PRINCE AKA O. IBIAM v. MRS. OBIAGELI AKANU IBIAM & ANOR (2017)

PRINCE AKA O. IBIAM v. MRS. OBIAGELI AKANU IBIAM & ANOR

(2017)LCN/9414(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of January, 2017

CA/E/151/2006

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; CAN A PARTY BE COMPELLED TO PRODUCE EVIDENCE HE DENIES NOT HAVING
Admissibility of documents is required to prove relevant and pleaded facts. See Musa Sadau vs. The State (1968) 1 All NLR 124 at 129; Agunbiade vs. Sasegbon (1968) N.M.L.R 223 at 226 and ACB Ltd vs. Alhaji Gwagwada (1994) 268 at 277. But a person not shown by credible evidence to be in possession of any documents cannot be expected to produce them at the trial. See Matori vs. Bauchi (2004) All FWLR (Pt. 197) 1010 at 1055 Paragraphs D- E and Nlewedim vs. Uduma (1996) 6 NWLR (Pt. 402) 383. I do not see how the 1st respondent can anchor his defence and claim remedies in the counter-claim by relying on documents alleged to be in possession of the appellant who has vehemently denied being in their possession. Section 146(1)-(2) of the Evidence Act, 2011 provides as follows:
“(1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document. PER JOSEPH TINE TUR, J.C.A.

FAMILY LAW: MEANING AND NATURE OF ADOPTION
What is the meaning of adoption, adoptee, adopted, adoption by estoppel or fostered child? The learned authors of Blacks Law Dictionary, 9th Edition, pages 55 to 56 defines these terms as follows:
“Adoptee:- A person who has become the legal child of one or two non-biological parents. Also termed adopted child.
Adoption:- 1. Family law. The creation of a parent-child relationship by judicial order between two parties who usually, are unrelated; the relation of parent and child created by law between persons who are not in fact parent and child. This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the parents parental rights have been terminated by Court order. Adoption creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, and responsibilities that attach to that relationship, though there may be agreed exceptions. Adoption is distinguishable from legitimation and from fostering. Adoption usually, refers to an act between persons unrelated by blood; legitimation refers to an act between persons related by blood. Universally, a decree of adoption confers legitimate status on the adopted child. Adoption is permanent; fosterage is a temporary arrangement for a childs care. See adopted child, foster child under Child
“Although adoption is found in many societies, ancient and modern, primitive and civilized, and is recognized by the civil law, it was unknown at common law. Accordingly, adoption is entirely a creature of statute Elias Clark et al, Gratuitous Transfers: Wills, Intestate Succession, Trusts, Gifts, Future Interests, and Estate and Gift Taxation Cases and Materials 73-74 (4th ed. 1999).
Adoption by estoppel (1933) 1. An equitable adoption of a child by one who promises or acts in a way that precludes the person and his or her estate from denying adopted status to the child.
2. An equitable decree of adoption treating as done that which ought to have been done. Such a decree is entered when no final decree of adoption has already been obtained, even though the principal has acted as if an adoption has been achieved. A petitioner must show an agreement of adoption, relinquishing of parental authority by the childs biological parents, assumption of parental responsibility by the foster parents, and a de facto relationship of parent and child over a substantial period. Such a claim typically occurs when an adoptive parent has died intestate, and the child tries to be named an heir. In a minority of states, adoption by estoppel may be a basis for allowing a child to participate in a wrongful-death action. Also termed equitable adoption; virtual adoption
Other forms of adoption are as follows:
“Adoption by will: Roman Law. A posthumous adoption effected by a testators written statement declaring the intention to adopt and naming the person adopted. The only legal effect of such an adoption was to entitle the adopted person to assume the testators family name and be regarded as the testators child. Because the adopted person was never subject to the testators legal control (patria potestas), the person could not acquire agnatic rights or make a claim on the estate beyond any specific testamentary grants.
Adult adoption:- The adoption of one adult by another. Many jurisdictions do not allow adult adoptions. Those that do often impose restrictions, as by requiring consent of the person to be adopted, but may not look too closely at the purpose for which adoption is sought
Agency adoption:- An adoption in which parental rights are terminated and legal custody is relinquished to an agency that finds and approves the adoptive parents. An agency adoption can be either public or private. In all states, adoption agencies must be licensed, and in most, they are non-profit entities. Parents who voluntarily place a child for adoption most commonly use a private agency
Closed adoption:- An adoption in which the biological parent relinquishes his or her parental rights and surrenders the child to an unknown person or persons; an adoption in which there is no disclosure of the identity of the birth parents, adopting parent or parents, or child. Adoptions by stepparents, blood relatives, and foster parents are exceptions to the no-disclosure requirement. Also termed confidential adoption
Cooperative adoption:- A process in which the birth parents and adoptive parents negotiate to reach a voluntary agreement about the degree and type of continuing contact after adoption, including direct visitation or more limited arrangements such as communication by telephone or mail, the exchange of either identifying or non-identifying information, and other forms of contact
De facto adoption:- An adoption that falls short of the statutory requirements in a particular State. The adoption agreement may ripen to a de jure adoption when the statutory formalities have been met or if a Court finds that the requirements for adoption by estoppel have been met. Also termed adoption by estoppel…
In Osborns Concise Law Dictionary by Sheila Bone, 9th Edition, page 19, also defined an adopted child and adoption as follows:
“Adopted child:- A child in respect of which an adoption order has been made. See Adoption of children.
Adoption of children:- Adoption is effected by a Court order which vests parental responsibility for a child in the adopter(s) and extinguishes the parental responsibility of the birth parents (Adoption Act, 1976, Section 12(1)). The effect of an adoption order is that the child is treated as if born as a child of the marriage of the adopter(s) and not as the child of anyone else, and is prevented from being illegitimate. The requirements for making adoption orders are set out in the Adoption Act, 1976. See Freeing for adoption. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

