The Journal of Property Law and Contemporary Issues Vol. 5, No.

1, January 2017

AN ANALYSIS OF THE CONCEPTS OF LEGITIMACY AND

LEGITIMATION UNDER NIGERIAN FAMILY LAW

by

M.O. Izzi*
C.D. LongJohn**

Abstract
The question of legitimacy in relation to a child is critical as it touches on
the status of that child, and determines whether or not the child is,
amongst other things, entitled to succeed to the estate of his father and
to occupy certain offices under native law and custom. This paper
examines the concepts of legitimacy and legitimation under Nigerian
laws with particular emphasis on case law. Against the provision of
Section 42(2) of the 1999 Constitution of Nigeria (as amended), the paper
discusses the issue of public policy, examining key old and recent
decisions emanating from the Nigerian judiciary, with the aim of
identifying the attitude of the courts towards children who are neither
bom nor conceived in the course of a valid marriage. The paper finds that
the attitude of the Nigerian courts on the issue of legitimacy of children is
hinged on public policy which has largely been interpreted in favour of
children born or conceived in the course of a valid marriage.
The paper argues that public policy, being an unruly horse, should not be
so relied on, as the policy of the public is generally uncertain and cannot
be clearly identified. The paper, therefore, recommends that the fluid
concept of public policy should be interpreted to promote equality
amongst all the children of a man thereby reflecting the spirit of the
Nigerian constitution.

Introduction
No child is involved in the selection process of his biological parents.
The entire process is divinely ordained. Nonetheless, some children are
regarded as illegitimate by their fathers, and indeed the society at large. This
unfortunate situation generally occurs where the child is neither born nor
conceived in the course of a valid marriage. It is often worse where the
paternity of the child is in dispute. The cloud of illegitimacy, thus, attaches
itself to the affected child, bringing with it varying degrees of stigmatization.
The words legitimacy and legitimation are derived from the adjective
‘legitimate,’ which is a word synonymous with the terms ‘valid’ and ‘justifiable’.
‘Legitimate’ means that which is ‘allowed and acceptable

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according to law’* 1. ‘Legitimacy,’ therefore, is ‘the state or fact of being

legitimate’.2 It is a term synonymous with the word lawfulness’. The Black’s
Law Dictionary3 defines legitimacy as ‘the status of a person who is born within
a lawful marriage4 or who acquires that status by later action of the parents;
legal kinship between a child and its parent or parents.’ It further defines
legitimation as ‘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.’ Legitimation, therefore, is the process by
which a child who has not been born legitimate acquires the status of
legitimacy.
Under family law, a child is considered legitimate if ‘born to parents who
are married to each other either at the time of birth or subsequently.’ 5
Legitimacy is determined by the laws of a person’s country of origin. 6 At
Common Law, a child was considered legitimate if his parents were married
either at the time the child was conceived or at the time of his birth. 7 Generally,
a child born to a married woman is presumed legitimate. 8 An illegitimate child
had no rights whatsoever with regard to his parents. He was regarded as the
son of nobody and aptly termed fillius nullius. P.O Itua,9 speaking on the
discrimination suffered by illegitimate children under common law, states that:
The illegitimate child was a stranger in law not only to his father hut
also to his mother and all other relatives. He thus, has no legal right to
succeed to their property, to receive maintenance 10 II “or other benefits
deriving from the status of parent and child. 1 Also, an illegitimate child
has no right to participate in the intestacies of either of his parents.

*Senior Lecturer, Department of Private and Property Law, Faculty of Law, Rivers State University of Science and
Technology, Nkpolu-Oroworukwo, Port Harcourt.
**Lecturer, Department of Private and Property Law, Faculty of Law, Rivers State University of Science and
Technology, Nkpolu-Oroworukwo, Port Flarcourt.
1 A.S Flornby, Oxford Advanced Learners Dictionary of Current English, (7th edn, Oxford University Press 2005)

844.
2 Mairi Robinson and George Davidson (eds), Chambers 21s’ Century Dictionary, (Chambers Harrap Publishers Ltd

1999) 780.
3Bryan A. Garner(ed); Black's Law Dictionary, (9th edn, West, Thomas Reuters 2009) 984.
4 Adeyemi & Ors v. Bamidele & Ors (1968) NSCC 26 at 31.
5 Mairi Robinson and George Davidson (eds), Chambers 21st Century Dictionary, Ibid 780.
6ln re Goodman?s Trusts (1881) 17 Ch. D. 266 cited in Alake v. Pratt; Re Sarah Adadevoh
I Lowe and Douglas in IP Enemo, Basic Principles of Family Law in Nigeria, (Spectrum Books Limited, 2008) 278.
8 Pater est quem nuptiae demonstrant.
9 P.O Itua, 'Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the constitution of

the Federal Republic of Nigeria 1999 as amended on the rights of inheritance' Journal of Law and Conflict
Resolution Vol. 4(3), 33. March 2012 Available online at [Link]
10 I.E. Sagay, Nigerian Law of Succession Principles, Cases Statutes and Commentaries, (Malthouse Press Limited,

2006) 2.
II Cretney, Principles of Family law (4th. Ed, 1984) at 594.

