A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

An admission of paternity made in a letter addressed to the chief registrar of the Supreme Court of Nigeria has been held to amount to acknowledgement. Sometimes, the maintenance of the child by the natural father, including his education, that is the payment of school fees is regarded as evidence of acknowledgement as was held in Abisogun V Asbisogun,67 but these acts are in themselves equivocal, as a man may maintain or educate any child, it is submitted that to be satisfactory, such act or conduct must be buttressed by other evidences linking the illegitimate child to the natural father.
It has been well established in decided cases that the right of legitimation by acknowledgement is exclusively conferred on the natural father of an illegitimate child; the mother has no corresponding right. A related problem is whether the right of acknowledgement is reserved in particular to fathers who are subject to customary law only.
In Savage vs. Macfoy68, the court held that the purported customary law marriage between a Sierra-Leonean resident in Lagos and a Lagos girl was void, and as such the marriage was not permissible or valid by the law of macfoy’s is domicile of origin, macfoy on his death, left some children of the association whose paternity he acknowledged, the court held that by the Yoruba customary law principle of acknowledgement, the children were legitimate and therefore entitled to share in the distribution of Macfoy’s estate, it is submitted that this decision was wrong in principle, the court was inconsistent to declare the marriage void, because Macfoy was not subject to customary law, and in another breath apply customary law rules to legitimate the children of his association with the Lagos woman.
It can therefore be concluded that the natural father, who can legitimate his child by acknowledgement must be a person subject to customary law.
The right to acknowledge an otherwise illegitimate child, is personally attached to the natural father and cannot be exercised by a third person on his behalf, if on the father’s death a relative of father acknowledges the paternity of a child the act will have no legal consequence or significance.
it is pertinent, to determine the time or times in which the right of acknowledgement may be exercised, as a number of problems may arise in this connection. Must a father acknowledge his child only during his lifetime or the lifetime of the child? It is necessary that the act or conduct of acknowledgement be made public during the lifetime of the father? In the latter case, all the decided cases deal with situations where the acknowledgement took place during the lifetime of the natural father and were made public. In essence, a father can only acknowledge his illegitimate child, during his lifetime and the lifetime of his child.
It is an accepted principle under some customary law systems that a person can have a legitimate child without going through any form of marriage, in English law legitimation is only possible through the subsequent marriage of the parents of the person whose legitimacy is in issue, the validity of the marriage is always an important point under English law. Ever since the Legitimacy Act 1959, which makes it possible for a child to be legitimated despite the fact that the marriage of the parents is void, it is still necessary to prove the celebration of a marriage( as opposed to concubinage) as a fact.
To acknowledge a child, the father of the illegitimate child should do something to recognize the paternity of the child. Such recognition is simply an act or conduct by the father which conclusively shows, that the child is that of the father. When this has been done, the child is regarded as legitimate despite the fact that the parents are unmarried.
Some Nigerian judges trained in English law find it difficult if not impossible to appreciate the fact that a person can have a legitimate child without going through any marriage; this has led to their reluctance to accept the concept of acknowledgment under customary law in entirely. A very useful weapon in their hands in rejecting the principle of acknowledgement is the provision of the High Court Act which provides that any principle of customary law should be excluded if it is repugnant to natural justice equity and good conscience,69 we shall now proceed to deal with the various problems relating to acknowledgement.
Acknowledgement is any act at all, which show that the natural father identities himself with the birth of the child, it is an informal act by the man which is necessary to show paternity since the woman is unmarried to him, the acknowledgement must take the form of an admission by the natural father that he is responsible for the birth of the child, as was held in Young v. Young70 or by the natural father paying the hospital bills on the birth of the child, as seen in salvage v.macfoy.
Acknowledgement is another means of legitimating an illegitimate child majorly obtainable under customary law, as seen in Alake v.pratt,72it consists of any act of the natural father of an illegitimate child by which he recognizes the paternity of the child,