PRINCE AKA O. IBIAM Appellant(s)

AND

1. MRS. OBIAGELI AKANU IBIAM
(Substituted by the Order of the Honourable Court on 11th of April, 2016)
2. THE PROBATE REGISTRAR, ENUGU Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Any determination of a Justice of the Court of Appeal or the Supreme Court is either a ?decision? or an ?opinion? as provided in Sections 294(2)-(5) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The

decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.?

Section 318(1) of the Constitution reads as follows:
?318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:
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?Decision? means in the relation to a Court, any determination of that Court

Besides, each Justice of the Court of Appeal or the Supreme Court is to render an opinion or deliver a decision and the mind of the Court is to be by the majority of the Justices that heard the appeal hence in my humble opinion, the question of regarding any determination as the ?lead?, ?majority? or ?minority?, etc, does not arise. I shall now render my ?decision? having participated at the hearing of this appeal with my colleagues.

This appeal was commenced by the

appellant by a Notice of Appeal filed in the lower Court on 19th September, 2005 against the decision of Hon. Justice B.C. Nosike J., of the Enugu State High Court of Justice rendered on 18th October, 2004 in favour of the respondent. The learned trial Judge held at page 129 lines 11 to 23 of the printed record as follows:
?With reference to Exhibits ?D?, ?E? and ?I?, the Books concerned the family of Ezeogo Akanu Ibiam, his wife, and blood children. There is no evidence that the authors were aware of the fact that Ezeogo Akanu Ibiam, had fostered or adopted child. The books did not advert to that aspect of the philanthropy of Ezogo Akanu Ibiam. They are therefore irrelevant for that purposes.
In view of the foregoing, this Court holds that the claim of the plaintiff has not been proved. See Nig. Airways Ltd. vs. Abe (1988) 4 NWLR (Pt.90) 52 ratio 9. The same is therefore accordingly dismissed. The counter-claim has been found proven. Judgment is therefore given to the 1st defendant against the plaintiff. It is therefore hereby ordered that the 1st defendant having been adjudged an adopted son of Ezeogo

Akanu Ibiam should be involved in the application for letters of Administration of the Estate of Ezeogo Akanu Ibiam. The caveat entered by the 1st defendant has been overtaken by this judgment.?

The appellant was the plaintiff while the 1st respondent was the 1st defendants/counter-claimant in the Court below. The 2nd respondent was the Probate Registrar of the Court below. The appellant commenced proceedings in the Court below on 23rd December, 1999 by a Writ of Summons supported by a statement of claim. The 1st respondent filed a defence/counter-claim prompting the appellant to file a reply to the counter-claim. In the course of proceedings, the parties amended their respective pleadings. The appellant relied on a ?Further Amended Statement of claim? and the 1st respondent on a ?Further Amended statement of defence?. The appellant?s original statement of claim sought the following reliefs against the 1st and 2nd respondents jointly and severally at page 6 of the printed record to wit:
?1. A declaration by the Honourable Court that the plaintiff is entitled to a grant of letter of Administration in respect of

the estate of his late father Eze-ogo Dr. Akanu Ibiam.
2. An injunction restraining the 1st defendant from interfering with the duties of the 2nd defendant in processing the application of plaintiff for the said letters of Administration and the issuance of the same to the plaintiff.
3. An order discharging the notice to prohibit grant and directing the 2nd defendant to proceed to process and issue the said letters of Administration to the plaintiff.?

Pages 19-20 of the printed record contained the ?Further Amended Statement of Defence.? The parties relied on oral and documentary evidence in support of the cases each presented before the learned trial Judge.

