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              LEGITIMATION OF CHILDREN BORN

                     OUT OF WEDLOCK IN NIGERIA.

PREPARED BY 

LAMID TAOFIK AJISOLA

MATRIC NO.  139061066

ABSTRACT.

CHAPTER 1

1.0.    GENERAL INTRODUCTION.

1.1        BACKGROUND TO THE STUDY.

1.2        IDENTIFICATION OF A PROBLEM.

1.3        STATEMENT OF THE PROBLEM.

1.4        AIMS AND OBJECTIVE OF THE PROJECT.

1.5        SCOPE OF RESEARCH.

1.6.       RESEARCH QUESTIONS.

1.7.       RESEARCH METHODOLOGY.

CHAPTER 2

2.0       LITERATURE REVIEW.

2.1     DEFINITION OF TERMS.

2.2.       LEGITIMACY, ILLEGITIMACY, LEGITIMATION.

2.3.      LEGITIMATION.

2.4.      STATUTORY SPOUSE.

2.5.      INTESTATE SUCCESSION.

2.6.      ACKNOWLEDGMENT.

2.7.      WHO IS ILLEGITIMATE AND LEGITIMATE?

2.8.      PRESUMPTION OF LEGITIMACY.

CHAPTER 3

3.1 LEGITIMATION OF CHILDREN BORN OUT OF WEDLOCK IN NIGERIA.

3.2.     OVERVIEW OF LEGITIMATION LAW OF LAGOS STATE.

3.3.       REVIEW OF LITERATURE AND CASE LAW ON LEGITIMATION OF AN ILLEGITIMATE           CHILD OF A STATUTORY SPOUSE.

3.4.       SUMMARY OF DISCUSSIONS.

CHAPTER 4

4.1 REFORMS OF NIGERIA LAWS ON LEGITIMATION OF                             ILLEGITIMATE CHILDREN OF A STATUTORY SPOUSE.

4.2       IMPACT OF 1999 CONSTITUTION OF FEDEREAL REPUBLIC OF NIGERIA.

4.3.       CASE FOR REFORM.

4.4.       REFORM IN OTHER JURISDICTIONS.

CHAPTER 5

5.0     CONCLUSION AND RECOMMENDATIONS.

                                       DEDICATION

This project is dedicated to Chika Ozurumba, my junior colleague for her role in my Master of Law programme for her encouragement and did assist in obtaining the necessary form and materials to qualify for this programme. The irony of life is that she was not admitted for the programme till today.

                                               ACKNOWLEDGMENT

My gratitude goes to the Almighty God my help and guidance in ages for sparing my life till this stage of my education  and to my wife Mrs. Abiola Lamid and my children for their understanding and wonderful support. I am very grateful to my supervisor, Dr Oluwakemi Adekile, for her guidance, directives and prompt review of this project despite her busy schedule. My credit goes to my discipline and uncompromising supervisor. Finally, to the entire staff of University of Lagos Law Library for their assistance in getting the materials for this project.

                                                     BIBLOGRAPHY

Lamid Taofik Ajisola (Fondly called Shola Lamid) graduated and was awarded LL.B Hons. at University of Lagos Akoka in 1992. Attended Nigeria Law School 1993 and called to bar same year. He worked in Kola Awodein & Co from 1994 to 1998 before establishing his law firm in 1998 under the name and style of Shola Lamid & Co. The law firm has provided legal services to numerous local and international clients and it is presently prosecuting cases in the High Courts, Court of Appeal and Supreme Court. He is married with three children.    

         ABSTRACT

Illegitimacy, legitimation and succession rights of illegitimate children of intestate spouse of a statutory marriage born out of wedlock are burning issues in Family Laws. Under customary law in Nigeria the children of such illegal relationship may be legitimated by acknowledgment but opinions of writers, authors and judicial decisions on the legitimation by acknowledgment of illegitimate child of a statutory spouse and consequent succession rights are divided. This project is examining the legitimation and succession rights of out of wedlock children of an intestate statutory spouse, the capacity of statutory spouse to legitimate by acknowledgment of paternity. The aim and objective is to show the inadequacy of Legitimacy Law as a safeguard of the succession rights of out of wedlock children in Nigeria to stimulate reform by way of amendment of the existing Legitimation Law and alteration of the statutory marriage. The doctrinal project texts are being sourced from both primary and secondary sources of information to wit; legislations of both National and State House of Assembly, text books, opinions of authors and writers in articles. The conclusion of this work is that illegitimate children of a statutory spouse cannot be legitimated by acknowledgment because it is not provided under Legitimacy Law and for that reason this work is recommending introduction of the concept of deemed conversion of statutory marriage to customary marriage into our Family Laws once the statutory spouse gives birth to a child out of wedlock if the wife fails to commence divorce proceedings within 2 years of birth as adultery is a ground for divorce there enabling their legitimation by acknowledgment of paternity. In the alternative, this work is calling for reform of Legitimacy Law to allow natural father to legitimate his out of wedlock child by acknowledgment notwithstanding the subsistence of the statutory marriage. In further alternative an alteration of the concept of monogamous marriage by an amendment of Marriage Act.

1. CHAPTER 1

1.1       BACKGROUND TO THE STUDY

Legitimacy illegitimacy and legitimation are very important personal and indeed legal issues that not only affect the status of a child, and rights to live with his natural father but also his succession rights to his natural father estate. This issue is so important but it has not been given it deserved and adequate attention in Nigeria. Sometimes the issue is as important as life itself. The state of the Nigerian general law on illegitimacy and legitimation of out of wedlock children of a statutory spouse is alien to native law and customs of most communities, double standard and is discriminatory. The writer personal encounter with a man who married under the Act and subsequently had children out of wedlock demonstrates the limitation of Nigeria Law to protect succession rights of out of wedlock children of a statutory spouse and indeed aptly describes law as an ass.

 Y a fairly wealthy statutory spouse married X under the Act and had two children. During the subsistence of the marriage he had relationship with C who had four female children and D who had three male children. Y during his lifetime acknowledged the children of C and D were cohabiting with him and was providing for their upkeep while X was living in Y’s other house.

Y relationship he had C and D of course strained his relationship with X. After sixteen years he subsequently had stroke fell ill and second stroke. Y could not bath himself, use the toilet unless assisted. X a statutory spouse did not file any petition for divorce or separation against Y for having relationship with C and D.

During Y’s illness it was C and D that cared for him, took him to various hospitals while X abandoned him. Y later collapsed, was unconscious, rushed to the hospital by C and D and died in their hands. The vexed issue of entitlement to Y’s estate and illegitimacy cropped up. Is X going to take the personal estate of Y to the exclusion of C and D? Are children of C and D going to share in the estate of Y, their natural father?

Under the Nigerian law X is the legitimate spouse of Y and so are her children. Without any doubt are entitled to Y’s estate.  X and her two children are asserting their right to Y’s estate. What led to the dispute is that the children of X sold some of Y’s properties and C and D are furious and sought legal advice to challenge the sale in their name on the ground that they are entitled to a share of the proceed. Are they going to succeed in the imminent court action? What are their chances? Do they have locus standi to sue?

 The form of marriage contracted by Y is a statutory marriage, a union of Y and X to the exclusion of all other persons including C and D. Y’s purported marriage to C and D was bigamous and are not recognized under Nigerian law and same applies to their children.

While the provision of S42 (2) of the 1999 Constitution of Federal Republic of Nigeria against discrimination on circumstances of birth will ameliorate the illegitimate status of the children of C and D and has been relied upon in some cases to benefit children born out of wedlock in their natural father is estate but the law has no protection for C and D. Is this position of the law fair?

 A large numbers of women and illegitimate children are quietly suffering the same fate today but did not receive adequate public attention in Nigeria.

An illegitimate child is a child born of a woman, the father of which is not the husband of the woman; the child does not bear the father’s name. It is a child born out of lawful wedlock. The child is fillies nullius or fillius populi, (child of no one) a bastard.[1]

The genesis of the status of illegitimate child has a deep root from the Holy Bible[2] and Holy Quran[3]. Also a child born out of wedlock not acknowledged by his father or grandparent is an outcast and his status relegated in our customary Law. Notwithstanding the religious condemnation[4] and social status of an illegitimate child the prevalence of illegitimate children is growing at alarming rate. The statistics of children out of wedlock in Nigeria is not clear but unbelievably alarming in western jurisdictions and others.        

There is no major issue on the right to succession to the estate of a man who legally married his wife under statute, the Marriage Act, his children are legitimate and are entitled to succeed to his estate. The estate will be distributed according to S49 (1) of the Administration of Estates Law. If conducted a customary marriage his children are also legitimate and are entitled to succeed to his estate. The mode of distribution will be according to the deceased native Law and custom. The uncertainty however arise while his statutory marriage still subsisting he had extra marital affairs which produced children (out of wedlock children). The children though innocent are termed illegitimate and are not entitled to succeed to the estate of their deceased natural father with the children of the legal union, legitimate children. Under customary law, for example Yoruba tribe, the children born out of wedlock are legitimate if the natural father acknowledged paternity. By so doing the illegitimate child will be entitled to inherit in equal shares as the children of the lawful wedlock.

1.2       IDENTIFICATION OF A PROBLEM

            The position of the law on legitimation of illegitimate children born during the subsistence of statutory marriage by acknowledgment of paternity is not certain. By s3 of Legitimacy Law[5] the only form of legitimation of illegitimate children of a statutory spouse is by subsequent Christian marriage of his natural parents. This presupposes that he must have been given birth before the statutory marriage. There is no statutory provision for legitimation of illegitimate children born during the subsistence of statutory marriage. By implication the statutory spouse can subsequently legitimate his illegitimate child after the death or divorce of his spouse (wife). It therefore follows by implication that the illegitimate children of a statutory intestate spouse will not be entitled to succeed to the estate of his natural father because he was not and cannot be legitimated.  This position is supported by the provision of the Legitimacy Law[6] Judicial decisions and opinion of learned authors on possibility of legitimation by acknowledgment of paternity of illegitimate children of statutory spouse are conflicting and some negate the concept of monogamous marriage in the Marriage Act[7], the offence of bigamy[8] and provisions of Matrimonial causes[9] which provides for adultery as a ground for divorce. What is also the justification of the S69 and S 70(1) on maintenance of illegitimate children? If opinion of S.N. Chinwuba Obi in her book[10] that the natural father has not lost his capacity to acknowledge his out of wedlock children by contracting marriage under the Act is accepted it means there is no basis for the retention in our statute, the concept of monogamous marriage

                           the marriage of the man to a woman to the exclusion of all others. [11]

 The Law seems to be in inconsistent as opinions of writers and decisions of the courts differ on the issue. The case of Alake v. Pratt[12] on one hand and Cole v. Akinyele[13], Onwudijoh v Onwudijoh,[14] Coker v Coker[15] on the other are conflicting decisions. Indeed, the Supreme Court decision in the case of Ogunmodede v Thomas[16]  where doctrine of estoppels was introduced and applied  and  subsequently rejected in the case of Osho v Phillips[17] on the issue also contribute to the inconsistency.

This may have been as a result of the necessity to do justice and prevent discrimination against the illegitimate child and need to uphold the law and concept of monogamous marriage. The writer believes that legislative intervention and reform of the law will resolve the controversy.

1.3       STATEMENT OF THE PROBLEM

            It is very clear and beyond dispute that the only form of legitimation of illegitimate children of a statutory spouse recognized under Nigeria Law is by subsequent Christian marriage of the parents. It means that the only situation provided for under Nigerian Law for legitimation of an illegitimate child of a statutory marriage is where the illegitimate child is born before celebration of statutory marriage. There is no legislative provision for legitimation of illegitimate children born during the subsistence of statutory marriage under Nigerian Law. These set of illegitimate children cannot be legitimized by any means whether by acknowledgment or subsequent marriage unless and until the dissolution of subsisting statutory marriage or death of the spouse (wife). The foregoing position of the law will definitely affect the succession rights of an illegitimate child to succeed to the estate of the statutory spouse if he dies intestate during the subsistence of his Act marriage.

