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ARE CHILDREN BORN OUT OF WEDLOCK DEPRIVED OF INHERITING THE ESTATE OF THEIR FATHER
PETER CHIKE MGBODU
WILLY KANAYO MGBODU
The Appellant and Respondent are half-brothers and two of the male children of late Gregory Mgbodu who died in 1967. Gregory Mgbodu in his lifetime built a six-bedroom bungalow in a compound he established on land purchased by him.
The case of Willy Kanayo Mgbodu (Respondent) as Plaintiff at the Trial Court was that he is entitled to the six-bedroom bungalow house in dispute because his mother, Maria Mgbodu celebrated a Statutory Marriage with the late Gregory Obiekwe Okonkwo Mgbodu and he is the eldest surviving male child of the Statutory and therefore sought a declaration that being the only surviving male child of the statutory marriage, he is entitled to the property in dispute.
On the other hand, the case of Peter Chike Mgbodu (Appellant) was that while the Statutory Marriage between the late Gregory Obiekwe Okonkwo Mgbodu and Maria Mogbodu was subsisting, the late Gregory Obiekwe Okonkwo Mgbodu celebrated a Customary Marriage with his mother. The Appellant claims that the Respondent is not entitled to the estate of the late Gregory Obiekwe Okonkwo Mgbodu because, under the customary law of Abagana, the Appellant is the head of the family of the late Gregory Obiekwe Okonkwo Mgbodu having been born before the Respondent.
The Trial Court held that the marriage of the Respondent’s mother and the late Gregory Obiekwe Okonkwo Mgbodu was Statutory and that customary law cannot govern the administration of the deceased’s estate. The Trial Court consequently entered judgment in part in favour of the Respondent.
Dissatisfied with the decision of the Trial Court, the Appellant appealed to the Court of Appeal.
One of the issues proposed by the Appellant on appeal was;
- whether the trial Judge was right in bypassing the Appellant on the inheritance of the six-room bungalow of Late Gregory Mgbodu merely on the ground that the Appellant, though senior in age to the Respondent, was the product of a customary marriage, unlike the respondent, thereby discriminating against the appellant contrary to Section 42 (2) of the 1999 Constitution.
Whether children born out of wedlock can be deprived of inheriting the estate of their father.
The Court of Appeal on the above issue held that Section 42(2) of the 1999 Constitution provides as follows:
No citizen of Nigeria shall be subjected to any disability or deprivation merely due to circumstances of his birth. The current position of the law in Nigeria is that there are no illegitimate children and children born out of wedlock have equal rights to be entitled to share in the estate of their father.
No custom in Nigeria can therefore deprive children born out of wedlock from sharing or inheriting their father’s estate provided there is direct or inferred acknowledgment of paternity during the lifetime of the father. “The reason for this is that no child came into the world by himself or herself. So, why should such a child be put at a disadvantage because of the conduct of a randy father and a promiscuous mother?” It would be unconscionable, therefore, to dis-inherit such a child from partaking in the father’s estate.
The Appellant, being a son of the deceased Gregory Mgbodu is entitled to share equally with the Respondent, in the estate of their father, the late Gregory Mgbodu.