Seven grounds accompany the Notice of Appeal. Paragraph 4 in the Notice of Appeal claims the following reliefs if the appeal is determined in favour of the appellant to wit:
?4. RELIEF SOUGHT FROM THE COURT OF APPEAL:
That the judgment of the Enugu High Court delivered on the 18th day of October, 2004 including the order joining the 1st defendant in the application for letters of Administration in respect of the estate of the late Eze-Ogo Dr. Akanu

Ibiam be set aside, the counter-claim dismissed and judgment entered for the plaintiff/appellant.?

When the appeal came up for hearing on 31st October, 2016 the appellant adopted his Amended brief of argument which had been filed on 24th May, 2016. The 1st respondent, reported dead had been an order of substituted by this Court on 11th April, 2006. Obiageli Akanu Ibiam proceeded with this appeal. The 1st respondent?s Amended brief was filed on 3rd June, 2016 pursuant to the order of substitution. The briefs were adopted on 31st October, 2016 by learned Counsel. Appellant?s learned Counsel distilled the following issues for determination:
?1. Whether there was any evidence the Ezeogo Akanu Ibiam adopted the 1st defendant.
2. Whether the learned trial Judge was right to have based his decision on unpleaded and unproved evidence.
3. Whether the learned trial Judge was correct in awarding the 1st defendant relief not specifically sought for.?
4. Whether it was proper for the learned trial Judge not to make his ruling or refuse to give reasons for his rulings and refuse to hear the motion pending before

embarking on hearing the suit.?

The 1st respondent distilled the following issues for determination:
?1. Whether under Native Law and Customs or Statute Law, the late Ezeogo Dr. Akanu Ibiam adopted the 1st defendant/respondent.
2. Whether in the circumstances of this case, there has been substantial compliance with the Adoption Law (Cap.6), Laws of Eastern Nigeria, 1956, by the plaintiff?s father when he applied for the adoption of the 1st defendant and carried out his obligations under the law.?

No brief was filed by the 2nd respondent. I have read the facts upon which the parties predicated their grievances in the Court below. I have also read the reasoning of the learned trial Judge for dismissing the appellant?s claims but rendering a decision in favour of the 1st respondent in respect of the counter-claim. The 1st respondent had sought the following remedies in the counter-claim:
?WHEREFORE the 1st defendant claims against the plaintiff as follows:
(a) A declaration that the 1st defendant is a son of late Dr. Akanu Ibiam by legal adoption.
(b) A declaration that the 1st defendant is

a son of late Dr. Akanu Ibiam by customary adoption and in accordance with the custom and tradition of Unwana.
(c) An order of perpetual injunction restraining the plaintiff, his servants, agents or privies from compelling the 1st defendant to change his family name from Akanu Ibiam or ejecting him from the family house of late Dr. Akanu Ibiam.?

The principal question the learned trial Judge had to determine in respect of the Further Amended Statement of claim was whether the appellant is the only biological male child of late Dr. Francis Akanu Ibiam. This was not in dispute. Also not in dispute is the fact that late Akanu Ibiam had two daughters, who are married and live with their respective husbands. What the appellant is disputing is the 1st respondent claim that he is an adopted son of late Dr. Francis Akanu Ibiam who died intestate in 1995. The 1st respondent had the onus of pleading and proving he is an adopted son of the late Dr. Akanu Ibiam. 1st respondent pleaded in Paragraph 6 of the original statement of defence that, ?…In further answer to Paragraph 7 of the statement of claim the 1st defendant avers that the Exhibits

contained in the 1st defendants affidavit of interest, particularly Exhibits ?A? and ?A1? are evidence that adoption/fit persons order with respect to the 1st defendant was duly processed.? In Paragraph 7, the 1st respondent pleaded that, ?….when Dr. Akanu Ibiam died in 1995, the plaintiff took possession on and control of all the deceased documents, including the processed adoption/fit persons order of the 1st defendant and has been withholding same.? The 1st respondent again pleaded in Paragraphs 17 (a)-(d) of the statement of defence as follows:
?17. In further answer to the statement of claim the 1st defendant avers and shall at the trial led evidence as follows:
(a) The 1st defendant is an adopted son of Dr. Akanu Ibiam and that adoption/fit persons order was processed, to the knowledge of the plaintiff.
(b) The said adoption/fit persons order is in possession of the plaintiff who is withholding it.
(c) A certificate of adoption is merely a conclusive proof of adoption and not only means of proving adoption.
(d) The plaintiff?s intention in instituting this suit is only to be

granted the letter of administration to enable him dispose of the estates of late Dr. Akanu Ibiam and to the prejudice of the 1st defendant.?

