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:

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“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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