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    Who Has Legal Custody of a Child Born Out of Wedlock in Nigeria

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    1. States Parties shall make every effort to ensure recognition of the principle that both parents are jointly responsible for the upbringing and development of the child. Parents or guardians have the primary responsibility for the child`s education and development. The best interests of the child will be their concern. Nigerian legislators have enacted the Matrimonial Causes Act to address certain issues affecting marriage and family relations, and one of the issues it addresses is the issue of custody. Prior to this decree, Nigerian courts were required to apply the pre-1900 regulations. The Matrimonial Causes Act 1970 provided for custody of children in a marriage that were both legitimate and illegitimate. The application for child custody must be part of an application for marital release. When deciding who has the right to keep a child, section 71(1) of the Matrimonial Matters Act provides that the court must consider the best interests of the child as a primary consideration. The court may transfer custody of a child either to the parents or to a third party if it deems it appropriate. If custody is transferred to one of the parents, the other parent is allowed to come into contact with the child. If custody is transferred to a third party, both parents have access. The court has the discretion to determine to whom it assigns custody of the child, provided that it is primarily concerned with the welfare of the child.

    However, the behavior of the parties and the wishes of the mother and father are secondary. In AFONJA v. AFONJA, the child prefers to stay with the mother, like the father who keeps the child with his sister during school and lives with the child only during the holidays. The court ruled that it was in the child`s interest to remain with the mother, where adequate care and proper care and attention would be given. The clear and unambiguous provision above reinforces the fundamental rights guaranteed to all citizens of Nigeria as they apply to every child. Therefore, a violation of the fundamental right of a child protected by the Constitution also constitutes a violation of the above-mentioned article of the Law on the Rights of the Child. With regard to the devastating effect of a parent who leaves or leaves a child vis-à-vis the parent who has assumed responsibility in the custody proceedings, article 72 of the Rights of the Child Act provides as follows: This remedy is based on self-help through threat, coercion or violence in order to remove or keep the child out of wedlock in custody, as disobedience to such a court order, which grants custody in favour of the father or mother will amount to contempt which, if established, may result in imprisonment. When considering the issue of custody of a child in Nigeria, the concept would be considered from two (2) phases: custody of legitimate children and custody of illegitimate children under the common law, the Matrimonial Causes Act and the common law. In summary, in determining who the court would not consider whether the father`s right or a father`s right exists under the common law or customary law, the court takes into account the provision in section 71 of the Matrimonial Cases Act that grants custody by considering the best interests and well-being of the child as paramount. The question of who has the right to claim custody of a child has been an issue that the court has dealt with with great importance over the years, as it is inherently delicate since the party most affected is a child. The issue of child custody usually arises in divorce or nullity proceedings.

    Under the Igbo common law, the father of a daughter who has not yet been weaned is granted custody of the child. Under Yoruba customary law, the mother of a girl who has not yet been weaned is granted custody of the child. This shows that the many ethnic groups and customary rights in Nigeria are different. At common law, a mother is entitled to custody of a child born out of wedlock to the exclusion of the child`s biological father. For a father to receive custody under the common law, he or she must provide sufficient evidence that the mother is incapacitated. Article XI, paragraph 1, of the African Charter on the Rights and Welfare of the Child also guarantees the right of the child to education. In general, under customary law in Nigeria, the father has an absolute right to custody of his legitimate or legitimate children. In the event of the father`s death, custody is the responsibility of the father`s male head of household, although the mother is responsible for the daily care of the child. In ABIAKAM AND OTHERS V. ABIAKAM, the Court held that absolute custody of the father would not be enforced if the child had reached a tender age and needed the mother`s care.