            Notwithstanding the clear provisions of Legitimacy Law[18]  some judicial decisions in order to do substantial justice have held that an illegitimate child has rights to share in his natural fathers’ estate if his paternity was acknowledged during his life time[19], therefore applying the principle or mode of legitimation under customary Law. It must be noted that under most customary law in Nigeria an illegitimate child can be legitimated by acknowledgment of paternity by his natural father without marrying the mother. The judicial decisions on legitimation of an illegitimate child of statutory spouse brought to the fore the issue of which law is applicable for legitimation of the illegitimate child of a statutory spouse, the personal law of the statutory spouse (the nature law and custom of his domicile) or the general law, statutory provisions. Has the statutory spouse lost his right to acknowledge under his customary law by conducting statutory marriage? Resolution of these questions one way or the other will definitely determine the status of an illegitimate child and successions right of an illegitimate child as his right depends on whether he is legitimate or not.

1.4       AIMS AND OBJECTIVES OF THE PROJECT

This project brings to the fore the limitation and critical issues in succession rights of children born out of wedlock in Nigeria by a statutory spouse and the extent of protection provided by Nigerian Law. The work will show the inadequacy of the provision of the Legitimacy Law to legitimate out of wedlock children in Nigeria and as a safeguard of their succession rights, expose double standard of the law including case law, its inconsistency with the customs of most Nigerian communities with a view to stimulate reform of Legitimacy Law and Marriage Act in a manner that allows a statutory spouse to legitimate his out of wedlock children by acknowledgment thereby ensure certainty in succession rights. This work is recommending reforms to remove the conflicting positions of the law.

1.5       SCOPE OF RESEARCH

This work examines the legitimation of out of wedlock children of a statutory spouse by acknowledgment, mode of legitimation under Legitimacy Law, the extent their succession rights are protected and guaranteed under Nigerian laws succession rights under Nigerian law and is recommending reforms of Legitimacy Law and Marriage Act. This project will not discuss legitimation by acknowledgment and succession rights of out of wedlock children under customary law and or of customary law spouse.

 RESEARCH QUESTION

What are the critical issues in legitimation of children born out of wedlock in Nigeria under Legitimacy Law and the extent Nigerian Laws protect and or guarantee their succession rights?

1.7       RESEARCH METHODOLOGY

            The research project texts will be doctrinal and information will be sourced from both primary and secondary sources. The primary sources are from various Acts of National Assembly and laws of various States’ Houses of Assembly in the Federal Republic of Nigeria judicial decisions both local and foreign, Holy Bible and Holy Quran and the 1999 Constitution of the Federal Republic of Nigeria. The secondary sources are from notable textbooks of local and international authors on Family Law, articles in local and International Law Journals, opinions of writers, online research materials.

          The project will be divided into five parts. Chapter 1 is general introduction of the topic and gives a background to the research topic, identification of the problem, aims and objectives, statement of the problem, the scope of the project, the research questions literature review and conclusion, recommendations on Chapter 1.

            Chapter 2 attempt will be a conceptual clarification of basic terms of the project Legitimacy, Legitimation Statutory Spouse, intestate succession, acknowledgment, illegitimacy as a social status, types of marriages and their legal consequences. We will also answer the question of “Who is illegitimate” and legitimate?

            Chapter 3 will examine legitimation of an illegitimate child of a statutory spouse under Legitimacy Law, his capacity to legitimize by acknowledgment of paternity, judicial decisions on the issue, the applicable law and the conflicts of law that may arise and consequent succession rights.

            Chapter 4 will discuss the impact of S 42(2) of the Constitution of the Federal Republic of Nigeria 1999 as a form of reform and its inadequacies, need for amendment of Legitimacy Law on legitimation of an illegitimate child of a statutory spouse to include legitimation by acknowledgment of paternity to create certainty in succession rights of illegitimate children of intestate statutory spouse. Efforts will be made to analyze reforms in England, USA, France, Germany and Northern Ireland and some other jurisdictions, and will express an opinion on need for radical reforms in line with opinion of learned author Davis K.

Chapter 5 will be conclusion and recommendations.

CHAPTER 2

2.0       LITERATURE REVIEW

Alfred B. Kasumu and Jeswald W. Salacuse, in their book, Nigerian Family Law[20] that where the intestate deceased married under the marriage Act, his estate shall be distributed and succession rights are determined according to Statute Law which specifically provided for the applicable Law. The form of marriage is therefore one of the factors taken into consideration in choosing the appropriate Law. Where a man married under the native Law and Custom dies, Customary Law governs the inheritance but the case of a man who married under the statute is different, his inheritance is partly governed by S36 of Marriage Act[21] and rule in Cole v Cole[22] . He stated the right of illegitimate children to maintenance both at Common law, Statute and Customary law. The author restated the Court’s power under Section 70 of the Matrimonial Causes Act 1965 to order a putative father or any of the parents to maintain illegitimate child. They are also of the view that legitimacy is the status of a child born in lawful wedlock, while an illegitimate child can acquire the legitimate status by the subsequent marriage of the parents, or by acknowledgment by his father.  The learned author did not specifically discuss the situation when an illegitimacy child can be legitimated by acknowledgement or subsequent marriage of his parent is it applicable only to statutory spouse or Customary Law Spouse? While Customary Law Spouse can choose either of the alternatives the statutory spouse cannot.

Cheshire and North in their book ,Private International Law[23], like S. N. Chinwuba Obi, highlighted various issues as regards Conflict of laws in estate succession; Laws applicable in determining  legitimacy of a child most especially to benefit under a Will; that is whether according to the law of the testator or the laws of place of birth of child; Whether reference under a Will to a legitimate child of parents living in a foreign country means legitimate according to law of England or laws of the foreign place of birth. The authors concluded that the children legitimacy should be decided according to the lex domicili of the father at the time of child’s birth. Legitimacy affects not only succession rights but also such matters as the law of domicile, the law of nationality and custody and affiliation proceeding. That in order to recognize foreign legitimation an illegitimate child by subsequent foreign marriage, it is the lex domicili of the father both at birth of the child and subsequent marriage that must be considered but if it is by recognition (similar to acknowledgment under customary Law) it is the lex domicili at the date of legitimation. The Learned author criticized decision in Re Luck Settlement’s Trust which applied the common law and foreign legitimation rule by subsequent matrimonial. In accordance with decision in Re Good Man Trust and Sinha Peerage Case but the problem with Nigeria is complex system of Law, the general law (statutes), native law and custom and case law. Which law is the lex domicile of the statutory spouse?

Cretney S.M. in Principle of Family Law[24]says the concept of legitimacy and legitimation border on status and, it is a concept whereby a couple’s child is entitled to full recognition as a family.

 Davis K in Illegitimacy and Social Structure[25] states that legitimate 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.  That it is discussed, more in terms of illegitimate child rights to succession ignoring the social issues. That illegitimacy cannot be abolished by legal fist the manner it was done in some jurisdictions. He suggested alteration of the amount, kind and circumstances of the institution of marriage. The opinion of the learned another is in line with the recommendation  of this work, the introduction of deemed conversion of statutory spouse to customary law spouse upon giving birth to out of wedlock child.

According to E.I. Nwoguguin his book, Family Law in Nigeria[26] it is important to determine the status of a child at any given moment as it has far reaching legal consequences. This view is of great importance 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. The learned author demonstrated various practices in communities in Nigeria which negates the position under statute. 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’ are not married. The learned stated that on the authority of Cole v Akinyele which has been followed in many other cases the statutory spouse cannot legitimate his illegitimate child by acknowledgment of paternity.  The opinion of E.I. Nwogugu is consistent with the Legitimacy Law and principle of statutory marriage.

 Eunice Uzodike in her inaugural lecture at the University of Lagos, 2011 on Trends of Human Rights campaign in Family Law highlighted the current global trends on the status and rights of illegitimate children and need for Nigeria to follow the Brazil constitution, a model which rendered expressions such as “Illegitimate or adulterine” used in legal provision unconstitutional and invalid. Professor Eunice Uzodike highlighted the diverse judicial interpretations by Court of Appeal of S42 (2) of the 1999 Constitution of FRN to remove discrimination against the illegitimate children and the consequent uncertainty in their rights to succession in their natural father’s estate. The learned erudite Professor submitted that the S42 (2) is not concerned with abolition of the status of illegitimacy but is out to ensure that illegitimate persons shall not suffer any disability or deprivation merely because they were born illegitimate. This work is complete agreement with the opinion giving the fundamental native of the constitution as organic Law contrary new will be an indirect abolition of the concept of monogamous marriage provided under the Marriage Act and Legitimacy Law.

G.B.A. Coker in his book Family Property among the Yorubas[27] did extensive review of succession to family property says that the issue of legitimacy is always determined by reference to the law of the domicile of the child’s father at birth. In all cases of disputes as to whether or not a child is legitimate it is necessary to ascertain what by the lex domicili constitutes, legitimacy. In the case of deceased subject to Yoruba custom, in order to decide whether or not a child is legitimately entitled to the interests in a family property, reference should be made to the native law and custom of the Yorubas relating to legitimacy that the rights of children legitimated by the law of their domicile cannot be defeated or rendered nugatory simply because there is an existing though remote right under English Law.[28] That consideration of personal status of the parties should not be allowed to affect devolution of their real property. The nature of the marriage should only be concerned with the determination of the various issues of personal relationship and not with the incidents of succession. That lex situs should determine succession of real estate. The form of marriage should only determine the question of whether or not the children are legitimate or otherwise entitled to take property. The new of G.B.A. Coker is influenced by the provision of the S36 of the repealed Marriage Act (now provided under S49 (5) of the Administration of Estate Law Lagos State) and the complex Legal System of Nigeria.

I.E Sagay in his article  Legitimacy, Legitimation and Rights of Inheritance in Nigeria Contemporary  Law[29]  held the view that the law as it  stands today on the authority of Cole v Akinyele,[30] children born during the existence of a statutory marriage (outside that marriage) cannot be legitimated by acknowledgment, even after the termination of the statutory marriage. They can only be legitimated by the subsequent statutory marriage of their parents.

Margaret Chinyere Onokah[31] is of the opinion that the statutory spouse cannot legitimate his illegitimate child by acknowledgment of paternity. The learned author expressed the difficulty courts face in benefitting out of wedlock children in Nigeria in view of the provisions of Legitimacy law on their legitimation and succession rights which is in contradistinction to the rules of customary marriage law. The learned called for reforms of Nigeria Law to protect their succession rights. This view is consistent with the provision of Legitimacy Law. However, the learned another failed to offer any suggested reform that is consistent with the concept of statutory marriage and also will protect succession right of out of wedlock children.

Oluwakemi Adekile in her article, Succession at Customary Law” Addressing the Crossroads of Constitutional Conflicts in Nigeria[32] brought to the fore the issues and discrimination against illegitimate children in succession at customary law notwithstanding the constitutional provisions against discrimination; the limitation in the enforcement of the fundamental right guaranteed that Section 42 (1 & 2) which provisions are usually relied upon to safeguard the rights of illegitimate children. The learned writer reviewed the literature on rights to succession of illegitimate children at customary law and some notable cases, that is to say Alake v Pratt[33], Cole v Akinyele,[34] Dacosta v Fasheun,[35] Agbin v Okagbue (infra), Salubo v Nwariaku (infra). The learned scholar further says that the putative father who married under the Marriage Act is incapable of legitimating his out of wedlock children either by acknowledgment or otherwise except by subsequent marriage of his parent. The learned another did a case review of the Cole v Akinyele, which denied the putative father capacity to acknowledge on one hand and impact of the s 42 (2) of the 1999 Constitution which influenced the decision in Ukeje v Ukeje, Salubi v Nwariaku[36] which upheld illegitimate children of their right to share in their putative father’s  estate. The Learned writer came to the conclusion that the matter appears fairly settled that s 42 (2) has removed the discriminating practices. The provision of the s 42(1) (2) of the 1999 Constitution of the FRN has created a lopsided and inconsistence position in Nigerian as regards the status of the out of wedlock children of a statutory spouse. The cases discussed by Oluwakemi Adekile which recognized right of illegitimate children to benefit from their father’s estate although fair enough but negates the concept of Monogamous Marriage. This will be discussed in great delight under chapter 4.

