DEOXYRIBONUCLEIC ACID
test commonly known as DNA test is a recent scientific discovery that has
helped mankind answer the question of paternity more accurately amongst others benefits
using scientific means. However, laws on paternity have been with mankind for a
very long time and during these times, DNA was not available or affordable. In
Ghana for example, despite the ubiquitous use of DNA in recent times to
determine paternity, Parliament is yet to enact laws that will mandate,
regulate or enforce DNA tests in Ghana. The jurisprudence around the use of DNA
to determine paternity is therefore largely judicially improvised solutions and
rightly so as scientific evidence is hard to dispute.
This article will explore the laws on the determination
of who is a man’s child upon the death of the man. As usual of me, I will try
to use as simple language as possible for afford the everyday man the comfort
of reading easily.
Firstly, the man who is the husband of the mother of
the child at the time child was born is presumed to be the father of that
child. Section 32 (1) of the Evidence Act of 1975 (NRCD 323). This means
that until stronger evidence is brought to the contrary, the husband of a woman
is the father of all children born by that woman. Stronger evidence could be a
confession by the woman that her husband is not the father of the child in
question or in time past, blood test to determine the blood groupings of the child
and the parents and in more recent times, the use of DNA.
In the case of QUARSHIE V. BOSSO (1987) JELR 64513
(HC), OMARI SASU J had this to say, “According to the view of
Danquah (referred to supra) where a married woman becomes pregnant and bears a
child, that child belongs to her husband. Here the fact or status of marriage
raises a presumption that the child is the child of the husband of the woman”.
The case of COLEMAN V. SHANG (1959) JELR 67560 (CA),
further supported this position that children of a women who was married to the
deceased were all children of the deceased and entitled to inherit the deceased
estate.
It is therefor a strong presumption that a deceased
man who was married to the mother of a child, is the father of that child.
Secondly, the man who named the child is presumed to
be the father of that child. This is irrespective of whether the man was
married to the mother of the child or not. In the QUARSHIE V. BOSSO case cited above, it
was the position of the court that “The naming of the child by the
father, even without marriage to its mother, is legal acknowledgment by the
father of the paternity of the child; that ceremony identifies the child with
the father and his paternal family, his Ntoro, and makes it his lawful child.”
I therefore submit that if a man has done “Abadinto’
in Akan settings or “Kpoedjeemor in Ga settings, or
naming ceremony as is commonly called, then the man will be strongly presumed
to be the father of the child even if he was not married to the mother of that
child.
Thirdly, the deceased recognized the person as his
child. Section 18 of the Interstate Succession law PNDC Law 111, defines
child as “In this Law, except where the context otherwise requires—
‘child’ includes a natural child, a person adopted under any enactment for the
time being in force or under customary law relating to adoption and any person
recognised by the person in question as his child or recognised by law to be
the child of such person.” In
the case of IN RE KORANTENG-ADDOW (DECD); KORANTENG-ADDOW V. KORANTENG (1996)
JELR 67821 (CA), the learned Justices emphasized this position and elaborated
that recognition included naming the children and dealing with them in a way
that a father would ordinarily deal with a child. In that case, the court referred to the case
Moses v. Anane [1989-90] 2 GLR 694, CA where it was held that “ a claim
against a deceased’s estate must be scrutinised with the utmost suspicion.
Proof must be strict and utterly convincing as one of the protagonists was dead
and could not assert his claim.”
Relying on this principle, it stands to reason that if
a dead man did not take steps to deny a child whilst he was alive, it would be
a humongous task for his family to prove that the deceased man did not want to recognise
that child as his child even if DNA proved that the child is not the biological
child of that dead man.
Finally,
this is what the evidence act of Ghana has to say about who is a child.
Children of the marriage
Section 32 of the Evidence Act of 1975 NRCD 323 says a
s follows:
1.
A child born during the marriage of the mother is
presumed to be the child of the person who is the husband of that mother at the
time of the birth.
2.
A child of a woman who has been married, born within
300 days after the end of the marriage, is presumed to be a child of that
marriage.
3.
This section applies to both monogamous and polygamous
marriages.
As
can be seen from above, even if a man divorced the wife and the wife gave birth
within 300 days after the divorce, that child is still considered as the child
of the man.
With all the above principles of law, I humbly
conclude that if a man recognise a child by naming he child of his wife,
calling that child his own, paying his or her school fees, taking selfies with
the child and do other things that a father would do with his child and does
not take steps to do a DNA paternity test whilst he is alive to dispute
paternity of that child, his family is likely to hit the wall if they attempt
to prove that the child was not the child of the dead man.
What do you think. Feel free to write your thoughts in
the comments section.
This
opinion is written by Richard Nii Amarh (ESQ)
Private
Lawyer and Executive Director of Centre for Justice and Rule of Law
Accra, Ghana.
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