TOPIC: WHAT CONSTITUTES ACKNOWLEDGMENT

UNDER CUSTOMARY LAW, and STATUTORY LAW.

GROUP 4 FAMILY LAW

OKENWA, CHUKWUECHETAGOM FAVOUR — 20/LA/2933

UDOH, EDEN UKO — 20/LA/2934

EFFIONG, FAVOUR CHRISTOPHER — 20/LA/2935

EMEAGI, FIDELIS OBINNA — 20/LA/2936

JAMES ANIETIE MOSES (GROUP LEADER) — 20/LA/2938

OSIMIRI, GOODLUCK CHIMAOBI — 20/LA/2939

OWEN, PRECIOUS OLOR — 20/LA/2940

ARCHIBONG, IDARAESIT LEO — 20/LA/2941

UDUAK AFANGIDE — 21/LA/3073

AKPABIO EMEM ANIEDI — 21/LA/3119

 INTRODUCTION

Family law plays a pivotal role in safeguarding the well-being and stability of
familial relationships. One essential aspect of family law is “acknowledgment,”
which refers to the recognition of parentage between individuals and their children.
The acknowledgment process ensures legal rights, responsibilities, and protections
for both parents and children. This paper explores the significance of
acknowledgment in family law, its various methods, and the broader implications it
carries for individuals and society.

DEFINITION OF TERMS

Legitimacy

We cannot talk of acknowledgement without explaining what legitimacy is. A

child is legitimate if he or she was born in a lawful wedlock—Lawal v Younan1.
Lawful wedlock means lawful/valid marriage (whether statutory or customary). It
follows that a child conceived and born outside lawful wedlock is illegitimate
(outside wedlock meaning that the parents are not validly married to one another
whether customarily or statutory).

At Common Law, an illegitimate child was considered a filius nullis (incapable

of inheriting property from his parents). However, under section 10 of the
Nigerian Legitimacy Act, an illegitimate child can inherit from his mother.

At Customary Law, the issue of legitimacy may or may not be directly linked
1
[1961] 1 ALL NLR 245,250
to the father. For example, in Igbo custom, a daughter may stay behind and bear
children to keep the father’s name. The child born can be seen as a legitimate child
of the father.

Legitimation

• Legitimation is the process whereby an illegitimate child is made

legitimate through the subsequent marriage of his parents. Legitimation
presumes that the child is legitimate. It follows (apparently) that a
legitimate child cannot be legitimated — Re Sarah Adadevoh2

ACKNOWLEDGEMENT UNDER CUSTOMARY LAW.

What is acknowledgement ?

Acknowledgement consists of any act of the natural father of an illegitimate child

by which he recognizes the paternity of the child.

Who can acknowledge?

In the question of who can acknowledge, the general rule is that only the natural
father of a child can legitimize an otherwise illegitimate child by acknowledgment.

The right is exclusively conferred on the natural father of the illegitimate child.
This right cannot be exercised by a third party or a delegated person; not even the
mother of the child.

It Is worthy to note that the acknowledgment of the paternity of a child by his

father’s relative or father’s family upon the death of the natural father has no legal
consequence.

Legitimation by Acknowledgement

This occurs where the biological father recognizes and accepts (expressly or by
conduct) paternity of the child despite the fact that the parents may not be married
to each other. Lawal v younan3
2
[1951] 13 WACA 304; Suit No. AG68 of 1952 (unreported)
3
Ibid.
Acknowledgement ipso facto legitimizes the child. Taylor v Taylor4. In Edo State,
acknowledgment must be expressed in the presence of relatives.

Acts which constitute acknowledgement.

It is not necessary that the act or conduct should be formal. Informal acts may, in
appropriate circumstances be enough Philip v Philip5. Such acts include;

• In Philip v Philip6 it was held that the performance of the customary naming
ceremony 8 days after the birth of a child is ample evidence of
acknowledgement.
• Where the birth certificate of an illegitimate child bears the name of the
natural father and was in fact obtained by him or on his instructions there is
clear evidence of the recognition of paternity young v Young7.
• In Abisogun v Abisogun8 it was held that an admission of paternity made in
a letter addressed to the chief registrar of the supreme court of Nigeria
amounts to acknowledgement
• Also the maintenance of the child by the father which includes the upkeep
and payment of school fees of the child, maybe regarded as evidence of
acknowledgment. It is submitted that to be satisfactory such acts of conduct
must be buttressed by other evidence linking the illegitimate child to the
natural father.

The foregoing cases of customary law legitimation arose in respect of Yoruba

customary law. However for other parts of Nigeria it has to be established in each
case that legitimation by acknowledgment forms part of the applicable customary
law which is proved or judicially noticed.

In Igbo customary law in some localities recognize the principle of

acknowledgement sometimes on certain conditions. The father of the child may be
required to take him into custody or send gifts to the mother’s family or name the

4
[1960] LLR 286
5
[1946] 18 NLR 102
6
Ibid.
7
[1951] WACA (April-May 1953) 19
8
[1963] 1 ALL NLR 237, 242
child in the presence of both families.

