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A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law
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Under the children and young person Act if owing to the neglect of a parent to exercise proper care, an infant under the age of seventeen is committed to an approved institution or to the care of an individual, the parents may be ordered to contribute towards the maintenance of the infant, the maximum maintenance which can be ordered to be paid may, on the application of either parent may be increased, reduced or rescinded.
Under section 70 (1) of the Matrimonial Causes Act 1970, a court may order a parent to maintain the Children of the marriage, including legitimate and illegitimate children, under the age of twenty- one years, payment of maintenance in respect of children may be enforced by an attachment order against the income of the recalcitrant parent. Hence an illegitimate child once legitimated is entitled to being maintained by his parents
2. Physical protection
In the eastern and northern states, there is a statutory duty on the parents or other persons who have the custody, charge or care of a child, to protect him against physical or mental injury; this duty is created by the children and young person’s law. For instance under Section 32 of the Eastern Nigerian Children and Young Person’s Law;
an offence is committed by any person above the age of seventeen years who has the custody, charge or care of a child or young person under fourteen years of age if that person.
A,willfully asssult,ill-treat neglects, abandon, or exposes him or causes or procures him to be assaulted ill heated, neglected abandoned or exposed in a manner likely to cause him unnecessary suffering or injury to health or any mental derangement; or,
B, exposes him to the risk of burning, by allowing him to be in any place near an open fire without any protection or guard against the risk of his being burnt or scalded or without taking any reasonable precautions against the risk; or,
C leaves him at night unattended by any person over the age of seventeen; D. Leaves him unattended by any person over the age of seventeen in a motor vehicle. The provision is sufficiently wide to cover not only the parents of a child but also school teachers, and even baby sitters above the prescribed age, it prescribes wilful or deliberate conduct of a parent including for instance, failure to provide a child with adequate food, clothing or medical attention and causing physical assault on the child, moreover the provision extends to other acts, which through not deliberate are injurious to a child, as for instance exposing him to the risk of burning or leaving him unattended at night.
3. Duty to provide necessaries
The criminal law imposes a duty on the parents or guardian of a child to protect its physical well being by providing it with the necessaries of life, under section 300 of the criminal code, when a person having the charge of another person, who because of age or any other cause, is unable to withdraw himself from such charge or to provide himself with the necessaries of life, a duty is imposed on the former to provide the person under his care with the necessaries of life.
The parents who has the charge is responsible for any eventuality to the life or health of the other person which is caused by the failure or omission to perform the duty, it is immaterial whether the charge is undertaken under a contact, or imposed by law, or arises by reason of any act, lawful or unlawful
If the omission to provide necessaries is reckless or careless ,and death results, the offence is manslaughter, On the other hand where the wilful neglect to supply necessaries is accompanied by an intention to cause death and death in fact occurs, the offence will be murder.
A good illustration is the Queensland case of R.V.Mac Donald87 which was decided under a provision similar to section 300. In that case the deceased girl x, lived with H and W in a remote location where there were scarcely any Visitors, X was the daughter of H by a former wife, most of the household work, including the scrubbing of the floor and attending to W’s two children, was done by X, she was poorly fed, badly clothed and completely neglected by H and W.
In consequence, X’s health weakened and she later died, it will held that by their neglect H and W intended to kill X; they were therefore convicted of wilful murder.
Again Section 301 of the Criminal Code, makes it obligatory for every head of a family who has the charge of a child under the age of fourteen years, being a member of his household to provide such a child with the necessaries of life, he will be held responsible for any consequences to the life or health of the child which may result from the failure to perform that duty, whether the child is helpless or not, necessaries in there provision include food, clothing, lodging and medical attention.
By Section 341 of the criminal code, it is a felony for any person, to unlawfully abandon or expose a child under the age of seven years in a manner that is likely to cause him grievous harm, the offence created by this provision may, of course, be committed by both parents of a child or by either of them. In essence the parents of a legitimated child are legally bound to protect their legitimated child, and to do all within their might to make sure that no evil befall the child.
