⦿ CASE SUMMARY OF:
Olubunmi Cole and 2 Ors v. P. A. Akinyele And 2 Ors. (1960)
by PipAr Chima
Supreme Court – FSC. 160/1959
⦿ JUDGEMENT DELIVERED ON:
April 22, 1960
⦿ AREA(S) OF LAW
Marriage outside the ordinance.
⦿ NOTABLE DICTA
P. A. AKINYELE
MRS E. S. COLE
FEDERAL ADMINISTRATOR GENERAL
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
This is an appeal by the plaintiffs, who sued by their mother as next friend, against the judgment of Kaine, Ag. J., in the High Court of Lagos, dismissing their claim for a declaration that they are legitimate children of the late Albert Abimbola Cole, and entitled, as such, to share in the distribution of his estate.
The first Appellant was born and fathered during the marriage of the deceased man in a valid statutory marriage.
The Trial Court held that legitimacy of a child cannot flow out of illegality as s. 35 of the marriage ordinance provides that one married under the ordinance cannot contract a valid marriage in native law.
The second Appellant was born during the death of the wife to the ordinance.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: 1ST APPELLANT – DISALLOWED; 2ND APPELLANT – ALLOWED]
1. Whether the appellants are legitimate?
I. The first appellant could, therefore, have become legitimated if the deceased had married his mother under the Marriage Ordinance after the death of his first wife, and the question is, whether he has been legitimated by any alternative method under Yoruba law and custom. In my opinion he has not. The judgment in Alake v. Pratt does not go into the question of what constitutes a sufficient acknowledgment by the father to make a child legitimate, nor does it decide whether the acknowledgment must be given at the time of the child’s birth, or whether it may be given at any time during the joint lives of the father and the child, and no evidence has been called in this case to suggest that the fact that the deceased continued to treat the first appellant as his child after the death of his first wife could constitute, as it were, a fresh acknowledgment on which the first appellant could rely. I prefer, however, to base my judgment not on the failure to prove any applicable rule of Yoruba law and custom, but on the ground that such a rule would be contrary to public policy. On the death of his first wife it would have been open to the deceased to legitimate the first appellant by marrying his mother under the Marriage Ordinance. He did not do so, and although he was entitled, in the words of Kaine, J., “to go back to native law and custom if he chose” in his personal relationships I would hold it contrary to public policy for him to be able to legitimate an illegitimate child born during the continuance of his marriage under the Ordinance by any other method than that provided for in the Legitimacy Ordinance. When a man who might have married under native law and custom has voluntarily accepted the obligations imposed by a marriage under the Marriage Ordinance it seems no undue hardship upon him to hold that in order to legitimate the children of an adulterous union he must follow the same procedure as a person to whom a marriage under the Ordinance is the only form of lawful marriage open; indeed to hold otherwise would almost be to reduce the distinction between the effects of the two forms of marriage to a matter of words.
II. When a man indulges in irregular unions, no rule regarding the legitimacy or legitimation of his children, how-ever liberal, can altogether avoid anomalies. It goes without saying that the two appellants are equally free from blame for the circumstances of their birth, and in the present case the conduct of their father and mother was morally and legally neither more nor less culpable when the first appellant was conceived than when the second appellant was. Nevertheless, it did so happen that before the birth of the second appellant the lawful wife of their father, the deceased, had died, and I feel bound to hold that the rule adopted in Alake v. Pratt applies to the second appellant.
III. In Re Adadevoh (1951) 13 W.A.C.A. 304, Sir John Verity, C.J., pointed out that the encouragement of promiscuous intercourse must always be contrary to public policy, but the law both of England and Nigeria, including the presumptions as to the legitimacy of any child born by a married woman, clearly leans against holding anyone to be a bastard, filius nullius, and I know of no principle of public policy to exclude the rule under which the second appellant, as the acknowledged son of his father, born at a time when his father was free to marry who he chose, is to be regarded as legitimate.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
* PATERNITY ACKNOWLEDGED CHILD WILL SHARE IN ESTATE
Alake v. Pratt (1955) 15 W.A.C.A. 20, to the effect that if paternity of children is acknowledged by a man during his lifetime they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance.
⦿ REFERENCED (OTHERS)
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