That children born in adultery could be legitimated by the subsequent statutory or Christian marriage of their parents under the Nigerian legitimacy Act, is obvious from the deliberate omission of the section dealing with such children under the 1926 English Act, Section 1(2) of the 1926 English act was dropped on the ground that greater injustice will be done to children born in adultery, and said: it can therefore be said authoritatively that children born of adulterous union (whether the existing marriage is customary or statutory) are legitimated by the subsequent marriage of their parents under the statute, this conclusion is supported by an order of Brett F.J in Cole V. Akinyele57 when he said that the child born during the existence of the statutory marriage cannot be legitimated by a subsequent customary marriage but by the marriage of the parents under the statute.
Under customary law, a child born during the subsistence of a customary law marriage is legitimate as seen in the case of Ezekiel v. Alabi58 where it was held that , where there is evidence of lawful marriage, the court will not inquire into whether it is the husband or his wife’s lover’s that is the father of a child born in lawful wedlock and conceived during marital cohabitation as such an enquiry would be scandalous, thus, such a legitimate child is entitled to the right to maintenance by it parents and also has the right to succession.
It was however further held by the learned judge Onyeama, that if a child is conceived and born of illicit sexual relationship, such a child would be illegitimate, consequently, that plaintiff has no legal claim to it in English law or under native law and custom. Thus, a child not born during the subsistence of a customary law marriage is illegitimate, such a child among the Yoruba’s are commonly called ‘Omo-ale’ which literally means ‘the child of an adulterous or an un-married woman, such a child who is not born in lawful wedlock has no right to succession under the Yoruba customary law 59 it shall however be noted that some customary law presume a child legitimate at birth, even after the dissolution and refund of the bride price, for instance under the Egbira customary law, any child born within ten calendar month of a divorce is regarded as a legitimate child of the former husband, even though he cannot possibly be the father of the child as seen in the case of Mariyama V. Sadiku Ejo.
It is pertinent to note that under the customary law, an illegitimate child can be legitimated by the subsequent marriage of his parents, thus, by virtue of the customary law marriage of the parents of an illegitimate child, such a child shall be entitled to the same right such as right to maintenance by his parents and the right to succession among other right, which a legitimate child is entitled to. Legitimation by the subsequent marriage of the parents of an illegitimate child confers on such a child, a legitimate status.
3.3.0 LEGITIMATION BY ACKNOWLEDGEMENT
The act of acknowledgement is majority done by the father who is willing to recognize or accept paternity of the child; he must be subject to the customary law that permits acknowledgement as a way of legitimating an illegitimate child. In a case where the family prevailed on the man, and he accepted the pregnancy of a woman by naming such a child, all the acts done by the father in that regard are recognized acts of acknowledgement in the Yoruba customary law, per Karibi-Whyte JSC in Olarewaju v. Governor of Oyo state.61
Another important point is what constitutes an act of acknowledgement?
In Philip V.Philp , it was held that the act that constitute acknowledgement need not be formal, so far in appropriate circumstances, the informal act is deemed enough. In the instant case, it is acknowledgement when the naming ceremony of the child was done on the eight days in the father’s residence but, this is not a generally acceptable act that amounts to acknowledgement because in Akerele v. Balogun63 where the naming ceremony was done outside of the father’s house, this was held not to mean that the father did not accept the child. Also, admissibility of the paternity of a child expressed in a letter addressed to the chief registrar of the supreme court of Nigeria was held to amount to acknowledgement, it is submitted that for an act to be satisfactory, it must be buttressed by other evidence linking the illegitimate child to the natural father.
Acknowledgement may be an admission to someone either orally, or in writing or an unequivocal conduct which indicates that paternity of the child has been accepted; this must be made during the lifetime of the father and made public.
In a nutshell, acknowledgement under customary law is not a universal concept and it will be a dangerous thing to universalize it based on its operation only in a few areas (the Yoruba set up majority), it can be drawn is that for any act of acknowledgement to be satisfactory, it must be buttressed by other evidences linking the illegitimate child to the natural father as earlier established.
Under some system of customary law an illegitimacy child may be legitimated by Acknowledgement, it consists of any act of the natural father of an illegitimate child by which he recognized the paternity of the child. Unlike in English or statutory law, the existence of a valid marriage is not a pre-requisite for the operation of the principle of acknowledgement. Consequently, an illegitimate child may be legitimated by acknowledgement despite of fact that the parents have never been married to each other.
The acts which constitute acknowledgement are the act or conduct of the illegitimate child’s natural father which must be such as to either indicate or establish his acceptance of the child’s paternity, it is not necessary that the act or conduct should be formal, as informal acts may in appropriate circumstance be enough. It has been held that the performance of the customary naming ceremony eight days after the birth of a child is ample evidence of acknowledgement, as was held in philip v philip64 The naming ceremony must however be performed in the natural father’s house, unless it is capable of being explained away, in Akerele v. Balogun65 it was contended in defence, that the performance of the naming ceremony of the illegitimate child by his natural father outside his house was proof that he did not accept paternity of the child, although the court did not rule on this defence, it is submitted that its validity is doubtful, however, the failure to perform the ceremony in the natural father’s ho use may be capable of being explained away, as in the above case, the natural father was anxious to keep his association with the mother of the illegitimate child secret because of the difference in their ages, where the birth certificate of the illegitimate child bears the name of the natural father and was obtained by him or on his instructions, there is clear evidence of the recognition of paternity in Young v. Young66 it was held that a baptismal certificate bearing the name of the natural father cannot be regarded as an admission of paternity by him, the reason adduced for this conclusion were that there was no indication in the document as to whom was responsible for the baptism or who gave the information contained in it, nor was there any other evidence which threw any light on the matter. Consequently if proper evidence is adduced to explain the circumstances in which the baptismal certificate was issued and connect it to the parentage of the illegitimate child, it may constitute adequate evidence of admission of paternity.