This however differs from the opinion of Professor Nwogugu[37] relying on the decision of the Court of Appeal in the case of Salubi v Nwariaku[38] which conflicts with the saidDa Costa v Fasheun[39], and opinion of the Professor Eunice Uzodike who respectively are of the firm view that s 42 (2) only ameliorate the discriminating practices until the Supreme Court pronounce on the issue. The divergent position Nwogugu I.E and Oluwakemi Adekile has been put to rest by the Supreme Court decisions in Salubi v Nwariaku and Ukeje v Ukeje which affirmed the Court of Appeal decision on right of illegitimate children. The case Law on the issue may be settled but contrary to the statutory provision on Legitimation and succession rights of out of wedlock children. What this project is recommending is that the gap and inconsistence position should be filled to create certainty on their in succession right status and removal of illegitimacy stigma in line with established principles of Law.

S. N. Chinwuba Obi in her book Modern Family Law in Southern Nigeria[40] highlighted the Conflicts of laws in determining whether a Child is legitimate or illegitimate, whether a man who has contracted a statutory marriage has lost his capacity to legitimate by acknowledgment of paternity of his natural child born out of wedlock. The learned author further concluded that the statutory marriage so contracted, cannot affect his capacity provided that he would have possessed such capacity under Customary Law if he were not married under the Act; that the question of capacity must be decided with reference to the lex loci domicili (according to local custom) of the children concerned if they were subject to customary law. The learned another did not take cognizance of the provision Legitimacy Law and the decision in Cole v Akinyele.

            DEFINITION OF TERMS

2.1       LEGITIMACY, ILLEGITIMACY AND LEGITIMATION

            “Legitimacy in English Common law is the status of a child born to parents who are legally married to each other and of a child conceived before parent obtain a legal divorce. On the other hand illegitimacy is the direct opposite of legitimacy and derives its definition from the word illegitimacy. It is the status of a child born outside marriage. Under Common Law it is known as “bastardy”[41]

             “Legitimacy is “Lawfulness”. The Status of a person who is born within a Lawful marriage or who acquires that status by a later action of the parents, legal kinship between a child and its parent or parent.[42]

            Illegitimacy on the other hand is “unlawfulness”. The status of a person who is born outside lawful marriage and who is not later legitimated by the parents – Also termed bastardy.

            “Child born out of wedlock. A bastardor illegitimate child is one born out of lawful wedlock. A child may be born out of lawful wedlock, either because he is the child of a woman who is not lawfully married at all, or because he is the child of a woman who is lawfully married, but upon whom he is begotten by another than her lawful husband.”[43]

           Legitimacy is the status acquired by a child who is born in lawful wedlock. Such a person is regarded as legitimate from birth[44].

            It should be emphasize that in Nigeria the lawful wedlock is not limited to statutory marriage but also include customary and Islamic Marriages. For a child to be regarded legitimate the parent must be married at the time of his birth or born within 280 days after his parent divorced. In Lawal v. Youman[45] 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. 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 include 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 legitimate.

            However illegitimacy is the reverse of legitimacy. It is also a status conferred on by reason of been given birth out of marriage. A child born out of lawful wedlock, whose parent did not subsequently marry and not legitimated is illegitimate.

            Phipson on Evidence[46]

            “The legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated or to have been living apart under an order more than nine months before its birth, the presumption is reversed.”

            It is clear from the above that the status of child being legitimate is tied whether or not the child is born out of wedlock. It is however instructive to state that under customary Law the status of a child being legitimate is not tied to marriage as there are various customs in Nigeria which negates this principle.

2.3    LEGITIMATION – The act of making something lawful, authorization. The act or process of authoritatively declaring a person legitimate, especially a child whose parentage has been unclear, children out of wedlock.”[47]

            Legitimation is a way for a father to claim legal parentage of a child “born out of wedlock”. It goes beyond mere acknowledgment of paternity. Legitimation entitles the legitimated child right to be maintained by his father and gives a court the power to enforce a father’s duty to support a child financially, while legitimation gives the right to inherit from a father and the right to placement in the home of a relative on the father’s side in the event that the mother becomes unable to care for the child. Legitimation also gives the father the right to inherit from the child, and the right to petition the court for custody or visitation. Without legitimation, only the mother of a child born out of wedlock has any custody rights.[48]

            “Legitimation is the process by which a child acquires legitimated status”[49]

            Legitimation of an illegitimate child will be discussed in detail in chapter 3

2.4       STATUTORY SPOUSE

            The definition of statutory spouse is only relevant under Nigeria Law jurisdiction because of dual legal system[50] customary and statutory. In western jurisdictions, the only form of Marriage that is lawful is the marriage or under statute, otherwise known as Marriage under the Act and it is monogamous in form and nature. There are other forms of union for example common law marriage, civil partnership, same sex marriage that are also lawful but discussion on these is outside the scope of this project.

            According to Black Law Dictionary [51]“A Spouse” is defined as “Ones husband or wife by lawful marriage; a married person” However In the context of this project the statutory spouse is meant to be the husband.

            A Spouse may either be the husband or wife but because of the dual system of Law, statutory and customary spouse may either be statutory Law spouse or customary Law spouse. Indeed a spouse can be both statutory and customary in the case of double deck marriage as it is now common among Nigerian elites. A Statutory spouse is therefore referred to either husband or wife of a marriage celebrated under the Marriage Act otherwise known as statutory marriage. This form of marriage is a union of one man to a woman to the exclusion of all other person[52]. Itis a model of Christian marriage widely practiced, popular and legalized form of marriage in Europe, America and was imported into Nigeria through colonization and by Marriage Ordinance of 1914.

            The basic characteristic of monogamous marriage is that the parties are incapable of contracting a valid marriage with another person during the subsistence of the marriage under and by virtue of s 35 and an offence under s47 of the Marriage Act. Any of the spouses cannot have a relationship outside marriage as it constitutes adultery, a ground for divorce under s 15 of Matrimonial Causes Act[53]. It is indeed a Criminal Offence of bigamy punishable with 5 years imprisonment to violate and or breach the basic characteristic of a monogamous marriage[54]

            A customary law spouse is either husband or wife of marriage celebrated according to relevant customary law in Nigeria, it is a union between one man and a woman but the man is allowed to marry another woman and more without divorcing the first wife[55]

            It should be noted that this project is in respect of intestate statutory spouse who is subject to native law and custom but contracted marriage under the Act and left a widow and issues of such marriage surviving.

2.5       INTESTATE SUCCESSION

          Simply put intestate succession is a mode of inheritance where deceased spouse died without making a Will. In this case the Estate will be distributed according to the relevant statutory provisions or customary Law depending on the form of marriage contracted by the intestate deceased.

Intestate is relating to a person who has died without a valid will; having revoked her will without making a new one; 2 of relating to property owned by a person who died without a valid will.[56]

 2.6      ACKNOWLEDGMENT

            Acknowledgment of paternity is a mode of legitimation of illegitimate child recognized under systems of customary law and in some jurisdictions.

            A legitimate child may be legitimated by acknowledgment despite the fact that the parents have never been married or may not marry[57]

            According to Nwogugu[58] “To constitute an acknowledgment the act or conduct of illegitimate child’s natural father must be such to indicate or establish his acceptance of paternity. It is necessary that the act or conduct should be formal. Informal acts may in appropriate circumstances, be enough[59] .

            Detail examination of acknowledgment of paternity as a mode of legitimation of illegitimate child under customary law is out of the scope of this project.[60]

            According to Black Law Dictionary[61]

          Acknowledgment is recognition of something as being factual (2) an acceptance of    responsibility…

Formal acknowledgment is a father’s recognition of a child as his own by a formal, written declaration that meets a state’s requirement for execution typically by signing in the presence of two witnesses. In Louisianan Law this recognition may also be made by a mother La. Civ. Code art 203[case children out of wedlock] 12), a father recognition of a child as his own in the child’s registry of birth or at the child’s baptism. In this sense a formal acknowledgment typically occurs when a man signs the birth certificate or baptismal certificate as the father or announces at the baptismal service that he is the father. The fact that a man is named as the father on a certificate of birth or baptism is not a formal acknowledgment unless the father signs the document.

Informal acknowledgment: A father’s recognition of a child as his own not by a written declaration but by receiving the child into and otherwise treating the child as his own offspring.

            It is clear beyond dispute that the word “acknowledgment” and “recognition” is used inter-changeably has been one and the same. This inference will be useful in chapter 4.

2.7       WHO IS ILLEGITIMATE AND LEGITIMATE

            Illegitimacy is a negative concept, denoting those persons who are not legitimate. Who, therefore, is legitimate? First and most obviously, are children conceived and born within marriage. Next are children born within marriage but conceived before marriage. Thus, for example, a child conceived four months before his parents marry one another will be legitimate. The third category of legitimate children consists of those conceived within the marriage but born after it has ended. Thus, for example, a posthumous child is legitimate.

            The final category of legitimate children is that arising from legitimation by the subsequent marriage of the parents. This category was introduced into our law by the Legitimacy Act 1929 (later Legitimacy Law) and is discussed in detail later in this chapter 3 below.

            A child who does not come within any of these categories is illegitimate. Thus, for example, a child born of a void marriage is illegitimate regardless of whether any decree of nullity is obtained. However by the provision of s 38 of Matrimonial Causes Act [62]a child who is born during the period of voidable marriage is legitimate, but any subsequent child born after the decree becomes absolute is illegitimate. It should be noted that that the decree takes effect from the decree of nullity becomes absolute the same manner the decree of dissolution of marriage. [63]

2.8       PRESUMPTION OF LEGITIMACY

            By s 165 of the Evidence Act [64] any child in lawful wedlock is legitimate.

              s 165 of the Evidence Act[65] provides as follows:

Without prejudice to section 84 of the Matrimonial Causes Act, where a person was born during the continuance of a valid marriage between mother and any man or within 280 days after dissolution of the marriage, the mother remaining unmarried, the court shall presume that the person in question is the legitimate child of that man.

          S84 of the Matrimonial Causes Act provides as follows:

Notwithstanding any rule of law in proceeding under this Act either party to a marriage may give proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time, but shall not be compellable to give such evidence if it would show or tend to show that a child born to the wife during the marriage is illegitimate.

            CHAPTER 3

3.0       LEGITIMATION OF CHILDREN BORN OUT OF WEDLOCK IN NIGERIA/LAGOS STATE.

            It should be emphasized that legitimation of an illegitimate child of a statutory spouse is a vexed and controversial issue in Family Laws in relation to succession rights to the intestate estate. The importance of issue of legitimacy, illegitimacy and legitimation cannot be over emphasized in the determination of inheritance/succession rights of the intestate children.

            Kasumu[66] captured the importance of the issue succinctly as follows:

That most of the cases on illegitimacy deal with the rights of illegitimate children to succeed the property… it is that area… that the consequences of illegitimacy are greatly felt. “it is a well-established rule of law that a child during the subsistence of a customary or statutory marriage between his/her parent is legitimate. However where a child is born to a legally married man before extramarital relations, the question of illegitimacy arises. More often than not, the mothers of this class of children in Nigeria believe that their children, though born outside marriage have the same right intestate of their father, as do the children of the marriage.”

