Paul Joseph v. Nkoba Kulwa, (PC) Civ. App. 119-M-67, 14/5/68, Seaton J.
Plaintiff, claiming to be the father of a child born during the period when defendant’s daughter lived with him in concubinage, sued defendant for custody. The daughter had left the child with defendant when, having left plaintiff for a time, she returned to live with him. At the primary court hearing, the defendant admitted that plaintiff was the child’s father, and expressed willingness to have plaintiff as a legitimate son-in-law. At the district court hearing, the daughter testified that plaintiff was not the father, and defendant changed his story to agree with hers. She named another man, who did not testify.
Held: (1) Children born in concubinage belong to the man with whom the mother is living unless he wishes to and can disprove paternity, under section 183 of the Law of Persons, F. N. 279/63, made binding in Maswa district by G. N. 474/63. Section 183, stating that the man nominated by the woman as the father cannot deny paternity unless he can prove he had no sexual intercourse with her, does not mean that such man should be entitled to the child’s custody where another man claims it. Once birth during concubinage is established, “a presumption was created in favour of the appellant’s paternity.” With the evidence amounting essentially to plaintiff’s word as against that of the child’s mother, the presumption is not displaced. (2) Plaintiff is married with two other children; the child’s mother lives with her parents and is unmarried. “It is well established that where the status of children is concerned, their welfare is the paramount consideration.” This test is best served, apart from other legal considerations, by awarding custody to plaintiff. Plaintiff’s appeal allowed, with an order that he pay defendant Shs. 100/- plus reasonable compensation for maintenance to defendant.
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