A CRITICAL APPRISAL OF LEGITIMACY AND

LEGITIMATION UNDER NIGERIAN FAMILY LAW

BY

OGUNTOSIN, MARY OLADUNNI

MATRIC NO: O6/40IA123

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW,

UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILLMENT

OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF

BACHELOR OF LAW (LL.B HONS) IN COMMON LAW

1
 APRIL, 2011.

CERTIFICATION

This is to certify that this long essay; LEGITIMACY AND LEGITIMATION

UNDER NIGERIAN FAMILY LAW was written by OGUNTOSIN, MARY
OLADUNNI. It has been read and approved as meeting part of the requirements for the
award of Bachelor of Law (LL.B Hons.) Degree in Common Law in the Faculty of Law,
University of Ilorin, Ilorin, Nigeria.

MRS E.F. OWOLABI DATE SIGNATURE

Supervisor ....................... ..........................

DR.J .O ADEDOYIN-RAJI DATE SIGNATURE

HOD of Host Department
Dept. of Jurisprudence and Int’l Law …………….. ………………….

PROF. A.A ZUBAIR DATE SIGNATURE

HOD of Graduating Dept
Dept. of Islamic Law ....................... ..........................

DR.WAHAB EGBEWOLE DATE SIGNATURE

Dean, Faculty of law ……………… …………………..

2
 DATE SINGNATURE

EXTRENAL EXAMINER .......................... ..............................

ABSTRACT
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 the
parents, or by acknowledgement of paternity by the father, the absence of which the child will be
regarded as an illegitimate child, with the resultant social discrimination that will be melted out on
him by members of the larger society.

This essay is therefore poised to giving a voice to illegitimate children in the society, by
examining the concept itself, and the discrimation which an illegitimate child is being faced with; it
examines the ways of legitimating an illegitimate child, in order to remove the discrimination, so
that he will be accorded with the same status as a legitimate child.

Chapter one gives a general introduction of the work, it traces the origin of illegitimacy which
appearances can be seen in the Holy Bible and the Holy Qu’ran,and which also dates back to our
traditional societies, where an illegitimate child is seen more or less like a social outcast, and is
treated like the child of nobody, it also discusses all the variables necessary to fully appreciate the
concept, while chapter two talked about the concept of legitimacy under both customary and
English law, it discusses the importance of a legitimate status, it also discusses illegitimacy, and
the need to legitimize an illegitimate child, in other to remove the social stigma attached to that
status.

legitimization was specifically discussed in chapter three, which can either be by the subsequent
marriage of the parents of the child which can either be by statutory law, or by customary law, and
the necessary conditions which must be met, Acknowledgement of paternity as a means of
legitimation was also discussed with the condition precedent before a child will be said to have
been acknowledged by the father

Chapter four discusses the effect of legitimation on an otherwise illegitimate child, which includes
the rights and the duties of a legitimized child to the parents and the rights and duties of the parents
to a legitimated child as when there is a right there must be a corresponding duty. Chapter five

3
which is the concluding part of the work contains the findings of the work and includes the
necessary recommendations.

DEDICATION
This work is dedicated to God almighty, the creator of heaven and the earth, and to my late
grandmother Mrs Bamitale Awe-Iledare, for her humaneness and her exemplary attitude.

4
 ACKNOWLEDGEMENT

My appreciation goes to God,for bringing me to this stage of my life, and also to my parents
Reverend and Mrs. E.K Oguntosin for their provision, support and for giving me the best legacy in
life. I equally appreciate my supervisor Mrs. E O. Owolabi, and to her I say I could not have had a
better supervisor.

I also want to recognize my colleagues who have contributed their own quota during my stay on
campus, they include: Oguntoye Bolatito, Salami oluwabukola, Abdulrasak Saka, my class rep,
Bello Olarewaju Lukman, Ojo Solomon, Raheem-Garba Ibrahim, Batife Philips, Sanni Helen,
Ogundiji Tomilayo among others

My friends Njoku ambrose,Adigun Aramide Sunday,Shaibu Usman Emmanuel,Adeyemi Emily are

also remembered.

My siblings,Olamide,Olasimbo,Olawumi and Olayinka will not be forgotten.

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 TABLE OF CASES

NIGERIA

Abisogun v.Abisogun(1963)1 ALL NLR 237………………………………………………….44

Akerele v.Balogun(1994)LLR 99 at 101……………………………………………………42,43

Alake v.Pratt (1955)15 WACA 20……………..….………………………………………..47,49

Amachire v.Goodhead (1923)4 NLR……………....………………………………………….49

Cole v.Akinyele(1960)5 FSC………………………….…………………………………37,38,40

Egwunmoke v.Egwunwoke NMLR147……………………………………….…………………21

Ezekiel v.Alabi(1942)2 ALL NLR 43………………………………………….…………….18,40

Lawal v.Younam(1961)WNLR 197…………………………….…………….………17,19,44,47

Mariyama v.Sadiku ejo (1961) NRNLR 81………………………………..………………19,41

Olarewaju v.Governor of oyo state NSCC Pt.111 389 at 400……………………..………41

6
Onwudinjo v.Onwudinjo(1957)11 ERNLR 1…………………………………………………49

Owuna v.Ogbodo suit no MD/51A/1975 unreported high Court Markurdi,October 26

1976……………………………………………………………………......................................5

Philip v.Philip (1946)18NLR 102…………………………………………………………42,43

Re sarah Adadevoh(1951)13 WACA 304…………………………………………………48,49

Shasie and others.Salako and others(1976)NMLR 160……………………………………49

Young v.Young (1953) WACA Cyclostyled judgement …………………………………..47 UNITED

KINGDOM

Bazeley v.Forder (1868)LR 3 QB 599…………………………………………………..……59

Bebee v.Sailes (1916)32 TLR…………………………………………………………….…….63

Donaldson v.Mc Niven (1952)2 ALL ER 691…………………………………………..……63

Hyde v.Hyde (18886)CR IPD 130……………………………………………………...12,18

Lough v.Ward(1945)12 ALL ER…………………………………………………………….…64

Mortmore v.Wright (1840)LR 3 QB……………………………………………………..…...55

Public trustee v.Wilson(1948)65 NWNN SW 22……………………………………….…....36

R v.MacDonald(1904) St R qd 151…………………………………………………………...59

Re Grove(1888)140 Ch-B 26…………………………………………………………………..35

7
Sowa v.Sowa(1961) P70………………………………………………………………………..12

TABLE OF STATUTES

NIGERIA

• CAP 111,the revised edition Laws of Lagos state of Nigeria,Edict 1998……30,48

• Constitution of the Federal Republic Of Nigeria 1999……………………………3

• Evidence Act CAP 62 Laws of the Federal Republic Of Nigeria 1959…………21

• Federal Republic Of Nigeria Official Gazzette Act No 20,2003,Volume 90...29,52

• High Court of Lagos act…………………………………………………30,46,48

8
 • Matrimonial Causes act 1970……………………………………………………24

• Legitimacy Act 1929 CAP 519 Laws Of the Federation Of Nigeria 1990…33,51

• Legitimacy Ordinance No 27 of 1929…………………………………………33

UNITED KINGDOM

 Custody of children act 1891.......................................................................................56

LIST OF ABRIVATIONS

ALL ER All England Law Report

ALL NLR All Nigerian Law Report
CH.D Chancery Division

9
ENLR Eastern Nigerian Law Report
ERNLR Eastern Nigerian Law Report
FSC Federal Supreme Court
LFN Laws of the federation
LLR Lagos Law Report
LR Law Report
M&W Meeson &Welsby
NLR Nigerian Law Report
NMLR Nigerian Law Report
NRNLR Northern Region of Nigerian Law Report
NSCC Nigerian Surpreme Court Cases
P Probate Division
REN Reener’s Report
WACA West Africa Law Report
WNLR Western Nigerian Law Report

TABLE OF CONTENTS

CONTENTS

COVER PAGE.....................................................................................i

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CERTIFICATION...............................................................................ii

ABSTRACT.........................................................................................iii

DEDICATION................................................................................................................iv

ACKNOWLEDGEMENT............................................................................................v

TABBLE OF CASES....................................................................................................vi

TABLE OF STATUTES...............................................................................................vii

LIST OF ABBREVIATIONS......................................................................................viii

TABLE OF CONTENTS..............................................................................................ix

CHAPTER 1

GENERAL INTRODUCTION

1.0.0:INTRODUCTION..................................................................................................1

1.1.0:BACKGROUND OF THE STUDY.....................................................................3

1.2.0:OBJECTIVE OF STUDY.....................................................................................5

1.3.0:FOCUS OF STUDY...............................................................................................6

1.4.0:SCOPE OF STUDY...............................................................................................7

1.5.0:METHODOLOGY.................................................................................................7
1.6.0:LITERATURE REVIEW.....................................................................................7

1.7.0:DEFINITION OF TERMS...................................................................................12

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1.8.0:CONCLUSION......................................................................................................15

CHAPTER 2

LEGITIMACY

2.0.0:INTRODUCTION ...............................................................................................16

2.1.0:CONCEPT OF LEGITIMACY.........................................................................16

2.2.0:LEGITIMACY UNDER NIGERIAN CUSTOMARY LAW.........................18

2.3.0:LEGITIMACY UNDER ENGLISH LAW.......................................................21

2.4.0:LEGITIMACY OF CHILDREN OF VOID MARRIAGE..............................22

2.5.0:LEGITIMACY OF CHILDREN OF A VIODABLE MARRIAGE...............24

2.6.0:ILLEGITIMACY.................................................................................................25

2.7.0:DIFFERENCE BETWEEN LEGITIMATE AND ILLEGITIMATE CHILD28

2.7.0:OTHER INSTANCES OF LEGITIMACY........................................................30

2.8.0: CONCLUSION.....................................................................................................30
CHAPTER 3

LEGITIMATION

3.0.0:INTRODUCTION................................................................................................32

3.1.0:LEGITIMATION BY SUBSEQUENT STATUTORY LAW MARRIAGE.33

3.2.0:LEGITIMATION BY SUBSEQUENT CUSTOMARY LAW MARRIAGE.36

3.3.0:LEGITIMATION BY ACKNOWLEDGEMENT.............................................41

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3.4.0:CONCLUSION......................................................................................................50

