An illegitimate child has been referred to as a child born out of wedlock, while a legitimate child is an issue of wedlock. Plainly, a child born out of wedlock whose paternity has been acknowledged by his natural father is as much legitimate as one born in wedlock during a marriage is illegitimate under the act whether or not the child is knowledge by the natural father; unless by custom, some one else has a prior clain to paternity of such a child.
Where a child is born out of wedlock, the first question is who is entitled to the paternity of the child? The question is essential, particularly in a polygamous setting. The controversy as regards paternity has always been between the natural father and the mother’s father or the person who has paid the bride price on the mother. Customs vary. A majority of communities favor he clain of the man who had paid the bride price of the mother. This is the position so far as customary practices and principle are concerned.
As for the judicial position, the supreme court holds that paternity should go with blood , and that any custom which prefers the provider of the bride price or the mother’s father to the natural father is repugnant to natural justice , equity, and good conscience.
It was adumbrated in Edet v. Esssun (supra). But in Amakiri v. Good-Head the custody of an illegitimate child was awarded to the family of the mother’s husband. This is a classic situation where the rule of natural justice altered a repugnant customary practice, or a sharp divergence between judges made law based upon advanced ethical values reflecting the facts of social life, for in almost all communities in Nigeria, it is considered an outrage that a man should be deprived of the paternity of a child from a woman on whom he had paid the bride price.
Succession Rights of an Illegitimate Child
The practice varies among various communities. Among the Yoruba, illegitimate children are accorded equal rights as their legitimate counterparts; the same is true of the Annang, Ibibio, Oron, Aba-Ngwa, and Nsukka, among others. In some other communities, illegitimate children are deprived of succession rights. The courts appear to support this reprehensible practice, as demonstrated in Onwudinjo v. Onwudinjo, where the court rejected the claim of an illegitimate child to share in the intestate estate of his father on the ground that no evidence had been laid in support of such claim, but supported a claim by a child where paternity had been acknowledged. With due respect, this is a miscarriage of justice by justice Ainley, C.J. (as he then was). His decision is contrary to S.39 (2) of the 1979 constitution, which assimilates into society citizens born out of wedlock who would ordinarily have been disinherited under English law or their customary law. Similarly, S.42 (2) states “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”. The constitution is the foundation of all legalities in Nigeria. It is the duty of the court not only to protect it but also to promote its operation to achieve its objective of social engineering through articulate and purposeful interpretation of the law. Furthermore, provisions in America and Europe provide for equal rights for children born in or out of wedlock. Though the European convention does not contain any explicit provision to this effect, the European court of Human Right held in Marckx v. Belguim that no objective and reasonable justification existed for denying the illegitimate any entitlement on intenstacy in the estate of members of her mother’s family.
In Mojekwu v. Mojekwu (supra) the Nnewi customary law of Oli-ekpe was struck down under the repugnant of the tnugu Division of the court of Appeals. The basis of the decision was that the customary laid in question which “permits the son of the brother of the deceased person to inherit the property of the deceased to the exclusion of the deceased’ female child” was a clear case of discrimination and hence inapplicable.
By contrast, Onwudinjo v. Onwudinjo in effect holds that any custom according a right to legitimacy to an illegitimate child may be repugnant to natural justice or contrary to public policy the morality behind this reasoning is questionable, to say the least. Although sexual promiscuity may be frawned upon, there is no justification in punishing an innocent offspring.
Federal republic of Nigeria, they have fundamental rights as guaranteed by 55.31 and 39 of the constitutions of the federal republic of Nigeria 1979, not to be discriminated against on the basis of whatever circumstances attended their birth or to be subjected to any human indignity, or to be called or regarded as “second class citizens”, “strangers”, or any other inferior/lower social class than other citizens of Nigeria. They contended that their constitutional rights guaranteed in 55.31 and 39 of the 1979 constitution of Nigeria are violated by the practice of “redemption” to appease members or the respondents family in order to “cleaue” the applicants of their slave blood” or “inferionty” or “stranger-element” or any other usage, norms, ethos, or other customary practice.
Though the appeal was dismissed, the court of appeal held inter alia that the discrimination earisaged against a person by 5. 39 (1) 1979 constitution must be based on law, stating further that the protection provided by S.39 (1) can be invoked only if the condition therein stated is the sole reason for discriminating against the person, it is reasonable to invoke this provision to protect the right of a person tagyeul “adopted child,” for it is unconscionable, immoral and inhumane to pretend that a child is fathered whereas in practice parental right are deprived. To this extent, this customary practice is inconsistent and incompatible with the basic norm and should therefore be outlowed. It is hereby submitted that S.39(1), which deals with discrimination of various types, should not be enforceable solely against the state; it should be made enforceable against individuals as well. This is so because that state may be less likely to discriminate than a vindictive individuals.