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
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.
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.
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
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.