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Likewise, neither of his parent had a right to success on the intestacy of

the illegitimate child. He also had no right to take on the intestacy of a
grandparent or brother or sister (whether legitimate or not) and vice
versa.12

The above Common Law position has however been altered by the
Legitimacy Ordinance of 1929.13 The general attitude of the courts and laws
towards illegitimate children is hinged on public policy. This paper argues that
public policy, being an unruly horse 14, should not be so relied on, as the policy
of the public is generally uncertain and cannot be clearly identified.
A child born after a decree of divorce is presumed legitimate. 15 This
presumption is however rebuttable. In Nigeria, the presumption of legitimacy is
provided for under Section 165 Evidence Act, 2011 to wit:
Without prejudice to section 84 of the Matrimonial Causes Act, where a
person was bom during the continuance of a valid marriage between
his 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 the man.

In Okolonwamu v. Okolowanmu16, it was reaffirmed by the court that

the legitimacy of a child can be determined by three major ways. These are: (1)
Paternity by existing Marriage: A child bom during the pendency of a valid
marriage between a couple is automatically presumed to be legitimate. (2)
Paternity by Subsequent Marriage to the mother of the child: this occurs when
a child is born at a time when the mother was not married to the father and
after whose birth the mother and father entered into a valid marriage. (3)
Paternity by acknowledgement by the father accepting paternity of the child:
this includes paying for the hospital bills and upkeep of the child, introducing
the child to his family as his child.
This paper undertakes an analysis of the application of the concepts of
legitimacy and legitimation in Nigerian family law vis-a-vis Section 42(2) of the
Constitution of the Federal Republic of Nigeria (1999), as amended. To this
end, the paper is divided into 6 parts. Part 1 introduces the concepts of
legitimacy and legitimation. Part 2 discusses the presumption of access and
the philosophy behind this presumption. Part 3 examines legitimacy and
legitimation under English law. Part 4 of the paper examines the concepts of

12 Cretney, Id at 604
13 Adeyemi v. Bamidele [1968] 1 All N.L.R. 31 at p.37
14 Hobart C.J referred to public policy as an 'unruly horse on which no judge should ever try to mount, lest it run

away with him.' quoted in Enderby Town Football Club v. Football Association [1971]CH.591.
15 Knowles v. Knowles (1962) 1 All ER, 659.
16 (2014) LPELR-22631(CA) Pp. 43-44, paras. C-D.

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legitimacy and legitimation under native law and custom. Part 5 of the study
examines these concepts in relation to Section 42(2) Constitution of the Federal
Republic of Nigeria (1999,) as amended, examining the 2 schools of thought on
the effect of this constitutional provision on the issue of legitimacy of children.
Section 6 concludes the paper with recommendations aimed at promoting
equality in line with the spirit of the Nigerian constitution.

Presumption of Access
The presumption of access is to the effect that spouses are presumed to
engage in sexual intercourse except the contrary is satisfactorily proved. This
presumption is rooted in public policy and is aimed at guarding against the
undue questioning of the paternity of children, thereby promoting the sanctity
of marriage and in fact the dignity of children born or conceived in the course
of a marriage. It was in view of the above that the court, in Elumeze v.
Elumeze17 18, held that none of the parties to a marriage can give evidence to
rebut the presumption of legitimacy of a child born within the subsistence of
the marriage or within 280 days after the dissolution of the marriage. In other
words, the court, in this case, declared the presumption of access irrebuttable.
However Section 84 Matrimonial Causes Act provides that, Notwithstanding any
rule of law, in proceedings under this Act, either party to a marriage may give evidence
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 bom to the wife during this marriage was
illegitimate.