In Elias vs. Omo-Bare (1982)1 All NLR (Pt.1) 75, the Supreme Court held per Udo Udoma, JSC at pages 83 to 84 as follows:
?The issue of boundaries is most crucial in a case of this nature, because, according to the testimony of Momodu Ilo (PW3), accepted by the learned trial Judge and as pleaded in Paragraph 5 of the amended statement of claim, the portion of land sold to the appellant and covered by the deed of conveyance, Exhibit ?A? was only a part of larger area of land originally the property of Oshoja family, the said larger area having partitioned on the death of Oshoja among his four children. The portion sold to the appellant was said to be the portion which fell to the share of Talabi and of which Talabi was seised in accordance with ?Yoruba native law and custom.?
It is for these reasons that the averments contained in Paragraph 2 of the amended statement of claim become most relevant and important and, indeed, vital to the case of the appellant. The necessity

to produce at the trial a proper plan of the land claimed by the appellant and in dispute prepared by a licenced surveyor, and on which should have been delineated certain prominent features found thereon including the particular portion on which the house of the respondent had been erected as being within the area acquired by the appellant must have been fully appreciated when pleadings were settled. It was in consideration of that fact, it must be presumed, that the appellant promptly and properly pleaded in Paragraph 2 of his statement of claim by way of notice to the respondent that he would produce at the trial a plan of the land in dispute showing the area upon which the respondent had committed acts of trespass of which the appellant was complaining.
I agree with learned Counsel for the respondent that the averment contained in Paragraph 2 of the amended statement of claim was tantamount to an undertaking binding upon the appellant, a breach of which was not only evidence of bad faith, but also most embarrassing to the respondent, thereby placing an obstacle in the way of a proper defence to the action.?

The 1st respondent referred to a

?certificate of adoption? in Paragraphs 11 of the original statement of defence and Paragraph 43 of the counter-claim as the documents upon which he shall disprove the appellant?s claim and establish the facts pleaded in the counter-claim. These averments are tantamount to an undertaking on the part of the 1st respondent to produce either the originals or secondary evidence of these documents at the hearing in the Court below in view of Paragraphs 21-22 of the appellant?s reply to the counter-claim. The failure to produce these pleaded documents in the Court below is evidence of bad faith on the part of the 1st respondent.

Sections 131 and 134 of the Evidence Act, 2011 provides as follows:
?131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
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134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.?

is the 1st respondent that will fail if he cannot prove that he was an adopted son of the late Dr. Akanu Ibiam. Admissibility of documents is required to prove relevant and pleaded facts. See Musa Sadau vs. The State (1968) 1 All NLR 124 at 129; Agunbiade vs. Sasegbon (1968) N.M.L.R 223 at 226 and ACB Ltd vs. Alhaji Gwagwada (1994) 268 at 277. But a person not shown by credible evidence to be in possession of any documents cannot be expected to produce them at the trial. See Matori vs. Bauchi (2004) All FWLR (Pt. 197) 1010 at 1055 Paragraphs ?D?- ?E? and Nlewedim vs. Uduma (1996) 6 NWLR (Pt. 402) 383. I do not see how the 1st respondent can anchor his defence and claim remedies in the counter-claim by relying on documents alleged to be in possession of the appellant who has vehemently denied being in their possession. Section 146(1)-(2) of the Evidence Act, 2011 provides as follows:
?(1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in

Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.?

What is the meaning of ?adoption,? ?adoptee?, ?adopted,? ?adoption by estoppel? or ?fostered? child? The learned authors of Black?s Law Dictionary, 9th Edition, pages 55 to 56 defines these terms as follows:
?Adoptee:- A person who has become the legal child of one or two non-biological parents. Also termed adopted child.
Adoption:- 1. Family law. The creation of a parent-child relationship by judicial order between two parties who usually, are unrelated; the relation of parent and child created by law between persons who are not in fact parent and child. This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the

parents? parental rights have been terminated by Court order. Adoption creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, and responsibilities that attach to that relationship, though there may be agreed exceptions. Adoption is distinguishable from legitimation and from fostering. Adoption usually, refers to an act between persons unrelated by blood; legitimation refers to an act between persons related by blood. Universally, a decree of adoption confers legitimate status on the adopted child. Adoption is permanent; fosterage is a temporary arrangement for a child?s care. See adopted child, foster child under Child?
?Although adoption is found in many societies, ancient and modern, primitive and civilized, and is recognized by the civil law, it was unknown at common law. Accordingly, adoption is entirely a creature of statute Elias Clark et al, Gratuitous Transfers: Wills, Intestate Succession, Trusts, Gifts, Future Interests, and Estate and Gift Taxation Cases and Materials 73-74 (4th ed. 1999).
Adoption by estoppel (1933) 1. An equitable

