Whether An Adopted Child Is Entitled To Inherit The Estate Of A Deceased Adoptive Parent

CASE TITLE: BASSEY v. EKPIKEN & ORS (2024) LPELR-61778 (CA)

JUDGMENT DATE: 22ND MARCH, 2024

JUSTICES: UCHECHUKWU ONYEMENAM, JCA
BALKISU BELLO ALIYU, JCA
HADIZA RABIU SHAGARI, JCA

DIVISION: CALABAR

PRACTICE AREA: FAMILY LAW

FACTS:

This appeal challenges the judgment of the Cross River State High Court in Calabar (Suit No. HC/295/2014), delivered on July 19, 2021.

The Appellant claimed to be the first son of the late Madam Affiong Nyong Bassey, who died intestate, based on Efik customs and traditions. He asserted that Madam Bassey and her sister arranged the marriage of his parents as they were barren, thus entitling him to her estate. The Appellant argued that the 1st Respondent had no familial ties to Madam Bassey, serving only as a bricklayer, and the 4th and 5th Respondents were adopted without legal recognition. He accused the 1st Respondent of stealing family documents upon Madam Bassey’s death, which the 1st Respondent allegedly deposited with the Cross River State Ministry of Justice.

The 1st, 4th, and 5th Respondents countered, denying the Appellant’s claims, asserting that the Appellant fraudulently obtained letters of administration over the estate, which belonged to their mother. They sought declarations affirming their right to administer the estate and revoking the Appellant’s letters of administration.

The trial court sided with the Respondents, ruling that the Appellant was not Madam Bassey’s child and had no claim to the estate. The Court upheld the Respondents’ counterclaims, revoking the Appellant’s letters of administration, and ordering the 2nd and 3rd Respondents to manage the estate until the 4th and 5th Respondents receive letters of administration.

Unhappy with this decision, the Appellant appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION:
The appeal was determined based on the following issues thus;

1. Whether, having regard to the settled facts of this case, the learned trial Judge at the lower Court was right when, in his judgment of July 19, 2021, relying on the personal view of the learned author, E. E. NWOGUGU, expressed in his book; “Family Law in Nigeria,” he held that the Appellant has no connection whatsoever with the estate of the deceased as the Appellant could not prove the relevant Efik custom relied upon by him, and thus not a son of Madam Affiong Nyong Bassey.
2. Whether it is not the blatant negation of the relevant High Court Rules of Cross River State, for the lower Court to suo motu act on the final address of the 1st, 4th and 5th Respondents filed out of time, and which said address has never been served on the appellant or regularized till date?

COUNSEL SUBMISSIONS:

In the appeal, the Appellant’s counsel argued that the trial judge did not properly consider the testimony of CW1, an expert in Efik customs, who supported the Appellant’s claim to be the first son of the late Madam Affiong Nyong Bassey through the cultural practice of “woman-to-woman” marriage. The Appellant asserted that this tradition, along with the phrase “whosoever purchases the she-goat owns the offspring,” validated his status as Bassey’s son. The trial judge’s reliance on E. I. Nwogugu’s “Family Law in Nigeria” to refute this claim was seen as a misapplication of non-Efik cultural norms.

Regarding the adoption of the 4th and 5th Respondents, the Appellant argued that the Cross River State Adoption Law of 2004 was not followed properly, rendering their adoptions invalid. He claimed the documents supporting their adoption were suspicious and inconsistent. Despite these arguments, the Appellant maintained his willingness to share the estate with the Respondents, whom he had always considered siblings.

The 1st, 4th, and 5th Respondents countered that the trial judge was justified in using legal texts to support his decision, particularly given the lack of direct authority on Efik customs. They argued that the Appellant did not adequately prove his claims, and the expert testimony did not provide concrete evidence of the customs in question. They also contended that the adoptions were valid under both statutory and customary law, with substantial evidence of the 4th and 5th Respondents’ integration into Bassey’s family.

The 2nd and 3rd Respondents added that the Appellant’s evidence on the “woman-to-woman” marriage was hearsay and thus inadmissible. They emphasized that proving such a custom requires strong, positive evidence, which was lacking. They also supported the trial judge’s reliance on Nwogugu’s authoritative text, noting that it is a recognized legal source.

In his reply, the Appellant reiterated that Nwogugu’s book was irrelevant to Efik customs and that CW1’s expert testimony should have been given more weight. He maintained that the trial court’s decision was flawed and requested the Court of Appeal overturn it.

DECISION/HELD:
In the final analysis, appeal was dismissed.

RATIO:
FAMILY LAW – ADOPTION: Right of an adopted child to the estate of the adopting parent

“In any event, the evidence on record is clear that the late Madam Affiong adopted and acknowledged the 4th and 5th Respondents as her children and that the adoption and acknowledgment entitled them to her estate as it was apparently her wish. See DURU v. DURU (2016) LPELR 40444 (CA) and ADUBA & ORS. v. ADUBA (2018) LPELR-45756 (CA).” Per ALIYU, J.C.A.

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