The above provision thus allows for the voluntary giving of evidence of
non-access by either of the spouses to the marriage. In Oduche v. Oduchels, the
Court of Appeal upheld the decision of the trial court to the effect that:
By the provisions of Section 84 of the Matrimonial Causes Act, . . .
neither party shall be compellable to give evidence that would show or
tend to show that a child bom to the wife during the marriage was
illegitimate.
. . . From the provisions of Section 84 of the Matrimonial Causes Act and
Section 148 of the Evidence Act, it would seem to me improper to order a
medical inspection of the respondent in the circumstances of this case.
. . . Indeed, Section 84 of the Matrimonial Causes Act, Order XI Rules
21(1) and 23 of the Matrimonial Causes Rules and Section 148 of the
Evidence Act ensures that on ground of public policy it is most
undesirable to enquire into the paternity of a child whose parents have
access to each other. Medical test for the respondent is uncalled for in
the circumstances of this case. Such a requirement or suggestion
17 (1969) All NLR 311.
18 (2005)LPELR-5976 CA
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degrades the sanctity of marriage and is obviously contrary to

public policy.

It is, therefore, apparent from the above cases that, to preserve the
sanctity of marriage, parties to a marriage cannot be compelled to give evidence
challenging the paternity of a child of the marriage. They are, nonetheless, free
to offer such evidence voluntarily.
There are 2 ambits to the presumption of legitimacy. The first ambit is
that the child is legitimate because the husband and wife had sexual
intercourse. The second ambit is that the child is the product of that act of
sexual intercourse. Where evidence of non-access is established, the second
ambit of the presumption of legitimacy is automatically rebutted.
The presumption of access may be rebutted by leading evidence to show
that spouses did not or could not have sexual intercourse during the relevant
time. For instance, evidence may be led to show that the husband was either
infertile or impotent at the material time. Evidence may also be led to show
that the husband was absent at the time of conception. 19 DNA tests may be
conducted to establish paternity of the child. The tests can only be legitimately
conducted if the parties willingly subject themselves to it. DNA tests are more
precise than blood tests. The latter cannot be used to establish conclusively
that a particular man is the father of a child. They can, however, be used to
establish conclusively that he cannot be the father of the child. 20
The courts have held that adultery by a wife is insufficient to rebut the
presumption of access. Evidence of adultery will at most show that either the
husband or the co adulterer is the father of the child. 21 In Oduche v. Oduche22,
the parties got married at the Marriage Registry on the 8th of September, 1984.
They lived together and had three children. The appellant gave birth to the
third child about 6 months after she left the matrimonial home. The
Respondent commenced divorce proceedings against his wife, the appellant,
before the High Court of the Federal Capital Territory, Abuja. He petitioned the
court to dissolve his marriage with the appellant contracted on the ground that
the marriage had broken down irretrievably in that the appellant deserted him
and committed adultery.
The appellant in her answer to the 2nd amended petition filed a further
amended Answer and cross petition seeking a dissolution of the marriage on
the ground of living apart for a continuous period of three years, immediately

19 Preston-Jonesv. Preston-Jones (1951)Ail ER 124.

20 IP Enemo, Basic Principles of Family Law in Nigeria, (Spectrum Books Ltd 2008) 283.
21 Ibid 282.
22 (2005)LPELR-5976 CA.

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preceding the presentation of the petition. In the course of the proceedings the
appellant contended that the Respondent was not the father of the children
and that he was in fact impotent. No evidence of non-access was led by either
of the parties. The appellant was unable to rebut the presumption of access in
Section 148 Evidence Act (now Section 165 of the Evidence Act, 2011). The
appeal court, therefore, upheld the decision of the trial court that The
appellant cannot be heard to say that the respondent is not the natural father
of the children....by virtue of Section 148 of the Evidence Act the third child
who was born 6 months after the Respondent left the matrimonial home is the
child of the respondent.’ The court further held that the fact the wife was living
in notorious adultery was insufficient to prove that the Respondent is not the
father of the children. Rhodes Vivour JCA opined that:
The evidence required to rebut the presumption in Section 148 of the
Evidence Act must be strong, clear and conclusive as to lead to the
irresistible conclusion that the child is not the offspring of the husband.
The presumption cannot be displaced by mere balance of probabilities or
by circumstances casting doubt. See Elumeze v: Elumeze 1969 All N.L.R.
p. 301; Egwuwoke v. Egwunwoke Nwadike & Ors. 1966 All N.L.R. p.
301; WATSON v. WATSON 1933 2 All E.R. p. 1013. The principle
underlying the rule is obvious. It is most undesirable to enquire into the
paternity of a child where parents have access to each other.
The presumption of Legitimacy under Section 148 of the Evidence Act is
a rebuttable presumption of Law which can only be displaced by
showing that the parties to the marriage had no access to each other.
Emdence must be strong, that is to say it must be proved that access
was impossible on account of illness, impotence. 23... Where the husband
and wife have co-habited together and no impotency is proved to the
satisfaction of the court, the child or children are conclusively presumed
to be legitimate even though the wife is shown to have been, at the same
time guilty of infidelity, and even where the parents are living apart a
very strong presumption of legitimacy still arises, and it can only be
rebutted by irresistible proof of non-access to sex.24