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ABSRACT - [ Total Page(s): 1 ]This long essay is concerned with the concept of legitimacy, which is an important concept, as it determines the status of a child in relation to the society, while a legitimate child is conferred with the rights and duties of a legitimate child, which includes right to maintenance, succession among other rights, an illegitimate child is denied of these right by virtue of the fact of his illegitimate birth and he remain so, until and unless he is legitimated either by the subsequent marriage of ... Continue reading---
TABLE OF CONTENTS - [ Total Page(s): 5 ]TABLE OF CASESNIGERIAAbisogun v.Abisogun(1963)1 ALL NLR 237 Akerele v.Balogun(1994)LLR 99 at 101Alake v.Pratt (1955)15 WACA 20Amachire v.Goodhead (1923)4 NLRCole v.Akinyele(1960)5 FSCEgwunmoke v.Egwunwoke NMLR147Ezekiel v.Alabi(1942)2 ALL NLR 43Lawal v.Younam(1961)WNLR 197Mariyama v.Sadiku ejo (1961) NRNLR 81Olarewaju v.Governor of oyo state NSCC Pt.111 389 at 400Onwudinjo v.Onwudinjo(1957)11 ERNLR 1Owuna v.Ogbodo suit no MD/51A/1975 unreported high Court Markurdi,October 26 1976Philip v.Philip ... Continue reading---
TABLE OF STATUTES - [ Total Page(s): 1 ]TABLE OF STATUTESNIGERIA• CAP 111, the revised edition Laws of Lagos state of Nigeria, Edict 1998• Constitution of the Federal Republic Of Nigeria 1999 • Evidence Act CAP 62 Laws of the Federal Republic Of Nigeria 1959 • Federal Republic Of Nigeria Official Gazzette Act No 20,2003,Volume 90• High Court of Lagos act • Matrimonial Causes act 1970 • Legitimacy Act 1929 CAP 519 Laws Of the Federation Of Nigeria ... Continue reading---
LIST OF ABRIVATIONS - [ Total Page(s): 1 ]LIST OF ABRIVATIONS ALL ER All England Law ReportALL NLR All Nigerian Law ReportCH.D Chancery DivisionENLR Eastern Nigerian Law ReportERNLR Eastern Nigerian Law ReportFSC Federal Supreme CourtL F N Laws of the federationLLR Lagos Law ReportLR Law ReportM&W Meeson &WelsbyNLR Nigerian Law ReportNMLR Nigerian Law ReportNRNLR Northern Region of Nigerian Law ReportNSCC Nigerian Surpreme Court CasesP Probate Divi ... Continue reading---
CHAPTER ONE - [ Total Page(s): 5 ]Cheshire and North in their book29 sees legitimacy as the status acquired by a person who is born in lawful wedlock. Black Law dictionary30 defines it as a lawful birth; the condition of being born in wedlock; the opposite of illegitimacy or bastardy. Osborne concise law dictionary31 defines it as the condition or being born in lawful wedlock.• IllegitimacyIt is a condition that exists before the law or the social status of a child born out of wedlock. It can also be said to be the c ... Continue reading---
CHAPTER TWO - [ Total Page(s): 5 ]A similar provision in Nigerian law, is submitted will go a long way to alleviate the hardships of a void marriage. A void marriage is one that is considered never to have taken place, no matter the procedure that have been taken by the people concerned, they are just not married because they have not complied with the rules of the place of the celebration of marriage.The Matrimonial Causes Act 1970 states that a marriage is void if the partners are related in a forbidden degree for example, a m ... Continue reading---
CHAPTER THREE - [ Total Page(s): 6 ]CHAPTER 3LEGITIMATION3.0.0 INTRODUCTIONLegitimation is the process by which a child who has not been born legitimate acquires a legitimate status, the process of legitimation may be achieved by the subsequent marriage of the parents of the child, or acknowledgement by its natural father, that is the recognition of paternity by its natural father. The term ‘legitimation’ presupposed that the child was not legitimate at birth; it is therefore the process whereby such a child can acqui ... Continue reading---
CHAPTER FIVE - [ Total Page(s): 1 ]CHAPTER 5GENERAL CONCLUSION5.1.0: CONCLUSIONThe concept of legitimacy, illegitimacy, and legitimation which are the primary concern of this work, has been fully discussed, the importance of a legitimate status can be clearly seen in the area of succession, and it is also evident from the social stigma melted on the illegitimate child by both the society and religious bodies and institutions. Having discussed the concept of legitimacy itself which refers to the status of a child born in lawful we ... Continue reading---
REFRENCES - [ Total Page(s): 1 ]BIBLIOGRAPHY ARTICLES IN JOURNALSAlhaji Aliu Alarape Salmon (SAN) Legitimacy and Illegitimacy; Nigerian experience,third edition; The jurist journal of the law student society Unilorin 1996/1997Professor Sagay legitimacy and the right of inheritance in Nigerian Comtempoary Law, Published in the journal of the private and property law department, Unilag April 1992/1993Davis K illegitimacy and social structure American Journal of sociology 1939,45Reports of the constitution drafting commission vol ... Continue reading---