CHAPTER 4

EFFECT OF LEGITIMATION

4.0.0:INTRODUCTION.................................................................................................51

4.1.0:EFFECT OF A LEGITIMATION.......................................................................51

4.2.0:RIGHTS OF A LEGITIMIZED CHILD............................................................52

4.3.0:DUTIES OF A PARENT TO A LEGITIMIZED CHILD................................55

4.4.0:DUTIES OF A LEGITIMIZED CHILD TO THE PARENT..........................64

4.5.0:CONSTITIONAL APPROACH TO LEGITIMATION....................................65

4.6.0:CONCLUSION.......................................................................................................67
CHAPTER 5

GENERAL CONCLUSION

5.0.0:CONCLUSION.......................................................................................................69

5.1.0:RECOMMENDATION..........................................................................................70

BIBLIOGRAPHY ...........................................................................................................73
BOOKS............................................................................................................................73

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 CHAPTER 1

GENERAL INTRODUCTION

1.0.0 INTRODUCTION

14
The question of legitimacy and legitimation are principally connected with status. It is therefore,

important to determine the status of a child at any given moment as it has far reaching legal

consequences. A child may be born legitimate or acquire that status by subsequent legitimation 1. A

legitimate child is one regarded by law as a child born with full rights and it confers on the child

certain rights against the man whom the law regards as his father and generally against the society,

but the bastards like the prostitute, thief and the beggars belong to the motley crowd of

disreputable social types which the society had generally resented but endured2.

Legitimacy for lawyers is a concept whereby a couple’s child is entitled to full recognition as a

family member and enjoys the legal right which the status involves. 3 It implies that children born

out of wedlock are referred to as illegitimate, as is generally believed that people are not supposed

to have illegitimate children but when they do emergency machinery is put to operation to give the

child a status which is an interior one.

The position of the common law is that the incapacity of a bastard consists primarily in this, that he

cannot be heir to any one, neither can he have heirs but of

his own body for being nullius fullius, he is therefore likened to nobody and he has no ancestors

from whom any inheritable blood can be derived.

1 Nwogugu E I ‘Family law in Nigeria’ Revised edition, Heinemann Educational books, Nigeria plc1974
2 Davies K. ‘illegitimacy and social structure’American Journal of Sociology, 1939,45
3 Cretney S M ‘principle of family law’4th ed. Sweet and Maxwell.1984

15
The belief is that by regulating illegitimate children to the background and by denying them the

filial rights enjoyed by legitimate children the society will be able to purge themselves of their

existence which is usually not so.

The basic ingredients to prove the legitimacy of a child are:

• There must exist a valid marriage between the parents of the child, customary,

Islamic or statutory law marriage.

• The wife has to be the mother of the child in question.

• The father is also presumed to be the husband of the mother of the child born during the

subsistence of the marriage.

The above requirement must be fulfilled before a child will be said to be legitimate, the absence of

which the child will be seen as illegitimate. This is the obtainable position under the common law;

the situation exposes illegitimate children to social and legal deprivations and also denies them the

rights of a legitimate child which includes the right to succession, protection, maintenance,

custody, amongst other related rights.

This actually informed the concept of legitimation, which aims at restoring rights that the

illegitimate children have been wrongfully deprived of. The 1999 constitution did not expressly

16
provide for legitimation, but it can be inferred from the right to freedom from discrimination,

which provides that:

‘No citizen of Nigeria shall be subjected to any disabilities or deprivation

merely by reason or the circumstance of his birth’. 4 The study will therefore examine the concept of
legitimation and see if the provision of the constitution has totally eradicated illegitimacy in order
to entirely safeguard the right of a legitimated child; that is a former illegitimate child. The study
will further examine the pitfalls, distinctions and discrimination that the illegitimate child faces and
the various ways by which an illegitimate child can be legitimized. The various enactments, the
legitimacy act, the customary and native perspectives will equally be examined.

1.1.0 BACKGROUND OF THE STUDY

Children born or conceived when there is a valid and subsisting marriage between their parents are

referred to as legitimate children while those of unmarried parents are fillius nullius or fillius

populi meaning a bastard, who has no legal relationship, or is recognized with the father nor with

any other relative, he therefore is deprived of the right which legitimate children possess.

Illegitimacy can be traced to the holy bible.

‘one of illegitimate birth shall not enter the assembly of the lord, even to the
tenth generation; none of his descendants shall enter the assembly of the
lord.’5

4 S.42(4)1999 Constitution of the Federal Republic of Nigeria

5 Deuteronomy Chapter 23 v 2

17
In Genesis Chapter 49 v 8-12, God promised Judah that the sceptre will not depart from him, Judah

thereafter committed adultery with another woman, which result was Perez, and by that singular

act, ten generation passed before the promised was fulfilled, as seen in Matthew Chapter1 v1-6

which was when King David became the King of Israel. Islam also frowns at illegitimacy as can be

seen from the below provision.

Call them (adopted sons) by the names of their fathers that is more just with Allah 6

A legitimate marriage is one contracted according to the rules guiding its validity which includes

customary marriages7 in strict customary law, the concept of paternity marriage and legitimacy

have no necessary connection unlike common law. For instance a child may be regarded as

legitimate even though the natural parents are not married to each other and the person with respect

to whom the child is legitimate is not the natural father. In Ibo custom, a man who has no male

child may persuade one of his daughters to stay behind and not marry, the purpose of such

arrangement is for her to produce a male successor for her father and thereby save his lineage form

threatened extinction thus, any child she bears while remaining with her parents is considered the

child or her father at birth. Any male child so produced has full right of succession to the

grandfather’s title this custom is known as Idegbe in western Ibo custom we also have such custom

in Akoko, the Oka people of Ondo State.

6 Holy Quran Chapter 33v5

7 Nwogugu E.I ‘Family law in Nigeria’ Revised edition Heinemann Educational books Nigeria Plc (1974) 286

18
There is the practice of ‘Supo’ in the Yoruba speaking areas where the youngest brother of the

widow’s deceased husband can inherit her so as to breed children for the late husband, this custom

is referred to as widow inheritance and such children are regarded as legitimate children though the

parents are not formally married, this is not to say that illegitimacy is not recognized, as they are

referred to as ‘Omo- ale’ meaning a child of an adulterous woman or an unmarried woman (a

bastard)8 that is a child who had not been acknowledged by his father and generally has no

succession right in Yoruba customary law.

Under our customary law a child of an unmarried woman, (the term unmarried include women

whose marriages have been legally dissolved as submitted by Dr. Obi) 9 is regarded as belonging to

his maternal grandfather, meaning that the connection between him and his maternal grandfather

accord him the right to succession with his other grandfather children, 10 although there is the status

of illegitimacy under customary law the willingness of the grandfather or natural father to accept

the child helps to remove the burden placed on that status, this is because of the general love for

children. As we can see, illegitimacy have both religious and cultural undertone with the attendant

discrimination melted out on illegitimate children, which has not in any way solved the problem,

attempts therefore has been made to finding a solution to it which is legitimation as we cannot

throw away the baby with the bath water, neither will the cutting of the head, relieve us from the

headache.

8 Coker G. B. A ‘Family property among the yoruba’2nd ed. Sweet and Maxwell London 1966
9 Obi S. N.C ‘Modern family law in southern Nigeria’ University Press,Lagos (1966) page 294
10 Owuna v. Ogbodo suit no MD\51A\1975(unreported)high court Makurdi, October 26,1976

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1.2.0 OBJECTIVES OF THE STUDY

The study is aimed at exposing the unnecessary social discrimination faced by illegitimate children

in the society. The way and means by which we can help alleviate and reduce their sufferings

which is legitimation, how to enforce legitimation laws with a view to making them applicable to

our local and peculiar situation in order to make them effective and workable as it is not equitable

for the children to be made to pay for the sins

of their parents.

1.3.0 FOCUS OF THE STUDY

The study focus on the concept of legitimacy, that is what is means to say a child is legitimate,

illegitimacy, meaning what makes a child illegitimate and legitimation which is the process of

making an otherwise illegitimate child attain the status of a legitimate one, the study therefore

focuses on illegitimate children with the view to making them attain a legitimate status, through the

instrumentality of the law. It will also focus itself in exposing the uncertainties in the legislative

position in Section 42 (2) of the 1999 constitution as regards the provision from freedom from

discrimination of any citizen of Nigeria in relation to the circumstances or their birth, and it will

also examine the family law reform relating to legitimacy and legitimation.

More so, the mode of legitimation will also be examined, this is due to the lack of uniformity in the

modes of legitimation, which are not universally accepted by the common law, the religion and

20
customary law .Also, the modes as of today which are inoperative and unenforceable will also be

looked into and solutions will be preferred in order to make it operative and enforceable.

Furthermore, in spite of the avoidance of the word ‘illegitimate’ in the statute book, the status of a

child born out of lawful wedlock has not changed, All these issues and many more will be the

focus of this study and it will be examined with a view to fashioning out lasting solutions to them,

since they pose themselves as problems.

1.4.0 SCOPE OF THE STUDY

It will be limited to family law in the aspect of parent and child relationship in respect to legitimacy

and legitimation, the right and duties of a legitimated child to his parents and the right and duties of

a parent to his legitimized child, the study will also be linked to our principal religions in Nigeria

i.e. Christianity and Islam. It will also compare our various customary indigenous laws and the

English law position.

1.5.0 METHODOLOGY

This will be based on documentary source of information form textbooks, Dictionaries, articles,

encyclopaedia, law journals, periodicals and opinion of writers which are the secondary sources of

21
data. The primary source includes the holy bible, Qur’an, constitution and other relevant sources of

information.

1.6.0 LITERATURE REVIEW

Quite a handful of literature will be reviewed in this work in order to properly understand and

appreciate its significance, principal among such is the 1999 constitution of the Federal Republic

of Nigeria who in section 42(2) provides that “No citizen of Nigeria shall be subjected to any

disability or deprivation merely by reason or the circumstances of his birth.’ which was transferred

from s. 39 (2) of the 1979 constitution of the Federal Republic of Nigeria. The issue is, in spite of

this provision of the law, illegitimate children are still being subjected to legal and social

discrimination. The holy books, that is the bible and the Quran, also made reference to illegitimacy

as can be seen from below, where God said that

One of illegitimate birth shall enter into the assembly of the lord, even unto his tenth
generation none of his descendants shall enter the assembly of the lord.11 .

