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A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law
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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
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 statutes.
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.
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ABSRACT - [ Total Page(s): 1 ]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 ... Continue reading---
TABLE OF CONTENTS - [ Total Page(s): 5 ]TABLE OF CASESNIGERIAAbisogun v.Abisogun(1963)1 ALL NLR 237 Akerele v.Balogun(1994)LLR 99 at 101Alake v.Pratt (1955)15 WACA 20Amachire v.Goodhead (1923)4 NLRCole v.Akinyele(1960)5 FSCEgwunmoke v.Egwunwoke NMLR147Ezekiel v.Alabi(1942)2 ALL NLR 43Lawal v.Younam(1961)WNLR 197Mariyama v.Sadiku ejo (1961) NRNLR 81Olarewaju v.Governor of oyo state NSCC Pt.111 389 at 400Onwudinjo v.Onwudinjo(1957)11 ERNLR 1Owuna v.Ogbodo suit no MD/51A/1975 unreported high Court Markurdi,October 26 1976Philip v.Philip ... Continue reading---
TABLE OF STATUTES - [ Total Page(s): 1 ]TABLE OF STATUTESNIGERIA• CAP 111, the revised edition Laws of Lagos state of Nigeria, Edict 1998• Constitution of the Federal Republic Of Nigeria 1999 • Evidence Act CAP 62 Laws of the Federal Republic Of Nigeria 1959 • Federal Republic Of Nigeria Official Gazzette Act No 20,2003,Volume 90• High Court of Lagos act • Matrimonial Causes act 1970 • Legitimacy Act 1929 CAP 519 Laws Of the Federation Of Nigeria ... Continue reading---
LIST OF ABRIVATIONS - [ Total Page(s): 1 ]LIST OF ABRIVATIONS ALL ER All England Law ReportALL NLR All Nigerian Law ReportCH.D Chancery DivisionENLR Eastern Nigerian Law ReportERNLR Eastern Nigerian Law ReportFSC Federal Supreme CourtL F N Laws of the federationLLR Lagos Law ReportLR Law ReportM&W Meeson &WelsbyNLR Nigerian Law ReportNMLR Nigerian Law ReportNRNLR Northern Region of Nigerian Law ReportNSCC Nigerian Surpreme Court CasesP Probate Divi ... Continue reading---
CHAPTER TWO - [ Total Page(s): 5 ]A similar provision in Nigerian law, is submitted will go a long way to alleviate the hardships of a void marriage. A void marriage is one that is considered never to have taken place, no matter the procedure that have been taken by the people concerned, they are just not married because they have not complied with the rules of the place of the celebration of marriage.The Matrimonial Causes Act 1970 states that a marriage is void if the partners are related in a forbidden degree for example, a m ... Continue reading---
CHAPTER THREE - [ Total Page(s): 6 ]CHAPTER 3LEGITIMATION3.0.0 INTRODUCTIONLegitimation is the process by which a child who has not been born legitimate acquires a legitimate status, the process of legitimation may be achieved by the subsequent marriage of the parents of the child, or acknowledgement by its natural father, that is the recognition of paternity by its natural father. The term ‘legitimation’ presupposed that the child was not legitimate at birth; it is therefore the process whereby such a child can acqui ... Continue reading---
CHAPTER FOUR - [ Total Page(s): 5 ]Under the children and young person Act if owing to the neglect of a parent to exercise proper care, an infant under the age of seventeen is committed to an approved institution or to the care of an individual, the parents may be ordered to contribute towards the maintenance of the infant, the maximum maintenance which can be ordered to be paid may, on the application of either parent may be increased, reduced or rescinded.Under section 70 (1) of the Matrimonial Causes Act 1970, a court may orde ... Continue reading---
CHAPTER FIVE - [ Total Page(s): 1 ]CHAPTER 5GENERAL CONCLUSION5.1.0: CONCLUSIONThe concept of legitimacy, illegitimacy, and legitimation which are the primary concern of this work, has been fully discussed, the importance of a legitimate status can be clearly seen in the area of succession, and it is also evident from the social stigma melted on the illegitimate child by both the society and religious bodies and institutions. Having discussed the concept of legitimacy itself which refers to the status of a child born in lawful we ... Continue reading---
REFRENCES - [ Total Page(s): 1 ]BIBLIOGRAPHY ARTICLES IN JOURNALSAlhaji Aliu Alarape Salmon (SAN) Legitimacy and Illegitimacy; Nigerian experience,third edition; The jurist journal of the law student society Unilorin 1996/1997Professor Sagay legitimacy and the right of inheritance in Nigerian Comtempoary Law, Published in the journal of the private and property law department, Unilag April 1992/1993Davis K illegitimacy and social structure American Journal of sociology 1939,45Reports of the constitution drafting commission vol ... Continue reading---