            I.E. Sagay also underscore the importance of issue of legitimacy by referring to the case of In Re Sarah Adedavoh[67] the West African Court of Appeal held that the issue of status is determined by the law of the domicile. In other words with regards to the estate of an intestate who dies domiciled in Nigeria, it is the law of Nigeria that determines who is a child and who is a wife for the purpose of participation in the distribution of the intestate’s estate. Only after this has been determined by Nigerian law (lex domicile) would the English Law on the distribution of estates be applied to determine what proportion of the estate each child or spouse is to get. There is therefore in all such cases, a two stage process; (i) who is a child or spouse Nigerian Law (lex domicile), (ii) what proportion of the estate does a child or a wife get English Law of distribution of estates.

            According to Oluwakemi Adekile[68]

In the law of succession, the status of a child plays a crucial role in the determination of inheritance rights. This, in turn depends on the type and status of the marriage of the parents of that child. If a child is born in lawful wedlock, the child is legitimate. However, if born out of wedlock and is not legitimated, it could have implications for the inheritance rights.

            In order to properly analyze the issue under this subheading it is necessary to do an overview of the Legitimacy Law as a background to the discussion on legitimation of illegitimate child of a statutory spouse and conflict of opinions of writers on the conflicts of law that may arise.

            Legitimacy Law of Lagos State[69] seeks to give legitimacy life to the Children born out of wedlock or unmarried couples. This is because under common law such children are illegitimate.

3.2       OVERVIEW OF LEGITIMACY LAW OF LAGOS STATE

            The Law consists of 11 sections s 3 clearly make legitimate a person born out of wedlock where his or her parents subsequently marry if the father is domiciled in Nigeria. Section 4 provides for the procedure for the grant of a decree of legitimacy. The Law provides that the claiming to be a legitimated person shall apply by petition to the High Court. The Chief Judge is also empowered under s 4 (2) to make rules regulating the procedure for the petition and evidence to establish the petitioners claim. Under and by virtue of s 4 (3) Legitimacy Law the decree shall not prejudice any person if it was obtained by fraud or collusion unless that person allegedly prejudiced was made a party to the proceedings s 5, 6, 7, 8 respectively make provision on rights of legitimated person and others to take interest in property, succession or intestacy of legitimated person and their issue and application of two illegitimate person dying before marriage of parents. S 5 preserves rights of legitimated person to the estate of an intestate person dying after the date of legitimation and any disposition which is effective after that date. Where succession is to be determined on seniority the age of legitimized child shall be determined by the reference to the date of legitimation[70]. Section 8 preserves the right of legitimized child to maintenance. Section 9 makes provisions for legitimation of child where his parents marry but domiciled elsewhere outside Nigeria. A mother of illegitimate child who died intestate has right to succeed to the estate of his child but subject to customary law on inheritance or succession (see s 10 (3)). The law is not applicable to disposition made before the law or affects any rights under the intestacy of a person dying before the commencement of this law. Section 10 of Legitimacy Law confers right on illegitimate child to succeed/benefit from the Estate of his mother and vice versa.

            It is clear from s 3 of the Legitimacy Law that the only mode of legitimating an illegitimate child of a statutory spouse is by subsequent Christian marriage of his parent.

            s 3 provides as follows:

1. Subject to the provision of this section where parents of illegitimate person marry or have married one another, whether before or after the commencement of this law, the marriage shall, if the father of the illegitimate person was or is at the time of the marriage domiciled in Nigeria, render that person, if living, legitimate from the commencement of this law, or from the date of the marriage, whichever last happens 

2. The legitimation of a person under this law does not enable him or his spouse children or remoter issue to take any interest in real or personal property saves as is hereinafter in this law expressly provided.                                 

            Under the interpretation section “marry” “married” and “marriage” refers to Christian marriage only which is also defined as follows:

‘Christian marriage’ means a marriage which is recognized by the law of the place where it is contracted as the voluntary union for life of one man and one woman to the exclusion of all others.

3.3       REVIEW OF LITERATURE AND CASE LAW ON LEGITIMATION OF AN ILLEGITIMATE CHILD OF A STATUTOR SPOUSE.

Having thoroughly combed the provisions of the legitimacy law, it is observed that there is no provision for legitimation by acknowledgment of paternity as a mode of legitimating an illegitimate child. Notwithstanding the above stated clear provision the opinions of authors and, scholars and judicial decisions differ on the issue. The view of GBA Coker[71] reproduced by S.N Chinwuba[72]) on whether the illegitimate child of a statutory marriage can be legitimated by acknowledgment is as follows:

This is not a case where acknowledgment of paternity can be evoked, for the nature of the marriage renders the man incapable of having any other woman as his wife or of such Christian marriage[73]… the issue of capacity would affect their father to the extent that he could not even acknowledge them, however much he might be willing to do this.”[74]

          The same view was repeated not clearly in the second edition of his book[75] while discussing the situation where a man who has valid customary marriage contract statutory marriage with a 3^rd Party.

            The learned author however failed to give an opinion while discussing devolution of property to illegitimate children of statutory spouse born during the subsistence of the statutory marriage. The learned expressed his decision not to join in the controversy. The learned author denied the literature on this issue of his contribution.

            S. N. Chinwuba is the leading author who made clear statement of his opinion while reacting to the opinion of GBA Coker [76]Before expressing her opinion the learned author appreciated the difficulty and lack of clear and comprehensive answer on the issue. The learned author submitted that the putative father who contracted a statutory marriage has not lost his customary law capacity to legitimate his illegitimate children by acknowledgment. The learned author after reviewing the decisions in Alake v Pratt[77] and relying on the judgment of Chief Justice Verity in Re Goodman Trusts[78] and Sinha Peerage[79]concluded that an ordinance marriage does not affect a man’s legal capacity to acknowledge his natural children, provided that he would have possessed such capacity under customary law if he were not married under the Act. By the same reasoning, a man’s customary capacity to legitimate his natural children by acknowledgment is not affected by any other form of monogamous marriage wherever contracted.

            In order to properly appreciate the position of the learned author it will be necessary to do a review of the cases relied upon. The decision in Re Goodman Trust[80]  and Sinha Peerage’s case stated the position of the law as discussed by Chesire and North[81] and other writers by stating the principle to determine legitimacy of a child. The two cases held that the legitimacy of a child must be decided according to lex domicili of the father at the time of birth of the child.

            The said two cases were discussed in Re Sarah I Adedavoh & Ten Ors[82] with the case of Baindail v Baindail[83].The summary of the decision is that the child legitimacy is to be determined according to law of the country of origin of his father at the time of his birth. If he is legitimate by that law he is legitimate everywhere.

            The principles thus laid down In Re Goodman Trust were referred to by Lord Maugham, L.C., in delivering the leading opinion in the Sinha Peerage Case. The Hindu marriage in India was used to determine validity of marriage of the parties notwithstanding the subsequent statutory marriage and issue of the marriage for the purpose of succession to real property in England in the case of Baindail v Baindail [84].

            The decision in Re Sarah Adedavoh followed the decision in the Re Goodman Trust and Sinha Peerage cases. The Yoruba native law and custom was used in determining whether the children of the deceased who were entitled to benefit under the Statute of Distribution[85]. It should be noted that the said children were issue of several marriages and irregular union. It should be noted that for the determination of whether the children were legitimate was for the purpose of Statute of Distribution.

            It is submitted that the decision in Re Sarah Adedavoh & 10 Ors did not decide whether a statutory spouse can legitimate his illegitimate child by acknowledgment. Indeed in that case the deceased widow died one year after marriage leaving no issue. The statutory marriage had come to an end and according to I, E. Sagay[86] the statutory spouse regain his customary law right to enter customary marriage and also enter into irregular union and legitimate the illegitimate child by acknowledgment… The children were product of customary law marriages and irregular union.

            It is clear that Re Goodman’s Trust and Sinha Peerage Case did not decide whether the statutory spouse can legitimate child by acknowledgment of paternity.

            The opinion of Nwogugu[87] is that the latest position as regards the issue of whether a statutory spouse can legitimate his illegitimate child by acknowledgment of paternity is as decided in Cole v Akinyele[88].

            The learned author also stated that the case of Cole v Akinyele has been followed by a number of other cases[89] as follows:

            (1)       Olympio v Oluwole & Anor.[90] a child born between the grant of decree nissi and decree absolute was held to be illegitimate and could not be legitimated by acknowledgment.

            (2)       Abisogun v Abisogun[91].

            (3)       Williams v Williams[92]

            (4)       Craig v Craig[93]

            (5) In the matter of the Estate of Odulaja deceased[94]

            (5)       Philips v Osho[95] (see note 89 at pg 318).

            I.E Sagay[96] reviewed the case of (I) The Estate of Fredrick Akande Somefun In Re Adeline Subulade Williams[97] (iii) Re-Sarah Adedavoh[98]  (iv) Alake v  Pratt[99]  (v) Bamgbose v Daniel[100] (vi) Re-Goodman Trust [101]and concluded with (vii) Cole v Akinyele[102].

            The learned author concluded as follows:

The reasoning in this decision has rightly been criticized. If as asserted, it was based on public policy, then both children should have been equally affected since the public policy must surely, equally apply to the child born in adultery and the one conceived in adultery. Both involved promiscuous intercourse[103]. A much better basis for the decision would have been that whilst a man is married under the Act, his power of acknowledgment under customary law is suspended and he cannot therefore exercise it to legitimate children born outside his marriage. When the statutory marriage ends, he regains his customary law capacity to legitimate by acknowledgment.  

            Margaret Chinyere Onokah[104] reviewed the case of (i) Onwudijoh v Onwudijoh[105] (ii) Coker v Coker (iii)Alake v Pratt (iv) Olympio v Oluwole[106]) and Cole v Akinyele expressed difficulty in making a firm submission in support of the position that an intestate statutory can legitimate his illegal children by acknowledgment in view of the decision in Onwudijoh v Onwudijoh and others stated by the learned author (except Alake v Pratt which held otherwise by implication) and provision of the Legitimacy Law. The learned author submitted that the courts are handicapped in benefitting an illegitimate child of intestate spouse acknowledged by his father. The summary is that the intestate spouse cannot legitimate his illegitimate child born before or during the subsistence of the statutory marriage by acknowledgment but only by subsequently Christian marriage of his parent.

            Cheshire & North[107] argued that Legitimacy is as regards status of children, not of their parent. The fact that marriage is invalid or children born out of wedlock is not necessarily a bar to the legitimate status of the children. If the two questions are separable (validity of marriage and legitimacy of their children) by the law of the child’s domicile of origin, they should be kept separate by English court when dealing with conflict of law. The learned author submitted that legitimacy of a child is determined by reference to the law of his father’s domicile at time of his birth. He referred to the decision of Romer J. in the case Re Bischoffscheim[108]

            The submission of the learned author upon proper examination is that the question of legitimacy of a child for the purposes of succession to intestate or testate property should be kept separate from the validity of the parents’ marriage where the legal system of a country permits such separation.

            Coming home, GBA Coker[109]  is also of the same view that the question of legitimacy must be separated from the distribution of Estate. That determination of who is entitled to succeed or share in the Estate of statutory spouse should be according to native law and custom of the deceased statutory spouse, the law of domicile, while distribution should be according to Statute of distribution (now Administration of Estate Law)[110]or lex situs.