More so, in the holy Quran, the principle of legitimacy was mentioned as seen below. Call them

(adopted sons) by the names of their father that is more just with Allah12

Adb Al Ati Quoter Roser Coser, in an abridged form stated that, every child shall have a father and

one father only 13 .As we can clearly see, Islam frowns illegitimacy.

11 Deuteronomy Chapter 23 v2
12 Holy Quran Chapter 33 v5
13 Abd Al’ Ati ‘family structure in Islam’ Islamic Publication, Bureau Lagos (1982) page 188

22
Alfred B. Kasumu and Jeswald W. Salacuse, 14 are of the view that legitimacy is the status of a child

born in lawful wedlock, while an illegitimate child can acquire the status by the subsequent

marriage of the parents, or by acknowledgement by his father.

According to Professor Nwogugu E.I,15 it is important to determine the status of a child at any

given moment as it has for reaching legal consequences. This view is of great import as it is the

status of the child that determines what right the child has against his father and the duty of the

father to his child. While noting that customary law unlike common law in strict sense says there is

no necessary connection between the concept of paternity, marriage and legitimacy, as a child can

be regarded as legitimate, even though the natural parents’ era not married.

Cretney S.M,16 in principle of family law says the concept of legitimacy and legitimation borders

on status and, it is a concept whereby a couple’s child is entitled to full recognition as a family.

Davis K,17‘illegitimacy and social structure’ says the illegitimate child is one born with full rights

and confers certain rights against the man whom the law regards as his father but the illegitimate

child is resented by both his family and the society at large.

14 Kasunmu A.B and Salacuse J.W ‘Nigerian family law’ London Butterworth 1966
15 Nwogugu E I ‘Family law in Nigeria’ Revised edition.. Heinnnam educational books Nigeria plc1974
16 Cretney S M; ‘principle of family law’ fourth edition sweet and maxwell1984
17 Davies K Illegitimacy and social Structure’ Published by American Journal of Sociology 1939

23
Curzon,18 emphasis that legitimacy is the condition of belonging to a class in a society the members

of which are regarded as having been begotten in lawful matrimony by the man whom the law

regard as their father which negate the position under Islamic Law, where it provides that only the

natural father takes possession of the legal status in relation to a child.

Kasumu,19 says legitimacy is the status acquired by a person who is born in lawful wedlock, the

children of such marriage or wedlock will be legitimate at birth, it is important to establish that

lawful wedlock in Nigeria may either be by Customary, Islamic or statutory law marriage and the

operative effect of these differs from one legal system to another, for instance in the monogamy

legal system it is irrelevant if at the date of birth, the marriage is dissolved, the parents must be

married at the time of conception while in some customary legal system (Yoruba) the child might

be legitimate without the parents being married if the father acknowledge paternity of the child.

To Sagay,20 ‘the concept of legitimacy and legitimation are of course important because of the

social stigma associated with illegitimacy in the western and Christian oriented class in the society

18 Curzon L.B ‘Brief case on family law’ London 1997 Cavendish Publication limited page113
19 Kasumu A B ‘Nigerian family law’ Butterworth London 1996
20 Professor Sagay ‘legitimation and the right of inheritance in Nigeria Comtempoary Law’ published in the journal
of the private and property law department Unilag April 1992/1993 Page 2

24
Ambali, in his book21 has this to say “legitimacy is an important link between the relationship

between father and son, and it is also a condition precedent for succession. Therefore a child of an

illicit relationship will not be allowed to inherit the estate of the partner of his or her mother in the

act of Zina i.e. fornication or adultery. This position of Sharia, is far from what operates in our

contemporary society and cannot pass as a general operative law under our Nigerian statutes.

Brumley, in his book22 submits that it is impossible to define legitimacy in isolation without

relating it to a particular legal system, this explains legitimacy by drawing a distinction between

the legal position of a child born of a legally recognized union The family law reform Act 1987,

has abolished and removed the discrimination affecting illegitimate children, before the act was

passed an illegitimate child could not succeed as heir to an entailed interest or title of honour, also

the child was denied citizenship rights, but all this discrimination has been done away with the

passing of the Act.

Alarape Salmon, (SAN),23 in his paper ‘in a country where the benefit are based on right, it will not

be out of place to determine the status of a person be it a child or an adult because that

determination is fundamental in determining among others, his right to succession and

maintenance’ one realize that the basis for determining the status or a child differs from culture to

21 Ambali M A ‘the practise of Muslim family law in Nigeria ’Tamaza publishing company1998 limited page 269-270
22 Bromley ‘Family law' 6th ed. London,Butterworth publication page 255-275.1981
23 Alhaji Aliu Alarape Salmon SAN ‘legitimacy and illegitimacy ‘Nigerian experience’ 3th ed. The jurist journal of
the law student society unilorin.1996/1997

25
culture and legal system to legal system in the western world e.g. America and Europe where their

strict legal system only recognizes statutory marriage which is monogamous in nature, any child

born out of such stipulated marriage, will be regarded as an illegitimate child, our customary

society in Nigeria allows polygamy, In essence all the children born in a polygamous marriage are

legitimate. Also a child becomes legitimate if the putative (supposed) father acknowledges

paternity of the child.

The family law reform Act 1987, has abolished and removed the discrimination affecting

illegitimate children, before the act was passed an illegitimate child could not succeed as heir to an

entailed interest or title of honour, also the child was denied citizenship rights, but all this

discrimination has been done away with the passing of the Act.

Furthermore, by virtue of the children’s Act of 1969, the distinction between legitimate and bastard

children was abolished in New Zealand which has also been extended to Nigeria. Similarly the

Family Law Reform Act 1969 has provided succour to the illegitimate child. The Family Law

Reform Act 1987, has abolished and removed the discrimination affecting illegitimate children,

before the act was passed an illegitimate child could not succeed as heir to an entailed interest or

title of honour, also the child was denied citizenship rights, but all this discrimination has been

done away with the passing of the Act.

DEFINITION OF TERMS

26
Some terms will be used in this work and as such a proper definition of such terms is expedient in

order to have a clearer understanding of the topic under discussion. The terms include;

 Marriage
This is the legal union of one man and one woman (many women) as husband and wife. It must be

a union of persons of the opposite sex. According to Lord Penzance, In Hyde v. Hyde24 a

monogamous marriage is ’The voluntary union for life of one man and one woman to the exclusion

of all others’.

In Sowa v. Sowa25 polygamous marriage is defined as the voluntary union for life of one man into

one or several wives.

Osborn’s concise law dictionary26 defines marriage as essentially the voluntary union for life of

man and one woman to the exclusion of all others subject to the rules as to consanguinity or

affinity and capacity to perform the duties of matrimony prevailing in the place of domicile of the

parties and subject to the formalities required either by the law of England or the place where the

marriage takes place.

The import of this definition is that what constitute marriage and it validity depends on the law of

the place it is celebrated, in essence if the marriage complies with the law of the place where it is

24 (1886)CR IPD 130

25 (1961)P 70
26 Leslie Rutherford and Sheila Bone, Sweet and Maxwell, 8th ed. (1999)page213

27
celebrated, the marriage will be regarded as valid and binding. The formalities which must be

complied with in order to constitute a valid marriage are contained in the Matrimonial Causes Act

of 1970 and the rules of customary law which is largely unwritten.

From the above definitions marriage can be defined as the voluntary union for life of one man and

woman as in the case of a monogamous marriage which is also in the same position with statutory

law marriage or voluntary union for life of one man and two or women. As in the case of Islamic

and customary law Marriages, however, the number of wives which a man can marry under

Islamic law is limited to four.

• A child

Black law dictionary27 defines a child is a progeny; an offspring of parentage unborn or recently

born human being, a child is also used to describe a natural person who is an offspring of another

either by birth or adoption and also represent from the moment of his birth until the attainment of

the age of maturity. Osborne concise law dictionary28defines a child as;

‘........a person under the age of eighteen’.

For the purpose to the Children Act 1989 in criminal matters, a child relates to an offender under

the age of fourteen as seen in Children and Young Person’s Act 1969.

• Legitimacy

28
27 6th ed st. Paul Minn.West Publishing co. (1990) 239
28 8th ed .Sweet and Maxwell.(1993) page68
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 dictionary 31 defines it as

the condition or being born in lawful wedlock.

• Illegitimacy

It 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 condition of one whose parents were not married at the time of his or her

birth. Black law dictionary32 says illegitimacy is the condition before the law, or the social status,

of a child born out of wedlock; condition of one whose parents were not intermarried at the time of

his or her birth. It is the social status of a child born out of wedlock. At common law a bastard has

no parents and cannot take property as an heir- at- law or next- of- kin through them.

• Legitimation

This is the process through which a child who has not been born in a lawful wedlock, acquires the

status of a legitimate child, which is as a result of some acts which includes the subsequent

marriage of his parent or by acknowledgement by his father after the date

29
North P M, Fawcett J .J, ‘Private international law’ 12th edition, buttrerworths London,Dublin ,edinburgh 199.

29
30
6th ed. .st. Paul Minn West Publishing.(1990)page 910
31
8th ed. Sweet and Maxwell(1993),page198
32 th
6 ed. st Minn West Publishing co(1990)page747
of his birth. It is also a way of making legitimate that which was not originally so through the

statutory procedure. It is important to determine the status of an illegitimate child to assure the

succession right of the child as an illegitimate child has no succession rights as against a legitimate

child.

Black law dictionary27 defines it as ‘the making legitimate or lawful that which was not originally

so; especially the statutory procedure of legalizing (legitimating) the status of an illegitimate child,

such is usually necessary to assure inheritance rights to child.

