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 ‘Family law in Nigeria’ Revised edition, Heinemann Educational books, Nigeria plc1974
2Davies K. ‘illegitimacy and social structure’American Journal of Sociology, 1939,45
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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.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:
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.
3 Cretney S M ‘principle of family law’4th ed. Sweet and Maxwell.1984
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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’.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.
4 S.42(4)1999 Constitution of the Federal Republic of Nigeria
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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.’5
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 Allah6
A legitimate marriage is one contracted according to the rules guiding its validity which
includes customary marriages7 in strict customary law, the concept of paternity marriage
5 Deuteronomy Chapter 23 v 2
6 Holy Quran Chapter 33v5
7 Nwogugu E.I ‘Family law in Nigeria’ Revised edition Heinemann Educational books Nigeria Plc (1974)
286
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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)8 that is a child who had not been acknowledged by his father and generally has no succession right in Yoruba customary law.
8 Coker G. B. A ‘Family property among the yoruba’2nd ed. Sweet and Maxwell London 1966
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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)9 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,10 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.
9 Obi S. N.C ‘Modern family law in southern Nigeria’ University Press,Lagos (1966) page 294
10Owuna v. Ogbodo suit no MD\51A\1975(unreported)high court Makurdi, October 26,1976
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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 legislative position in Section 42 (2) of the 1999 constitution as regards the provision from freedom from discrimination of any citizen of Nigeria in relation to the circumstances or their birth, and it will also examine the family law reform relating to legitimacy and legitimation.
More so, the mode of legitimation will also be examined, this is due to the lack of uniformity in the modes of legitimation, which are not universally accepted by the common law, the religion and customary law .Also, the modes as of today which are inoperative and unenforceable will also be looked into and solutions will be preferred in order to make it operative and enforceable. Furthermore, in spite of the avoidance of the word ‘illegitimate’ in the statute book, the status of a child born out of lawful wedlock has not changed, All these issues and many more will be the focus of this study and it will be examined with a view to fashioning out lasting solutions to them, since they pose themselves as problems.
1.4.0 SCOPE OF THE STUDY
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It will be limited to family law in the aspect of parent and child relationship in respect to legitimacy and legitimation, the right and duties of a legitimated child to his parents and the right and duties of a parent to his legitimized child, the study will also be linked to our principal religions in Nigeria i.e. Christianity and Islam. It will also compare our various customary indigenous laws and the English law position.
1.5.0 METHODOLOGY
This will be based on documentary source of information form textbooks, Dictionaries, articles, encyclopaedia, law journals, periodicals and opinion of writers which are the secondary sources of data. The primary source includes the holy bible, Qur’an, constitution and other relevant sources of information.
1.6.0 LITERATURE REVIEW
Quite a handful of literature will be reviewed in this work in order to properly understand and appreciate its significance, principal among such is the 1999 constitution of the Federal Republic of Nigeria who in section 42(2) provides that “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason or the circumstances of his birth.’ which was transferred from s. 39 (2) of the 1979 constitution of the Federal
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Republic of Nigeria. The issue is, in spite of this provision of the law, illegitimate children are still being subjected to legal and social discrimination. The holy books, that is the bible and the Quran, also made reference to illegitimacy as can be seen from below, where God said that
One of illegitimate birth shall enter into the assembly of the lord, even unto
his tenth generation none of his descendants shall enter the assembly of the lord.11 .
More so, in the holy Quran, the principle of legitimacy was mentioned as seen below.
Call them (adopted sons) by the names of their father that is more just with Allah12
Adb Al Ati Quoter Roser Coser, in an abridged form stated that, every child shall have a
father and one father only 13 .As we can clearly see, Islam frowns illegitimacy.
Alfred B. Kasumu and Jeswald W. Salacuse,
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