A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

this implies that a person’s parents need not be married before such a child can be made a legitimate child. In English law areas, a valid marriage is a pre-requisite for legitimacy while under customary law it is not a condition precedent for the principle of acknowledgment.
An illegitimate child can legitimated by acknowledgement despite the fact that the parents of that child never got married as was held in Lawal v. Younan 73 Ademola F.C.J said;
‘In Nigeria, a child is legitimate if born in wedlock, according to the marriage ordinance. There are also legitimate children born in marriages under native law and custom.
Children not born in wedlock( marriage ordinance) or who are not the issue of a marriage under native law and custom but are issues born outside marriage, can also be regarded as legitimate children for certain purposes, if paternity has been acknowledged by the putative father’.
Therefore to acknowledge a child, the father has to do something which is either an act or a conduct which will conclusively show that the child is his offspring, when this is fulfilled despite the unmarried state of the parents the child is deemed legitimate.
As have earlier established the principle of acknowledgement is only applicable under customary law but when there is a marriage under the Act, it will not operate, because of
its non universal effect, some judges who were trained abroad found it difficult to accept legitimation by a subsequent marriage and a very welcomed way to them of side tracking acknowledgement as recognized under customary law is applying the high court Act that provided that principles of customary law will be excluded if it is contrary to natural justice, equity and good conscience.74
In Re sarah Adadevoh75, sir john verity C.J pointed out that the encouragement of promiscuous intercourse must always be contrary to public policy, both, the law of both England and Nigeria including the presumption as to the legitimacy of any child born by a married woman, clearly leans against holding anyone to be bastard (Filus nullius) ‘and i know of no principle of public policy to exclude the rule under which the second appellant, as the acknowledged son of his father, bore at a time when his father was free to marry who he chooses is to be regarded as illegitimate’.
In Alake V. pratt, the court disapproved of this position of legitimacy status accepted in Amachrie V. goodhead77 on the ground that it is against public policy and also rejected the contention in the trial court that it was against public policy to equalize children of lawful union with those legitimated by acknowledgment of paternity. Even Jibowu in Re
Sarah Adadevoh 78distinguished an acknowledged child from a child born legitimate and that it is unjust to equate children born out of wedlock to issues of casual unions.
Legitimation by acknowledgement automatically confer the status of legitimacy on such a legitimated child, the principle or legitimation by acknowledgement is not a general principle of Nigeria law, whether it from part of the customary law of any particular locality, is a question of proof, the party who claims the existence and applicability of that custom is obliged to advance satisfactory evidence to prove his assertion. Thus, in the case of Shasie and others V Salako and another 79 it was concluded by the learned trial judge (Bate, C.J) ,that there was no evidence of a rule of legitimation by acknowledgement under Tiv customary law, also, in the case of Onwudinjo v. Onwudinjo 80 the deceased during the continuance of his statutory marriage to Agnes, purported to marry one Chinelo under customary law, Chinelo’s children claimed the right to share in the deceased estate on his death intestate, no evidence was led to establish that the principle of acknowledgement was part of the applicable Ibo customary law, Ainley C J, was however prepared to consider the application of such customs if satisfactorily proved.
3.3.5 CONCLUSION
Having been said above, an illegitimate child has two remedies under the law in order to acquire a legitimate status, which is either the subsequent marriage of the parents, which can either be by statutory law marriage, or customary law marriage, or by acknowledgement of paternity by the father of the child, the latter is however a customary law principle, which is not a universal in nature, as it is only applicable among the Yoruba speaking people.
When the above stated conditions are met the illegitimate child stands legitimate from the date of the marriage that is if his legitimation is by the subsequent marriage of the parents, which can be either statutory or customary, or from the date of his acknowledgement, if he was legitimated by acknowledgement, which is the recognition and acceptance of paternity by the father of the child. It of great importance to note that before a child could be said to have been legitimated, the condition precedent necessary for the means intended to be used, as discussed above must have been met, the absence of which the child will not be said to have been legitimated.