CONCLUSION

This chapter generally introduces the concept of legitimacy, which is concern of this work and

which is the status of being born in a lawful marriage, the absence of which the child will be

regarded as illegitimate with the resultant effect which will not be pleasant to the child as he will

be deprived of the benefit that should he would have been entitled to, if he was of a legitimate

birth, it discussed the background of the study which has been from quite some as it has been

traced to the Holy books, the aim of the study which is giving a voice to the illegitimate children in

the society in order to help safeguard their rights and privileges with a view to removing those

discriminations which they are normally faced with was also discussed, the chapter also explained

all the terms needed to full appreciate the concept.

27 sixth edition,st paul minn west publishing co(1990)page 901

30
 CHAPTER 2

LEGITIMACY

2.0.0 INTRODUCTION

31
Legitimacy is the status of a child who is born to parents who are legally married to one another or

who is born shortly after the parents marriage ends through divorce the opposite of legitimacy is

the status of being illegitimate, that is the status of a child born to a woman and a man who are not

married to one another. In both cannon and civil law the offspring of putative marriages are

considered legitimate.

Legitimacy is of great importance, in that only legitimate children can inherit their father’s estates,

and also enjoy the status incident to legitimate children, which includes the right to maintenance,

custody amongst other rights. Legitimacy is an important topic and aspect of law owing to the

growing number of illegitimate birth that has been on the increase in recent times, where more than

one-third of births in Nigeria are mostly of unmarried mothers.

Law in many societies has denied persons of illegitimate birth the right of inheritance and other

rights which legitimate children enjoy leaving them to bear the brunt and carry the social stigma

incidence to their status

2.1.0 CONCEPT OF LEGITIMACY

32
Osborne concise law Dictionary28 defines legitimacy as ‘a condition of being born in lawful

wedlock’.

In Lawal v. Younam29 it was held that in Nigeria lawful wedlock includes not only marriage under

the marriage act, but also customary law marriage and Islamic law marriage.

Generally, the relationship between a child and his parent depends on the status of the child that is

whether or not he is legitimate, as the rights and duties imposed on his parents depend on it.

Black’s Law Dictionary defines Legitimacy as lawful birth that is the condition of being born in

wedlock, the opposite is illegitimacy or bastardy, it also refers to the status acquired by a person

who is born in lawful wedlock; such a child is recognized as legitimate from birth.30

Therefore to be legitimate at birth, the parent of the child must be lawfully married either at the

time of his conception or at the time of birth in Lawal v. Younan31 Ademola CJN ‘as he then was’

stated that in Nigeria a child is legitimate if born in lawful wedlock according to the marriage

Ordinance, or under native law and custom.

In Nigeria, lawful marriage include not only marriage under the marriage act but also includes

customary law marriage and Islamic law marriage, these are the type of marriages the law of this

country recognize and accepts as legal therefore, the issues of such marriages are therefore
28 Leslie Rutherford and Sheila Bone,. Sweet and Maxwell (1993) 8th ed. page 198
29 (1961)WNLR 197
30 St. Paul Minn. West Publishing Co.(1990)
31 ibid

33
legitimate. We will now examine the types of marriages accepted in Nigeria as valid one after the

other which makes the issues of such marriages legitimate.

Statutory marriage is the type of marriage celebrated under the act, and it is said to be good and

valid for all intent and purpose provided they have complied with the provision and requirement of

the act in respect of a valid statutory marriage, this type of marriage is monogamous in nature, and

it is the union for life of one man and woman to the exclusion of others, 32 therefore the issues of

such marriages are legitimate.

Customary law marriage in Nigeria is polygamous in nature; there is however no uniform system

of marriage under customary marriage, as marriage custom differs from place to place and locality

to locality. The term therefore covers a multitude of system of law which is different from one

community to another. Customary law marriage which is polygamous in nature means marriage of

one man to more than one woman, one essential feature of polygamous marriage is that there is no

limit to the number of wives a man can marry as this normally depends on his affluence.

Islamic law marriage allows a man to marry more than one wife, but unlike customary law

marriage, where there is no limit to the number of wives a man can marry, Islamic law marriage

limits the numbers of wives to a maximum of four,in essence, the incidence of Islamic and

customary law marriage are valid and is issues thereof are legitimate and are entitled to rights of a

legitimate child.

32 (1886) CR IPD 130

34
2.2.0 LEGITIMACY UNDER NIGERIAN CUSTOMARY LAW

A child born during the subsistence and continuance of a customary law marriage is presumed to

be legitimate. In Ezekiel v. Alabi33 it was held that where evidence of a lawful marriage exist, the

court will not inquire into which of the husband or wives lover is the father of the child born in

lawful wedlock and conceived during marital cohabitation as such an inquiry could be scandalous.

In Maryam v. Sadiku Ejo34 it was held that a child born within ten calendar month of a divorce in

Igbira customary law is regarded as legitimate. Generally a child is legitimate at birth if born in

lawful wedlock, which also includes in Nigeria, customary law marriages, as our customary law is

also a part and parcel of our law in Nigeria, therefore, customary law marriages are by law legal

and the children of such marriages are legitimate, as was held in lawal v younan,35 In strict

customary law, the concepts of paternity, marriage and legitimacy do not and may not have

necessary connection for instance, a child can be seen and regarded as legitimate if the natural

parents are not married to each other and the person with respect to whom the child is legitimate is

not the natural father.

In Ibo custom for instance a man who has no male child may persuade one of his daughters to stay

behind and not marry, for the purpose of producing a male child, who will succeed her father

thereby, Saving the father’s lineage from threatened extinction and any male child produce in that

manner has full rights of succession to the

33 (1964) 2 All NLR 43

34 (1961)NRNLR 81
35 (1961) WNLR 197

35
grandfathers land and title.

Similarly, a barren wife may in a bid to fulfil her marital obligation of bearing children for her

husband ‘marry’ another wife for her husband, which means to provide the bride price for the

marriage, children of such marriage to the other wife will be regarded as the legitimate children of

the husband. It is evident that under customary law, a child may be regarded as legitimate even it

the mother never acquired the status of a lawful wife and also if the putative father is not the

natural father of the child

Legitimacy under customary law differ from community to community, for instance a child born

within ten calendar month of a divorce in Igbira customary law is regarded as a legitimate child of

the former husband, even though he cannot logically be the father of the child. In Yoruba

customary setting, a child is legitimate from birth, although not born in lawful customary law

marriage, they are still regarded as legitimate, under special circumstances did does not however

defeat the illegitimate status of children born from illicit affairs which the Yoruba indigene call

‘omo-ale’, meaning an illegitimate or a bastard child.

2.3.0 LEGITIMACY UNDER ENGLISH LAW

A legitimate child is born within lawful wedlock while a child who is born at a time when his

parents, through alive are not married to each other is an illegitimate child.

This definition obviously follows the common law position, which is of the effect that for a child to

be legitimate he or she must be born in lawful wedlock, therefore a child born out of wedlock is

36
deemed and will be regarded as an illegitimate child. In Egwunwoke v. Egwunwoke it was held

that36 a child born in lawful wedlock is presumed legitimate at common law until the contrary is

proved.

There is a statutory presumption in favour of legitimacy under statutory law, under Section 147 of

the evidence act, a child born during the continuance of a statutory marriage or within two hundred

and eighty days after the dissolution of such marriage is presumed legitimate. But neither of the

parents of such a child can testify to rebut this presumption. 37 However the law has now been

altered by the Matrimonial Causes Act 1970, Section 115 (3) is of the effect that, where a person

was born during the continuance of a valid marriage between his mother and any man, or within

two hundred and eighty days after its dissolution, the mother remaining unmarried, the court shall

presume that the person in question is the legitimate son of the man, also, by section 84 of the act,

both spouses are competent witnesses to give evidence of prove that the parties did not have sexual

relations with each other at any material time.

Consequently any of the parties may, adduce evidence to rebut the presumption of legitimacy of a

child born during the marriage, but the spouses are not compellable, that is cannot be forced to give

such evidence if it will bastardize a child born to the wife during the marriage.

The Christian view is similar to the common law position and the Islamic law position in that it

hold lawful marriage in high esteem, it also frowns at illicit and causal affairs begetting illegitimate
36 NMLR 147
37 CAP 62 Laws of the Federation of Nigeria, 1958

37
children the consequences are expressed in the following words in the holy bible ‘a bastard shall

not enter into the congregation of the lord, even to his tenth generation’ 38 In essence Christianity

preaches and advocate one man one wife, therefore, any adulterous relation with a third party,

leading to illegitimate children will be according to the above passage not be entitled to enter into

the Lord’s assembly even to this tenth generation, and will be deprived the rights of a legitimate

child, it should be

noted that this is the old testament position.

2.4.0 LEGITIMACY OF CHILDREN OF VOID MARRIAGE

Ordinarily, any child born of a void marriage is illegitimate, the position is not clear-cut where in

Nigeria where the void marriage was celebrated under the marriage Act,as it is customary for

Nigerians who desire to marry each other to be first married under customary law before

contracting a marriage in accordance with the marriage Act, if the subsequent statutory law

marriage is therefore void, it is submitted that the customary law marriage remains valid and a

child conceived or born after the statutory marriage will be legitimate at birth because of the

subsumed and existing customary law marriage. In the absence of the preceding contention, there

is no provision of Nigerian law whereby a child of a void statutory marriage may be regarded as

legitimate.

38 Deutoronomony chapter 23 v2

38
This situation may sometimes work hardship for instance, where the parties reasonably believe that

their marriage was valid, in some countries the children of such marriages are regarded as

legitimate. By virtue of Section 2 (1) of the English Legitimacy Act 1959, the child of a void

marriage is considered legitimate if at the time of the act of intercourse resulting in its birth (or at

the time of the celebration of the marriage) both or either of the parent reasonably belief that the

marriage was valid.

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 marriage between brother and sister would be void, it does not

matter if the partners did not know they were related when the ceremony was carried out, although

it sounds odd, it has happened in adoption cases. A marriage is void

if;

• Either partner was under sixteen years of age

• The formal procedures of marriage were not followed for example; the wedding may not have

been in a registered building or open to the public.

39
• The partners are of the same gender at birth.

Therefore children born in a void marriage are illegitimate as the marriage is considered never to

have happened.

