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Keywords: A CRITICAL APPRAISAL OF LEGITIMACY AND LEGITIMATION UNDER NIGERIAN FAMILY LAW
This long essay is concerned with the concept of legitimacy, which is an important concept, as it determines the status of a child in relation to the society, while a legitimate child is conferred with the rights and duties of a legitimate child, which includes right to maintenance, succession among other rights, an illegitimate child is denied of these right by virtue of the fact of his illegitimate birth and he remain so, until and unless he is legitimated either by the subsequent marriage of the parents, or by acknowledgement of paternity by the father, the absence of which the child will be regarded as an illegitimate child, with the resultant social discrimination that will be melted out on him by members of the larger society.
This essay is therefore poised to giving a voice to illegitimate children in the society, by examining the concept itself, and the discrimation which an illegitimate child is being faced with; it examines the ways of legitimating an illegitimate child, in order to remove the discrimination, so that he will be accorded with the same status as a legitimate child.
Chapter one gives a general introduction of the work, it traces the origin of illegitimacy which appearances can be seen in the Holy Bible and the Holy Qu’ran,and which also dates back to our traditional societies, where an illegitimate child is seen more or less like a social outcast, and is treated like the child of nobody, it also discusses all the variables necessary to fully appreciate the concept, while chapter two talked about the concept of legitimacy under both customary and English law, it discusses the importance of a legitimate status, it also discusses illegitimacy, and the need to legitimize an illegitimate child, in other to remove the social stigma attached to that status.
legitimization was specifically discussed in chapter three, which can either be by the subsequent marriage of the parents of the child which can either be by statutory law, or by customary law, and the necessary conditions which must be met, Acknowledgement of paternity as a means of legitimation was also discussed with the condition precedent before a child will be said to have been acknowledged by the father
Chapter four discusses the effect of legitimation on an otherwise illegitimate child, which includes the rights and the duties of a legitimized child to the parents and the rights and duties of the parents to a legitimated child as when there is a right there must be a corresponding duty. Chapter five which is the concluding part of the work contains the findings of the work and includes the necessary recommendations.
TABLE OF CASES
Abisogun v.Abisogun(1963)1 ALL NLR 237
Akerele v.Balogun(1994)LLR 99 at 101
Alake v.Pratt (1955)15 WACA 20
Amachire v.Goodhead (1923)4 NLR
Cole v.Akinyele(1960)5 FSC
Egwunmoke v.Egwunwoke NMLR147
Ezekiel v.Alabi(1942)2 ALL NLR 43
Lawal v.Younam(1961)WNLR 197
Mariyama v.Sadiku ejo (1961) NRNLR
Olarewaju v.Governor of oyo state NSCC Pt.111 389 at 400
Onwudinjo v.Onwudinjo(1957)11 ERNLR 1
Owuna v.Ogbodo suit no MD/51A/1975 unreported high Court Markurdi,October 26
1976Philip v.Philip (1946)18NLR 102
Re sarah Adadevoh(1951)13 WACA 304
Shasie and others.Salako and others(1976)NMLR 160
Young v.Young (1953) WACA Cyclostyled judgement
Bazeley v.Forder (1868)LR 3 QB 599
Bebee v.Sailes (1916)32 TLR
Donaldson v.Mc Niven (1952)2 ALL ER 691
Hyde v.Hyde (18886)CR IPD 130
Lough v.Ward(1945)12 ALL ER
Mortmore v.Wright (1840)LR 3 QB
Public trustee v.Wilson(1948)65 NWNN SW 22
R v.MacDonald(1904) St R qd 151
Re Grove(1888)140 Ch-B 26
Sowa v.Sowa(1961) P70
TABLE OF STATUTES
• CAP 111,the revised edition Laws of Lagos state of Nigeria,Edict 1998
• Constitution of the Federal Republic Of Nigeria 1999
• Evidence Act CAP 62 Laws of the Federal Republic Of Nigeria 1959
• Federal Republic Of Nigeria Official Gazzette Act No 20,2003,Volume 90
• High Court of Lagos act
