By Sandra Martins Agba
INTRODUCTION
In Nigeria, an important legal concept, which determines the status of a child in relation to the society, is legitimacy. While a legitimate child is conferred with and enjoys certain rights and privileges such as right to maintenance, succession among others, an illegitimate child is denied the enjoyment of these privileges by virtue of his supposed illegitimate birth and he remains 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 is meted out on him especially by the society at large. The purport of this article is to appraise the concepts of legitimacy and legitimation, whilst expounding its legal implications under the Nigerian Family Law.
LEGITIMACY
A child is considered legitimate when such a child is born in lawful wedlock by the parents. In Nigeria, for a marriage to be valid, it must be celebrated under the Marriage Act , or conducted following the customs of the place where the parties originate. Note also that a Customary marriage here includes an Islamic marriage.
The Black’s Law Dictionary defines Legitimacy as the status of a person who is born within a lawful marriage or who acquires that status by later action of the parents. Going by this definition, the parents of the child must be lawfully married either at the time of his conception or at the time of his birth. Therefore a child conceived at the time the parents were lawfully married but born when the marriage is dissolved is still a legitimate child of that marriage. Moreover Section 165 of the Evidence Act 2011 and Section 115 of the Matrimonial Causes Act provide that a child born during the continuance of a Statutory marriage or 280 days after its dissolution is presumed legitimate. For emphasis, Section 165 of the Evidence Act states as follows;
Without prejudice to section 84 of the Matrimonial Causes Act, where a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, the court shall presume that the person in question is the legitimate child of the man.
The above position of the law was upheld in the case of Elumeze v. Elumeze when the court stated that none of the parties to a marriage can give evidence to rebut the presumption of legitimacy of a child born within the subsistence of the marriage or within 280 days after the dissolution of the marriage. In other words, the court, in this case, declared the presumption irrebuttable
Furthermore, under customary law, a child born during the subsistence of a customary marriage is considered legitimate. However, it must be stated that it is easier to determine the legitimacy of a child born by parents whose marriage was contracted or celebrated under Statutory law than under the customary law. This is because in customary law, the concepts of paternity, marriage and legitimacy have no necessary connection. Moreover, considering the divergent customs in a multifaceted country like Nigeria, a child may be recognized as legitimate in a place by its customs although the parents are not legally married. For instance, under the Igbira custom, if a widow decides to remain in her late husband’s house, all children born by her after the demise of her husband become his post motem. The Courts affirmed this custom in the case of Nawribe v President Orlu District Court despite the fact that the biological father admitted paternity holding that the woman became subject to the custom when she voluntarily decided to remain in her late husband’s home. See also the case of Mariayama v. Sadiku Ejo.
It must however be noted that where a custom is repugnant to natural justice equity and good conscience, such a custom will not be upheld by the court. This was the situation in the case of Edet v. Essien in that case, the appellant was married W. under native law and custom. W. left the appellant and went to cohabit with the respondent, who did not repay W’s dowry to the appellant. Two children were born to W and the respondent. The appellant claimed that the children were his under customary law on the grounds that the respondent had not refunded the bride price. Carey, J. found the custom not proved and further held that even if the custom was proved, he would in the particular circumstance have held it contrary to natural justice, equity and good conscience.
Flowing from the position of the law above, in Nigeria, a child born of a void marriage is illegitimate. A void marriage implies that the marriage is invalid at its inception due to non compliance with the requisite requirements of the law. Confusion however arises where the parties celebrated their marriage under the Act as well as customarily as is generally obtainable in Nigeria. This is because even though the marriage may be void statutorily, it may not be void under the customs of the place where it was celebrated.
LEGITIMATION
Legitimation is the process by which a child who has not been born legitimate acquires the status of legitimacy. It is the act of making something lawful or the process of authoritatively declaring a person legitimate especially a child whose parentage has been unclear. At Common Law, an illegitimate child would become legitimate if his parents subsequently married each other, provided they had been free to marry each other at the time of the child’s birth. The first legislation on Legitimation in Nigeria was the Legitimacy Act of 1929. With the introduction of federalism in Nigeria in 1954, the various regions enacted their respective Legitimacy Laws. These laws were patterned after the Legitimacy Act 1929.
Legitimation may be achieved by the subsequent marriage of the parents of the child. Also, the Nigerian statutes on Legitimation do not stipulate that for a child to be legitimate his parents must have been free to marry each other at the time of his birth.