adoption of a child by one who promises or acts in a way that precludes the person and his or her estate from denying adopted status to the child.
2. An equitable decree of adoption treating as done that which ought to have been done. Such a decree is entered when no final decree of adoption has already been obtained, even though the principal has acted as if an adoption has been achieved. A petitioner must show an agreement of adoption, relinquishing of parental authority by the child?s biological parents, assumption of parental responsibility by the foster parents, and a de facto relationship of parent and child over a substantial period. Such a claim typically occurs when an adoptive parent has died intestate, and the child tries to be named an heir. In a minority of states, adoption by estoppel may be a basis for allowing a child to participate in a wrongful-death action. Also termed equitable adoption; virtual adoption
Other forms of adoption are as follows:
?Adoption by will: Roman Law. A posthumous adoption effected by a testator?s written statement declaring the intention to adopt and naming the person

adopted. The only legal effect of such an adoption was to entitle the adopted person to assume the testator?s family name and be regarded as the testator?s child. Because the adopted person was never subject to the testator?s legal control (patria potestas), the person could not acquire agnatic rights or make a claim on the estate beyond any specific testamentary grants.
Adult adoption:- The adoption of one adult by another. Many jurisdictions do not allow adult adoptions. Those that do often impose restrictions, as by requiring consent of the person to be adopted, but may not look too closely at the purpose for which adoption is sought?
Agency adoption:- An adoption in which parental rights are terminated and legal custody is relinquished to an agency that finds and approves the adoptive parents. An agency adoption can be either public or private. In all states, adoption agencies must be licensed, and in most, they are non-profit entities. Parents who voluntarily place a child for adoption most commonly use a private agency?
Closed adoption:- An adoption in which the biological parent relinquishes his or

her parental rights and surrenders the child to an unknown person or persons; an adoption in which there is no disclosure of the identity of the birth parents, adopting parent or parents, or child. Adoptions by stepparents, blood relatives, and foster parents are exceptions to the no-disclosure requirement. Also termed confidential adoption?
Cooperative adoption:- A process in which the birth parents and adoptive parents negotiate to reach a voluntary agreement about the degree and type of continuing contact after adoption, including direct visitation or more limited arrangements such as communication by telephone or mail, the exchange of either identifying or non-identifying information, and other forms of contact?
De facto adoption:- An adoption that falls short of the statutory requirements in a particular State. The adoption agreement may ripen to a de jure adoption when the statutory formalities have been met or if a Court finds that the requirements for adoption by estoppel have been met. Also termed adoption by estoppel.?
?In Osborn?s Concise Law Dictionary by Sheila Bone, 9th Edition, page 19, also defined an

?adopted child? and ?adoption? as follows:
?Adopted child:- A child in respect of which an adoption order has been made. See Adoption of children.
Adoption of children:- Adoption is effected by a Court order which vests parental responsibility for a child in the adopter(s) and extinguishes the parental responsibility of the birth parents (Adoption Act, 1976, Section 12(1)). The effect of an adoption order is that the child is treated as if born as a child of the marriage of the adopter(s) and not as the child of anyone else, and is prevented from being illegitimate. The requirements for making adoption orders are set out in the Adoption Act, 1976. See Freeing for adoption.?

The learned trial Judge held at page 126 lines 3 to page 127 lines 1-20 of the printed record as follows:
?I have carefully considered the evidence adduced by parties in this case together with the exhibits tendered. I have also considered the ebullient submissions of learned Counsel on both sides. In the course of the evidence in chief of PW1, Exhibit ?L? was conditionally admitted. This Court is now satisfied that

Exhibit ?L? was properly admitted and marked. The claim of the plaintiff against the defendant is for an order compelling the 1st defendant to remove the caveat to prohibit grant entered against the plaintiff?s application for letters of Administration of the Estate of Late Ezeogo Isiala Akanu Ibiam; and also to compel the second defendant to process the said Application of the plaintiff. It is in evidence and admitted by both parties that after Late Ezeogo Akanu Ibiam picked the 1st defendant from a refugee camp as an infant he contacted the Social Welfare which left the child with him as a Foster parent. See Exhibit ?J? and ?K?. This Court found also that as time went on, no further payment were shown as made to Ezeogo, being maintenance allowance for fostering the 1st defendant. The Report from the Social Welfare, Exhibit ?G1? talks of the 1st defendant having been adopted by Ezeogo Akanu Ibiam. This Court has been strongly urged to reject Exhibits ?G-G3? as forgeries, by the plaintiff?s Counsel. The irony of it all is that the said exhibits were tendered by the plaintiff. There is a