2.5.0 LEGITIMACY OF CHILDREN OF A VOIDABLE MARRIAGE

At common law, a decree of nullity in respect of voidable statutory marriages was retroactive,

thereby bastardizing the children of the marriage. But a major change has been affected in this

respect by the Matrimonial Causes Act 1970, in its Section 38 (1) of the, a decree of nullity in

respect of a voidable marriage is effective only from the date in which the decree becomes

absolute. Moreover, such decree of nullity does not render illegitimate the child of the parties born

since, or legitimated during the marriage. 39 The child of a voidable customary law marriage is not

regarded as born legitimate, but such a child may in some parts of the country, be legitimated by

the subsequent acknowledgement by its natural father. A voidable marriage is one that is not void

from the outset, as may be the case with a marriage conducted illegally, but may declared void in

the course of time. The matrimonial causes act 1970 in its section 5 states that a marriage is

voidable if;

• Either partner does not or cannot consummate the marriage

• Either partner did not consent to the marriage

39 Section 38 (2) Matrimonial Causes Act 1970

40
• Either partner was not mentally competent to consent to the marriage

• Either partner was suffering from a sexually transmitted disease  The woman was pregnant

by another man.

A voidable marriage is assumed to be in effect until annulled by the court this means that children

born in a voidable marriage are legitimate.

2.6.0 ILLEGITIMACY

This is the status attributed to a child born out of lawful wedlock, it is the status given to a child

whose mother is not legally married to the father of the child, or a child whose mother is legally

married, but the father of her child is not her lawful husband, such a child is ipso factor

illegitimate, this status can however be remedied by the subsequent marriage of his biological

parents and also under some customary law in Nigeria by acknowledgement by the putative father.

Under the received English law, a child born out of lawful wedlock, is regarded as illegitimate, and

this illegitimate status deprives the child of certain rights in respect to his natural father, these

rights includes right to maintenance, succession, custody amongst other rights. However an

illegitimate child when legitimated under the legitimacy act will be accorded these rights. Under

customary law the question of the existence of the status of illegitimacy has been contested by

writers. Coker described the position under the Yoruba customary law thus:

41
It is generally supposed that there is no status of illegitimacy in native law and custom, this

however is not correct, for there is a status of illegitimacy as opposed to that of legitimacy.

The latter entitled the subject ipso facto to succeed to property, the former disentitles the subject

from so succeeding unless his rights are legalized by an acknowledgement of paternity’ by the

father. Generally speaking a child born in lawful wedlock is legitimate from birth, whereas an

illegitimate child can only be legitimated if he was duly acknowledged by his father. It is important

to observe that the bastard is so regarded among the Yoruba’s commonly called the Omo-ale which

literary means ‘the child of an adulterous or an unmarried woman 40 Therefore, a child who is not

born in lawful wedlock and acknowledged by his father has no right to succession under the

Yoruba customary law.

Dr. Obi concluded after he carried out a study in Southern Nigeria that a child born of an

unmarried mother is illegitimate at birth, this statement may however be modified as the child of

an unmarried mother may be regarded as born legitimate in respect of its maternal grandfather. In

the Ibo custom, if an unmarried woman gives birth to a child or is pregnant some social stigma is

usually attached to such pregnancy, which is commonly called ‘ime nkpuke’ and which literally

means ‘pregnancy out of matrimonial home’.

Therefore, according to Nwogugu; the state of illegitimacy exist under customary law but the

traditional love of children and the spontaneous willingness of the grandfather or the putative

40 Coker G.B.A. ‘Family property among the Yorubas’ 2nd ed. Sweet and Maxwell London (1966)page 266

42
father to accept the child removes that status, customary Law, therefore leans heavily in favour of

illegitimate child. The status of illegitimacy used to be the biggest discrimination suffered by a

child born out of lawful wedlock, however, a new turn in the legal position of illegitimate child in

Nigeria began in October 1975 when the constitution drafting committee was appointed to draft a

new constitution for Nigeria by the Federal Military Government, the sub-commission on

citizenship, fundamental rights and electoral system recommended that, the legal sub-committee

should in addition to the fundamental right write into the draft constitution a number of additional

rights including inter alia. ‘The right of every child, whether born in or out of wedlock to equitable

treatment’ as a result of this section 32 (2) of the 1979 Nigerian Constitution now Section 42 (2)

1999 constitution came into being. The big question however is that is the status of illegitimacy no

longer in existence in Nigeria?

English common law placed harsh penalties on an illegitimate child denying the child inheritance

and property right, modern law has given the illegitimate child more right but still differentiates

between legitimate and illegitimate children.

At common law, a child was considered illegitimate if the parents were not married to each other at

the time of the child’s birth even though the parents were married later, there was a common law

presumption that a child born of a married woman was legitimate. This presumption is however

rebuttable, upon proof that her husband either was physically incapable of impregnating her or was

absent at the time of conception. In addition, a child born of a marriage for which an annulment

was granted was considered illegitimate, since an annulled marriage is void retroactively from its

43
beginning. Furthermore, if a man married a second time while still legally married to his first write,

a child born of the bigamous marriage was illegitimate. At common law an illegitimate child was a

fillius nullius (child of no one) and had no parental inheritance rights.

This deprivation was based in part on societal and religious beliefs concerning the sanctity of the

marital relationship, as well as the legal principles that property rights were determined by blood

relationships. The legal rights and duties of a person born of married parents could be ascertained

more accurately than those of a child with an unknown or disputed father. Public policy which is in

favour of maintaining solid family relationships contributed significantly to the preference for a

legitimate child.

The harsh aspects of the common law dealing with an illegitimate child has however been

eliminated.

2.7.0 DIFFERENCES BETWEEN A LEGITIMATE AND ILLEGITIMATE CHILD

Having properly defined a legitimate and an illegitimate child, it will be noteworthy to examine the

differences between the both of them. The status of illegitimacy has been in existence through the

ages, and it has been expressed by the society’s condemnation and resentment of irresponsible

union beyond the bonds of marriage, putting the blame on the head of the child, who is in no way

responsible for his predicament. Punishing the child for the sins of his parents is unjust, illogical

44
and unnecessary, the above are the distinction between a legitimate and illegitimate child. A

legitimate child is one born to parents who are legally married, the emphasis here is birth not

conception, children conceived by a married woman is legitimate, if the parents are married at the

time of the his birth, while an illegitimate child is one born out of a valid marriage.

At common law an illegitimate child was fullius nullius meaning the child of nobody. Another

distinction between a legitimate and an illegitimate child is that a legitimate child having been born

in lawful wedlock is entitled to right of inheritance, succession and maintenance amongst other

related rights from his parents, while an illegitimate child on the other hand cannot lay claim to the

above rights because he is an illegitimate child, and as such not entitled to such rights. Section
41
10(2) “No child shall be subjected to any disability or deprivation merely by reason of the

circumstances of his birth” Three years after the enactment of this Act, it has only been enacted

into law in three states of the federation namely Lagos, Ogun and Edo States out of the 36 states of

the federation in essence it means that it is only the children in the above named states, that will be

free from discrimination by reason of the circumstances of their birth, while the children of other

states will not be entitled to enjoy the benefit of the above named Act.

Thus an illegitimate child will be denied the right to his parent who dies intestate, it is pertinent to

note that paternity should be determined by the court before the death of an intestate parent, this is

reasonable as it helps prevent false and fictitious inheritance claim against the estate of an alleged

41 Federal Republic Of Nigeria Official Gazette, Act no 26, 2003 volume 90 of the new enacted Child’s
Right Act

45
father who is now deceased. An illegitimate child when legitimated either by the subsequent

marriage of his parents, or by acknowledgement of paternity by his father shall enjoy the same

right and shall be under the same obligation in respect of maintenance and support as if he has been

born legitimate.42 If the parent dies intestate, a legitimate child is entitled to property from both

parents. An illegitimate child cannot inherit his father’s property if the father dies intestate

however, that child can inherit the mother’s property if she dies intestate unless she has other

legitimate children.

2.8.0 OTHER INSTANCE OF LEGITIMACY

There are also other instances of a child being regarded as the legitimate child of a man who is not

the natural father. For instance, a widow who remains in her late husband’s family house after the

death of her husband, without re-marrying, without the marriage to her late husband being

dissolved, any child she bears post-humously is regarded as the legitimate child of her late husband

at birth. In Nwaribe v. President Oru district Court and Anor43 the above custom was judicially

approved as not being contrary to natural justice equity and good conscience, in that case, the

husband of Oyibo died and she continued to live in the matrimonial home, in the family house of

the deceased, she became pregnant by the applicant, Nwaribe, while still living there, but before

delivery she left to stay with her people, subsequently, she took action in the customary court for a

42 Section 6 Laws of Lagos State of Nigeria, 1994, Cap 116, the revised edition (Laws of Lagos State of
Nigeria) Edict 1988, Page 9. 2806
43 (1964) 8 ENLR 24

46
formal divorce, The court held that her marriage to the deceased Obiora was not dissolved by death

in 1952 and awarded Oyibo’s child to the brother of the deceased.

2.9.0 CONCLUSION

As we have seen from the above chapter, that a child must be either conceived or born during the

subsistence of a valid marriage which must either be a statutory, customary or Islamic law

marriage as these are the types of marriages recognized as valid in Nigeria in order to be regarded

as legitimate, the absence of which the child will be said to be illegitimate with the attendant social

discrimination that will be melted out on them by members of the larger society. Also a child

conceived or born during the subsistence of a void or voidable marriage are regarded as legitimate

children which was not the position under the common law, but the position has changed ,and a

child of a void or voidable marriage will still be regarded as illegitimate as it will be inequitable to

hold otherwise.

47
 CHAPTER 3

LEGITIMATION

3.0.0 INTRODUCTION

Legitimation 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 acquire the status of a legitimate person. In Nigeria the

process is either by the subsequent marriage of the child parents or the acknowledgement of

48
paternity by the father of such a child, it is a means of protecting an illegitimate child so as to

safeguard his right and benefit in relation to the society

Black Law Dictionary44 defines it as ‘the making legitimate or lawful that which was not originally

so, especially the statutory procedure of legalizing (legitimating) the status of an illegitimate child’.

