By Dickson Jere
At the time of his death, the man had denied having sired the child. In fact, he had even obtained a Restraining Order from the Court to stop the woman from harassing him over the child. He never informed his relatives about his ordeal with the woman and the child.
But, after his death, the woman appeared and sued the Administrators of his estate and claimed child support and inheritance.
The Local Court ordered the Administrators to provide support, which they complied. However, a best friend of the deceased showed up and informed the family that his late friend had actually denied responsibility and that he was not the father of the child. Armed with this information, the Administrators stopped providing support to the child, which prompted the mother to sue in the High Court.
The High Court heard the case and ruled that all the ingredients needed to prove the presumption of paternity in this case were absent and therefore the child was not sired by the deceased unless a Deoxyribonucleic Acid (DNA) test proved otherwise. But woman refused DNA saying there was no proof that the siblings of the late who were to give samples were in fact his actual biological brothers.
Unhappy with the High Court, she appealed to the Court of Appeal where three Judges determined the matter after hearing from both sides.
“In our view, evidence was required to conclusively prove that the child was sired by the deceased,” the Court said, adding that the presumption of paternity test failed in this case as she only produced the Under 5 Card from the clinic.
“No birth certificate was adduced. No evidence from the relatives of the Knowledge of the non-marital child,” the Court observed, adding that there was also no Court Order on Affiliation and Maintenance of the child.
The Judges indicated that the DNA test which the High Court ordered could have resolved this matter but the mother of the child refused without adducing scientific evidence on her objection.
“Where there is uncertainty, DNA test is the best scientific evidence for determining paternity, though it is trite that other evidence than medical would be considered…” the Judges said.
“We hold that in circumstances of this case, paternity was not proved on a balance of probabilities,” the Court ruled and dismissed her appeal.
The Court guided that where DNA test has been done, the legal presumption of paternity test is discarded. But in this case, she opted to use the presumption test but failed to prove.
Case citation – Banda v Mwanza and Another – Appeal No. 188/2024 and Judgment delivered in November, 2024.
The Court underscored two principles of proving paternity in Zambia. One may use DNA test, which is more conclusive. Or indeed use the presumption of paternity test whereby you show that the father accepted the child, paid maintenance, is known by his family and that the birth records and certificate shows him as the father.