serious criminal allegation by the plaintiff against the Welfare Office Miss R.N. Ede who signed the said Exhibits for Social Welfare Officer. It is however trite law that a criminal allegation in civil proceedings must be proved beyond reasonable doubt. See Falae vs. Obasanjo (1999) 68 LRCN 601 at 619; Benson Ikokwu vs. Enoch Oli (1962) 1 All NLR 194 at 199; Nwankere vs. Adewunmi (1996) All NLR 129 at 132 and Nwobodo vs. Onoh (1984) 15 NSCC 1. The pleadings and evidence of plaintiff in support of the serious allegations of forgery made against the Social Welfare Officer, fell far short of the standard required in law to establish the same. The records of the Social Welfare Officer, tendered by the plaintiff as Exhibits ?G-G3? as it concerned the 1st defendant must in the present circumstance, be regarded as certified copies of the records of the Social Welfare Zone of Anambra State Ministry of Local Government and Social Development.
The plaintiff?s Counsel had submitted that Exhibits ?G-G3? was not the ?Adopted Children?s Register? enjoined to be produced in Court under Section 16 of the Adoption Law

(Cap.6), Laws of Eastern Nigeria. The Court with respect does not accept that submission, as certified copy of entries in the said Register or other records kept by the Registrar-General could be produced in Court. See Section 16(3) of the Law (supra). The Court has however observed that the Adoption Certificate Order was not included in the Records of the Welfare tendered in Court. It is nevertheless pertinent to note that the responsibility for compliance with the procedure for adoption of a juvenile under the Adoption Law, fell on the applicant. From the records of the Social Welfare tendered in Court, this Court in the peculiar circumstances of this case, is left in no doubt that the applicant who signed the Adoption Bill into law, complied with all the prerequisites of that law for the fostering of the 1st defendant, and subsequently for adoption of the 1st defendant.?

There is a wall of difference between ?adoption? and ?fostering? a child. The two concepts are not the same as I have shown above. The 1st respondent pleaded ?adoption? not ?fostering? hence the learned trial Judge and the parties

are bound by the pleadings. See African Continental Seaways Ltd. vs Nigerian Dredging Road & General Works Ltd. (1977) 5 SC 235 at 250 and Temco Engineering Co. Ltd. vs. S.B.N. Ltd. (1995) 5 NWLR (Pt. 397) 607. Any evidence on ?fostering a child? goes to no issue and is expunged from the findings or holdings by the learned trial Judge. See Wayne vs. Ekwunife (1989) 12 SCNJ 99 at 112; Dina vs. N.N.N. Ltd (1986) 2 NWLR (Pt. 22) 353 at 364; George vs. Dominion Flour Mills Ltd. (1963) 1 All NLR 73; and Emegokwe vs. Okadigbo (1973) 4 S.C 113 at 117 and Slee Transport Ltd. vs. Oluwasegun (1973) 3 ECSLR 1176 at 1183.

Sections 3-7 of the Adoption Law (Cap.7), Revised Laws of Enugu State of Nigeria, 2004 Vol.1 is couched as follows:
?3(1) Subject to this Law, the Court may, upon an application made in the prescribed manner, make an order authorizing the applicant to adopt a juvenile.
(2) An adoption order may be made on the application of a man and his wife authorizing them jointly to adopt a juvenile.
(3) An adoption order may be made authorizing the adoption of a juvenile by the mother or father of the juvenile either alone

or jointly with her husband or his wife, as the case may be.
4(1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants-
(a) Has attained the age of twenty-five and as at least twenty-one years older than the juvenile; or
(b) Has attained the age of twenty-one and is a relative of the juvenile; or
(c) Is the mother or father of the juvenile.
(2) An adoption order shall not be made in favour of a sole applicant who is male unless the juvenile is a son of the applicant or the Court is satisfied that there are special circumstances which justify, as an exceptional measure, the making of an adoption order.
(3) Except as provided by Subsection (2) of Section 3, an adoption order shall not be made authorizing more than one person to adopt a juvenile.
(4) An adoption order shall not be made in respect of a juvenile unless-
(a) The applicant and the juvenile reside in Enugu State; and
(b) The juvenile has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order, and