It is a way of eliminating the social stigma and discrimination attached to a child as a result of the

circumstances surrounding his birth and giving a child a legitimate status, to acquire a legitimate

status by legitimation, the parents of the child must have been married under the marriage act, and

in some customary law by recognition of paternity by the father of the child, and by the

subsequent customary law marriage of such a child parents. The condition to be fulfilled before a

child can be said to have been legitimated are provided for under the legitimacy Act 45 as obtainable

and practicable under the marriage act.

The modes of legitimation that will be discussed are legitimation by subsequent marriage, either

statutory or customary marriage and acknowledgement of the child’s paternity as a means under

customary law.

3.1.0 LEGITIMATION BY SUBSEQUENT STATUTORY LAW MARRIAGE.

The legitimation of an illegitimate child through the subsequent marriage of its parents was first

made possible in Nigeria by the enactment of the Legitimacy Act 1929 46this piece of legislation

44 st. Paul Minn.West Publishing co. 6th edition, (1990) page 901
45 Section 3 Legitimacy Act 1929 cap 519 LFN 1990
46 Ordinance No 27 of 1929

49
though based substantially on the earlier English legitimacy Act 1926, contained some variations

intended to suit local conditions. The 1929 enactment applied then to the whole country, with the

introduction of federalism in Nigeria in 1954, legitimacy became a regional subject on which the

various regional governments could legislate, fortunately the regional government inherited and

preserved the original enactment without alteration, and this accounts for the fact that there is now

uniformity in state laws on legitimacy.

By Section 3(1) of the Legitimacy Act where the parents of an illegitimate person marry or have

married one another, whether before or after the commencement of this Act, the marriage shall, if

the father of the illegitimate person was, or is at the date of the marriage domiciled in Nigeria,

render that person, if living legitimate from the commencement of the Act, or from the date of the

marriage whenever last happens.

The Operation of Section 3(1) is based on the fulfilment of certain prerequisites, first the parents of

the illegitimate person must have subsequently married each other ,the marriage must be a statutory

one in accordance with the marriage Act and not marriage under customary law, second, the father

of the illegitimate person must be domiciled in a state in Nigeria at the time of the marriage,

Section 2(3) of the Matrimonial Causes Act

1970 states that it is only for the purposes of matrimonial causes that there is one Nigerian

domicile.

50
Third it is essential that the person to be legitimated, must be alive at the date of the marriage,

Section 3(1) states that the effect or the marriage is to render that person if living legitimate, the

legal effect of the subsequent marriage of the parents is to make the illegitimate person legitimate

from the commencement of the Act or from the date of the marriage, whenever happens last, thus,

is if the marriage took place before the commencement of the act which was 17 October 1929 the

illegitimate person will become legitimate as from the commencement of the Act.

It is significant to note that, there is no requirement that the parents of the illegitimate person must

not be married to some other persons at the time the child is conceived or born; consequently, the

child of an adulterous union may be legitimated by the subsequent marriage of its parents in

accordance with the legitimacy Act.

Section 9(1) of the Legitimacy Act makes provision for the situation where the father of an

illegitimate person was domiciled in a foreign country, if at the time of the birth of the illegitimate

person, the father was domiciled in a country, the law of which does not permit legitimacy per

subsequent matrimonial, but at the time of his marriage to the mother of the illegitimate child, he

was domiciled in a country, the law of which such legitimation is recognized, the illegitimate

person will be recognized as legitimated in Nigeria, the legitimation will be by virtue of the

subsequent marriage and it takes effect from the commencement of the Act, or the date of the

marriage whichever happens last.

51
However at common law, legitimation per subsequent matrimonial by any foreign law was

recognized, if the father of the child was domiciled in a country recognizing legitimation at the

time of the child’s birth and at the time of marriage as held in

Re Grove.47

Under the English Legitimacy Act 1926, all the father has to establish is a domicile in England at

the time of the marriage, by Section1(2) of the same Act, it is impossible to legitimate children of

adulterous unions, what was material was the date of birth and not time of conception, if the child

was conceived during a marriage but born after the marriage, he can still be legitimated, if the

parents remarry, however, by the legitimacy Act 1959, it is now possible to legitimize children of

adulterous unions.

The Legitimacy Act deals only with Christian marriages, which is monogamous in nature, this will

also include statutory law marriages, if the subsequent marriage after the birth of the child is a

customary law marriage, the Legitimacy Act does not apply.

Section 3 of the Act provides that where the parents of an illegitimate person marry or have

married one another whether before or after the commencement of this Act, the person shall, if

living be legitimated from the commencement of this Act or from the date of the marriage which

ever last happens.

47 (188) 140 Ch. B.261

52
Many point call for discussion in the above section: a unlike the common law requirement it is only

necessary to prove that the father was or is at the time of the marriage domiciled in any region in

Nigeria or the federal capital territory, if the marriage occurs after the commencement of the Act

which is, October 17, 1929, the child is deemed to be legitimated from the actual date of marriage,

however, if marriage occurred before the Act, the effective date of legitimation is October 17, 1929

which was the date the Act was passed.

Must the father of the illegitimate child be alive before legitimation can be established? A had a

son in 1925 by whom he was not married, they got married in 1927, and A died in

1928 before the legitimacy Act 1929 was passed, is the son legitimated as a result of the

1929 Act? There is no Nigerian authority on this, though doubt was raised in the Australian case of

Public Trustee v. Wilson48, on the legitimacy of such a child. It however appears that

legitimacy must be established during the lifetime of the child since Section 3 makes this a

condition precedent.

3.2.0 LEGITIMATION BY SUBSEQUENT CUSTOMARY LAW MARRIAGE There is a

paucity, if not absence of authority on the principle of legitimation by subsequent customary law

marriage, a probable reason for this state of affair is the fact that some systems of customary law

provide for legitimation by acknowledgement, it was therefore considered simpler to acknowledge

an illegitimate child than to resort to legitimation by subsequent customary law marriage, the

48 (1948) 65 W N.N. S.W. 224.

53
question of non-statutory legitimation including by subsequent customary law marriage was

considered by Brett F J in cole V. Akinleye49, in that case the deceased married a wife under the

marriage Act, during the subsistence of the marriage, the deceased formed an irregular association

with the mother of the two appellants ,one of the appellant was born during the deceased wife’s

lifetime and the other, six weeks after her death. In considering the legitimacy of the first appellant,

born during the continuance of the marriage, Brett, FJ, stated that; he would regard it country to

public policy for the deceased during his lifetime to confer the status of a legitimate child on the

first appellant by any other method, other than that provided by the Legitimacy Act.

It is not easy to appreciate the basis on which Brett F.J rejected legitimation other than by the

statute, in the Nigerian situation it is not rational, to reject other methods of legitimation as being

contrary to public policy merely, because of the existence of a statutory law marriage, at the time

the child was born, it has been pointed out that under the Legitimacy Act, an adulterous child may

be legitimated by the subsequent marriage

of its parents, public policy will not be more outraged if the child born during the subsistence of the

statutory marriage is legitimated by acknowledgement or the subsequent marriage of the parents

under customary law.

Attention should be drawn to the salient fact that the learned judge’s remarks were directed at

legitimation otherwise than under the legitimacy Act of an illegitimate child born during the

49 (1960) 5 FSC.84

54
subsistence of a statutory marriage, no reference was made therein to the instance where the child

is born during the subsistence of a customary law union, it is submitted that there are no

convincing reason why legitimation by a subsequent customary law marriage should not have full

legal effect.

The basic question in the case considered above should be proof that the relevant customary law

provides for legitimation by subsequent customary law marriage, once this is satisfactorily

established, the customary law rule as to legitimation should not be set aside on the ground of

public policy.

It has been indicated earlier that the provision of the Legitimacy Act will not apply if the

subsequent marriage is one under customary or Islamic Law, the effect of a customary or Islamic

law marriage has to be decided in accordance with customary and Islamic law respectively. Is

legitimation per subsequent matrimonial known under customary law? If it is known can there be

legitimation of a child born of an adulterous union?

This is an area in which there is little or no authority on what the position of customary law is, the

absence of any authority is not surprising, since in Nigeria, one does not have to get married in

order to have a legitimate child if a person can make his illegitimate child legitimate by

acknowledgement, why should he then bother himself about marrying the mother of his child, to

make such a child legitimate? However, since there are limits to the rights to acknowledge, it might

still be necessary to show that under customary law legitimation by a subsequent customary

55
 50
marriage is recognized, such occasion arose in Cole V. Akinyele when he married under the

marriage Act, and during the subsistence of the marriage, he had a child M1 by C, he had another

child M2 by C, which unlike M1, was conceived during his marriage with W, but was born after

the death of W, the federal Supreme court held that M1, could not be acknowledged. Brett F.J

went further to consider the possibility of making the legitimation by the subsequent marriage of it

with C after the death of W, while recognizing the fact that this would be possible if the subsequent

marriage was a statutory one, the learned judge doubted whether this would be possible if the

subsequent marriage was a customary marriage.

There was no evidence before the court, of customary law recognizing the principle of legitimation

per subsequent matrimonial Brett F.J was however of the opinion that even if it was proved that

customary law recognized such a principle it would be country to public policy for it to be able to

legitimatize a child born during the continuation of his marriage under the Act by any other method

than that provided for in the legitimacy Act.

The public policy behind such exclusion is very different to see, could the public policy be that

since such a child was born in adultery could not be legitimated by a subsequent customary law

marriage? We have already seen that if the subsequent marriage had been a statutory marriage, the

fact of the child being born in adultery is immaterial. Jibowu J, on a retrial rejected the claim to

succeed to the deceased property of those children whose mothers were not married to the deceased

50 (1960) 5 F.S.C. 84

56
but were only acknowledged, one of his reasons for refusing acknowledgement was that it would

allow the deceased to make such children legitimate when he could not have made them legitimate.

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. Akinyele51 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. Alabi52 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.

51 (1960), 5 F.S.C. 84
52 (1964) 2 All N.L.R. 43

57
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
53
Yoruba customary law 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 Ejo54.

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

53 Nwogugu E.I family law in Nigeria, Revised edition. Heinemann publication revised edition page306
54 (1961) 2 ALL N.L.R 43

58
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.55

Another important point is what constitutes an act of acknowledgement?

