Nija v. Mary s/o Mathias (PC) Civ. App. 188-M-1970; 29/7/71; Jonathan J.

 

Nija v. Mary s/o Mathias (PC) Civ. App. 188-M-1970; 29/7/71; Jonathan J.

The case involved an issue of paternity of a child born to the respondent while she lived in concubinage with the appellant prior to their marriage under customary law. There was evidence that conception took place before the appellant started living with the respondent but at a time when the respondent used to visit her at her father’s house. She claimed that she was impregnated by a man named James before she came to live with the appellant. The primary court disbelieved her evidence and found that he appellant was the father of the child. However, the district magistrate held, on appeal, that the lower court had misdirected itself on the law applicable in the situation and he allowed the appeal on the basis of the application of section 184 of the Local Customary Law (Declaration) Order which he contended should have been applied. The section states that “if a woman had more than one lover at the time of conception, the one whom she names may not deny paternity of the child.”

Held: (1) “I think the section has been misunderstood. It covers a situation where reputability for pregnancy is denied by the person cited, on the ground that, at the time of conception the woman had had sexual intercourse with other men. In the case under consideration, there was no one named. On the contrary, the appellant sought to be declared the father of the girl while the respondent claimed that the child was fathered by James. It could be regarded as a dispute between the appellant and James as to paternity of the child. That being so, section 184 does not come into play.” (2) “Section 188 would have been relevant ….. The section provides to the effect that a presumption is created that the child born in concubinage is fathered by the man living with the child’s mother at the time of delivery. In the present case, it was established that the girl was born while her mother was established that the girl was born while her mother was living with the appellant who must be presumed to be her father. This, of course, is a rebuttable presumption.” (3) Appeal allowed.