The applicant has, at least three months before the date of the order, notified the Chief Welfare Officer of his intention to apply for an adoption order in respect of the juvenile.
(5)(1) Subject to this Section, an adoption order shall not be made except with the consent of every person who is a parent of the juvenile.
(2) The Court may dispense with the consent of a parent if the Court is satisfied that he has abandoned, neglected or persistently ill-treated the juvenile or that he cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld.
(3) Where, in the case of an application made within one year from the date of commencement of this Law, it is shown to the satisfaction of the Court that during the period of two consecutive years immediately preceding that date the juvenile has been brought up, maintained and educated under a de facto adoption (whether by one person or by a husband and wife jointly) the Court may dispense with the consent of any parent of the juvenile.
(4) A consent under this Section may be given (either unconditionally or subject to condition with respect to the religious

persuasion in which the juvenile is to be brought up) without knowing the identity of the applicant for the adoption order; and where consent so given to any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this Section to be unreasonably withheld.
(5) While an application for an adoption order in respect of a juvenile is pending in a Court, a parent of the juvenile who has specified his consent to the making of an adoption order in pursuance of the application is not entitled, except with the leave of the Court, to remove the juvenile from the care and possession of the applicant; and in considering whether to grant or refuse such a leave, the Court shall have regard to the welfare of the juvenile.
6(1) Where it appears to the Court that a person who is not the parent of the juvenile has, under an order of a Court or agreement, or under customary law, or otherwise, any rights or obligations in respect of the juvenile the Court may, if it thinks fit, require that person?s consent be obtained before the adoption order is made.
(2) Where a

married man or woman is the sole applicant for an adoption order, the Court may, if it thinks fit, require that the consent of any wife or husband of the applicant be obtained before the adoption order is made.
(3) The Chief Welfare Officer shall in every case prepare a report to assist the Court in an application for an adoption order to determine whether any person who is not a parent of the juvenile has any rights or obligations in respect of the juvenile and whether the consent of that person ought to be obtained.
7(1) The Court before making an adoption order shall be satisfied that:-
(a) Every person, where consent is required under Sections 5 and 6 and where consent is not dispensed with, has consented to and understands the nature and effects of the adoption order and in particular, in the case of a parent, understands that the effect of the adoption will be permanently to deprive him of his parental rights;
(b) The order if made will be for the maintenance, care, education and welfare of the juvenile, due consideration for these purposes being given to the wishes of the juvenile having regard to the age and understanding of the

juvenile.
(c) The applicant has not received or agreed to receive, and no person has made or agreed to make to the applicant, any payment or other reward in consideration of the adoption except such as Court may sanction; and
(d) The applicant is a person of good repute and commendable character.
(2) The Court in an adoption order may impose such terms and conditions as the Court may think fit and in particular may require the adopter by bond or otherwise to make for the juvenile such provisions (if any) as in the opinion of the Court are just and expedient.
Section 2 of the Law is the definition Section. The Law defines the following words and phrases to wit:
2. In this Law-
Adoption Order means an order made under Subsection (1) of Section 3;
Court means a Court having jurisdiction to make adoption orders under this Law;
Father in relation to an illegitimate child means the natural father;
Juvenile means a person who is under the age of seventeen years;
Parent includes father as defined by this Law and a guardian.

The onus was on the 1st respondent/counter-claimant to produce an ?adoption order? as defined in Sections 2 and 3(1)-4(1)-(4) of the Adoption Law to prove he was and adopted son of the late Dr. Akanu Ibiam for him to be entitled to the remedies the learned trial Judge granted him in the Court below. In the absence of an adoption order from a competent Court of record, it cannot be said that the 1st respondent was entitled to the remedies he claimed in the Court below.

Section 11-13 of the Adoption Law (supra) provides as follows:
?11(1) Subject to any Rules made under this Section an application for an adoption order may be made to the High Court or at the option of the applicant to a Magistrate?s Court within the jurisdiction of which the applicant or the infant resides at the date of the application.
(2) The Chief Judge may make rules in regard to any matter to be prescribed under this Law and dealing generally with all matters of procedure and incidental matters arising out of this Law or for carrying this Law into effect.
(3) Rules under this Section shall provide for-
(a) The proceedings to hold

otherwise than in open Court and, where the application is made to a Magistrates Court, the hearing and determination of the application in a juvenile Court, and may make provision for excluding or restricting the jurisdiction of any Court where a previous application made by same applicant in respect of the same infant has been refused by that or other Court;
(b) The admission of documentary evidence of any consent required under Section 5 or 6;
(c) Requiring the Chief Welfare Officer to represent the interests of the juvenile in any proceedings with respect to an adoption order or an interim order;
(d) Requiring the Chief Welfare Officer to prepare for the consideration of the Court on an application for an adoption order, report for the assistance of the Court in determining whether the order will be in the overall interest and for the welfare of the juvenile, having regard to the ability of the applicant to maintain, care for, and educate the juvenile.
12. On any decision by a Magistrates Court on an application for the making of an adoption order, other than a decision to postpone the application and make an interim