In Philip V.Philp56 , 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. Balogun57 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.

55 (1992) 23 NSCC (pt 111) 389 at 400

56 (1946) 18 NLR 102
57 (1994) LLR 99 at 101

59
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

60
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

64
(1946) 18 NLR 102
65
1964 LLR 99 at 101
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.

61
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

66
1953 WACA Cyclostyled Judgments (April-May 1953)19
67
1963 1 ALL NLR 237
acknowledgement is reserved in particular to fathers who are subject to customary law only.

In Savage vs. Macfoy58, 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

58 (1909)Ren 505

62
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

63
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, 59 we shall now proceed to deal with the various

problems relating to acknowledgement.

Acknowledgment 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

59 High court of Lagos Act Section 27

64
natural father that he is responsible for the birth of the child, as was held in Young v. Young60 or by

the natural father paying the hospital bills on the birth of the child, as seen in salvage v.macfoy71 .

Acknowledgement is another means of legitimating an illegitimate child majorly obtainable under

customary law, as seen in Alake v.pratt, 61it consists of any act of the natural father of an

illegitimate child by which he recognizes the paternity of the child, 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 62 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’.

71
60 (1953) W.A.C.A cyclostyled judgement(April-May) 19 (1909)
Ren .505.

61 (1955) 15 WACA 20
62 (1961) ALL NLR 245

65
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. 63

In Re sarah Adadevoh64, 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’.

63 Section 27 high court of Lagos Act

64 (1951)13 WACA 304 76 (1955)15

WACA 20

66
In Alake V. pratt76 , the court disapproved of this position of legitimacy status accepted in

Amachrie V. goodhead65 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

66
distinguished 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
79
another 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 67 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.

65 (1923) 4 NLR 101

79
66 (1951)13WACA 304 (1976),
NMLR 160
67 (1957) 11 E.R.N.LR 1

67
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.

68
 CHAPTER FOUR

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.

69
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. 68A legitimated person means ‘a person legitimated

by this law’ and Section 8 Legitimacy Law of 1994 69 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

68 Cap 116, the revised edition Laws of Lagos State of Nigeria edict, 1988 pg.9 2006.
69 Section 8, Legitimacy Law 1994.

70
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.

71
The new enacted Child Right Act70 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

70 Federal republic of Nigeria official Gazette, Act no 26, 2003, volume 90

72
 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)

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.

Subsection (2) ;

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.

Subsection (11);

Every child is entitled to respect for the dignity of his person, and according no
child shall be:
A, subjected to physical, mental or emotional injury, abuse, neglect or
maltreatment including sexual abuse;
B, subjected to torture, in- human or degrading treatment or punishment.
C, subjected to attacks upon his honour or reputation.

Section14 (2);

73
 Every child has a right to maintenance by his parents or guardians, in
accordance with the extent of their means and the child has the right in a
appropriate circumstance to enforce this right in the family court.

Section 15(1);
Every child has the right to free, compulsory and universal basic education, and
it shall be the duty of the government of Nigeria to provide such education.

Subsection (2);

Every parent or guardian shall ensure that his child or ward attends and
completes his:
a. Primary School Education; and
b. Junior Secondary Education.

Section 16(1);

Every child who is in need for special protective measures has the right to such
measure of protection, as it is appropriate to his physical, social, economic,
emotional and mental needs and under conditions which ensure his dignity and,
promotes self reliance and active participation in the affairs of the community.

Section 17(2);

Where the father of an unborn child dies intestate before the child is delivered,
the unborn child is entitled, if he survives his mother, to be considered in the
distribution of the estate of the deceased mother.

It should be noted that the essence of the provisions in these Act which includes Legitimacy Law

1994, Child’s Right Act 2003, convention on the rights of the child and the O.A.U. Charter on the

rights and welfare of the child, is to protect the rights of a child whether legitimate or illegitimate.

4.3.0 DUTIES OF A PARENT TO A LEGITIMATED CHILD

1. Maintenance of children

74
At common law, a father is under a duty to maintain his legitimate children, but this duty cannot be

enforced as a child unlike a wife cannot pledge the credit of the father for necessaries, as held in

mortmore v.wright71

Consequently, the father is not under a legal obligation to pay third parties for necessaries supplied

to his infant child, however, a father may be obliged to reimburse the tradesman, where the

constituted the child as his agent, or otherwise authorized him to procure necessaries.

While a child cannot ordinarily pledge the father’s credit, the right of the mother to do so in

appropriate cases covers a child who is living with her, in the exercise of her right to pledge the

husband’s credit, the wife is entitled to purchase necessaries for herself and her children,

depending on the husband’s status in life, as was held in

72
Bazeley v.forder Thus, a child can only benefit if the mother is entitled to pledge her husband’s

credit, if therefore, she does possess that right, the infant has no other remedy.

Under statutory law, the unsatisfactory position of the common law has been altered by statutes

which provide the means for enforcing parental duty.

In Nigeria except Lagos, Oyo, Ogun, Ondo, and Bendel states, the pre- 1900 English statutes on

custody also provide for the maintenance of children, by section 5 of the guardianship of infants

71 (1840) 6 M&W 482

72 (1868) LR 3 QB 559

75
Act 1886, the court may by order grant the custody of a child to the father or mother. In that case, it

may also make an order in respect of the maintenance of the child.

Again, if a parent claims the custody of his child by habeas corpus and the child is being brought

up by another person at his own expense, the court may, if it grants custody to the parent, order that

he pays the whole costs incurred in bringing up the child 73. The parent is thereby compelled in this

way to perform the obligation which for some time he had relinquished to a third party In Lagos,

Ogun, Oyo, Ondo and Bendel states, the infant law of 1958 contain an elaborate form of the

provision of the pre 1900 English statues, by Section 12 of the Law, when the court grants the

custody of a child to the mother, it may also order the father to pay towards the maintenance of the

child, such weekly or periodic sum as it consider reasonable, no such order for maintenance is

enforceable while the mother resides with the father.

Moreover, the order will expire if for a period of three month after it was made, the mother of the

child continued to reside with the father, the court also has a discretion to order a person to repay

the cost of the upbringing of his child by a third party, in both cases the payment ordered may be

enforced by an order for the attachment of the parent’s income.

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

73 Custody of Children Act 1891 section 2 and 3

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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,

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 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

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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 Donald74 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

74 (1904) st R Qd 151

79
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.

4. Education

The policy of government of all states in the federation of Nigeria is to provide free primary

education to all children of school age, however there is no requirement of compulsory attendance

as is the case in other parts of the world, in some states, the appropriate legislation merely require

parents to ensure the education of the children of primary school age without providing a sanction,

for instance section 32 of Lagos State Education law states that It shall be the duty of the parents of

every child of primary school age to cause him to receive efficient full time education suitable to

his age and aptitude either by regular attendance at school or otherwise.

The same law also recognizes the importance of the wishes of parents in a state educational system

by prescribing that;

The state commissioner and local education authorities shall have regard to the general principle

that every pupil shall be educated in accordance with the wishes of his parent, and in accordance

with his age and aptitude. Other states, however, have recently made school registration and

attendance compulsory at the primary level. For instance Section

23(1) of the Bornu State Education. Edict, 1985 provides that;

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 The parent or guardian of a child who has attained the age of six years shall do
all in his power to ensure that the child is enrolled, that the child attends at such
school in accordance with the directions of the headmaster or head teacher,
thereof until such child has completed the primary school course.
Any parent or guardian who contravenes the above provision commits an
offence and shall be liable on conviction for the first offence to a fine not
exceeding fifty naira, or to imprisonment not exceeding three months, for each
subsequent offence the parent or guardian shall be liable to a fine not exceeding
one hundred naira or to imprisonment for not more than six months, or to both.

The Niger state compulsory registration of children into primary school edict 1985, required a

village head to cause every parent or guardian in his area of authority to register every child of

school age ,as a pupil in any primary school in the state, the failure of a parent or guardian to

comply with his obligation constitutes an offence punishable with a fine, although the legislation in

Niger state dealt expressly with the compulsory registration of children at school, it seems

reasonable to imply that the obligation created therein includes the compulsory attendance of

registered children at school. The purpose of making registration mandatory must be to ensure the

attendance of children at state schools, otherwise the object of the registration will be merely for

the census of school children which does not reflect the intention of the authors of the legislation,

in this light, the law in Niger state would have the same import as its counterpart in Borno state.

The Edict confers summary jurisdiction on every magistrate court or area court judge of any grade

in the state for the summary trial of an offender under the enactment At common law the parent of

a child is not responsible for its criminal acts unless he acted also as a principal or accessory, but

the children and young person’s act has imposed such responsibility on a parent where the child’s

act is due to the failure of the parent to make adequate arrangement for its proper upbringing. If a

81
juvenile court imposes a fine, damages or cost in respect of an offence committed by a young

person under the age of seventeen years, it may, and in the case of a child under fourteen years of

age, it must, order that these should be paid by the parent or guardian of the child or young person.

Moreover where the child or young person is charged with any offence, the court may order its

parents or guardian to give security for his god behaviour.

A parent is not liable for the contractual obligations of his child, but the parent may become liable

if he constitutes the child his agent or subsequently ratifies the agreement

As with contracts, a parent is not liable for the tortuous acts of his child, the of a parent may

however arise, where there is a master and servant relationship, in that case, the parent will be

vicariously liable for the tort of his child committed in the cause of his employment.

Another instance of parental liability occurs where the parent is negligent in exerting proper care

and control over his child, if that results in a tortuous act by the child against a third party, the

parent will be liable, the application of this principle can be seen in two of the decided cases in

Bebee V Sailes75 the defendants gave his son aged fifteen years an air- gun as a present, the son

while shooting at a mill, broke a window in the building, as a result of a complaint received from

the mill owner the defendant promised to smash the air – gun but did not do so, later the

defendant’s son, while playing with another boy, shot him in the eye, in an action for negligence

75 (1916) 32 TLR

82
against the defendant, it was held that he was negligent in allowing the boy to use the gun after

receiving complaint from the mill – owner.

