections 14-15 of the Adoption Law can only come into
place if the 1st respondent had produced and tendered in
the Court below an Adoption Order from a competent Court
of record. The Adoption Law is couched in such a manner
as to cover adoption under native Law and custom.
Kimdey vs. Military Governor of Gongola State (1988)
2 NWLR (Pt. 77) 445 was a chieftaincy dispute covered
by the chieftaincy declaration, Karibi-Whyte, JSC held at
page 465 as follows:
“It is an elementary and fundamental principle of our
law that an existing native law and custom may be
altered or entirely abrogated by a valid legislation in
conflict with it. Accordingly, where the status
regulated is not a creation of native law and custom,
any native law and custom which has developed and
grown around
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it can be abolished or indeed controlled by a suitable
contrary legislation.”
The Adoption Law of Enugu State has covered the field in
respect of matters pertaining to adoption under customary
law. On my part, this appeal is allowed. The 1st
respondent’s counter-claim having not been proved in the
Court below is hereby dismissed. I award N50,000.00 cost
the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was
privileged to read in draft the judgment of my learned
brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree
with the reasoning and conclusion therein that the appeal
has merit and is allowed. I abide by the order for costs
made therein.
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Recommended