Legitimacy and Legitimation under English Law '

3.1 Void marriages: At Common Law, children of void marriages were
considered illegitimate. Similarly, in Nigeria, children of void marriages are
illegitimate. Worthy of note is the provision of Section 2(1) of the English
Legitimacy Act, 1959 which provides that the child of a void marriage shall be
treated as legitimate if at the time of conception (or at the time of the
celebration of the marriage if later) both or either of the parties, reasonably

25 Oduche v. Oduche (2005)LPELR-5976 CA, P. 17, paras. B-F.

24 Ibid P. 27, paras. B-D.
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believed that the marriage was valid.25 While this provision is commendable, it
would be surplusage to insert a similar provision in Legitimacy Statutes in
Nigeria because Section 33(2) Marriage Act emphasizes that a marriage will be
null and void if both parties knowingly and wilfully acquiesce in its
celebration:
(*) In any place other than the office of a registrar of marriages,
or a licenced place of worship (except where
authorised by the licence issued under section 13 of this Act);
or
(b) Under a false name or names; or
(c) Without a registrar’s certificate of notice or licence issued
under section 13 of this Act duly issued; or
(d) By a person not being a recognised minister of some religious
denomination or body or a registrar of marriages.

Section 33(3) Marriage Act further provides that ‘no marriage shall after
celebration, be deemed invalid by reason that any provision of this Act other
than the foregoing has not been complied with.’ Thus, where any or both
parties to the marriage do not knowingly and wilfully contravene the provisions
of Section 33(2) Marriage Act the marriage is not rendered void. Therefore, a
child born in the course of such a marriage is legitimate.

Voidable Marriages
At Common Law, a decree of nullity with respect to a voidable marriage
was retrospective. Therefore children of such marriages were considered
illegitimate. However this position has ceased to exist owing to the provision of
Section 16 English Matrimonial Causes Act 1973. In Nigeria, Section 38 MCA,
1970 provides that a decree of nullity in the case of a voidable marriage is
effective only from the date of the order. Furthermore, the decree does not
render illegitimate children born since, or legitimated during the marriage.

Legitimation
At Common Law, an illegitimate child Would become legitimate if his
parents subsequently married each other, provided they had been free to
marry each other at the time of the child’s birth’.25 26 The first legislation on
legitimation in Nigeria was the Legitimacy Act of 1929. With the introduction of
federalism in Nigeria in 1954, the various regions enacted their respective
legitimacy laws. These laws were patterned after the Legitimacy Act 1929. In

25I.P Enemo, ibid, 284; E.l Nwogugu, Family Law in Nigeria, (3rd edn, HEBN Publishers Pic 2014) 306.
26 Lowe and Douglas in IP Enemo, ibid 285.
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 The Journal of Property Law and Contemporary Issues VoL 5, No. 1, January 2017

Nigeria, Legitimation may be achieved by the subsequent marriage of the

parents of the child. The Nigerian statutes on Legitimation do not stipulate that
for a child to be legitimate his parents must have been free to marry each other
at the time of his birth.

Legitimacy by Subsequent Statutory Marriage

Section 3(1) Legitimacy Act, 1929 provides that,
Where the parents of an illegitimate child marry or have married one
another before or after the commencement of this Act, this marriage shall,
if the father of the illegitimate person u>as or is at the date of the
marriage domiciled in Nigeria, render that person, if living, legitimate from
the commencement of this Act, or from the date of the marriage, whichever
happens last.