• Matrimonial Causes act 1970
• Legitimacy Act 1929 CAP 519 Laws Of the Federation Of Nigeria 1990
• Legitimacy Ordinance No 27 of 1929
• Custody of children act 1891
LIST OF ABRIVATIONS
ALL ER All England Law Report
ALL NLR All Nigerian Law Report
CH.D Chancery Division
ENLR Eastern Nigerian Law Report
ERNLR Eastern Nigerian Law Report
FSC Federal Supreme Court
L F N Laws of the federation
LLR Lagos Law Report
LR Law Report
M&W Meeson &Welsby
NLR Nigerian Law Report
NMLR Nigerian Law Report
NRNLR Northern Region of Nigerian Law Report
NSCC Nigerian Surpreme Court Cases
P Probate Division
REN Reener’s Report
WACA West Africa Law Report
WNLR Western Nigerian Law Report
TABLE OF CONTENTS
TABBLE OF CASES
TABLE OF STATUTES
LIST OF ABBREVIATIONS
TABLE OF CONTENTS
1.1.0:BACKGROUND OF THE STUDY
1.2.0:OBJECTIVE OF STUDY
1.3.0:FOCUS OF STUDY
1.4.0:SCOPE OF STUDY
1.7.0:DEFINITION OF TERMS
2.1.0:CONCEPT OF LEGITIMACY
2.2.0:LEGITIMACY UNDER NIGERIAN CUSTOMARY LAW
2.3.0:LEGITIMACY UNDER ENGLISH LAW
2.4.0:LEGITIMACY OF CHILDREN OF VOID MARRIAGE
2.5.0:LEGITIMACY OF CHILDREN OF A VIODABLE MARRIAGE
2.7.0:DIFFERENCE BETWEEN LEGITIMATE AND ILLEGITIMATE CHILD
2.7.0:OTHER INSTANCES OF LEGITIMACY
3.1.0:LEGITIMATION BY SUBSEQUENT STATUTORY LAW MARRIAGE
3.2.0:LEGITIMATION BY SUBSEQUENT CUSTOMARY LAW MARRIAGE
3.3.0:LEGITIMATION BY ACKNOWLEDGEMENT
EFFECT OF LEGITIMATION
4.1.0:EFFECT OF A LEGITIMATION
4.2.0:RIGHTS OF A LEGITIMIZED CHILD
4.3.0:DUTIES OF A PARENT TO A LEGITIMIZED CHILD
4.4.0:DUTIES OF A LEGITIMIZED CHILD TO THE PARENT
4.5.0:CONSTITIONAL APPROACH TO LEGITIMATION
GENERAL INTRODUCTION 1.0.0 INTRODUCTION
The question of legitimacy and legitimation are principally connected with status. It is therefore, important to determine the status of a child at any given moment as it has far reaching legal consequences. A child may be born legitimate or acquire that status by subsequent legitimation. A legitimate child is one regarded by law as a child born with full rights and it confers on the child certain rights against the man whom the law regards as his father and generally against the society, but the bastards like the prostitute, thief and the beggars belong to the motley crowd of disreputable social types which the society had generally resented but endured.
Legitimacy for lawyers is a concept whereby a couple’s child is entitled to full recognition as a family member and enjoys the legal right which the status involves. It implies that children born out of wedlock are referred to as illegitimate, as is generally believed that people are not supposed to have illegitimate children but when they do emergency machinery is put to operation to give the child a status which is an interior one.
The position of the common law is that the incapacity of a bastard consists primarily in this, that he cannot be heir to any one, neither can he have heirs but of
his own body for being nullius fullius, he is therefore likened to nobody and he has no ancestors from whom any inheritable blood can be derived.
The belief is that by regulating illegitimate children to the background and by denying them the filial rights enjoyed by legitimate children the society will be able to purge themselves of their existence which is usually not so.
The basic ingredients to prove the legitimacy of a child are:
• There must exist a valid marriage between the parents of the child, customary,
Islamic or statutory law marriage.
• The wife has to be the mother of the child in question.
• The father is also presumed to be the husband of the mother of the child born during the subsistence of the marriage.
The above requirement must be fulfilled before a child will be said to be legitimate, the absence of which the child will be seen as illegitimate. This is the obtainable position under the common law; the situation exposes illegitimate children to social and legal deprivations and also denies them the rights of a legitimate child which includes the right to succession, protection, maintenance, custody, amongst other related rights.
