2.2.0 LEGITIMACY UNDER NIGERIAN CUSTOMARY LAW
A child born during the subsistence and continuance of a customary law marriage is presumed to be legitimate. In Ezekiel v. Alabi39 it was held that where evidence of a lawful marriage exist, the court will not inquire into which of the husband or wives lover is the father of the child born in lawful wedlock and conceived during marital cohabitation as such an inquiry could be scandalous. In Maryam v. Sadiku Ejo40 it was held that a child born within ten calendar month of a divorce in Igbira customary law is regarded as legitimate. Generally a child is legitimate at birth if born in lawful wedlock, which also includes in Nigeria, customary law marriages, as our customary law is also a part and parcel of our law in Nigeria, therefore, customary law marriages are by law legal and the children of such marriages are legitimate, as was held in lawal v younan,41 In strict customary law, the concepts of paternity, marriage and legitimacy do not and may not have necessary connection for instance, a child can be seen and regarded as legitimate if 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 for instance a man who has no male child may persuade one of his daughters to stay behind and not marry, for the purpose of producing a male child, who will succeed her father thereby, Saving the father’s lineage from threatened extinction
and any male child produce in that manner has full rights of succession to the grandfathers land and title.
Similarly, a barren wife may in a bid to fulfil her marital obligation of bearing children for her husband ‘marry’ another wife for her husband, which means to provide the bride price for the marriage, children of such marriage to the other wife will be regarded as the legitimate children of the husband. It is evident that under customary law, a child may be regarded as legitimate even it the mother never acquired the status of a lawful wife and also if the putative father is not the natural father of the child
Legitimacy under customary law differ from community to community, for instance a child born within ten calendar month of a divorce in Igbira customary law is regarded as a legitimate child of the former husband, even though he cannot logically be the father of the child. In Yoruba customary setting, a child is legitimate from birth, although not born in lawful customary law marriage, they are still regarded as legitimate, under special circumstances did does not however defeat the illegitimate status of children born from illicit affairs which the Yoruba indigene call ‘omo-ale’, meaning an illegitimate or a bastard child.
2.3.0 LEGITIMACY UNDER ENGLISH LAW
A legitimate child is born within lawful wedlock while a child who is born at a time when his parents, through alive are not married to each other is an illegitimate child.
This definition obviously follows the common law position, which is of the effect that for a child to be legitimate he or she must be born in lawful wedlock, therefore a child born out of wedlock is deemed and will be regarded as an illegitimate child. In Egwunwoke v. Egwunwoke it was held that42 a child born in lawful wedlock is presumed legitimate at common law until the contrary is proved.
There is a statutory presumption in favour of legitimacy under statutory law, under Section 147 of the evidence act, a child born during the continuance of a statutory marriage or within two hundred and eighty days after the dissolution of such marriage is presumed legitimate. But neither of the parents of such a child can testify to rebut this presumption.43 However the law has now been altered by the Matrimonial Causes Act 1970, Section 115 (3) is of the effect that, where a person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, the court shall presume that the person in question is the legitimate son of the man, also, by section 84 of the act, both spouses are competent witnesses to give evidence of prove that the parties did not have sexual relations with each other at any material time.
Consequently any of the parties may, adduce evidence to rebut the presumption of legitimacy of a child born during the marriage, but the spouses are not compellable, that is cannot be forced to give such evidence if it will bastardize a child born to the wife during the marriage.
The Christian view is similar to the common law position and the Islamic law position in that it hold lawful marriage in high esteem, it also frowns at illicit and causal affairs begetting illegitimate children the consequences are expressed in the following words in the holy bible ‘a bastard shall not enter into the congregation of the lord, even to his tenth generation’44 In essence Christianity preaches and advocate one man one wife, therefore, any adulterous relation with a third party, leading to illegitimate children will be according to the above passage not be entitled to enter into the Lord’s assembly even to this tenth generation, and will be deprived the rights of a legitimate child, it should be noted that this is the old testament position.
2.4.0 LEGITIMACY OF CHILDREN OF VOID MARRIAGE
Ordinarily, any child born of a void marriage is illegitimate, the position is not clear-cut where in Nigeria where the void marriage was celebrated under the marriage Act,as it is customary for Nigerians who desire to marry each other to be first married under customary law before contracting a marriage in accordance with the marriage Act, if the subsequent statutory law marriage is therefore void, it is submitted that the customary law marriage remains valid and a child conceived or born after the statutory marriage will be legitimate at birth because of the subsumed and existing customary law marriage. In the absence of the preceding contention, there is no provision of Nigerian law whereby a child of a void statutory marriage may be regarded as legitimate.
This situation may sometimes work hardship for instance, where the parties reasonably believe that their marriage was valid, in some countries the children of such marriages are regarded as legitimate. By virtue of Section 2 (1) of the English Legitimacy Act 1959, the child of a void marriage is considered legitimate if at the time of the act of intercourse resulting in its birth (or at the time of the celebration of the marriage) both or either of the parent reasonably belief that the marriage was valid.