For a hitherto illegitimate child to acquire legitimacy under the above

provision, the marriage between his parents must have been a statutory one.
The Legitimacy Act does not govern marriages contracted under customary or
Islamic law. Also, the father of the child must be domiciled in Nigeria as at the
date of the marriage. Furthermore, the person to be legitimated must be alive
as at the date of the marriage. Thus, no person can be legitimated after his
death.
Section 8 Legitimacy Act provides that a person who is legitimated by
the subsequent marriage of his parent has the same rights and obligations
with a person who was bom legitimate. Nonetheless, where any right to
property’ depends on the relative seniority of the children, the legitimated child
will rank as if he was bom on the date he was legitimated. Where more than
one child is legitimated at the same time, between themselves, they rank in
their natural order of seniority.27

Legitimacy under Customary Law

Generally, it is presumed that a child bom during the subsistence of a
marriage under native law and custom is legitimate. This presumption exists
even when the parents are living apart, binder Igbirra native law and custom, a
child born within 10 months after the dissolution of a marriage is presumed to
belong to the former husband of the woman. Generally, customary courts
regard the presumption of legitimacy as irrebutable. As a result the
presumption is applied even when it is evident to all that the child does not
belong to the mother’s husband. However, superior courts of record in Nigeria
have repeatedly treated this presumption as a rebuttable one. They have

27 Section 5(2) Legitimacy Act 1929.

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therefore held in certain cases28 that a principle of customary law which gives a
child to the husband, when it is conclusively proved that the child is not his, is
contrary to natural justice, equity and good conscience. The child of a void or
voidable customary law marriage is regarded as illegitimate.29

Legitimation by Acknowledgement
Furthermore, under customary law, a child who has been acknowledged
by his father is considered legitimate. 30 Legitimation, under native law and
custom is by acknowledgment. Acknowledgement occurs where the paternity of
the child is recognised by his natural father. Acknowledgement in this regard,
means any act of a natural father of an illegitimate child by which he
recognises paternity of that child. In Adeyemi v. Bamidele3lit was held that
children otherwise referred to as illegitimate can make a valid claim if evidence
is adduced that their natural father had acknowledged their paternity. 32 Acts
that constitute acknowledgement may be formal or informal. It may take the
form of an admission by the natural father that he is indeed the father of the
child. He may also acknowledge the child by paying the hospital bills of the
child. In Savage v. Mcfoy33 such payment was held to be sufficient. The
performance of the customary naming ceremony 8 days after the birth of the
child was held in Phillip v. Phillip34 to be evidence of acknowledgement.
Generally, only the natural father of a child can acknowledge the
paternity of that child. Thus, the family of the natural father cannot on his
behalf acknowledge the child. There is however the issue of the death of the
natural father before the birth of the dead child after the natural father has
acknowledged the pregnancy in question. It is logical to conclude that where a
man has acknowledged responsibility for a pregnancy and dies before the child
is born, he is taken to have acknowledged paternity of the child.
In Alake v. Pratt,35 a case decided in 1955 by the West African Court of
Appeal, the issue was whether the appellants, Adeyinka and Adenike Coker.

28 Edet v. Essien (1932)11NLR 47; Mariyama v. Sadiku Ejo (1961) NRNLR 81.
29 Nwogugu, ibid, 306.
30 P.O Itua, 'Legitimacy, legitimation and succession in Nigeria: An appraisal of Section 42(2) of the constitution of the

Federal Republic of Nigeria 1999 as amended on the rights of inheritance'

Journal of Law and Conflict Resolution Vol. 4(3), pp. 31-44, March 2012 Available online at
[Link] :
311968 All NLR 37
32 Young v. Young (1962) 3 All NLR 120. .
33 1901 1 Rennes Gold Coast Rep 504. •
34 (1946) 18 NLR 102.
35 (1955) 15 WACA 20.

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who are children born out of wedlock to their father, Dudley Theodore Coker,
are entitled to share in the estate of their deceased father together with the
respondents who are the issue of a marriage contracted by him under the
Marriage Ordinance. The learned trial judge held that it had been satisfactorily
proved that under Yoruba Native Law and Custom, the appellants having had
their paternity acknowledged by the deceased during his life-time, are
ordinarily, to be regarded as legitimate under the law in Nigeria. However, the
learned trial judge proceeded to state, on grounds of public policy, that where
there are children born in lawful wedlock, children born out of wedlock should
be excluded from participating in the distribution of the estate of their father,”
but “if the children of the deceased are all of the same status, that is, born
without marriage, they could inherit their father’s property.” This decision was
set aside by the appeal court which held per Foster Sutton, P. that,
the appellants having been held to be legitimate, I do not think the
question of their parents? marriage is then a relevant subject for
investigation. Nor do I think that Public Policy demands that the Courts
of this country should hold otherwise. It follows that, in my opinion, if in
fact the status of legitimacy is conferred by the law of this country, the
domicile of origin of the appellants, which has been held to be the case,
they are entitled to succeed to the property of their deceased father,
together with his other legitimate children.

