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.
HUMAN RIGHTS
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.