THE RIGHTS OF THE ADOPTED CHILD IN NIGERIA

 Edited by Asykobi

Adoption of children is rare and known mostly in English Law. The position of an adopted child as regards succession is not very clear. It has, however, been established that the right of an adopted child is inferior to that of the legitimate child of the blood.

Procedure for Adoption

Among the Efiks of Nigeria, the procedure for adoption requires the presence of members of the adopter’s family, to whom the adopter formerly nominates his/her adoptee. An adoption which fails to conform to this procedure confers no right upon the adopted child. Therefore an adopted child's right to succeed to any property depends on the validity of the procedure. For the Yorubas, it has been stated that an adopted child cannot inherit from his/her adoptive parent.

However, in the case of Administrator General v. Tuwase, the estate of a Yoruba woman from Ijebu who had died without issues, was claimed by her husband, from whom she had been separated for 44 years before her death; by her adopted child, who had predeceased her, through the child's descendants; and by a number of collaterals descended from her maternal grandfather, including an adopted daughter of an aunt. The claim of the husband was rejected. It was ordered that the descendants, including the adopted children of the deceased grandfather, should take one share each, while her direct descendants--i.e., the surviving adopted child--should share per stripes. This suggests that the right of an adopted child is inferior to that of a legitimate child of the blood, for the direct descendants, were they of that blood, would have inherited the estate to the exclusion of all these other collaterals.

Why this discrimination? Adoption arises either where a couple could not have children of their blood or where they have such children but the condition of the adopted child arouses their sympathy, as when a child is predeceased by his or her parents.

In either of the above cases, that inherent sympathy exists. It is only reasonable that an adopted child be treated as being of the blood of the adopters, otherwise the essence and spirit of the adoption is defeated. Furthermore, since such inferior position or status is accorded the adopted child, he or she is discriminated against, which violates the constitutional provision of

S. 42(2) of the 1999 constitution:

 “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

To be sure, discrimination, when it consists of an ability to differentiate right from wrong and good from bad, is an essential part of everyday life. But discrimination becomes morally unacceptable when it treats a person less favorably than others on account of a consideration which is morally irrelevant.

S. 42(1) of the 1999 Constitution was expounded by the Court of Appeals in the case of Uzoukwu v. Ezeonu II. Appellants in the case argued that the respondent referred to, treated, and regarded them as slaves, descendants of slaves, or persons of inferior stock, and for that reason prevented them from enjoying certain rights, such as owning property, taking titles, or taking part in developmental activities of the town. The respondents, it was alleged, required the appellants to observe a practice of "redemption," in order to be recognized as persons of equal status. Under redemption, the appellants would, among other things, slaughter a cow or goat, or make other offerings or sacrifices to the respondents. The appellants at the lower court argued that as citizens of the Federal Republic of Nigeria, they have fundamental rights as guaranteed by section 31 and 39 of the Constitution of the Federal Republic of Nigeria 1979, not to be discriminated against on the basis of whatever circumstances attended their birth, or to be subjected to any human indignity, or to be called or regarded as “second class citizens,” “strangers,” or any other inferior/lower social class than other citizens of Nigeria. They contended that their constitutional rights guaranteed in sections 31 and 39 of the 1979 Constitution of Nigeria are violated by the practice of “redemption” to appease members of the respondents’ family in order to “cleanse” the applicants of their “slave blood” or “inferiority” or “stranger-element” or any other usage, norms, ethos, or other customary practice.

Though the appeal was dismissed, the Court of Appeals held inter alia that the discrimination envisaged against a person by S. 39(1) 1979 Constitution must be based on law, stating further that the protection provided by S. 39(1) can be invoked only if the condition therein stated is the sole reason for discriminating against the person; it cannot be invoked if other reasons are adduced. Consequently, it is reasonable to invoke this provision to protect the right of a person tagged “adopted child,” for it is unconscionable, immoral, and inhumane to pretend that a child is fathered whereas in practice, parental rights are deprived. 

To this extent, this customary practice is inconsistent and incompatible with the basic norm and should therefore be outlawed. It is hereby submitted that S. 39(1), which deals with discrimination of various types, should not be enforceable solely against the state; it should be made enforceable against individuals as well. This is so because that state may be less likely to discriminate than a vindictive individual.