Abstract
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
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
15
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’4
th
ed. Sweet and Maxwell.1984
16
? 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
17
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 marriage5 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
18
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’2
nd ed. Sweet and Maxwell London 1966
19
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
10 Owuna v. Ogbodo suit no MD\51A\1975(unreported)high court Makurdi, October 26,1976
20
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
21
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
22
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,
14 are of the view that legitimacy is the status
of a child born in lawful wedlock, while an illegitimate child can acquire the status by the
subsequent marriage of the parents, or by acknowledgement by his father.
According to Professor Nwogugu E.I,15 it is important to determine the status of a child at
any given moment as it has for reaching legal consequences. This view is of great import
as it is the status of the child that determines what right the child has against his father
and the duty of the father to his child. While noting that customary law unlike common11 Deuteronomy Chapter 23 v2
12 Holy Quran Chapter 33 v5
13 Abd Al’ Ati ‘family structure in Islam’ Islamic Publication, Bureau Lagos (1982) page 188
14 Kasunmu A.B and Salacuse J.W ‘Nigerian family law’ London Butterworth 1966
15Nwogugu E I ‘Family law in Nigeria’ Revised edition.. Heinnnam educational books Nigeria plc1974
23
law in strict sense says there is no necessary connection between the concept of paternity,
marriage and legitimacy, as a child can be regarded as legitimate, even though the natural
parents’ era not married.
Cretney S.M,16 in principle of family law says the concept of legitimacy and legitimation
borders on status and, it is a concept whereby a couple’s child is entitled to full
recognition as a family.
Davis K,17‘illegitimacy and social structure’ says the illegitimate child is one born with
full rights and confers certain rights against the man whom the law regards as his father
but the illegitimate child is resented by both his family and the society at large.
Curzon,
18 emphasis that legitimacy is the condition of belonging to a class in a society the
members of which are regarded as having been begotten in lawful matrimony by the man
whom the law regard as their father which negate the position under Islamic Law, where
it provides that only the natural father takes possession of the legal status in relation to a
child.
Kasumu,
19 says legitimacy is the status acquired by a person who is born in lawful
wedlock, the children of such marriage or wedlock will be legitimate at birth, it is
important to establish that lawful wedlock in Nigeria may either be by Customary,16 Cretney S M; ‘principle of family law’ fourth edition sweet and maxwell1984
17 Davies K Illegitimacy and social Structure’ Published by American Journal of Sociology 1939
18 Curzon L.B ‘Brief case on family law’ London 1997 Cavendish Publication limited page113
19 Kasumu A B ‘Nigerian family law’ Butterworth London 1996
24
Islamic or statutory law marriage and the operative effect of these differs from one legal
system to another, for instance in the monogamy legal system it is irrelevant if at the date
of birth, the marriage is dissolved, the parents must be married at the time of conception
while in some customary legal system (Yoruba) the child might be legitimate without the
parents being married if the father acknowledge paternity of the child.
To Sagay,
20 ‘the concept of legitimacy and legitimation are of course important because
of the social stigma associated with illegitimacy in the western and Christian oriented
class in the society
Ambali, in his book21 has this to say “legitimacy is an important link between the
relationship between father and son, and it is also a condition precedent for succession.
Therefore a child of an illicit relationship will not be allowed to inherit the estate of the
partner of his or her mother in the act of Zina i.e. fornication or adultery. This position of
Sharia, is far from what operates in our contemporary society and cannot pass as a
general operative law under our Nigerian statutes.
20 Professor Sagay ‘legitimation and the right of inheritance in Nigeria Comtempoary Law’ published in
the journal of the private and property law department Unilag April 1992/1993 Page 2
21Ambali M A ‘the practise of Muslim family law in Nigeria ’Tamaza publishing company1998 limited
page 269-270
25
Brumley, in his book22 submits that it is impossible to define legitimacy in isolation
without relating it to a particular legal system, this explains legitimacy by drawing a
distinction between the legal position of a child born of a legally recognized union The
family law reform Act 1987, has abolished and removed the discrimination affecting
illegitimate children, before the act was passed an illegitimate child could not succeed as
heir to an entailed interest or title of honour, also the child was denied citizenship rights,
but all this discrimination has been done away with the passing of the Act.
Alarape Salmon, (SAN),
23 in his paper ‘in a country where the benefit are based on right,
it will not be out of place to determine the status of a person be it a child or an adult
because that determination is fundamental in determining among others, his right to
succession and maintenance’ one realize that the basis for determining the status or a
child differs from culture to culture and legal system to legal system in the western world
e.g. America and Europe where their strict legal system only recognizes statutory
marriage which is monogamous in nature, any child born out of such stipulated marriage,
will be regarded as an illegitimate child, our customary society in Nigeria allows
polygamy, In essence all the children born in a polygamous marriage are legitimate. Also22 Bromley ‘Family law’ 6
th
ed. London,Butterworth publication page 255-275.1981
23 Alhaji Aliu Alarape Salmon SAN ‘legitimacy and illegitimacy ‘Nigerian experience’ 3th ed. The jurist
journal of the law student society unilorin.1996/1997
26
a child becomes legitimate if the putative (supposed) father acknowledges paternity of the
child.
The family law reform Act 1987, has abolished and removed the discrimination affecting
illegitimate children, before the act was passed an illegitimate child could not succeed as
heir to an entailed interest or title of honour, also the child was denied citizenship rights,
but all this discrimination has been done away with the passing of the Act.
