Legitimacy, Illegitimacy and Legitimation: An Obstruction or Promotion of S.42 (2) of the 1999 Constitution?

Introduction

According to the Supreme Court case of Lalli v Lalli, an illegitimate child is termed “a bastard child”, “a child born out of wedlock” or “a non-marital child. Black Law’s dictionary defined a bastard as a child who was born out of wedlock and is otherwise known as an illegitimate child who is a child born to a married woman whose husband is not the father of the child or a child who was not conceived in lawful wedlock nor later legitimated.

A bastard is indeed referred to as “nullius filius” which means a child of nobody according to the court in Galloway v Galloway.

The Effects of Legitimacy and Illegitimacy Under Common Law and Customary Law

Under common law, an illegitimate child cannot inherit the property of his father and as such he had no rights concerning his parents. This is the common law principle demonstrated in the case of Cole v Cole where the court held that the widow and her son were entitled to inherit the estate to the exclusion of the step-brother and that by contracting a Christian marriage; Cole had removed the distribution of his estate from customary law to English system. Under customary law, a bastard child is disentitled from succeeding his father’s property unless there is an acknowledgement of paternity by his father.

Legitimacy on the other hand according to the principle of common law means when a child is born into lawful wedlock. A child born into lawful wedlock is presumed legitimate until the contrary is proved according to the court in Egwunwoke v Egwunwoke. According to Professor Itse Sagay, lawful wedlock in Nigeria refers not only to statutory marriage but to customary and Islamic marriage.

Comparing the two opposite terms, it is indeed preposterous that a child who is not born in lawful wedlock nor has his/her paternity been acknowledged by the father has no right or unequal rights of succession with the legitimate child under our laws.

This is derogatory, far from being satisfactory and is repugnant to natural justice, equity and good conscience for our law tends to punish and deprive children who are regarded as illegitimate of their legal rights and even if pitied, would be handed an unequal share of their parent’s property and it is outrightly unacceptable.

It is due to this unfair rule that the concept of legitimation arose and although the concept appears to lessen the discriminatory instincts of the restriction on illegitimate children to inherit their parent’s estate, it does not extinguish the injustice of the common law rule.

Legitimation and Section 42(2) Of The 1999 Constitution

Nwogwugwu posits that legitimation is the process by which a child who was not born legitimate acquires legitimacy through status. In Nigeria, legitimacy can be acquired under statutory law through the subsequent marriage of his/her parents under Section (3) of the 1929 legitimacy Act.

The legal effect of the subsequent marriage of the parents is to make the illegitimate person legitimate from the commencement of the act.  Under customary law, a child may be legitimated by acknowledgement.

According to the courts in Alake v Pratt, acknowledgement consists of any act of the natural father of an illegitimate child by which he recognizes paternity of the child this was demonstrated in numerous cases like Philip v Philip and Akerele v Balogun and the legal effect of this is to treat the illegitimate child as though he has been born legitimate, therefore entitling him to equal rights as a legitimate child.

This concept is indeed questionable because the general essence of it can be likened to softly patting the back of an illegitimate child as there is still an existence of his illegitimacy and the aim is to change only the status of the child to legitimate after being regarded as illegitimate.

However, the undying focus is why a child who was born out of wedlock is illegitimate or a bastard in the first instance and why the circumstances in which the child was born deprives him of his legal rights as a child. Before the enactment of the 1979 Constitution, any child born of a void marriage was illegitimate and any child born of a voidable marriage was legitimate until such a marriage was voided at the instance of both parties. The fact that there is still an existence of illegitimacy still negates the concept of equality.

The terms “illegitimacy”, “bastard child” and “nullius filius” is a gross ridicule of Section 42(2) of 1999 constitution which provides that “No citizen of Nigeria should be subjected to any disability or deprivation by the circumstances of his birth.” This means that of that there is no legal distinction between children born out of wedlock and children born in lawful wedlock because this section strictly prohibits discrimination against a child simply because he/she was born out of wedlock. This position was endorsed in the case of Salubi v Nwariaka where it was held that the children of the deceased who were born out of wedlock are entitled to equal shares to the property of the deceased.

On the question of whether a child born out of wedlock can apply for letters of administration Section 26(1) of the Administration of Estate Law of Lagos state provides that “in granting administration the court shall have regard to the rights of all persons interested in the estate of the deceased persons or the proceeds of sale thereof and any such administration may be limited in any way the court thinks fit”

This means that all beneficiaries and everyone interested in the estate can apply for letters of administration and the phrase “all persons interested” includes children born out of wedlock.

Conclusion

The writer affirms that Section 42 (2) of the constitution and Section 26 (1) of the Administrative Laws of Lagos state is the pathway to the total extinguishing of the concept of illegitimacy.

The superior courts are encouraged to embrace this section and keep using it as a backbone for cases which relate to issues of illegitimacy and discrimination.  More importantly, the customary courts of Nigeria especially should embrace this section of the constitution in their judgement or at the very least or emulate the equitable rules of our statutory laws which were introduced by the Legitimacy Act which makes a child who was born out of wedlock legitimate. This is irrespective of whether or not there is subsequent marriage by his/her parents.

Animashaun Olamide Ololade is a Final Year student of the Faculty of Law, University of Lagos. She has a keen interest in Dispute Resolution and is an Associate Member of the Institute of Chartered Mediators and Conciliators of Nigeria. She is the current Director of Research of the Maritime Forum Unilag and she has also attained a certification from Harvard University’s Copyright X program.