The above view of the appellate court is in line with the spirit of the
Constitution. Public policy is too uncertain a term to be conclusively relied on
by the courts.36 In West Construction Co. Limited v. Santos M. Batalha37 the
Court opined that
obviously, a doctrine of public policy is somewhat open textured and
flexible, and this flexibility has been the cause of judicial censure of the
doctrine. On occasions it has been seen by the court as being vague and
unsatisfactory “a treacherous ground for legal decision a very unstable
and dangerous foundation on which to build until made safe by
decision.

In Lawal v. Younan,38 a decision of the High Court of Justice delivered

in 1959, where the court was invited to adjudicate on the right of children,
whether legitimate or not, to share in father’s estate and as dependants. The
court held that whether they are legitimate or not, the children of the deceased

36 On Public Policy, See generally C.D Longjohn 'Application of Customary Law in Nigeria' The
Journal of Jurisprudence and Contemporary Issues, Vol. 8, No. 1 April, 2016, 229-245.
37 [2006] All FWLR (Pt315)l at 20
38 (1961) 1 All NLR 245.

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were entitled by the law of the land to inherit the estate of their fathers and
were dependants of their fathers. The point must be noted that in this case, all
marriages in issue were marriages under native law and custom. The court
held that it was not proved that any of the alleged 9 wives of the deceased
Alhaji Adegoke Adelabu, and alleged 2 wives of deceased Adeleke Are mu, were
in actual fact married to them. The court therefore held thus,
I now come to the question of damages. 1 have already stated that I am
not satisfied that it has been sufficiently proved that the alleged widows
of the deceased persons were married to the deceased persons in
accordance with Native Custom. I emphasise that the Court has to be
cautious in a case of his kind to find out whether persons who claim to
have been married under Native Custom were in fact so married. As I
have already stated I cannot attach any importance to the evidence of a
relative of a deceased person who alone gives evidence on the issue as
to whether the deceased was properly married or not. . . . If this care is
not exercised there may well be cases in which persons living in
concubinage will come to the Court and cloak their associations with
men under the guise of native customary marriages. ... I therefore
consider damages only in respect of the seventeen children of Adelabu
and the four children of the deceased, Aremu, whether they are the
issues of a recognised native customary marriage or not.

In Cole v. Akinyele39, a case decided in 1960 by the Federal Supreme

Court of Nigeria, it was held as follows; 1 would hold it contrary to public policy
for the deceased to be able to legitimate an illegitimate child born during the
continuance of his marriage under the Ordinance other than that provided in
the Legitimacy Ordinance.’ In this case, the deceased, Albert Abimbola Cole, in
the course of his lifetime twice entered into a marriage under the Marriage
Ordinance. The first respondent is his sole surviving child by the first marriage,
which was terminated by the death of the wife, and the second respondent is
his widow by the second marriage. He died intestate. The deceased had 2
children outside wedlock with a woman who claimed to have married the
deceased under native law and custom during the subsistence of his first
statutory marriage. The court held that the purported marriage was not proved
and even if it were proved, it would have been void in the face of the subsisting
statutory marriage.
The court was therefore invited to pronounce on the legitimacy or
otherwise of the children born outside wedlock. The first appellant was born
during the continuance of the first marriage and the second some six weeks
after the death of the first wife and at a time when the deceased was a widower.
It was not disputed that during his lifetime the deceased openly

39 (I960) 5 FSC 84.

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acknowledged the appellants as his children and treated them as such, and
the submission made on their behalf is that that is sufficient under Yoruba law
and custom to confer on them the status of legitimacy. At the trial court,
Kaine, J., distinguished between Alake v. Pratt and the present case on the
ground that in Alake v. Pratt the legal wife of the deceased was dead, “and
therefore he could go back to native law and custom if he chose,” and he
refused to differentiate between the first and the second appellants on the
ground that the second appellant “was already in being” at the time of the
death of the first legal wife. On appeal, the court, per Brett FJ, held
I am not prepared to treat Alake v. Pratt as authority for the proposition
that while a man is married under the Marriage Ordinance he can make
a child bom to him during the continuance of that marriage by a woman
other than his wife, legitimate by the mere acknowledgment of paternity,
and I should regard such a rule as contrary to public policy. I would
hold, therefore, that the fact that the deceased acknowledged the first
appellant as his son when he was bom, and attended the ceremony of
his baptism, did not serve to make him legitimate.
The first appellant could, therefore, have become legitimated if the
deceased had married his mother under the Marriage Ordinance after
the death of his first wife, and the question is, whether he has been
legitimated by any alternative method under Yoruba law and custom. In
my opinion he has not. The judgment in Alake v. Pratt does not go into
the question of what constitutes a sufficient acknowledgment by the
father to make a child legitimate, nor does it decide whether the
acknowledgment must be given at the time of the child’s birth, or
whether it may be given at any time during the joint lives of the father
and the child. ... I prefer, however, to base my judgment not on the
failure to prove any applicable rule of Yoruba law and custom, but on
the ground that such a rule would be contrary to public policy. On the
death of his first wife it would have been open to the deceased to
legitimate the first appellant by marrying his mother under the Marriage
Ordinance. He did not do so, ... When a man who might have married
under native law and custom has voluntarily accepted the obligations
imposed by a marriage under the Marriage Ordinance it seems no undue
hardship upon him to hold that in order to legitimate the children of an
adulterous union he must follow the same procedure as a person to
whom a marriage under the Ordinance is the only form of lawful
marriage open; indeed to hold otherwise would almost be to reduce the
distinction between the effects of the two forms of marriage to a matter
of words.