Furthermore, by virtue of the children’s Act of 1969, the distinction between legitimate
and bastard children was abolished in New Zealand which has also been extended to
Nigeria. Similarly the Family Law Reform Act 1969 has provided succour to the
illegitimate child. The Family Law Reform Act 1987, has abolished and removed the
discrimination affecting illegitimate children, before the act was passed an illegitimate
child could not succeed as heir to an entailed interest or title of honour, also the child was
denied citizenship rights, but all this discrimination has been done away with the passing
of the Act.
DEFINITION OF TERMS
Some terms will be used in this work and as such a proper definition of such terms is
expedient in order to have a clearer understanding of the topic under discussion. The
terms include;
? Marriage
27
This is the legal union of one man and one woman (many women) as husband and wife.
It must be a union of persons of the opposite sex. According to Lord Penzance, In Hyde
v. Hyde24
a monogamous marriage is ’The voluntary union for life of one man and one
woman to the exclusion of all others’.
In Sowa v. Sowa25 polygamous marriage is defined as the voluntary union for life of one
man into one or several wives.
Osborn’s concise law dictionary26 defines marriage as essentially the voluntary union for
life of man and one woman to the exclusion of all others subject to the rules as to
consanguinity or affinity and capacity to perform the duties of matrimony prevailing in
the place of domicile of the parties and subject to the formalities required either by the
law of England or the place where the marriage takes place.
The import of this definition is that what constitute marriage and it validity depends on
the law of the place it is celebrated, in essence if the marriage complies with the law of
the place where it is celebrated, the marriage will be regarded as valid and binding. The
formalities which must be complied with in order to constitute a valid marriage are
contained in the Matrimonial Causes Act of 1970 and the rules of customary law which is
largely unwritten.24 (1886)CR IPD 130
25 (1961)P 70
26 Leslie Rutherford and Sheila Bone, Sweet and Maxwell, 8th ed. (1999)page213
28
From the above definitions marriage can be defined as the voluntary union for life of one
man and woman as in the case of a monogamous marriage which is also in the same
position with statutory law marriage or voluntary union for life of one man and two or
women. As in the case of Islamic and customary law Marriages, however, the number of
wives which a man can marry under Islamic law is limited to four.
? A child
Black law dictionary27 defines a child is a progeny; an offspring of parentage unborn or
recently born human being, a child is also used to describe a natural person who is an
offspring of another either by birth or adoption and also represent from the moment of his
birth until the attainment of the age of maturity. Osborne concise law dictionary28defines
a child as;
‘……..a person under the age of eighteen’.
For the purpose to the Children Act 1989 in criminal matters, a child relates to an
offender under the age of fourteen as seen in Children and Young Person’s Act 1969.
? Legitimacy27 6
th ed st. Paul Minn.West Publishing co. (1990) 239
28 8
th ed .Sweet and Maxwell.(1993) page68
29
Cheshire and North in their book29 sees legitimacy as the status acquired by a person who
is born in lawful wedlock. Black Law dictionary30 defines it as a lawful birth; the
condition of being born in wedlock; the opposite of illegitimacy or bastardy. Osborne
concise law dictionary31 defines it as the condition or being born in lawful wedlock.
? Illegitimacy
It is a condition that exists before the law or the social status of a child born out of
wedlock. It can also be said to be the condition of one whose parents were not married at
the time of his or her birth. Black law dictionary32 says illegitimacy is the condition
before the law, or the social status, of a child born out of wedlock; condition of one
whose parents were not intermarried at the time of his or her birth. It is the social status
of a child born out of wedlock. At common law a bastard has no parents and cannot take
property as an heir- at- law or next- of- kin through them.
? Legitimation
This is the process through which a child who has not been born in a lawful wedlock,
acquires the status of a legitimate child, which is as a result of some acts which includes
the subsequent marriage of his parent or by acknowledgement by his father after the date29North P M, Fawcett J .J, ‘Private international law’ 12th edition, buttrerworths London,Dublin ,edinburgh
199.
30 6
th ed. .st. Paul Minn West Publishing.(1990)page 910
31 8
th ed. Sweet and Maxwell(1993),page198
326
th ed. st Minn West Publishing co(1990)page747
30
of his birth. It is also a way of making legitimate that which was not originally so through
the statutory procedure. It is important to determine the status of an illegitimate child to
assure the succession right of the child as an illegitimate child has no succession rights as
against a legitimate child.
Black law dictionary33 defines it as ‘the making legitimate or lawful that which was not
originally so; especially the statutory procedure of legalizing (legitimating) the status of
an illegitimate child, such is usually necessary to assure inheritance rights to child.
CONCLUSION
This chapter generally introduces the concept of legitimacy, which is concern of this
work and which is the status of being born in a lawful marriage, the absence of which the
child will be regarded as illegitimate with the resultant effect which will not be pleasant
to the child as he will be deprived of the benefit that should he would have been entitled
to, if he was of a legitimate birth, it discussed the background of the study which has
been from quite some as it has been traced to the Holy books, the aim of the study which
is giving a voice to the illegitimate children in the society in order to help safeguard their
rights and privileges with a view to removing those discriminations which they are
normally faced with was also discussed, the chapter also explained all the terms needed
to full appreciate the concept.
33sixth edition,st paul minn west publishing co(1990)page 90