Time of acknowledgement

Inchoate Acknowledgement would not suffice – Oladele v Akinshola9. For

example, acknowledging pregnancy but failing to acknowledge at birth. The man
may find reasons to reject the child after birth (maybe the complexion of the infant
does not match that of the father, the looks, eyes and so on). This means that
acknowledgement has to be at the birth of the child although it can also be done
during his lifetime

Acknowledgement is not universal. Meaning the mode and rules vary.

Restriction to the right of acknowledgement.

The early judges of thee superior courts in Nigeria accepted the principle of
acknowledgement under customary law with certain reservations. This attitude
probably arose from their English law training. Let us now examine the various
limitations which have been imposed on this customary law principle, and evaluate
them in relation to the prevalent legal and social background.

No legitimation If there are legitimate children: This limitation was suggested by

Jibowu, J, in Re Sarah Adadevoh10. In that case, the deceased was the issue of a
statutory marriage. He himself had married under the Marriage Act in 1898, but his
wife died in May 1899, leaving no issue. On his death, the deceased had left
thirteen children, born by eight different women.

Some of these children were born before and others after the statutory marriage.
The West African Court of Appeal held, on the question of succession on intestacy,
that the status of the children was to be determined by their lex domicili, which
was Nigerian law. It, therefore, remitted the question of deciding which of the
children were legitimate under the relevant customary law in Nigeria to a lower
court. 82

This reference was heard by Jibowu, J, in the old Supreme Court of Nigeria,

9
Suit No. AB/7/63(unreported) Abeokuta high Court
10
[1951] 13 WACA 304, suit No. AG68 of 1952 (unreported)
Lagos Judicial Division. The learned judge found that four of the women were
married to the deceased by customary law and that their children were
consequently legitimate at birth. The other women were the concubines of the
deceased, but their children had been acknowledged by the deceased. Evidence of
Yoruba customary rule of legitimation by acknowledgement was given and
accepted by the court. Jibowu, J, held that it would be contrary to public policy to
legitimate the second set of children by acknowledgement and thereby enable them
to participate with the other children in the distribution of the intestate’s estate. In
his opinion, legitimation and succession to property through acknowledgment can
only be effected when there is no marriage recognized by the law or no children of
such marriage.

Jibowu’s decision is open to criticism. It has not been established that the
customary law principle in question encourages loose and immoral living. In fact,
the principle which can be deduced from the decided cases is that illegitimate
children born before or after a statutory marriage has come to an end are capable of
being legitimated by acknowledgement.

In Abisogun v Abisogun11, the deceased husband married the plaintiff in 1930

under the Marriage Act. There was evidence that before the 1930 marriage the
deceased had lived a promiscuous life; he had had five children (the defendants) by
different women. It was alleged that the mothers of the five children were married
to the deceased before 1930. Proof of these marriage would have invalidated the
statutory marriage. The Supreme Court, however, held that the pre-1930 customary
marriages were not proved, but as the children of the associations were
acknowledged by the deceased they were his legitimate children. Conversely, it has
been held that a child conceived during but born after the termination of a statutory
marriage may be legitimated by acknowledgement.

2. No legitimation of children born during the subsistence of a valid marriage:

Some judges have expressed the view that children born out of wedlock during the
subsistence of a valid marriage cannot be legitimated by acknowledgement.

11
Ibid.
 LEGITIMATION BY SUBSEQUENT MARRIAGE.

It is pertinent to note that under statutory a child cannot be legitimized through

acknowledgement but rather through subsequent marriage of his parents. A leading
case on this principle is the Cole v Akinyele12 case, Brett FJ, held 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 than that provided in the Legitimacy ordinance”. To hold
otherwise the Learned Federal Judge stated would reduce the distinction between
customary law marriage and statutory marriage to a ‘mere form of words’.

By virtue of section 3 of the Legitimacy Act of 1929 an illegitimate person due to

the marriage of the parents before or after the commencement of this act, shall
render the person if living legitimate from the commencement of this act or from
the date of the marriage whichever last happens.

Effects of acknowledgement

It legitimates the child and entitles him to rights of a legitimate child as though he
was born legitimate. Young v Young13

Acknowledgedment must exist, and should make a child legitimate at birth.

In the case of Lawal v Younan14, the Supreme Court held that “When the paternity
of a child is acknowledged by its putative father, that child is regarded as
legitimate.”

It makes an Illegitimate child legitimate as if it were born in wedlock.

Acknowledged children are not only regarded as legitimate for succession

purposes. Under the FATAL ACCIDENT STATUTES, an acknowledged child
can claim compensation for wrongful death of his father.

12
[1960] 5 FSC 84, 87-88
13
Ibid
14
Ibid.
CONCLUSION

The status of a child in relation to his parents has far reaching legal effects. There
should be wider education on the negative impacts of illegitimacy and how it can
be circumvented. However, there have been cases where illegitimate children trace
paternity but are unperturbed about the distribution of wealth.