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
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
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
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
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 196
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.
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
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
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 common
15Nwogugu E I ‘Family law in Nigeria’ Revised edition.. Heinnnam educational books Nigeria plc1974
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,
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 statute
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
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. Also
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
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.
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.
Legitimacy
27 6th ed st. Paul Minn.West Publishing co. (1990) 239
28 8th ed .Sweet and Maxwell.(1993) page68
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 date
29North P M, Fawcett J .J, ‘Private international law’ 12th edition, buttrerworths London,Dublin ,edinburgh 199.
326th ed. st Minn West Publishing co(1990)page747
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.
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