order, a person aggrieved may, subject to rules of Court, appeal to the High Court.
13(1) Upon the adoption order being made-
(a) All rights, duties, obligations and liabilities, including any arising under customary law, of the parents of the juvenile or any other person, in relation to the juvenile (including all rights to appoint a guardian and to consent or give notice of dissent to marriage) shall be extinguished; and
(b) There shall vest in, and be exercisable by and enforceable against, the adopter all such rights, duties, obligations and liabilities in relation to the future custody, maintenance and education of the juvenile as if the juvenile were a child born to the adopter in lawful marriage.
(2) In respect of custody, maintenance and education the juvenile shall stand to the adopter exclusively in the position of a child born to the adopter in lawful marriage.
(3) In a case where a man and his wife are the adopters, they shall in respect of the custody, maintenance and education of the juvenile, and for the purpose of the jurisdiction of any Court to make orders as to the custody and maintenance of an rights of access to

the juvenile, stand to each other and to the juvenile in the same relation as they would have stood if they had been the lawful father and mother respectively of the juvenile and the juvenile shall stand to them in the same relation as to a lawful father and mother respectively.
(4) For the purpose of the law relating to marriage (including customary law marriage) there is hereby deemed to exist a prohibition degree of consanguinity:-
(a) Between an adopter and the person whom he has been authorized to adopt under an adoption order; and
(b) Between persons adopted by the same adopter under the same or different adoption orders; and
(c) Between an adopted person and a son or daughter of the adopter, and in relation to Paragraph (a) the provisions of this subsection shall continue to have effect notwithstanding that some person other than the adopter is authorized by a subsequent order to adopt the same infant.?

For the purposes of the remedies, the 1st respondent sought and was granted in the Court below the answer lies in Sections 14-15 of the Law reads as follows:
?14(1) Where at any time after the making of

an adoption order, the adopter or the adopted person or any other person dies intestate in respect of real or personal property, that property shall devolve in all respects as if the adopted person were the child of the adopter and were not the child of any other person.
(2) In a disposition of a real or personal property made whether by instrument inter vivos or by will after the date of an adoption order:-
(a) A reference (whether expressed or implied) to child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including a reference to the adopted person; and
(b) A reference (whether expressed or implied) to the child or children of the adopted person?s parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted person; and
(c) A reference (whether expressed or implied) to a person related to the adopted person in any degree shall, unless the contrary intention appears, be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter and were not

the child of any other person.
15(1) For the purposes of the application of the Law in force in Enugu State on the administration of estates to the devolution of property in accordance with the provisions of Section 14, and for the purpose of the construction of such disposition as is mentioned in the section, and adopted person shall be deemed to be related to any other person being the child or adopted child of the adopter or (in the case of a joint adoption) of either of the adopters:-
(a) Where he or she was adopted by two spouses jointly, and that other person is the child or adopted child of both of them, as brother or sister of the whole blood;
(b) In any other case as brother or sister of the half blood.
(2) For the purposes of Subsection (2) of Section 14, a disposition made by will or codicil shall be treated as made on the date of the death of the testator.
(3) Notwithstanding anything in Section 14, trustees or personal representatives may convey or distribute real or personal property to or among the persons entitled thereto without having ascertained that no adoption order has been made by virtue of which a person is or

may be entitled to an interest therein, and shall not be liable to the person of whose claim they have not had notice at the time of the conveyance or distribution; but nothing in this subsection prejudices the right of such person to follow the property, or other property representing it, into the hands of a person, other than a purchaser, who may have received it.?

Sections 14-15 of the Adoption Law can only come into place if the 1st respondent had produced and tendered in the Court below an Adoption Order from a competent Court of record. The Adoption Law is couched in such a manner as to cover adoption under native Law and custom. Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445 was a chieftaincy dispute covered by the chieftaincy declaration, Karibi-Whyte, JSC held at page 465 as follows:
?It is an elementary and fundamental principle of our law that an existing native law and custom may be altered or entirely abrogated by a valid legislation in conflict with it. Accordingly, where the status regulated is not a creation of native law and custom, any native law and custom which has developed and grown around

it can be abolished or indeed controlled by a suitable contrary legislation.?

The Adoption Law of Enugu State has covered the field in respect of matters pertaining to adoption under customary law. On my part, this appeal is allowed. The 1st respondent?s counter-claim having not been proved in the Court below is hereby dismissed. I award N50,000.00 cost the appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read in draft the judgment of my learned brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree with the reasoning and conclusion therein that the appeal has merit and is allowed. I abide by the order for costs made therein.

Appearances

B.C. Okoye, (Mrs) with him, C.E. Ezenwa, Esq.For Appellant

AND

Chief Enechi Onyia, SAN with him, C.I. Enechi Onyia, Esq. and E.U. Okechukwu, Esq. for the 1st Respondent (for Legal Aid Council)For Respondent