Rights Of Children Born Out Of Wedlock

Section 42 (2) of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended) provides thus, No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. This provision of the constitution provides for equal right for children born in a lawful wedlock and those born out of wedlock. The Supreme Court in the case of Salubi V. Nwariaku (2003) NWLR (Pt 819) endorsed this provision of the constitution, which it held that children of the deceased who were born within a lawful wedlock and the children born out of wedlock are entitled to equal shares to the properties of the deceased.
A child born out of wedlock has a right to apply for letter of administration, Section 26 (1) of the Administration of Estate law, laws of Lagos State, Volume 1, Cap A3, 2003 provides that “In granting administration the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof ….. and any such administration may be limited in any way the court thinks fit”. Note that the children born out of wedlock fall within the category of persons interested. And based on the above provision of the Constitution, he cannot be denied his right based on the circumstances of his birth, i.e, his right of applying for letter of administration. In Chief J.L.E Duke V. Rev (Dr) Peter Etim Duke (2014) LPELR -23095 (CA), the Court of Appeal upheld the judgment of the trial court where it granted letters of administration in respect to the deceased to both the apellant and respondent. Although the appellant, who was born within the lawful wedlock of the deceased, had contended that the respondent was not entitled to a grant of the letter of administration because he was born out of an adulterous relationship. The court held that, that was not enough ground to refuse the respondent his right to be appointed as an administrator to his late father’s estate.
Also in Mgbodu V. Mgbodu (2015) 12 NWLR (pt 1474) 415, the Court of Appeal held that a child born out of wedlock must not be prevented from partaking in the sharing of his deceased father’s estate. In the words of His Lordship, Bolaji-Yusuff, JCA, “it has long been established that in this land, Nigeria, once a father acknowledges the paternity, of a child whether born in or out of wedlock, the child is regarded as a legitimate child and is entitled to share in the estate of his/her father… This custom has now received Constitutional approval through Section 42 of the 999 Constitution (as amended) …..
It is also important to note that letters of administration can be set aside for the non inclusion of children born out of wedlock, as was the case in Mgbodu V Mgbodu (supra). It is advisable for the adoption of consensual approach in the administration of the estate and distribution of the assets of the deceased since both parties have equal right in the face of the law.

Nkechi Bright Ewere