            The long and short of this submission is that the law of domicile of the father, Nigeria is native law and custom which allow the natural father to legitimize his illegitimate child by acknowledgment. However there is also the general law which is the Legitimacy Law which allows legitimation of an illegitimate child by subsequent Christian marriage of his parent only. The problem with Nigeria legal system according to I.E Sagay[111]

The Nigerian Law in this context meant, the whole complex of systems of law   applicable in Nigeria, namely, received English Statutes, Local Statutes, Common Law and Customary law.

            This brings backs the question of “which law is applicable to legitimate illegitimate child of a statutory spouse the general law (statute) or customary law” Does our legal system permits separation of legitimacy of a child from the validity of Marriage when the parties married under the Marriage Act?  The decision in Cole v Akinyele[112] clearly provided the answer.  It is the general law (Statute, Legitimacy Law)

            Alfred B Kasumu[113] lent is opinion by making the following contribution .The learned author stated the problem in choosing the appropriate law in intestate succession. He said that as a general rule the form of marriage determines the system of law that governs succession. Under the repealed s 36 of the Marriage Act , the distribution of the Estate of a statutory spouse shall be according to English Law ( now Administration of Estate Law) while the mode of distribution is provided for in s 49 (1). As decided in Re Adedavoh which approved the decisions in Re Goodman Trusts and Sinha Peerage case, the English law is that the legitimacy of a child will be determined according to law of the country of origin of the father of the child at the time of birth otherwise known as lex domicili of the father. 

            On the question of who is “issue” qualified to take under the Statute of Distribution? The learned author submitted that a child who is legitimate by the law of domicile of origin is able to claim under the Statutes of Distribution.The learned author further submitted that the interpretation given to issue under the Statutes of Distribution creates an anomaly when compared with the meaning of issue for the application of s 36 (now s 49(5) of the Administration of Estates Law). It means that before s 36 can apply, the deceased must have left a widow, or husband or issue and must that of a statutory marriage. In addition he submitted that once the section applies all legitimate children irrespective of the form of marriage will be entitled to take under the Statutes of Distribution.

            On the issue of where a man also is subject to customary law contract Christian outside Nigerian, he submitted that the rule in Cole v Cole[114] The rule is that English Law of succession should be apply and it would be contrary to the principle of justice, equally and good conscience to apply native law and custom.

           It should be noted the provisions of s 36 of the Marriage Ordinance forms the basis of Kasumu submission on the applicable law on succession to the estate of a statutory spouse has been repealed from the subsequent legislation but now provided in s 49(5) of the Administration of Estates Law of various States of the Federation most especially in Lagos State is now the applicable law for the distribution of estate of an intestate statutory spouse.[115] In the case of Salubi v Nwariaku[116] the Supreme Court while deciding on the issue of the applicable law to succession of an estate of a statutory spouse gave a brief history of the Marriage Ordinance and various legislative developments[117] and held that the applicable law on distribution of estate of intestate statutory spouse is the Administration of Estates Law of various states in Nigeria.

            It is very clear from the above that the opinions of authors are divided on the issue of legitimation of an illegitimate child by acknowledgment and consequent succession rights of illegitimate children of a statutory spouse. The judicial decisions on the issue are also divided.

            The opinions of authors, scholars and writers may differ and there seems to be no danger but the conflicting decisions of the court create uncertainty on the legitimation by acknowledgment of an illegitimate child and consequent succession right to the intestate statutory spouse estate.

            The Law is settled that where the lower court is faced with conflicting decisions of a superior court, the lower court is bound to follow the latest decision[118]. The latest decision which has been followed by other cases is Cole v Akinyele[119] and its decision represents the present position of the law .The statutory spouse cannot legitimate his illegitimate child by acknowledgment of paternity except as provided in the Legitimacy Law.

            In Samuel Shashe & 7 Ors v Michael Salako & Anor[120]the court explained the decision in Alake v Pratt[121] to have laid re affirmed the decision In Re Goodman Trust, Sinha Peerage case and Re Sarah Adedavoh that it is law of country of origin of the deceased that determines legitimacy of his child and in the case of Alake v Pratt Yoruba law and custom was applied which permits legitimation by acknowledgment of the out of wedlock child.

            Notwithstanding the aforesaid, the present position of the law creates uncertainty in the succession right of an illegitimate child of a statutory spouse legitimated by acknowledgment of paternity. This is because his right to benefit will involve determination of whether he qualifies as an issue for the purpose of  s 49 (1) Administration of Estate Law[122] and as Kasumu[123] put it the legitimate child of the intestate statutory spouse will qualify as an issue for the purpose of s 36 of the Marriage Act.

            As earlier stated the issue generated from the status of out wedlock child of a statutory spouse stems from the form, nature and concept of a monogamous marriage (marriage under the Act) which is union of a man and a woman to the exclusion of all other person.

            An illegitimate child is a product of irregular, null and void relationship which negates the principles and legal form of a monogamous marriage. It must be appreciated that the one fundamental difference between marriage under the Act and customary law marriage is the incapacity of the statutory spouse to marry another woman during the subsistence of the Act Marriage. The statutory spouse does not have the capacity to have any relationship with another woman as this would amounts to adultery, a good ground for divorce.[124]

            At this stage the observation of Brett F. J. in Olubunmi Cole and another v P. A. Akinyele & others[125] (Ibid, at p. 88) becomes relevant.

When a man who might have married under native law and custom has voluntarily accepted the obligations imposed by a marriage Ordinance, it seems to undue hardship upon him to hold that in order to legitimate his children of adulterous union he must follow the same procedure as a person to whom a marriage under the ordinance is the only lawful marriage open; indeed to hold otherwise would almost to reduce the distinction between the effect of two forms of marriage to a matter of words. (Underline mine)

            It will therefore not be out of place, with respect, to dismiss the opinions of S. N. Chinwuba[126] that the statutory spouse has not lost his capacity to legitimate his illegitimate child by acknowledgment which is a form of legitimation permitted under customary law.The law should not allow the statutory spouse to approbate and reprobate if he has decided to conduct marriage under the Act, he should abide by its principle and legal consequences. Allowing him to acknowledge his illegitimate child is a serious negation of the concept and legalizing illegality. The cases of Cole v Akinyele[127] and Onwudijoh v Onwudijoh[128] others already cited among which states that the statutory spouse has lost capacity to acknowledge his illegitimate child is consistent with the principle of statutory marriage.

            The case of Goodman Trust and Sinha Peerage case relied upon did not decide that a statutory spouse can legitimate his illegitimate child by acknowledgment of paternity. The two cases are good authorities in the area of conflicts of law under and by virtue of their decision that it is lex domicili of the father at the time of birth that should be used to determine a child’s legitimacy. The said case recognized that legitimacy of a child is not governed solely by law of England. A child may be legitimate in Nigeria by statutory marriage, customary marriage and without marriage of his parents if his paternity is acknowledged by his putative father. It is submitted that the decision in Cole v Cole[129], s 35 of the Marriage Act and the Legitimacy Law and decision in Cole v Akinyele[130] which are also the law of domicile of a statutory spouse in Nigeria will prevent the application of native law and custom’s mode of legitimating an illegitimate child of a statutory spouse. The rule in Cole v Cole[131] covers a situation where a person who is subject to customary law but who contracts a Christian marriage outside Nigeria. In such a situation the English Law of succession should apply.

            Bransford Griffith J. declared that Christian marriages imposes on the parties duties and obligation as not recognized by native law and clothes them with a status unknown to native law[132]

            According to Kasumu[133] the decision in Cole v Cole even though doubted in some cases has not yet been overruled in so far at it deals with choice of law in succession.

           We should however give credit to the learned authors because as GBA Coker[134] put it.

it should not be thought that today in Nigeria the position is all that clear or that the law is at rest…..it is extremely necessarythat the present situation be properly arrested and the law clearly stated, the more it is that part of the law that concerns the status of persons.

            As a result of the uncertainty and controversies surrounding the legitimation of an illegitimate spouse by acknowledgment requires a reform of the Law. This will be discussed in the next chapter.

3.4       SUMMARY OF DISCUSSION

            From the above discussion it is submitted as follows:

i.          It is the general law, Legitimacy Law that governs legitimation of illegitimate child of a statutory spouse not rule of customary law where acknowledgment of paternity is recognized as a mode of legitimating an illegitimate child.

ii.         It is illegitimate child born before marriage of a statutory spouse can be legitimated by subsequent Christian Marriage of his parent.

iii.       It is also safe to state that an illegitimate child born during the subsistence of a statutory spouse marriage cannot be legitimated by acknowledgment of paternity or by subsequent Christian Marriage of his parent until the death of other spouse (wife) or divorce.

iv.        The submission of learned author S. N. Chinwuba[135]that a statutory spouse can legitimate by acknowledgment of paternity is a complete negation of principles and concept of monogamous marriage as provided in s 35 of the Marriage Act[136] , s 15(b) of the Matrimonial Causes Act [137] and contrary to the decision in Cole v Akinyele.[138]

            CHAPTER 4.

4.0       REFORMS OF NIGERIAN LAW ON LEGITIMATION OF CHILDREN BORN OUT OF WEDLOCK CHILDREN IN NIGERIA.

            It should be emphasized that the foregoing positions of the law, the controversies and conflicting judicial decisions were pre 1979 and 1999 Constitution of the Federal Republic of Nigeria. It is necessary to examine the S42 (2) of the 1999 Constitution Federal Republic of Nigeria and its impact on the status of illegitimacy in Nigeria. We will discuss this section as a form of reform on the status of illegitimacy and consequent succession right in view of the decisions of court on its impact on the succession rights of illegitimate children including children of a statutory spouse.

4.2       IMPACT OF 1999 CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA

            s 42 (2) provides as follows:

            “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”

            There is significant debate on the extent this provision can be employed by an illegitimate child to safeguard his right to the estate of his natural father whether married under the Act (statutory spouse) or customary Law. Oluwakemi Adekile[139] reviewed the decision of the court of Appeal in Ukeje v Ukeje[140] and Dacosta v Fasheun[141]  which respectively upheld the illegitimate children acknowledged by their putative father of their right in their putative father estate and Dacosta’s case which denied the said right. The learned author came to the conclusion based on the decision in Salubi v Nwariaku that the matter appears fairly settled. This opinion is different from the Nwogugu I. E.[142] who respectively is of the firm view that s 42 (2) only ameliorate the discriminating practices and the matter is not completely settled until the Supreme Court pronounce on the issue. The learned authors relied on the said case of Ukeje v Ukeje[143]  which conflicts with the decision of the court in Salubi v Nwariaku.[144]

            Eunice Uzodike reviewed decided cases on s 42 (2) and submitted that the provision has been the subject of diverse judicial interpretations and its import remains indeterminate. The learned author referred to the case of Olufemi Marquis v Olufemi Marquis[145] where the children of an adulterous union were held to be strangers to their father’s estate and were not entitled to share in it; Da Costa v Fasheun[146] where the court held that s 39(2), now section 42(2) did not confer a right of inheritance on the illegitimate children of the deceased and they could not inherit the deceased’s estate and Olulode v Oviosu[147], where the court held that s 39(2) was intended to treat every Nigerian citizen whether born in or out of wedlock equally and consequently since that section came into being, the status of illegitimacy no longer existed[148]. The submitted further that interpretation however cannot stand as section 39(2), now s 42(2) addresses only the issue of rights for the illegitimate child as opposed to the issue of status. The decisions of Galadima JCA in Ukeje v Ukeje[149] and Olagunju JCA in Muojekwu v Ejikeme[150] seem inclined towards that view where it was respectively held that section 39(2) ensured that despite being born illegitimate, the child could still share her deceased father’s intestate estate.

            The learned scholar came to the conclusion that s 42 (2) is not concerned with abolition of illegitimacy status but to prevent illegitimate persons from suffering any disability or deprivation merely because they were born illegitimate.

