A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

CHAPTER 4
EFFECT OF LEGITIMATION
4 .0.0 INTRODUCTION
This chapter focuses on the benefit of legitimation, that is, the benefits accruing to a legitimate child as a result of his legitimation, which can either be by the subsequent marriage of his parents whether customary or statutory or by acknowledgement of paternity by the father, it discusses the effect of legitimation which is basically to put the otherwise illegitimate child in the position of a legitimate one.
The rights of a legitimate child to his parents and duties of a legitimated child to his parents were equally discussed, also discussed is the rights and duties of a parent to a legitimized child, the constitutional approach to legitimation is equally treated which is basically the constitution’s view and approach to the concept, also the various Act which have been enacted to protect the rights of children, being a vulnerable member of the society, which includes the Child’s Right Act, among other rights were also examined.
4.1.0 EFFECT OF LEGITIMATION
By virtue of Section 2, Legitimacy Law 1944.81A legitimated person means ‘a person legitimated by this law’ and Section 8 Legitimacy Law of 199482 is to the effect that a legitimated person shall have the same rights and shall be under the same obligations in respect to maintenance and support as if he had been born legitimate, such person is also entitled to all rights to claims for damages, compensation, allowance or benefit which are vested in a legitimate person, thus on the death of his father as a result of negligence of another, the legitimated person will be entitled to claim the fatal accident status as a Legitimate child, also, a legitimated person will have the right to interest in property.
One important consequence of legitimation is to enable the legitimated person and his children to take as from the date of legitimation from the deceased interest on intestate disposition occurring after that date, as if he had been born legitimate, where a legitimated person participate along other children in distribution of property according to seniority.
A legitimate child is the one born in wedlock, however there is a presumption of legitimacy by virtue of section 148 of the evidence Act, of a child born during the continuance of a valid
4.2.0 RIGHTS OF A LEGITIMIZED CHILD
In our society today, the right of an illegitimate child is being jeopardized for what they know nothing about, for instance the fact that they are born out of wedlock disentitle them from rights like, the right to maintenance, to protection from physical, mental and emotional injury and so on, however with legitimation, an illegitimate child now legitimated shall enjoy the same rights as that of a legitimate child, as if he had been born legitimate, for instance by virtue of Section 5(1) Legitimacy Law 1994, a legitimated person, his wife and children shall from date of legitimation have the right to take interest in property on intestate or disposition occurring after the date of legitimation as if had been born legitimate.
The new enacted Child Right Act83 also provides for rights which a child whether legitimate or illegitimate are entitled to, it should however be noted that most of these rights as contained in the child’s right Act, and are also contained in some international instrument, like the convention on the right of a child, and the Organization of African Union (O.A.U)[ now African Union (A.U)] charter on the rights and welfare of the child which Nigerian has ratified. The definition of a child as contained in the convection on the rights of the child and the O.A.U Charter on the rights and welfare of the child is; any human being below the age of 18 years.
There is no reference to the status of the child whether born in or out of wedlock, which means that the instrument caters for both the legitimate and the illegitimate child.
Thus, some of the rights which are also contained in the child’s right Act, and which became a law 2003, are as follows.
•    In every action concerning a child, whether undertaken by an individual, public or private body, constitution or service, court of law, administration or legislative authority, the best interest of the child shall be the primary consideration.
•    The provision in chapter IV of the constitution of the federal republic of Nigeria 1999, or any successive constitutional provisions relating to fundamental rights, shall apply as if those provisions are expressly stated in the Act. Thus, any provision stated in the 1999 constitution of federal republic of Nigeria, which relates to fundamental
rights as it relates to a child whether legitimate or illegitimate, will also be applicable to the child’s right Act as it has been expressly stated in the Child’s Right Act Section 10(1)
Subsection (2) ;
A child shall not be subjected to any form of discrimination merely by reasons of his belonging to a particular community or ethnic group or by reason of his place of origin, sex, religion or political opinion.
No child shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
Thus, the circumstance of the birth of a child, must not determine the rights which such child should be entitled to, whether born in or out of wedlock.