Illegitimacy Abolished in Nigeria
According to the law, there are two types of juristicpersons- the natural and the artificial person. The natural person in the eyes of the law may be born legitimate or illegitimate. The significance in the difference is profoundly fundamental due to the consequences of the status of the child in regards to it’s right of maintenance and succession.
According to the Black’s Law Dictionary, ILLEGITIMACY is defined as ‘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 birth’.
Apart from the social stigma which an illegitimate child bears his lifetime as a bastard, his rights to succession and inheritance to property of his father upon the death of his father is determined as to whether he is a legitimate child. M.C. Onokah in her book ‘Family Law’, states:
“…The necessity to examine the laws relating to illegitimacy arises from the fact that the rights if illegitimate children are controversial as even their presumed rights may conflict with the succession rights of the legitimate child.” A.B. Kasunu stressed this fundamentally when he observed in his work titled ‘Adultery, Acknowledgement and the illegitimate Child in Nigeria 1973’ that- “most of the cases on illegitimacy deals with the rights of the illegitimate child to succeed property and that is in this area that the consequences of illegitimacy are bring greatly felt”.
A child born in a void or voidable statutory marriage is illegitimate but where the parents had also been married under native law and custom, then the native law marriage will operate to legitimize the child.
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A person becomes a natural legal person by birth. Such birth maybe illegitimate if his parents are not lawfully married at the date of his birth.
From time immemorial, an illegitimate child suffers a lot of incapacitation and social stigma. For instance, among the Yorubas, he is referred to as ‘Omoale’ this is a constant reminder that he is born out of wedlock, which also suggests that his mother must have loved a loose and immoral life. Under common law, the illegitimate child is seen as Filius Nullius which is the Latin word for bastard, he has no inheritance. He is a nobody and recognized as being irrelevant not only to his father also to his mother and all other relatives and therefore has no right to succeed to their property or to receive maintenance to the status of parents and child.
The reason for treating the illegitimate child so unfavorable ostentatively was to punish immoral sexual behavior, considered as being against public policy. It was believed also to secure the sanctity of marriage, sexual intercourse is forbidden for the unmarried. The above positions raised questions as to why the child who is innocent of the parents acts suffer punishment and disgrace? This led to the provision of section 39(2) of the constitution of the federal republic of Nigeria, 1979 which is now reproduced at section 42(2) of the constitution of the Federal Republic of Nigeria 1999(as amended) to the effect that:
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
By this very provision, all the disadvantages of the child with illegitimacy has been eliminated. Under our law, an illegitimate child can now enjoy the same rights to maintenance and succession as the legitimate child without discrimination. In Jinglo v Anamali (1959) WRNLR 195 it was held Re Adelabu v Aremu that the children (four and seven in number left respectively by the deceased, Adeleke Are my and Alhaji Adegoke Adelabu) whether legitimate or not were entitled by the law of the land to inherit the estate of their father and were dependent of the latter.
About Author
Emunotor Efetobore is a law student from Delta State University. She is an aspiring writer, poet, and songwriter.