           The conflicting opinions of the learned authors and scholars have been put to rest by Supreme Court on the interpretation of s 42 (2) of the 1999 Constitution of the Federal Republic of Nigeria. The Supreme Court decided in the case of Salubi v Nwariaku[151]  and upheld the decision of the Court of Appeal which upheld the rights of inheritance of the two acknowledged out of wedlock children of Chief Salubi. The Supreme Court in Ukeje v Ukeje [152] also upheld the decision of the Court of Appeal which held that the Igbo native Law and custom which disinherit female child of the family is in breach of s 42 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, a fundamental rights provision guaranteed to every Nigerian. The Supreme Court further held that the said discriminatory custom is void as it conflicts with s 42 (1) and (2) of 1999 Constitution.

           However the Supreme Court did not decide if the said provision abolished the status of illegitimacy. The decision in Salubi v Nwariaku was based on the facts that the two out of wedlock children were acknowledged by the deceased.

            There issue of whether they could be legitimated by acknowledged of paternity was not raised and or decided Ukeje v Ukeje was on paternity of Mrs. Gladys Ada Ukeje. It is not clear from the facts of the case whether her paternity was acknowledged or not, but she was able to establish her paternity and it was held to be entitled to participate in the estate of deceased Lazarus Ogbonnaya Ukeje.

           It is trite law that the court is entitled to pronounce on issues submitted by the parties although the court may raise suo motu but it is subject to the invitation of the parties/counsel to address it on the issue so raised before any decision is reached[153].

           We can safely submit that although the case is an authority on s 42 (2) of the 1999 Constitution of the Federal Republic of Nigeria, it is not a clear authority on the issue being discussed, legitimation by acknowledgment of an illegitimate child of a statutory spouse. The same submission is applicable to the case of Ukeje v Ukeje.[154]

           In order to do a thorough examination of the provisions, it may be necessary to look at concept of discrimination in the legal sense, whether a deprivation of succession right of a product of act of illegality or adulterous relationship amounts to discrimination. The provision is pregnant with meanings given the diverse interpretations by authors and judicial decisions. This is outside the scope of this project. The conflicting decisions of court and opinions of authors on its application is enough to show there is uncertainty in the succession rights of an illegitimate child of an intestate statutory spouse. Without taking a position, the opinion and conflicting judicial decisions only added to the uncertainty in the succession rights of an illegitimate child of a statutory intestate spouse.

           From my view s 42 (2) is a section under the Fundamental Right provisions. It is not provided to abolish illegitimacy status but to guard against discrimination not only in succession rights but also other matters notwithstanding their illegitimate status.

          It is submitted that illegitimacy status of a child born during the subsistence of a statutory marriage is a creation of law and consequence of the concept of statutory marriage. The maker of the Constitution did not intend to abolish it via constitutional provision. Constitution of a country is an organic law, supreme law, and a ground norm and by virtue of s 1 (3) of the Constitution of Federal Republic of Nigeria 1999 all other laws inconsistent with it shall be void to the extent of the inconsistencies. If we assume without necessarily agree that the section has abolished the status of illegitimacy, does it mean that the provisions of s 35 and 47 of the Marriage Act[155]on bigamy, provision S15 of Matrimonial Causes Act[156] which makes adultery as a ground for divorce, and the provisions of the Legitimacy Law[157] which provides mode of legitimation of an illegitimate child spouse of statutory spouse are all null and void? It is submitted that the Constitution of FRN 1999 which primarily set out the structure and framework of Government is not concerned with the issue of legitimacy or illegitimacy of any citizen.

         The above shows that s 42 (2) has not created certainty on the status of illegitimacy on a child of a statutory spouse and consequent succession rights despite its ameliorating effect. It is submitted that the constitution cannot effectively deal with the issue of personal status and all forms of illegitimacy except by law specifically enacted for that purpose. It is therefore clear that s 42 (2) is not a sufficient reform because of the uncertainty it has created. A radical reform is required.

  CASE FOR REFORMS

  4.3     It should be noted that the necessity for reform of Nigeria laws on legitimation  child of a statutory spouse in a manner that will ensure certainty in the succession right of his putative father estate have been made before now by learned authors.[158] This project is another call, or added voice for reform.

            As earlier said the only form of legitimation of an illegitimate child of a statutory spouse is by subsequent Christian marriage of his parent under the Act. This inevitably means that the illegitimate child has no legal relationship with his putative matter. The father also has no legal responsibility. By the provision of Legitimacy Law a statutory spouse cannot employ the customary law mode of legitimation of his illegitimate child by acknowledgment of paternity; a legislative intervention by way of reforms is desirable. The reform of illegitimacy status and its adverse consequence on the succession right is worldwide and Nigeria should not be left out.

4.4       REFORMS IN OTHER JURISDICTIONS

            The Family Law reforms in Western countries on legitimacy and succession rights show some similarities with notable variations. The laws seek to give equal rights to both legitimate and illegitimate children in their father’s Estate.

            In Northern Ireland, the law on illegitimate has been substantially reformed under and by virtue of Family Law Reform (Northern Ireland), Order 1977[159]. The relevant part of the said law is Article 3(2). A child born outside marriage (or his issue if he is dead) is entitled to participate in the intestacy of either parent to the same extent as if he had been born within marriage[160]. But he has no right of intestate succession to other persons, such as his grandparents, brothers or sisters. The parent of a child born outside marriage have the same succession rights on his death intestate as they would have had if he had been born within marriage[161] but others, such as grandparents, brothers and sisters, have no similar rights. Any reference to “children” or “issue” in wills or other dispositions made after 1 January 1978, so far as they relate directly to persons who are to benefit or to be capable of benefitting under the disposition, are to be construed as including children born outside marriage, unless the contrary intention appears[162]. The common law rule that prohibits gifts to unborn illegitimate children has been abolished[163].

            The law in Englandis substantially the same with substantially the same with Northern Ireland. Although the law of England has no provision for legitimation by acknowledgment but by the provision of Legitimation Act 1976 birth in lawful wedlock no longer represent the sole test of legitimacy according to English domestic law, for it is now provided that where the father is domiciled in England, a child born of void marriage is to be treated as legitimate if both or either of his parent reasonably believed that the marriage was valid. The England Family Reform Act of 1987[164] abolished the status of illegitimacy and give equal rights to out of wedlock children with legitimate children in their father’s estate but still retain the old limitation on an illegitimate child to inherit or share in his grandparent’s Estate.

            In Scotland under and by virtue of Law Reform Miscellaneous Provisions Scotland Act 1968 the illegitimate child has rights in his parents’ estate equal to those of children born  within marriage though, as in England and Northern Ireland, it continues not to have rights of succession  through his parents- for Example, from grandparents, uncles or siblings.

            According to Chesire and North[165] in several states in Europe and in the North and South America, a father is allowed to legitimate his child by formally recognizing it to be his own.

            The learned author referred to the case of Re Luck’s Settlement[166] where an illegitimate child David, legitimated by recognition under California Law was denied inheritance right under Law of England notwithstanding the legitimation. The learned author criticized the decision.

            In Alaska and Georgia among numerous states in the United States of America, legitimation by voluntary acknowledgment is authorized. The following Alaska legislation is instructive

            AS 25.20.050. Legitimation by Subsequent marriage, Acknowledgment in Writing or Adjudication.

a.         a child born out of wedlock is legitimated and considered the heir of the putative parent when (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July, 1, 1997, the putative parent acknowledges, in writing, being a parent of the child; (3) for acknowledgment made on or after July 1, 1997, the putative father and the mother both sign a form for acknowledging paternity under AS 18. 50. 165; or (4) the putative parent is determined by a superior court without jury or by another tribunal, upon sufficient evidence, to be a parent of the child. Acceptable evidence includes that the putative parent’s conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of parentage. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent’s intent.

b.         The Bureau of Vital Statistics, as custodian of the original certificates of birth of all persons born in the state, is designated as the depository for such acknowledgment and adjudication. The acknowledgment or adjudication shall be forwarded to the bureau in accordance with appropriate regulations of the bureau, and shall be noted on and filed with the corresponding original certificate of birth.”[167]

            In Georgia, United State of America if the mother wasn’t married at the time of birth (or within the nine months prior to the birth) the biological father can legitimate the child by marrying the mother. If the child is less than one year old, the biological father can legitimate the child by signing an “acknowledgment of legitimation”. If a mother gives birth in a Georgia hospital, the hospital staff will provide the mother and the father (if he is there) with a document that includes this acknowledgment of paternity. Both parents must sign the document, have the signatures notarized, and submit the form to the State Office of Vital Records. Either parent can rescind consent to the acknowledgment within 60 days after signing it.

            If the mother was married at the time of the birth (or within the nine months prior to the birth) to someone other than the biological father, the biological father cannot legitimate the child simply by marrying the mother or signing a voluntary acknowledgment of paternity, due to the legal presumption that the mother’s husband (or former husband, if they have divorced) is the legal father.

            The biological father would first have to establish paternity and then file a petition for legitimation in court. The mother’s husband or former husband can challenge the petition, unless he has divorced the mother on the grounds that she gave birth to another man’s child. The mother can challenge the petition, provided that her parental rights have not been terminated, and no termination action is pending. An adoptive parent or adoption agency with custody of the child can also challenge the petition.

4.4.1    Continental Europe

            In most countries in continental Europe the law relating to children born outside marriage has been substantially reformed over the past thirty years. Legislative changes were enacted in Sweden 1969, in the Federal Republic of Germany in 1970, in France in 1972 and in Italy in 1975, other countries, notably Norway, introduced radical reforms far earlier.[168]

            One of the most striking features of law in continental European countries is the concept of voluntary acknowledgment of paternity, whereby the father of a child born outside marriage may, by authorized means (of varying degrees of formality), acknowledge that the child is his[169].

4.4.2    Germany

            Paternity may be voluntarily and free of charge acknowledged at any German Youth Office (“Jugendamt”[170]) or at the courthouse. An acknowledgment of paternity may be made even before the child’s birth It has to be declared in person  and may not be made subject to any condition or revolution other than that the presumed father first challenges his paternity successfully. Any voluntary acknowledgment is only valid if the consent of the child, usually represented by its mother or by the Youth Office, is obtained as well. Both the father’s acknowledgment and the child’s consent must be made by certified declaration before either a German Notar, the local court (“Amtsgericht”), or an authorized Youth Office worker. Where consent is not obtained within a year after the father’s acknowledgment, he may revoke his acknowledgment [171]

            French law provides that the exercise of parental rights is contingent on voluntary acknowledgment of the child. If both parents acknowledge the child, generally only the mother has authority over the child[172] but this position may be modified by court order (which may confer such authority on the father alone or on both parents jointly), having regard to the best interests of the child[173]. In France acknowledgment may be permissible only with respect to certain classes of not so very illegitimate children often exempting the adulterous or incestuous bastard. Because of several restrictions on paternity actions voluntary parental acknowledgment is the primary method by which illegitimate children may gain a status vis a vis their father. An acknowledgment is declared voluntary in public documents if it was not accomplished on the birth certificate. The father’s acknowledgment is effective as to him only, unless he names the mother, and she confirmed her relationship with the child expressly or by conduct[174]some parental acknowledgment merely declares and does not create parentage, French Law views it as retrospective to the birth of the birth of the child for all purposes, including inheritance. Accordingly if the acknowledgment brings the child into an appropriate relationship with the deceased person estates which have been settled in the interval between the child birth and the acknowledgment may have to be re-opened.[175] An acknowledgment may be challenged by any interested person and by 1972 reform by state’s attorney if there are indications that the acknowledgment does not conform to the fact.[176] It is required that if the legitimating person is married to a third party, his spouse must consent to the legitimation.[177] 

            We have brought to fore the reform of illegitimacy law in other jurisdiction to show that legitimation by acknowledgment/recognition is legalized in some Western jurisdiction, the origin of the concept of monogamous marriage. Why is it not possible in Nigeria? The Nigeria should follow the development in other jurisdictions.

