FOSTER SUTTON, P.
The short point we were asked to determine at the hearing of this appeal was whether the appellants, Adeyinka and Adenike Coker, who are children born out of wedlock to their father, Dudley Theodore Coker, deceased, are entitled to share in his estate together with the respondents who are the issue of a marriage contracted by him under the Marriage Ordinance.
The question as to legitimacy is one of status and is to be determined by the law of the country of a person's origin. This was held to be the law by the majority of the Court of Appeal in the case of In re Goodman's Trusts (1881) 17 Ch. D. 266, and so far as I am aware that case has not been dissented from since.
The learned trial Judge came to the conclusion that it had been satisfactorily proved that under the Native Law and Custom of the Yoruba people, paternity of the two persons concerned having been acknowledged by the deceased during his life-time, they are to be regarded as legitimate under the law in Nigeria, and there can, I think, be no doubt that the conclusion he reached was fully justified on the evidence before him.
Having so found, however, the learned trial Judge went on to hold that, although legitimate under the law of this country, it was incompatible with Public Policy that children born out of wedlock should be placed on the same footing as children born in wedlock, to use his own words: “where there are children born in lawful wedlock, children born out of wedlock should be excluded from participating in the distribution of the estate of their father”, but “if the children of the deceased are all of the same status, that is, born without marriage, they could inherit their father's property”.
In reaching this conclusion the learned trial Judge was influenced by a passage in the judgment of this Court in Civil Appeal No. 3552, In the matter of the estate of Herbert Samuel Heelas Macaulay, reported at page 111 of W.A.C.A., Selected Judgment October-November 1951, which reads as follows:-
“In this connection Mr Williams submitted that it might be possible to establish that by “native law and custom notwithstanding that no marriage has been contracted thereunder “any child the paternity of which had been acknowledged by the deceased during his life “would be deemed by such law and custom to be legitimate and that in such case any child “would be entitled to share in the distribution of the estate as a child of the deceased. No “such thing has been claimed or established in the Court below. I would not exclude its “possibility but should such a claim be received at a further hearing the Judge would be at “pains to satisfy himself first that such a law and custom is established and secondly that it is “not repugnant to natural justice, equity and good conscience nor incompatible either “directly or by necessary implication with any law in force in Nigeria, including therein the “rules of the common law as to the unenforceability of claims contrary to public policy “bearing in mind that the encouragment of promiscuous intercourse must always be contrary “to such policy”.
In my view that passage was only intended as a warning that great caution ought to be exercised in accepting a contention that in certain circumstances a person born out of wedlock must be regarded in law as legitimate. I do not think for one moment that the Court intended to suggest that if such Native Law and Custom were proved, and a child born out of wedlock was held to be legitimate under the law in Nigeria, there could, in effect, be different grades of legitimacy so as to affect their right of succession. The evidence in this case is that under Yoruba Law and Custom all legitimate children are entitled to share in their father's estate, and the appellants having been held to be legitimate, I do not think the question of their parents’ marriage is then a relevant subject for investigation. Nor do I think that Public Policy demands, that the Courts of this country should hold otherwise.
It follows that, in my opinion, if in fact the status of legitimacy is conferred by the law of this country, the domicile of origin of the appellants, which has been held to be the case, they are, entitled to succeed to the property of their deceased father, together with his other legitimate children.
I would accordingly allow this appeal, set aside the judgment of the Court below in so far as the appellants Adeyinka Coker and Adenike Coker are concerned, and enter judgment for them granting the declaration prayed in their writ of summons in suit No. 400 of 1951, and awarding them their costs in the Court below, to be taxed, and costs on this appeal fixed at £34-13s-0d.
COUSSEY, J. A.