    SAULAWA, J.C.A. (Delivering the main judgment): This is an appeal against the judgment of the High Court of the State of Imo, holden at Owerri, Coram P.C. Onumajulu, filed on 17.7.2001 in Action No. WIE/237/84 (HMI/72/95). The lawsuit was filed as Claim NO. HOW/237/84 with Owerri`s Judicial Division. Although it was not consolidated, it strangely took the second trial #HMI/72/95 when it was handed over to the Mbaitoli/Ikeduru Judicial Division eleven years later. By the amended application, dated and filed on 25.4.96, the respondent claimed against the appellant the following: “(i) the statement that the applicant`s mother, Nnemuwa, in accordance with Ndiukwu`s custom, Umuiyi Akabo, to raise children for the continuation of the Mrs. Akabuisi lineage, was left at home and the applicant, which was conceived by her at home, Entitled to inheritance of Mrs.ka Akabuisi`s property as the only survivor in the Mrs. akabuisi family line after the death of Chibuo Mmeka without any problems. (ii) Injunction preventing the defendant, his servants or agents from entering the following property of the deceased Mrs.

    Akabuisi: – (1) Ohia Ikpa (2) Uhu Amaobi Juru (3) Ohia Azuru (4) Ofe Mmiri (5) Ohia Uzo Mmiri Ukwu (6) Ohia Amadia Eke; all are in Akabo within the jurisdiction of the Honourable Court. The two sides exchanged and made briefs. At the trial, the interviewee testified and called 5 other witnesses. The complainant also testified and called 2 other witnesses to defend herself. At the end of the hearing of the defence lawyer`s remarks, the learned judge of first instance delivered a judgment on 17.7.2001, in which it was stated, inter alia: “In the given circumstances, this action is partially successful. The first part of the claims contained in the applicant`s new amended statement is upheld, and I hereby declare that the applicant`s mother, Nnemuwa, who was left at home in accordance with Ndiokwu Umuiyi`s custom of raising children for the survival of the Nmeka Akabuisi lineage and that the applicant was conceived by her at home, has the right to inherit nmaka Akabuisi`s property as the sole survivor of the Nmeka Akabuisi lineage. about the death of Chibuo Nmeka with a problem. After consulting with counsel on this point, and taking into account the evidence on this point and my conclusion on the first issue in this case, I believe that the fairness of the case can be better addressed by filing a non-action against the second action.

    As a result, the plaintiff is not able to make the second application for an injunction. There will be no decision on costs. The appellant was not satisfied with this judgment. On 03.3.03, he filed a notice of appeal with 4 grounds of appeal with the Registry of the Lower Chamber. The reasoning was presented and therefore accepted on 29 October 2007, the date on which the appeal was last brought. The Appellant`s written submissions were filed on July 9, 2007. Two questions were put to the court for a finding, namely: `(1) Is the defendant entitled to the statement made in his favour by the court of first instance? (Reasons 1, 2, 4 and 5); and (2) whether the restraining order was duly made by the court of first instance in that case? In contrast, the respondent`s pleadings were filed on May 16, 2005, but were considered to have been duly filed and served on May 19, 2005. The Appellant`s two questions were repeated by the respondent in the above-mentioned brief as follows: – “1. Is the defendant entitled to the court`s statement in his favour? (2) Whether, with respect to the declaration order, the issue of inaction is the correct order in the circumstances? I have carefully but very critically considered the 2 questions formulated by the appellant in her pleadings. As mentioned above, the Notice of Appeal was filed with only 4 grounds of appeal. Pages 103 to 105 of the minutes of the proceedings of the Court of First Instance contain only the abovementioned communication and the grounds of appeal. It is therefore questionable where the appellant`s learned counsel obtained the 5th ground of appeal.

    It is not apparent from the record that the appellant requested at any time an additional statement of the grounds of appeal. The alleged 5th plea referred to in Case No 1 of the applicant`s pleadings does not exist and is therefore rejected. See Yoho v. Effiong (2007) All FWLR (Pt. 374) 204, pp. 217-218, paragraphs H-H; Ikpuku vs. Ikpuku (1991) 5 NWLR (Part 193) 571. Second, I have also found that the 2nd question raised in the applicant`s pleadings is general. That is, she was not married or distilled with one of the grounds of appeal at issue.

    In these circumstances, it is deemed defective. Question No 1, raised in the applicant`s summary, also relates to the 3rd point, which raises the question of inaction. It is commonplace for questions to be formulated on the basis of pleas in law, which are normally based on the ratio decidendi of the judgment under appeal ….

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