            CHAPTER 5

5.0       CONCLUSION AND RECOMMENDATIONS

            It should be noted that the concept of monogamous is the cause of most issues surrounding legitimacy, legitimation and consequent succession disputes and indeed it is the “founder” of illegitimacy. The issues on illegitimacy are greatly felt in succession matters that is to say, intestate succession of a statutory spouse and succession to the throne. It is beyond dispute that most traditional Nigerian societies were governed by their respective customary laws before the advent of the British and most customary law recognized polygamy/polygyn forms of marriage, for that reason issue of illegitimacy was less profound because the circumstances of birth are not generally considered immoral or objectionable in Nigeria societies. The natural father can legitimate his out of wedlock child by acknowledgment and without conducting marriage ceremony with the child’s mother. This is because most cultures in Nigerian societies and in indeed Africa do not frown at such a relationship. The England Family Reform Act of 1987[178] abolished the status of illegitimacy and give equal rights to out of wedlock children with legitimate children in their father’s estate but still retain the old limitation on an illegitimate child to inherit or share in his grandparent Estate.According to Davis K[179]that illegitimacy cannot be abolished by legal fist the manner it was done in some jurisdictions. He suggested alteration of the amount, kind and circumstances of the institution of marriage

            It is submitted that in order to do substantial justice, fairness and create a more responsible society Nigeria should follow several jurisdictions that have carried out various reforms to give equal rights to both legitimate children in the estate of their natural father notwithstanding the concept of monogamous marriage. As has been stated in chapter 4 some western jurisdictions allow legitimation by recognition. It is safe to submit that the concept of monogamous has been seriously altered and its principles are not sustainable by human behaviours. Indeed the principles of Christian /statutory marriage is alien to most Nigerian ethnic groups’ cultures. Sections 69 and 70 of the Matrimonial Causes Act which define issue to include illegitimate child and in respect of whom maintenance order may be granted show that the law is facing reality of development in the society and Nigerian cultures. This also accounts for non prosecution of the offence of bigamy under s 47 of the Marriage Act.

            The reform introduced in the 1999 Constitution by making provision barring discrimination against illegitimate children is a welcome development but has also created uncertainty as regards whether or not it has abolished status of illegitimacy. If it is so what happens to the concept of monogamous marriage under s 35 of the Marriage Act?

            In order to avoid double standard in our laws, one providing for the concept of monogamous marriage and another provision legalizing acts are complete negation of the principles, and or to bridge the gap I suggest the introduction of the concept of deemed conversion of a monogamous marriage to customary law marriage into our family law if the affected spouse fail to take action for divorce within two years of birth of the illegitimate child. This is because an illegitimate child is a product of adulterous life and it is a ground for divorce under s 15 (b) of the Matrimonial Causes Act.

            It is submitted that once the statutory marriage is converted into customary Law, the statutory spouse will become a customary law spouse with consequent right to legitimate his illegitimate child by acknowledgment of paternity, a mode of legitimation not available to him as a statutory spouse.

            Alternatively, legislative reform should be carried out on Legitimacy Law by way of amendment that will make provision for legitimation by acknowledgment of paternity.  The case law on what constitute acknowledgment under customary law , who can make acknowledgment , time ,restrictions , effects of acknowledgment ,rights of a the legitimated child[180], parents and how resolution of paternity disputes through blood test (Direct Natural Autopsy)  should be provided in the amendment to the Legitimacy Law. We may adopt the France model of retrospective effect of legitimation to replace present position of the law which takes effect from date of legitimation. The practical effects of the new status after acknowledgment of paternity, first, it will give the illegitimate child some kind of legal relationship with the father, which will probably be of great psychological help to the child. Second, it will mean that the child will have a right to adequate maintenance by the father. Third, it will give the illegitimate child a right to inherit on intestacy along with any legitimate children. At present, the illegitimate child of a statutory spouse has no claim of any kind against a father’s estate unless a will is made in its favor.

            In line with Davis K’s opinion the illegitimacy cannot be abolished but the law can do little to alleviate what is a tragic situation. Society will always stigmatize illegitimacy. What the law can do is to refrain from adding legal disabilities to the inevitable social ones and do something to relieve the economic handicaps of the illegitimate child. The reform would help to relieve the suffering of those who are, in the strict sense of the word, innocents. In further alternative I will suggest alteration of the amount, kind and circumstances of the institution of marriage by introducing deemed conversion of statutory marriage through an amendment of the Marriage Act in line with most customs and cultures of most Nigeria societies.

REFERENCES

STATUTES

1. Marriage Act Cap. 39 Laws of Federation of Nigeria 2004

2. Matrimonial Causes Act Cap M7 Laws of Federation of Nigeria 2004.

3. Legitimacy Law Cap. L65 Laws of Lagos State of Nigeria 2005.

4. Administration of Estates Law CAP A3 Laws of Lagos State of Nigeria 2005.

5. Constitution of Federal Republic of Nigeria 1999 (AS AMENDED).

6. Federal Republic of Nigeria official Gazette Act No 26, 2003 Volume 90 of the  new enacted “Child Rights Act”.

7. Evidence Act Cap E14 Laws of Federation of Nigeria 2004.

BOOKS

1.       Jimi Masson, R. BAILEY HARRIS MA BCL AND R. J. PROBERT MA “Principles of family Law” Eight Ed.

2.       P. M. Bromley, “FAMILY LAW” Sixth Ed.

3.       E. I. Nwogugu, “FAMILY LAW IN NIGERIA” ThirdEd.

4.Margaret Chinyere Onokah, “FAMILY LAW” First Ed. Spectrum Books Ltd 2003

5.I. E. Sagay SAN, “NIGERIAN LAW OF SUCCESSION, PRINCIPLES CASES STATUTES AND COMMENTARIES”.

6.       S.N. Cretney ‘Principle of Family Law’ Fifth Ed Sweet and Maxwell 1990.

7.       S.N. CHINWUBA ‘Modern Family Law in Southern Nigeria’ London Sweet & Maxwell Lagos : African University Press Lagos 1966

8.       Holy Quran Chapter 33 vs. 5

10.     Holy Bible Deuteronomy 23 vs. 2

11.     Coker G.B.A. “Family Property Among the Yoruba” Second Ed. Sweet and Maxwell London 1966

12.     Kasumu A. B. and Salacuse J. W. ‘Nigerian Family Law’ London Butterworth 1966.

13.     North P. M. Fawcett J. J. ‘Private International Law’12th Ed. Butterworth London Dublin Edinburgh 1979.

                ARTICLES

1.       Davis K. “Illegitimacy and Social Structure” American Journal of Sociology Vol. 45, No2 (Sep. 1939 )University of Chicago Press .

2.       I.E. Sagay ‘Legtimation and the Right of Inheritance in Nigeria Contemporary Law’ published in the journal of the Private Property Law Department University of Lagos April 1992/1993. University of Lagos Press.

3.       Alhaji Aliu Alarape Salmon (SAN) Legitimacy and illegitimacy Nigerian Experience Third Edition: The Jurist journal of the Law student society Unilorin 1996/1997.

4.       Hon Justice Akinola Aguda “Marriage Laws of Nigeria” Select Law lectures and Papers by Hon Justice Akinola Aguda.

5.       Eunice Uzodike, “Trends of Human Rights Campaign in Family Law” An Inaugural Lecture Delivered at the University of Lagos Main Auditorium on Wednesday 20^th July 2011.

6. Oluwakemi Adekile, “Succession at Customary Law: Addressing the Crossroads of Constitutional Conflicts in Nigeria.

ONLINE REFERENCES

1.        Nigeria Population 2016. http//worldpopulationreview.com/countries/Nigeria-population.

2.       Demographics of Nigeria: http//en.m.wikipedia.org/wiki/demographics of Nigeria.

3.       Family Law in Nigeria- overview: http//www.us.practicallaw.com

4.          Report on Ireland Legitimacy Act

CASE LAW

1. Abisogun v. Abisogun(1963)1 All NLR 237
2. Akerele v Balogun(1994)LLR 99 at 101
3. Alake v Pratt (1955)15 WACA 20
4. Amachire v Goodhead (1923)4 NLR
5. Cole v Akinyele (1960)5 FSC
6. Egwunmoke v Egwunwoke (1966) NMLR147,1966 2 All NLR 1
7. Ezekiel v Alabi(1962)2 All NLR 43
8. Lawal v Younam(1961)WNLR 197
9. Mariyama v Sadiku Ejo (1961) NRNLR 81
10. Olarewaju v Governor of Oyo State NSCC Pt.111 389 at 400, 1992 11-12SCNJ 92
11. Onwudinjo v Onwudinjo(1957)11 ERNLR 1
12. Owuna v Ogbodo Suit no MD/51A/1975 unreported High Court Makurdi, October 26 (1976)
13. Philip v Philip (1946) 18NLR 102
14. Re Sarah Adadevoh (1951)13 WACA 304
15. Shasie and others vs. Salako and others (1976) NMLR 160
16. Young v Young (1953) WACA Cyclostyled judgement +

UNITED KINGDOM

1. Bazeley v Forder (1868) LR 3 QB 599
2. Bebee v Sailes (1916)32 TLR
3. Donaldson v Mc Niven (1952)2 All ER 691
4. Hyde v Hyde (1861-1873) All E R Rep 175CR IPD 130
5. Lough v Ward (1945)12 All ER 338; 173 LT 181
6. Mortmore v Wright (1840) LR 3 QB ,151 ER 502
7. Public Trustee v Wilson (1953) 2 All ER 707
8. R v MacDonald(1904) St R qd 151 , 156 ER 1047
9. Re Grove (1888)140 Ch-B 26
10. Sowa v Sowa (1961) P70 1961 3 All ER 689
11. Shaw v Gould (1868) L.R 3 H.L
12. Re Goodman Trust 1881 17 Ch. D 286
13. Sinha Peerage Case (1946) 1 All E. R. 348
14. In Re Luck Settlement Trust (1941) Ch 864,(1941) 3 All E.R.307

UNITED KINGDOM

1. The Family Law Reform Act 1987

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[1] I.E. Sagay, “Legimacy ,Legitimation and Rights of Inheritance in Nigeria in Nigerian Contemporary Law” published by Department of Private and Property Law Faculty of Law University of Lagos. The learned author referred to the case of Galoway v Galoway (1965) AC 299,311.

[2]  See Deuteronomy 23:2.

[3]  The Holy Quran Chapter 33:5 (infra).

[4]  Sexual intercourse out of wedlock is a sin and it is called fornication in both Christianity, Corinthians 1, 7-12; 6, 11-20 and Islamic faith. Quran 24; 2.

[5] Legitimacy Law Cap. L65 Laws of Lagos State of Nigeria 2005.

[6] See s 5 and 6 Legitimacy Law Cap. L65 Laws of Lagos State of Nigeria confer rights of inheritance only on legitimated illegitimate children.

[7] Cap M6 Laws of Federation of Nigeria 2004.

[8] See s 47 of Marriage Act.

[9] See s 15 (b) of the Matrimonial Cause Act Cap. M7 Laws of Federation of Nigeria 2004.

[10] “Modern Family Law in Southern Nigeria”, London Sweet & Maxwell 1966.

[11] See s 35 of Marriage Act pap M6 Laws of Federal Republic of Nigeria 2004.

[12] (1955) 15 WACA 20.

[13] (1960)5 FSC.

[14] (1957) ECNLR 1.

[15] (1898 ) 1 NLR 15.

[16] Supreme Court FSC 337/1962.

[17] (1972) 1 All NLR 286.

[18] Supra see note 5 above.

[19] See the case of Alake v Pratt, supra note 12.