76
On the hand in Donaldson V Mc niven the defendant who lived in a populous district of a city,

allowed his son aged thirteen years to have an air rifle, on the condition that it is never to be used

outside his house, the son was allowed to use the rifle in the cellar, without the defendant’s know,

the son fired the air rifle in an alley- way used as a play ground by other children, and injured the

plaintiff a child of five, it was held that there was not such lack of supervision by the defendant of

his son’s activities as, would constitute negligence he was not therefore liable in damages or his

son’s act.

4.4.0 DUTIES OF A LEGITIMIZED CHILD TO HIS PARENT

• DUTY TO RENDER SERVICE

Once legitimated, the parents of such a child become entitled to his services while he resides with

them, the services are usually of a domestic nature, but they may be contractual. Where the child is

under twenty one years of age, he is presumed to render services, no matter how nominal to his

parents, but when the child has attained the age of majority, the parents must prove that the child in

fact renders some domestic services to them. In lough v ward77the plaintiff’s daughter, aged about

seventeen years without the consent of her father, entered a communal establishment organised by
76 (1952) 2 All ER 691
77 (1945) 2 All ER 338.

83
the defendants. Although she was free to live anywhere she liked, she had no desire to do so, she

could be seen by members of her family, only in the presence of one of the defendants. The

plaintiff, the father sued for the loss of her services arising from her enticement by the defendant. It

was held that her father was entitled to damages.

• DUTY TO OBEY

A child is duty bound to obey his parents, and carry out their instructions to the letter, provided it

is lawful, when the child is under the care of such parent, a child is expected to listen to the

teaching of his parents so far as it is not misleading.

 DUTY TO LOVE

A legitimated child also is also expected to love his parents just as the parent is also expected to

love his legitimated child.

• DUTY TO CARE

Also, a legitimated child is under the duty to care for his parents, especially when they are old and

weak, as a way of reciprocating their earlier show of love and care.

• DUTY TO SUPPORT

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A child when legitimated should help and support his parent in their business and in whatever way

legally possible, this may be by running errands for them and assisting them in their work.

 DUTY TO RESPECT

This is inevitable as the next person after God should be the parents, this respect is shown by

referencing them and by consulting them before taking any decision, when we are under their care.

4.5.0 CONSTITUTIONAL APPROACH TO THE RIGHTS OF A LEGITIMATE

AND LEGITIMATED CHILD

By virtue of Section 42(1) 1999 Constitution of the Federal Republic of Nigeria;

No citizen of Nigeria of any particular community, ethnic group, place or origin,

sex, religion or political opinions shall by reason only that’s he is such person.
a, ‘be subjected either expressly, by or in the practical application of, any law in
force in Nigeria or any executive or administration action of the government to
disabilities or restrictions to which citizens of Nigeria of other communities,
ethnic groups, places of origin, sex, religion or political opinion are not made
subject, or.
b. “be accorded either expressing by, or in the practical application of any law in
force in Nigeria, or any such executive or administration action, any privilege or

85
 advantage that is not accorded to citizens of Nigeria or other communities,
ethnic groups, places of origin, sex, religion, political opinion.

Subsection (2);
No citizen of Nigeria shall be subject to any disability, or deprivation merely by
reason of the circumstance of his birth.

4.6.0 CONCLUSION

As seen from the above chapter, the legal effect of legitimation, is to place the otherwise

illegitimate child in the position of a legitimate child, where by such a child becomes entitled to the

rights of a legitimate child which are the right to maintenance, protection, succession among other

rights and also becomes subject to the duties of a legitimate child to the parent, which include the

duty to render services, obey the lawful instructions of the parent and to care for his parents

especially at old age, when their bones would have become weak, the parent of the legitimized

child are also entitled to some right by their legitimated child which includes the right to determine

religious upbringing, to discipline the child among other related rights, the parent are equally

86
subject to certain duties which includes the duty to educate ,protect and have the custody of the

child, in essence, an illegitimate child when legitimated is placed in the same legal position as a

legitimate child. This is coming from the background of the fact that an illegitimate child should

not be made to bear the consequences of the sins he did not commit, as the fact of his illegitimate

birth is not a fault of the child, but the fault of the parents, as can be seen from the provisions of the

Constitution of the Federal Republic of Nigeria 1999 and the Child’s Right Act, which is to the

effect that there no illegitimate children, as all children are seen and conferred with the same status.

CHAPTER 5

GENERAL CONCLUSION

5.1.0: CONCLUSION

The 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 wedlock, that is ,during the subsistence of a

valid marriage, the opposite being illegitimate, with the attendant social discrimination melted out

87
on them, for which succour has been made, by providing for ways and means of legitimating an

illegitimate child which includes the subsequent marriage of his parents which can either be

statutory or customary, and under some system of customary law, by the acknowledgement of

paternity by the natural father, which ultimately accords the child a legitimate status, by virtue of

which the child becomes entitled to the benefits he was otherwise deprived of, and also liable to

perform his duties as a child.

The effect of legitimation has also been fully discussed, which sole aim is to the effect that the

legitimated child, be made to enjoy the rights which legitimate children are entitled to as of right,

such rights are contained in the various Acts which has been enacted to safeguard and protect the

interest of children world over, example includes the child right Act, amongst other right, and to

make them subject to the duties of a legitimated child so as not to make them pay for the sins the

sins they know nothing about as there are no illegitimate children but illegitimate parents.

5.2.0: RECOMENDATIONS

This is pertinent, as it will help in the area of reform on the law relating to legitimacy, in other to

relief the burden placed on illegitimate children who are in no way responsible for their situation,

the laws which needs to be reviewed are the legitimacy Act, the 1999 constitution, and some

customary law and practise

The recommendation includes

88
• The legitimacy act, which is the sole means of legitimation now is unobtainable as a result of

the conditions that must be met before this is done, the conditions include the fact that the

parents must be subsequently married, the father must be domiciled in Nigeria, the child must

be alive as at the date of legitimation. In a case where one of the parents is married to another

person under statutory law, will they now have to be divorced in other to legitimate their

illegitimate child, against the background of the fact that it is unhealthy for the society and the

marriage institution itself. The provisions of the act needs to be broaden to encompass other

means of legitimation which includes, making provisions for such a child in a will, formal

acknowledgement, filling the birth certificate in the father’s name, agreement to maintain the

child.

• The provision that the date of legitimation should start counting from the date of legitimation is

unfair, the act should be amended to make it start counting from the date of birth, so that in the

distribution of estate, the actual ages of the children, including the legitimated child should be

the criteria to be used in the distribution of the estate of the parents

• The constitution should be amended to include a new section which will expressly provide that

no child should be discriminated upon by the virtue of the fact that he was born illegitimate.

The new section should make provision for a specific penalty, when its provisions are violated.

• Under some system of customary law, where acknowledge of paternity by the natural father is

provided for, which says that only the natural father of the child has the right to claim paternity

of the child, and that no one else can do it on his behalf while he is still alive, provisions should

89
 be made, which will allow some relatives acknowledge the paternity such a child in the case

where the man dies before acknowledging the paternity of his child, this of course is aimed at

protecting the rights and interest of the child, so that he is not made to pay for the sins of his

parents.

• Awareness programmes mainly for teenagers and the youth should be organised to inform them

about the dangers and consequences of pre-marital sex,and extra-marital sex, which of course

are the major contributing factor to the problem at hand, in other to rid our society of

illegitimate children.

• Parents and guardians should not only show their children enough love and Care, they should

also bring up their children in the way of the lord, by inculcating in them good morals and

teachings to help them withstand the pressure of pre-marital Sex

• Religious organizations are not also left behind, as their job is to teach their followers the need

to have the fear of God, and to keep his commandment, and to abstain from pre-marital sex

which is a sin against themselves.

• Also, the role of religious leaders cannot be over emphasized, as they can help ensure that the

acknowledgement of paternity becomes a nationwide principle by modifying their beliefs,

customs and usuages, by adopting the Yoruba customary law principle of acknowledgement,

which has gone a long way in addressing the problem of

90
 illegitimacy.

• Legitimation laws should be amended to make provisions under Islamic and statutory law, by

making provision in the form of declaration or proclamation in the registry by the natural father

of the child as practised in developed countries.

• The use of contraceptives should be encouraged among teenagers and youth, as we know that

sexual pervasiveness is very high in this country, and no amount of admonishing will prevent

some of them from doing what they want to do, in order not to further compound the problem,

the use of contraceptives is advised in order to prevent unwanted pregnancies, which result are

illegitimate children.

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 BIBLIOGRAPHY

ARTICLES IN JOURNALS
 Alhaji Aliu Alarape Salmon (SAN) Legitimacy and Illegitimacy; Nigerian experience,third
edition; The jurist journal of the law student society Unilorin 1996/1997

 Professor Sagay legitimacy and the right of inheritance in Nigerian Comtempoary Law,
Published in the journal of the private and property law department, Unilag

April 1992/1993

 Davis K illegitimacy and social structure American Journal of sociology 1939,45

 Reports of the constitution drafting commission volume 1 pxv 111,vol 11p-

175,federal ministry of information, printing division Lagos 1976

 Federal republic of Nigeria, official gazette act no 26, 2003, volume 90 of the new enacted
child’s right act.

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 Nwogugu E I ‘Family Law in Nigeria’ Heinemann education books, Nigeria limited plc,
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 Cretney S.M ‘Principle of family law’ fourth edition, Sweet and Maxwell

 Coker G B A ‘Family property among the Yorubas’ Secound edition, sweet and
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 Obi SNC ‘Modern family law in southern Nigeria’ Univercity press, Lagos 1966

 Abd’al ati ‘Family structure in Islam’ Islamic publication Bereau Lagos 1982

 Curzon L B ‘Brief case on family law’ London 1997 Cavendish Publication

Limited

 Kasumu A B ‘Nigerian family law’ Butterworth London 1996

 Ambali M A ‘The Practise of Muslim family law in Nigeria’ 1998 Hamaza publishing
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 Bromley ‘Family law’ sixth edition, London Butterworth publication 1981

 Osborne concise law dictionary eight edition Sweet and Maxwell (1993)

 Black law Dictionary, sixth edition st Paul minn.West publishing company(1990)

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94