Concerning the second appellant, the court pronounced him legitimate

because before the birth of the second appellant the lawful wife of their father,
the deceased, had died,’ and even though the trial judge pronounced the
second appellant illegitimate because of he had already been conceived the
appeal court, setting this decision aside, held that ‘under the law of England
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legitimacy by birth depends on being bom after a marriage between the

parents, not on being conceived in wedlock, and I cannot believe that the rule
of Yoruba law on which the second appellant relies introduces a refinement of
this kind, when in the ordinary case of a child bom out of wedlock it treats
acknowledgment by the father as the only test.’
The court therefore dismissed the appeal of the first appellant and
upheld that of the second appellant. The decision in Alake v. Pratt40 was thus
limited by the decision in Cole v. Akinyele. The later decision was rooted deeply
in public policy which failed to recognise that the declaring of children as
illegitimate would, on the contrary encourage promiscuous intercourse in
men.41
Generally, there are 3 views concerning the effect of acknowledgement
on a child. One view is that acknowledgment only entitles a child to take
property in the family of his natural father. Another view is that
acknowledgment only makes the child legitimate only for certain purposes. 42 43
44 In Bamgbose v. Daniel 43 it was held that children who are not the issues of a

marriage can also be regarded as legitimate children for certain purposes, if

paternity has been acknowledged by the putative father. The third and
preferred view is that acknowledgment makes the child legitimate for all
purposes. Therefore, in Taylor v. Taylor44 the court held that ‘the
acknowledgment of paternity by the father, ipso facto legitimises the children
and there could not for the purposes of succession be different degrees of
legitimacy.’45
There is the question of whether acknowledgement should have
retrospective effect. For maintenance of order, acknowledgment should take
effect from the time of birth of the child irrespective of when the child was
acknowledged. Nonetheless, acknowledgment should not affect completed
property transactions. Thus, in Young v. Young the court held that ‘the
acknowledgment of paternity made after property has ceased to be family
property by being conveyed to bonafide purchasers for value by the then
members of the family could not be set aside at the instance of the
acknowledged person, as to do so would be contrary to natural justice, equity
and good conscience.’ The argument that legitimacy should take effect from

40 (1955) 15 WACA20.
41 See also Re Sarah Adadevoh (1951)13 W.A.C.A. 304, where Sir John Verity, C.J., pointed
out that the encouragement of promiscuous intercourse must always be contrary to public
policy.
42 Lawal v. Younan (1961) 1AII NLR 245.
4314 W.A.C.A 111 at page 1 .
44 (1960) LLR 286
45 See P.O Itua, ibid, 34.

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the date of acknowledgment would lead to chaos as it may be difficult to

determine the exact date that the child in question was acknowledged.

Restrictions on the Right to Acknowledgement

It has been held that, on grounds of public policy, there can be no
legitimation of children born during the subsistence of a valid marriage. In Cole
v. Akinyele46 Brett FJ opined stated that ‘I would hold it contrary to public
policy for him (the deceased) to be able to legitimate an illegitimate child born
during the continuance of his marriage under the Ordinance by any other
method other than that provided in the Legitimacy Act.’ The court further held
that the right of acknowledgement must exist at birth. Thus, an illegitimate
child born during the subsistence of a valid statutory marriage cannot be
legitimated even after the end of the statutory marriage. 47 Such a child is
confined to illegitimacy. In Osho v. Phillips48 49 the court held thus;
The defendants being the legitimate children of the intestate by his legal wife
under the Marriage Act, they have a right... to succeed to the deceased
property to the exclusion of the plaintiff, who were as a result of the
deceased’s association with another women during the subsistence of a legal
marriage under the Act and are therefore illegitimate and the fact that 2 of
the defendants, as administrators, had distributed a portion of the
deceased’s personal property amongst the plaintiff as beneficiaries and
invited them to the family meeting of the deceased’s children does not stop
the defendants from maintaining that • the plaintiff are not legitimate children
of the deceased.