[20] “Nigeria Family Law”, London Butterworth 1966.

[21] Repealed and now regulated by Administration of Estate Law Cap A3 Laws of Lagos State of Nigeria 2005.

[22] 1 (1898) LRN 15.

[23] “Private International Law”, 12^th ed. Butterworth London Dublin Edinburgh 1979.

[24] S.N. Cretney, ‘Principle of Family Law’, Fifth Ed. Sweet & Maxwell 1990.

[25] American Journal of Sociology, vol.45 No. 2 (September 1939) University of Chicago Press.

[26] “Family Law in Nigeria”, Third ed. HEBN Publishers PLC 2014.

[27]“ Family Property Among the Yorubas”, Second ed. Sweet & Maxwell London 1966.

[28] The learned writer referred to the case of Bamgbose v Daniel (1954) 3 All E. R. 263.

[29] Journal of Private & Property Law vol. 16.

[30] Supra see note 13.

[31] “Family Law”, First ed. Spectrum Book Ltd 2003.

[32] Olabisi Onabanjo University Law Journal vol. 1 ,No. 1 January 2009.

[33] Supra note 12.

[34] Supra note 13.

[35] Suit No.M/150/80 (unreported) Lagos State High Court, 22^nd May 1980.

[36] (1997) (part 505) 5 NWLR 442 at 445.

[37] “Family Law in Nigeria”, Third ed. HEBN Publishers PLC page 309.

[38] (1997) 5 NWLR (Pt 505) 442, see also Okoli v Okoli (2003)8 NWLR (Pt. 823)565 CA.

[39] Suit No. M/150/80, unreported, May 22, 1981, in the High Court of Lagos State.

[40] “Modern Family Law in Southern Nigeria”, London Sweet & Maxwell Lagos African University Press Lagos 1966.

[41] Halsbury Laws of England 3^rd ed.  p,

[42] Black’s Law Dictionary Ninth ed. p, 984.

[43] Halsbury Laws of England 3rd ed. p.137.

[44] Kasumu A Salacuse “Nigeria Family Law” 1966 p, 207.

[45]  (1961) WNLR 107.

[46]Phibson on Evidence Sixth ed.(London Sweet & Maxwell,3005) p. 137.

[47] Black’ Law Dictionary Ninth ed. p, 984.

[48] Legitimation in Georgia (http//www.divorcenet.com/states/georgia/georgia_legitimation.

[49] “Family Law in Nigeria” Third ed. p.310.

[50] I.E Sagay “Legitimation and Rights of Inheritance”Journal of Private and Property Law vol. 19 at p. 8.

[51] Ninth ed. p, 1533.

[52] See s 35 Marriage Act Cap M6 Laws of Federation of Nigeria 2004.

[53] Cap M7 Laws of Federation of Nigeria 2004.

[54] See S47 of the Marriage Act Cap M49 Laws of Federation of Nigeria 2004.

[55] I.E Nwogugu,”Family Law in Nigeria” Third ed. pp. 6-9.

[56] Black’s law Dictionary Ninth ed. p. 888.

[57] Nwogugu I. E., see note 49 p, 313.

[58] See note 49 above.

[59] Philip v Philip (1941) 18 NLR 102) see also the case of Akerele v Balogun (1964) 1 LR 99 at 100 on what constitute acknowledgment. Distinguish this case from Young v Young where it was held that father name in the baptismal Certificate is not enough to constitute acknowledgment because it is not certain who inserted the father’s name in the certificate.

[60] For further reading see Nwogugu I.E.  “Family Law in Nigeria” Third ed., pp, 313-319.

[61] Ninth ed. p, 25.

[62] Supra see note 9 above.

[63] See s 38 of the Matrimonial Causes Act Cap M7 Laws of Federation of Nigeria 2004. There is significant debate on the application of this section.

[64] Federal Republic of Nigeria official Gazette No 20 Vol. 98 Government Notice No 103 dated 26^th July 2011.See also Yool v Ewing [1904] I I.R. 434. at 440-441.

[65] Supra see note 64 above.

[66] See note 20 above.

[67] See note 29.

[68] See note 32 above P, 34.

[69] Nwogugu I.E. “Family Law in Nigeria “Third ed. p. 310 gave a brief history of the Law as follows “The legitimation of an illegitimate child through the subsequent marriage of his parents was first made possible in Nigeria by the enactment of the Legitimacy Act 1929[69].  This piece of legislation, 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 subject which falls within the legislative competence of regional governments. Consequently, legitimation has been left out in the Laws of the Federation of Nigeria 2004.   Fortunately, state governments have preserved the original enactment without alteration. This accounts for the fact that there is now uniformity in the State laws on legitimacy.”

[70] See S5(2)

[71] See s3 of Legitimacy Law Cap L65 Laws of Lagos State 2005.

[72] See note 40 above.

[73] Coker, “Family Property among the Yorubas” First ed. p.263.

[74] Ibid p.272.

[75] See note 74 above.

[76]  See note 27 above.

[77] See note 12 above.

[78] (1881) 17 Ch D 206.

[79] (1946) 1 All ER 348.

[80] Supra see note 78 above.

[81] Supra see note 23.

[82] (1950) WACA 304.

[83]  (1946)1 ALL NLR 348.

[84] Ibid see note 83.

[85] Administration of Estates Law Cap A3 Laws of Lagos State of Nigeria 2005 is the Law that replaced Statute of Distribution because the issue of Estate Administration is within the legislative competence of the various state in Nigeria by the provisions of 1999 Constitution of FRN.

[86] Supra see note 29 above.

[87] Supra see note 26 pp. 317- 318.

[88] Supra see note 12.

[89] See note 26 ibid p. 318 note 89.

[90] (1968) NMLR 469.

[91] (1961) 1 All NLR 237.

[92] Suit No N 112/1965 unreported Lagos High Court.

[93] (1964) CLR 96.

[94] (1964) CLR 108.

[95] S. C. 180/69 30^th March 1972.

[96]Supra see note 40 above.

[97] 7 WACA 158.

[98] 1950 WACA 304.

[99] Supra see note 12 above.

[100]1955 A.C.107.

[101] Supra see note 78.

[102] Supra see note 13 above.

[103] See Kasumu and Salacuse op. cit. p.236.

[104]Supra see note 32 above.

[105]Supra see note 14 above.

[106]Supra see note 99 above.

[107] “Private International Law”, Fifth ed. p. 443.

[108] (1948) Ch 791 (1947) 2 All ER 830.

[109] “Family Properties Among the Yorubas” Second ed. at p. 287; see also Re Adedavoh supra note 107.

[110] Cap A3 Laws of Lagos State of Nigeria.

[111] Supra see note 40 above p.8.

[112] See note 13.

[113] “Nigerian Family Law”, London Butterworths 1966.

[114] Supra see note 22 above.

[115] See Salubi v Nwariaku (2003) 2 SC 161 at p.165.

[116] (2003) 2 SC 161, p.165.

[117] Ibid pp. 166-167.

[118] Cardoso v Daniel 1986 2 NWLR (Part 20) 1, 7.

[119] Supra (see note 13)See also the case of In the Estate of Herbert Samuel Macauley (deceased) 1 WACA 304,pp. 309-310

[120] (1976) NMLR 160

[121] See note 12 above,

[122] Cap A3 Laws of Lagos State of Nigeria.

[123] Supra see note 20 above p. 268.

[124]  S.15 (b) Matrimonial Causes Act Cap M7 Laws of Federation of Nigeria 2004

[125] See note 13 p.88

[126] Supra see note 40 above.

[127] See note 13 above.

[128] See note 14 above.

[129] Supra see note 22.

[130] See note 13 above.

[131] Supra see note 13.

[132] See also Bamgbose v. Daniel (1964) 14 WACA 116 Smith V. Smith (1924) 5 NLR 105 Onwudijoh v. Onwidijoh (1957) 2 ERLR 1).

[133]See note 20 P, 270.

[134] See note 27 P, 310.

[135] Supra see note 40 above.

[136]  Supra see note 7 above.

[137] Matrimonial Causes Act Cap M7, Laws of Federation of Nigeria 2004.

[138] Supra see note 13 above.

[139] Eunice Uzodike, “Trends in Human Rights Campaign” Inaugural Lecture delivered in University of Lagos 2011;p 28 -30;  Nwogugu I.E, “Family Law in Nigeria “ Third ed.  P 175, Oluwakemi Adekile ”Succession at Customary Law, Addressing the Crossroads of Constitutional Conflicts in Nigeria”, see note 23 at p, 35.

[140]”Succession at Customary Law, Addressing the Crossroads of Constitutional Conflicts in Nigeria”, see note 23

[141] Suit No. M/150/80, unreported, May 3 1986 in the High Court of Lagos.

[142] Supra see note 26 above.

[143] Weekly Reports of Nigeria (2001) W. R. N. vol.27 p.142 CA

[144] (1997) 5 NWLR (part 505) at 442; Okoli  v. Okoli (2003) 8 NWLR (part 823) 565 CA

[145] Suit No. 1/685/84, unreported, March 3, 1986 in the High Court of Ibadan.

[146] Suit No. M/150/80, unreported, May 22, 1981, in the High Court of Lagos State.

[147] Suit No. M/133/81 of 27^th Nov. 1981 in the High Court of Lagos State.

[148] It is the view of the author that section 39(2), 42(2) is all about rights being conferred on the illegitimate child and has nothing to do with abolition of the status. It only removed the disadvantages of illegitimacy.

[149] Weekly Reports of Nigeria (2001) W. R. N. VOL.27 p.142 CA see also Salubi v. Nwariaku [1997] 5 NWLR (part 505) at 442 where Ige JCA held that section 42(2) abolished the status of illegitimacy.

[150] [2000] 5 NWLR (part 657), p. 401.

[151] (2003) 2 SC 148 at 161

[152] (2014) 4 S.C. (Part) 1 at 27-29

[153] See the case of Hambe v. Hueze (2001) 2 SC 26.

[154] Supra see note 152 above.

[155] See note 7 above.

[156] See note 9 above.

[157] See note 6 above.

[158]  Margaret Chinyere Onuokah, Family Law Supra note, p 373 -374, GBA Coker, Family Property Among the Yorubas ,Second ed. 

[159] See Report on Illegitimacy Ireland ,The Law Reform Commission 1982 para.122-150,

[160] Article 3(1).

[161] Article 3(2)

[162] Article 4.

[163] Article 4(8).

[164] Accessed online on 23/11/2016, http://www.legislation.gov.ukoga/1987/

[165] Supra see note 23 P, 453-454

[166] (1942) Ch 864, (1942) 3 All ER 397

[167]Alaska Statutes Alaska Legal Resources Center, (http://www.touchngo.com/lglcntr/akstats/statutes/title25/chapter20/sec accessed online on 25/11/2016

[168] See note 174 , ibid at para. 137

[169] See, e.g. Articles 334, 335 of the French Civil Code, article 260 of the Swiss Civil Code.

[170] German language for government department in charge of youth..

[171] Illegitimate Paternity Rules in Germany (Kaiserslautern Legal Services Center, Legal Assistance Information)

[172] Cf. Engelhard-Grosjean, supra, fn. 35, at 712-713.

[173] Cf. id. See also Frame, supra, fn. 24, at 100.

[174]CC art 336.

[175] Albok Chloros, International Encyclopedia of Comparative Law vol.(.iv) “Persons and Family” pp. 28-29

[176] CC art 333 par.2.

[177] Supra see note 159 P, 29.

[178] Accessed online on 23/11/2016, http://www.legislation.gov.ukoga/1987.

[179] “Illegitimacy and Social Structure” American Journal of Sociology vol.45 No.2 (Sept 1939) pp.215-233.

[180] I.E.Nwogugu, “Family Laws in Nigeria” Third ed. pp.313-317.