The question of who is a Child of a deceased person under the Ghanaian law is under exploration in this short article. Very often, the question of who is a child comes up due to questions of inheritance of the properties / estate of the deceased person usually the man. This is because, it is usually not up for question as to who is the mother of a child.
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 therefore 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 as 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.
This opinion is written by Richard Nii Amarh (ESQ) Private Lawyer and Executive Director of Centre for Justice and Rule of Law
Accra, Ghana