In Okolonwamu v. Okolowanmu , it was reaffirmed by the court that the legitimacy of a child can be determined by three major ways. These are:
i. Paternity by existing Marriage: A child born during the pendency of a valid marriage between a couple is automatically presumed to be legitimate.
ii. Paternity by Subsequent Marriage to the mother of the child: this occurs when a child is born at a time when the mother was not married to the father and after whose birth the mother and father entered into a valid marriage.
iii. Paternity by acknowledgement by the father accepting paternity of the child: this includes paying for the hospital bills and upkeep of the child, introducing the child to his family as his child.
LEGITIMATION BY SUBSEQUENT STATUTORY MARRIAGE
Section 3(1) Legitimacy Act, 1929 provides that, Where the parents of an illegitimate child marry or have married one another before or after the commencement of this Act, this marriage shall, if the father of the illegitimate person as or is at the date of the marriage domiciled in Nigeria, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, whichever happens last.
It can be deduced from the above provision that for an illegitimate child to acquire the status of legitimacy, the marriage between his parents must have been a statutory one. Unfortunately, the Legitimacy Act does not govern marriages contracted under customary or Islamic law. Also, the father of the child must be domiciled in Nigeria as at the date of the marriage.
Furthermore, the person to be legitimated must be alive as at the date of the marriage. Thus, no person can be legitimated after his death. Section 8 Legitimacy Act also provides that a person who is legitimated by the subsequent marriage of his parent has the same rights and obligations with a person who was born legitimate. Nonetheless, where any right to property’ depends on the relative seniority of the children, the legitimated child will rank as if he was born on the date he was legitimated. Where more than one child is legitimated at the same time, between themselves, they rank in their natural order of seniority.
Although, there is a paucity of authority on the principle of legitimation by subsequent customary law marriage. A probabale reason for this is the fact that some systems of customary law provide for legitimation by acknowledgement. It is therefore simple to acknowledge an illegitimate child under customary law than to resort to subsequent marriage.
LEGITIMATION BY ACKNOWLEDGEMENT
Legitimation, under native law and custom is by acknowledgment. Acknowledgement occurs where the paternity of the child is recognised by his natural father. Acknowledgement in this regard, means any act of a natural father of an illegitimate child by which he recognizes paternity of that child. In Adeyemi v. Bamidele, it was held that children otherwise referred to as illegitimate can make a valid claim if evidence is adduced that their natural father had acknowledged their paternity. Acts that constitute acknowledgement may be formal or informal. It may take the form of an admission by the natural father that he is indeed the father of the child. He may also acknowledge the child by paying the hospital bills of the child. In Savage v. Mcfoy such payment was held to be sufficient. The performance of the customary naming ceremony 8 days after the birth of the child was held in Phillip v. Phillip to be evidence of acknowledgement.
Generally, only the natural father of a child can acknowledge the paternity of that child. Thus, the family of the natural father cannot on his behalf acknowledge the child. There is however the issue of the death of the natural father before the birth of the dead child after the natural father has acknowledged the pregnancy in question. It is logical to conclude that where a man has acknowledged responsibility for a pregnancy and dies before the child is born, he is taken to have acknowledged paternity of the child.
In Alake v. Pratt , a case decided in 1955 by the West African Court of Appeal, the issue was whether the appellants, Adeyinka and Adenike Coker. who are children born out of wedlock to their father, Dudley Theodore Coker, were entitled to share in the estate of their deceased father together with the respondents who are the issues of a marriage contracted by him under the Marriage Ordinance. The learned trial judge held that it had been satisfactorily proven that under Yoruba Native Law and Custom, the appellants having had their paternity acknowledged by the deceased during his life-time, are ordinarily, to be regarded as legitimate under the law in Nigeria.
However, the learned trial judge proceeded to state, on grounds of public policy, that where there are children born in lawful wedlock, children born out of wedlock should be excluded from participating in the distribution of the estate of their father,” but “if the children of the deceased are all of the same status, that is, born without marriage, they could inherit their father’s property.”
This decision was set aside by the appeal court which held per Foster Sutton, P. that, the appellants having been held to be legitimate, I do not think the question of their parents’ marriage is then a relevant subject for investigation. Nor do I think that Public Policy demands that the Courts of this country should hold otherwise. It follows that, in my opinion, if in fact the status of legitimacy is conferred by the law of this country, the domicile of origin of the appellants, which has been held to be the case, they are entitled to succeed to the property of their deceased father, together with his other legitimate children”.