Furthermore, it has been held that there can be no acknowledgement if

there are legitimate children. This principle was suggested in Re Sarah
Adedevohwhere the court opined that children bom out of wedlock could not be
acknowledged as it would be contrary to public policy to allow illegitimate
children compete with children born in lawful wedlock. Jibowu J opined that
legitimation and succession to property through acknowledgment can only be
effected when there is no marriage recognised by the law or no children of such
marriage. The above decision has been faulted on the ground that it would
encourage and not forestall promiscuity as a married man with propensity for
promiscuity will be encouraged in his promiscuous ways by the certainty of the
illegitimacy of the children that may spring from his immoral

46 (I960) 5 FSC 84.

47 Olympic: v. Oluwole (1968) NMLR 469; Osho v. Phillips (1972) ANLR 279; Motoh v. Motoh (2010JLPELR-86431
CA. . .
48 ibid
49 (1951) 13 WACA 304.

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affairs. Hence, in Alake v. Pratt50 it was held that children born out of wedlock,
having been legitimated by acknowledgement were entitled to share in the
estate of the deceased with the children of the statutory marriage.

Legitimacy under the 1999 Constitution

Section 42 (2) of the Constitution of the Federal Republic of Nigeria,
1999 provides that ‘No citizen of Nigeria shall be subjected to any disability or
deprivation merely by reason of the circumstances of his birth.’The provision
contained in Section 42(2) CFRN 1999 first appeared in 1979 Constitution51.
Section 42(2) applies only to Nigerian citizens. ‘Circumstances of one’s birth’
has been said to include marital status of parents, social status (eg Osu),
economic standing, place, time and manner of birth.
There has been debates in legal circles concerning whether or not
Section 42(20 CFRN has abolished the status of illegitimacy in Nigeria. The
liberal view is that Section 42(2) has completely abolished the status of
illegitimacy in Nigeria because the provision has eliminated the disadvantages
associated with illegitimacy; causing an illegitimate child to have the same
rights to maintenance and succession as a legitimate child. The liberal view is
therefore that the concept of illegitimacy in relation to children has been
abolished by the provision of the constitution. In Salubi u. Nwariaku52 the
court held that ‘since the coming into force of the 1979 Constitution, the term
illegitimate children used to describe children born out of wedlock has been
rendered illegal and unconstitutional’.
The restrictive view is that Section 42(2) CFRN 1999 has not eliminated
the status of illegitimacy. It has merely removed the disabilities and deprivation
suffered by illegitimate children. It has been argued that if the drafters of the
constitution intended to abolish the status of illegitimacy, they would have
expressly stated so in the constitution.

Conclusion
The decisions of the courts in Re Sarah Adedevoh and Cole v. Akinyele,
which were based on public policy, tend to deprive children considered
illegitimate of certain benefits owing to the circumstances of their birth.
Beyond the letters of the Nigerian Constitution, the spirit of the
constitution speaks of equality and justice. The Preamble to the 1999
Constitution of the Federal Republic of Nigeria states that the purpose of the

50 (1955) 15 WACA 20.

51 s39(2).
52 (1997) 5NWLR (Pt 505) 442.

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Constitution is to, among other things, promote the ‘welfare of all persons in
our country on the principles of Freedom, Equality and Justice, and for the
purpose of consolidating the unity of our people.’ This Preamble in addition to
the provision of Section 42(2) of the CFRN 1999 reveal the intents of the
drafters of the constitution concerning inequality. Thus, to discriminate
against a section of the populace on the ground of the circumstances of their
birth is clearly unconstitutional and therefore illegal. Public policy, regardless
of how it is determined cannot prevail over the provisions of the Constitution 53
which we the people bestowed on ourselves. There is no better document
reflective of the policies of the Nigerian public than the Constitution of the
Federal Republic of Nigeria. Hence, in trying to identify the policies of the
Nigerian public, recourse should first be had to the Nigerian constitution.

53 See Section 1(1) CFRN 1999 (as amended).

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