This actually informed the concept of legitimation, which aims at restoring rights that the illegitimate children have been wrongfully deprived of. The 1999 constitution did not expressly provide for legitimation, but it can be inferred from the right to freedom from discrimination, which provides that:
‘No citizen of Nigeria shall be subjected to any disabilities or deprivation merely by reason or the circumstance of his birth’. The study will therefore examine the concept of legitimation and see if the provision of the constitution has totally eradicated illegitimacy in order to entirely safeguard the right of a legitimated child; that is a former illegitimate child. The study will further examine the pitfalls, distinctions and discrimination that the illegitimate child faces and the various ways by which an illegitimate child can be legitimized. The various enactments, the legitimacy act, the customary and native perspectives will equally be examined.
1.1.0 BACKGROUND OF THE STUDY
Children born or conceived when there is a valid and subsisting marriage between their parents are referred to as legitimate children while those of unmarried parents are fillius nullius or fillius populi meaning a bastard, who has no legal relationship, or is recognized with the father nor with any other relative, he therefore is deprived of the right which legitimate children possess. Illegitimacy can be traced to the holy bible.
‘one of illegitimate birth shall not enter the assembly of the lord, even to the tenth generation; none of his descendants shall enter the assembly of the lord.’
In Genesis Chapter 49 v 8-12, God promised Judah that the sceptre will not depart from him, Judah thereafter committed adultery with another woman, which result was Perez, and by that singular act, ten generation passed before the promised was fulfilled, as seen in Matthew Chapter1 v1-6 which was when King David became the King of Israel. Islam also frowns at illegitimacy as can be seen from the below provision.
Call them (adopted sons) by the names of their fathers that is more just with Allah
A legitimate marriage is one contracted according to the rules guiding its validity which includes customary marriages in strict customary law, the concept of paternity marriage and legitimacy have no necessary connection unlike common law. For instance a child may be regarded as legitimate even though the natural parents are not married to each other and the person with respect to whom the child is legitimate is not the natural father. In Ibo custom, a man who has no male child may persuade one of his daughters to stay behind and not marry, the purpose of such arrangement is for her to produce a male successor for her father and thereby save his lineage form threatened extinction thus, any child she bears while remaining with her parents is considered the child or her father at birth. Any male child so produced has full right of succession to the grandfather’s title this custom is known as Idegbe in western Ibo custom we also have such custom in Akoko, the Oka people of Ondo State.
There is the practice of ‘Supo’ in the Yoruba speaking areas where the youngest brother of the widow’s deceased husband can inherit her so as to breed children for the late husband, this custom is referred to as widow inheritance and such children are regarded as legitimate children though the parents are not formally married, this is not to say that illegitimacy is not recognized, as they are referred to as ‘Omo- ale’ meaning a child of an adulterous woman or an unmarried woman (a bastard) that is a child who had not been acknowledged by his father and generally has no succession right in Yoruba customary law.
Under our customary law a child of an unmarried woman, (the term unmarried include women whose marriages have been legally dissolved as submitted by Dr. Obi) is regarded as belonging to his maternal grandfather, meaning that the connection between him and his maternal grandfather accord him the right to succession with his other grandfather children, although there is the status of illegitimacy under customary law the willingness of the grandfather or natural father to accept the child helps to remove the burden placed on that status, this is because of the general love for children. As we can see, illegitimacy have both religious and cultural undertone with the attendant discrimination melted out on illegitimate children, which has not in any way solved the problem, attempts therefore has been made to finding a solution to it which is legitimation as we cannot throw away the baby with the bath water, neither will the cutting of the head, relieve us from the headache.
1.2.0 OBJECTIVES OF THE STUDY
The study is aimed at exposing the unnecessary social discrimination faced by illegitimate children in the society. The way and means by which we can help alleviate and reduce their sufferings which is legitimation, how to enforce legitimation laws with a view to making them applicable to our local and peculiar situation in order to make them effective and workable as it is not equitable for the children to be made to pay for the sins
of their parents.
1.3.0 FOCUS OF THE STUDY
The study focus on the concept of legitimacy, that is what is means to say a child is legitimate, illegitimacy, meaning what makes a child illegitimate and legitimation which is the process of making an otherwise illegitimate child attain the status of a legitimate one, the study therefore focuses on illegitimate children with the view to making them attain a legitimate status, through the instrumentality of the law. It will also focus itself in exposing the uncertainties in the legisl
Keywords: A CRITICAL APPRAISAL OF LEGITIMACY AND LEGITIMATION UNDER NIGERIAN FAMILY LAW