A CRITICAL APPRISAL OF LEGITIMACY AND LEGITIMATION UNDER NIGERIAN FAMILY LAW

Code No: 884200

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ABSTRACT

Table of Content

TABLE OF CASES

NIGERIA
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 81
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 1976
Philip 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

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 Quâ€™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.

CHAPTER 1

CHAPTER 1
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 legitimation1. 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 endured2.
1Nwogugu E I â€˜Family law in Nigeriaâ€™ Revised edition, Heinemann Educational books, Nigeria plc1974
2Davies K. â€˜illegitimacy and social structureâ€™American Journal of Sociology, 1939,45
Legitimacy for lawyers is a concept whereby a coupleâ€™s child is entitled to full recognition as a family member and enjoys the legal right which the status involves.3 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:
â€¢ There must exist a valid marriage between the parents of the child, customary, Islamic or statutory law marriage.
â€¢ The wife has to be the mother of the child in question.

â€¢ 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:
â€˜No citizen of Nigeria shall be subjected to any disabilities or deprivation merely by reason or the circumstance of his birthâ€™.4
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.