In Lawal v. Younan, a decision of the High Court of Justice delivered in 1959, where the court was invited to adjudicate on the right of children, whether legitimate or not, to share in father’s estate and as dependants. The court held that whether they are legitimate or not, the children of the deceased were entitled by the law of the land to inherit the estate of their fathers and were dependants of their fathers. The point must be noted that in this case, all marriages in issue were marriages under native law and custom.
EFFECT OF LEGITIMATION
The legal effect of acknowledgement is to make an otherwise illegitimate child legitimate. He thereby acquires the same status as if he had been born in wedlock, or legitimated by subsequent marriage of his parents.
In Taylor v. Taylor the legal effect of acknowledgement was aptly described by Cole, J when he held that “the acknowledgement of paternity by the father ipso facto legitimatises the children and there could not for the purpose of succession be different degrees of legitimacy”.
It must be observed that there are certain restrictions to the right of acknowledgement. For instance, there can be no legitimation of children born during the subsistence of a valid marriage. In Cole v. Akinyele Brett FJ opined stated that ‘I would hold it contrary to public policy for him (the deceased) to be able to legitimate an illegitimate child born during the continuance of his marriage under the Ordinance by any other method other than that provided in the Legitimacy Act.’ The court further held that the right of acknowledgement must exist at birth.
Thus, an illegitimate child born during the subsistence of a valid statutory marriage cannot be legitimated even after the end of the statutory marriage. Such a child is confined to illegitimacy.
Moreover, if there are legitimate children who are born of a marriage conducted under the Act, no legitimation can take place. This principle was suggested in Re Sarah Adedevoh where the court opined that children born out of wedlock could not be acknowledged as it would be contrary to public policy to allow illegitimate children compete with children born in lawful wedlock. Jibowu J opined that legitimation and succession to property through acknowledgment can only be effected when there is no marriage recognized by the law or no children of such marriage. The above decision has been faulted on the ground that it would encourage and not forestall promiscuity as a married man with propensity for promiscuity will be encouraged in his promiscuous ways by the certainty of the illegitimacy of the children that may spring from his immoral affairs. Hence, in Alake v. Pratt it was held that children born out of wedlock, having been legitimated by acknowledgement were entitled to share in the estate of the deceased with the children of the statutory marriage.
LEGITIMACY UNDER THE 1999 CONSTITUTION
Section 42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 provides that ‘No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’ The provision contained in Section 42(2) CFRN 1999 first appeared in 1979 Constitution. Section 42(2) applies only to Nigerian citizens. ‘Circumstances of one’s birth’ has been said to include marital status of parents, social status (eg Osu), economic standing, place, time and manner of birth. There has been debates in legal circles concerning whether or not Section 42(20 CFRN has abolished the status of illegitimacy in Nigeria. The liberal view is that Section 42(2) has completely abolished the status of illegitimacy in Nigeria because the provision has eliminated the disadvantages associated with illegitimacy; causing an illegitimate child to have the same rights to maintenance and succession as a legitimate child. The liberal view is therefore that the concept of illegitimacy in relation to children has been abolished by the provision of the constitution. In Salubi u. Nwariaku the court held that ‘since the coming into force of the 1979 Constitution, the term illegitimate children used to describe children born out of wedlock has been rendered illegal and unconstitutional’.
The restrictive view is that Section 42(2) CFRN 1999 has not eliminated the status of illegitimacy. It has merely removed the disabilities and deprivation suffered by illegitimate children. It has been argued that if the drafters of the constitution intended to abolish the status of illegitimacy, they would have expressly stated so in the constitution .
CONCLUSION
The decisions of the courts in Re Sarah Adedevoh and Cole v. Akinyele, which were based on public policy, tend to deprive children considered illegitimate of certain benefits owing to the circumstances of their birth. Beyond the letters of the Nigerian Constitution, the spirit of the constitution speaks of equality and justice. The Preamble to the 1999 Constitution of the Federal Republic of Nigeria states that the purpose of the Constitution is to, among other things, promote the ‘welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.’ This Preamble in addition to the provision of Section 42(2) of the CFRN 1999 reveal the intents of the drafters of the constitution concerning inequality. Thus, to discriminate against a section of the populace on the ground of the circumstances of their birth is clearly unconstitutional and therefore illegal. Public policy, regardless of how it is determined cannot prevail over the provisions of the Constitution which we the people bestowed on ourselves. There is no better document reflective of the policies of the Nigerian public than the Constitution of the Federal Republic of Nigeria. Hence, in trying to identify the policies of the Nigerian public, recourse should first be had to the Nigerian constitution.
