THE RIGHTS OF AN ILLEGITIMATE CHILD IN NIGERIA

Edited By: Asykobi

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. That is not the case, however. A child born out of wedlock during a marriage is illegitimate under the Act, whether or not the child is acknowledged by the natural father; unless by custom, someone else has a prior claim 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 the claim 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 so adumbrated in Edet v. Essien 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 Yorubas, 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 Rights held in Marckx v. Belgium that no objective and reasonable justification existed for denying the illegitimate any entitlement on intestacy in the estate of members of her mother’s family.

In Mojekwu v. Mojekwu the Nnewi customary law of Oli-ekpe was struck down under the repugnancy principle by the unanimous judgment of the Enugu Division of the Court of Appeals. The basis of the decision was that the customary law 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’s female child” was a clear case of discrimination and hence inapplicable.

By contrast, Onwudinjoh v. Onwudinjoh in effect holds that any custom according a right of 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 frowned upon, there is no justification in punishing an innocent offspring.

Consider this viewpoint:

There is nothing morally reprehensible in allowing the illegitimate children of a man to share with the legitimate children in his estate thereby alleviating the many social stigmas from which they already suffer. And as nature would have it, sometimes they become the breadwinners of the family…

 As for the obligations of the lawyer, consider this:

Lawyers … shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

Necessarily, the duties and responsibilities of lawyers in Third World countries, most of which are under autocratic regimes, should be greater. In the context of a developing country, the lawyer must, in the words of Zambian ex-President Kenneth Kaunda,

be something more than a practicing professional man; he must be more even than the champion of the fundamental rights and freedoms of the individual. He must be, in the fullest sense, a part of the society in which he lives and he must understand that society if he is to be able to participate in its development and the advancement of the economic and social well being of its members.

Similarly, Gower, a renowned jurist, acknowledged that the public responsibilities of the legal profession in a developing country are greater than those in highly developed states. According to him, developing countries need courageous lawyers with the highest ethical standards if the rule of law and personal freedom are to be preserved against corruption, nepotism and elitism, as well as military and police power.

The legal profession therefore ought to be concerned with more than merely its bread and butter. Lawyers should use the law as an instrument of social change. The lawyer should engineer desirable social and economic changes under the law. For the lawyer to perform effectively, however, the bar must be independent. The International Commission of Jurists in the Declaration of Delhi 1959 recognizes that an organized legal profession free to manage its own affairs is essential to the Rule of Law. The independent bar, too, should support and sustain an independent and fearless bench.