In the current situation of the world, the illegitimacy of a child is a striking crisis that needs to be properly fixed. No child has the freewill to choose if he’s to be legitimate or illegitimate. On this basis, we can’t consider a child illegitimate regardless of the parents’ mistakes and deprive him of the rights he’s entitled to benefit because he never knew nor consented to be referred to as illegitimate.
For a broader analysis of the topic, it’s expedient to construe the meaning of an illegitimate child. Despite the varieties of Nigeria’s customs, and under the existing family law, An illegitimate child is a child who was not conceived or born in a lawful wedlock nor later legitimated.
In common law, such a child is considered the child of nobody (nullius filius) and has no name except one who was gained by reputation. Therefore, it can be well-established that an illegitimate child is otherwise known as ‘bastard’; or child out of wedlock; or non-marital child; or a child born to a married woman whose husband is not the father of the child.
Progressively, the issue of illegitimacy of a child may emanate as a result of certain conditions and circumstances such as religious differences between desirous lovers, diversity of cultural and traditional beliefs, parents’ refusal to consent in marriage, unlawful sexual intercourse, concubinage, and other illicit marital affairs.
All these have been an impetus to the increasing rate of illegitimate children. Perhaps, the concept of illegitimacy wouldn’t have seemed significant in the lives of humans if social stigma, embarrassment, shame and other invectives were not associated with it. Moreover, no one would be happy to be addressed as an illegitimate child.
Furthermore, the rights of an illegitimate child wouldn’t have been quarrelsome nor disputatious if the deceased person had died testate, that is to say, he has a will left behind. A testator, as it implies, has the right to distribute his assets to anybody he wants. However, the necessity to examine legally, the laws relating to an illegitimate child will surely arise when the death of a deceased person is intestate.
With that, the rights of the illegitimate child become controversial. This conflict occurs more often during the period when children are to succeed the deceased properties. Kasunmu has once said in one of his evidential statements that “most of the cases on illegitimacy deal with the rights of illegitimate children to succeed the property, it is in that area, that the consequences of illegitimacy are being greatly felt.”
Constitutionally, S.42 of the Constitution of the Federal Republic of Nigeria 1999 as (amended) provides for the Right to Freedom from Discrimination and subsection(2), by extension, specifically emphasises that “no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” Pursuant to the statutory provision of the section, every child regardless of the birth cannot be deprived of his right to inheritance. Therefore, illegitimacy is immaterial to inheritance.
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More also, The Supreme Court of Nigeria, in the case of Salubi v. Nwariaka, held that “the children of the deceased who were born within a lawful wedlock and the children of the deceased who were born out of wedlock are entitled to equal shares to the properties of the deceased.” Ayoola, JSC ascertained this point, when his Lordship passed it that: “It suffices to hold that the court below was right in holding that the trial court below had jurisdiction to entertain the claim before it and that the two issues born out of wedlock are entitled to equal shares with the two other issues of the marriage of deceased and the widow.”
Even, the court, as it’s known, won’t be a demolishing agent of the law that tends to act on the contrary path of the public policy; as a result, pronounces various judicial requirements such as paternity acknowledgment and presentation of evidential proofs. With this, in the case of Okonkwo v. Okonkwo, (2014) 17 N.W.L.R (pt 1435) 18 the court made a decision that: “by virtue of section 42 of the Constitution of the Federal Republic of Nigeria 1999, children born out of wedlock but whose paternity was acknowledged by the intestate have equal share with the children of the marriage.”
Conclusively, it’s noteworthy to state that the implications of the constitutional provision of S.42 is capable of encouraging promiscuity and multiplying children outside wedlock in most homes. The reason is that a father or mother, having known that no child will be discriminated against based on sex may be motivated to walk the path of adultery.
