A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

3.2.0 LEGITIMATION BY SUBSEQUENT CUSTOMARY LAW MARRIAGE

There is a paucity, if not absence of authority on the principle of legitimation by subsequent customary law marriage, a probable reason for this state of affair is the fact that some systems of customary law provide for legitimation by acknowledgement, it was therefore considered simpler to acknowledge an illegitimate child than to resort to legitimation by subsequent customary law marriage, the question of non-statutory legitimation including by subsequent customary law marriage was considered by Brett F J in cole V. Akinleye55, in that case the deceased married a wife under the marriage Act, during the subsistence of the marriage, the deceased formed an irregular association with the mother of the two appellants ,one of the appellant was born during the deceased wife’s lifetime and the other, six weeks after her death. In considering the legitimacy of the first appellant, born during the continuance of the marriage, Brett, FJ, stated that; he would regard it country to public policy for the deceased during his lifetime to confer the status of a legitimate child on the first appellant by any other method, other than that provided by the Legitimacy Act.
It is not easy to appreciate the basis on which Brett F.J rejected legitimation other than by the statute, in the Nigerian situation it is not rational, to reject other methods of legitimation as being contrary to public policy merely, because of the existence of a statutory law marriage, at the time the child was born, it has been pointed out that under the Legitimacy Act, an adulterous child may be legitimated by the subsequent marriage of its parents, public policy will not be more outraged if the child born during the subsistence of the statutory marriage is legitimated by acknowledgement or the subsequent marriage of the parents under customary law.
Attention should be drawn to the salient fact that the learned judge’s remarks were directed at legitimation otherwise than under the legitimacy Act of an illegitimate child born during the subsistence of a statutory marriage, no reference was made therein to the instance where the child is born during the subsistence of a customary law union, it is submitted that there are no convincing reason why legitimation by a subsequent customary law marriage should not have full legal effect.
The basic question in the case considered above should be proof that the relevant customary law provides for legitimation by subsequent customary law marriage, once this is satisfactorily established, the customary law rule as to legitimation should not be set aside on the ground of public policy.
It has been indicated earlier that the provision of the Legitimacy Act will not apply if the subsequent marriage is one under customary or Islamic Law, the effect of a customary or Islamic law marriage has to be decided in accordance with customary and Islamic law respectively. Is legitimation per subsequent matrimonial known under customary law? If it is known can there be legitimation of a child born of an adulterous union?
This is an area in which there is little or no authority on what the position of customary law is, the absence of any authority is not surprising, since in Nigeria, one does not have to get married in order to have a legitimate child if a person can make his illegitimate child legitimate by acknowledgement, why should he then bother himself about marrying the mother of his child, to make such a child legitimate? However, since there are limits to the rights to acknowledge, it might still be necessary to show that under customary law legitimation by a subsequent customary marriage is recognized, such occasion arose in Cole V. Akinyele 56 when he married under the marriage Act, and during the subsistence of the marriage, he had a child M1 by C, he had another child M2 by C, which unlike M1, was conceived during his marriage with W, but was born after the death of W, the federal Supreme court held that M1, could not be acknowledged. Brett F.J went further to consider the possibility of making the legitimation by the subsequent marriage of it with C after the death of W, while recognizing the fact that this would be possible if the subsequent marriage was a statutory one, the learned judge doubted whether this would be possible if the subsequent marriage was a customary marriage.
There was no evidence before the court, of customary law recognizing the principle of legitimation per subsequent matrimonial Brett F.J was however of the opinion that even if it was proved that customary law recognized such a principle it would be country to public policy for it to be able to legitimatize a child born during the continuation of his marriage under the Act by any other method than that provided for in the legitimacy Act.
The public policy behind such exclusion is very different to see, could the public policy be that since such a child was born in adultery could not be legitimated by a subsequent customary law marriage? We have already seen that if the subsequent marriage had been a statutory marriage, the fact of the child being born in adultery is immaterial. Jibowu J, on a retrial rejected the claim to succeed to the deceased property of those children whose mothers were not married to the deceased but were only acknowledged, one of his reasons for refusing acknowledgement was that it would allow the deceased to make such children legitimate when he could not have made them legitimate.