Presumption is the legal inference or assumption one can draw from some sets of facts. It is a rule of law which may be statutory or judicial.
S. 145(1) Evidence Act 2011 is to the effect that whenever the Act provides that the court may presume a fact, it may either regard such fact as proved, unless and it is disproved, or may call for proof of it. This means that the court is not compelled to draw the conclusion and may call for proof. But S. 145 (2) provides that whenever the court is directed to presume a fact, it shall regard such fact as proved, unless and until it is disproved. The distinction between the two is that the former gives the court an option or a discretion but the latter makes it imperative with no discretion.
Classifications of presumptions
1. Presumptions of law:
A presumption of law has been defined as a deduction which the law expressly directs to be made from particular facts. In actuality it is a rule of law which declares that one fact is presumed to exist if another fact or set of facts is proved. A classic example of a presumption of law is the presumption of death that arises when a person is shown to have been continually absent from his home for seven years and has not been heard from during such period by persons who would naturally have heard from him had he been alive. In other words, it means a mandatory deduction which law directs to be made having regard to rules of law and practice laid down for court’s use (Abubakar v Yaradua).
Presumptions of law may be divided into two:
a. Irrebuttable presumption:
S. 145(3) EA is to the effect that where the Act declares a fact to be conclusive proof of another, provided the fact has been proven, no such evidence will be allowed to disprove it. An example that comes to mind is S. 30 of the Criminal Code which is to the effect that a person under the age of seven is not criminally responsible for any act or omission. This means that provided the accused has proved that he is under the age of seven, the court will not entertain any evidence to prove that he is guilty. See also S. 50 of the Penal Code.
b. Rebuttable presumption:
This is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, S. 36(5) of the 1999 Constitution is to the effect that every accused person in a criminal case is presumed innocent until proved guilty. See Ismail v The State.
Presumptions as to Documents
S. 126 EA is to the effect that where a Certified True Copy (CTC) of a document is presented before the court, the court will presume such document is genuine. In Daggash v Bulama, a CTC of a government paper was presumed genuine.
S. 127 states that where a document is produced as record of evidence, the court shall presume that the document is genuine.
S. 148 deals with presumption as to official gazettes, newspapers or journals, resolutions of N/A or H/A printed by the government printer, and other documents. For this presumption to arise, the document must come from proper custody (s. 156).
S. 149 deals with presumption as to document admissible in other countries without proof of seal or signature. Again, the document must come from proper custody (s. 156).
S. 150 deals with presumptions as to power of attorney. Again, proper custody is reiterated.
S. 151 deals with presumptions as to public maps and charts. Proper custody is again mentioned (S. 156 EA).
S. 152 deals with presumptions as to books. Proper custody is mentioned again.
S. 153 deals with presumption as to telegraphic and electronic messages. Proper custody is mentioned again.
S. 154 deals with due execution of documents not produced. Proper custody….
S. 155 is to the effect that where a person produces a document which purporting or proved to be twenty years or above, provided it was produced from lawful custody, the court will presume that the signature and every other part of the handwriting are that of the person concerned and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. In Ayanwale v Odusami, an action instituted for declaration of title, the plaintiff tendered conveyances which showed his root of title. The SC stated that since the conveyances tendered were executed well over twenty years before proceedings commenced in that case, the presumption was that the documents supra were genuine. But please note that this presumption is rebuttable by adducing evidence to the contrary e.g. fraud. See Amoo v Aderibigbe. Also, note that the section does not raise a presumption in favour of the correctness of the content of such document (Osawe v Osawe).
S. 157 states that where a document which bears a date on it has been proven, the document is presumed to have been made on the date it bears. In Awojugbagbe Light Industries v Chinukwe, the date on the mortgage deed was not the date of execution but the date the Governor’s consent was obtained. The SC held that it was the intention of the parties not to be bound by the terms of the deed of mortgage until the Governor’s consent had been got. Note that independent proof of the correctness of the date may be necessary in a few circumstances e.g. circumstances where collusion is practised and could injure any person or defeat the object of the law.
s. 158 deals with presumption as to stamp of a document.
s. 159 deals with presumption as to sealing and delivery.
s. 160 deals with presumption as to alternative.
s. 161 provides that parties to a conveyance or instrument relating to an interest in land are presumed to be of full age at the date of the conveyance or instrument until the contrary is proven.
S. 162 provides that recitals, statements and descriptions of facts, matters and parties contained in documents twenty years old or more are presumed accurate until the contrary is proven. See Thompson v Arowolo.
S. 163 deals with presumptions as to deed of corporations.
Presumption of Death
S. 164 is to the effect that where a person has not been heard of for seven years by those who naturally should have heard of him if he is alive, he is presumed dead until the contrary is proved. But there is no presumption as to the time when he died. Subsection (2) of the aforesaid section provides that for the purpose of determining title to property, where two persons died in circumstances that it is uncertain to know who died first, it will be presumed they died in order of seniority. Subsection (3) reads there is no presumption as to the age at which a person died, who is shown to have been alive at a given time.
In State v Okechukwu, a traditional chieftain was said to have disappeared in 1982 after which the kingmakers selected another chieftain in 1986 (barely five years after the incumbent had disappeared). The court declined to raise the presumption of death under S. 164 EA because the circumstance had not met the seven year requirement of law.
Presumption of Legitimacy
S. 165 EA is to the effect that where a person is born during the continuance of a valid marriage or 280 days after dissolution of the marriage, the woman remaining unmarried, the court shall presume that the child in question is the legitimate child of the man. S. 84 MCA provides that either party to a marriage may give evidence to show that there was no sexual relations between the two during this period. But the woman shall not be compelled to give this evidence if it would show or tend to show that a child born to her during the marriage was illegitimate. The court in Olatunbosun v Niser stated that by virtue of the phrase ‘without prejudice’, S. 165 EA takes precedence over S. 84 MCA as the phrase means the same as ‘notwithstanding the provision’.
The court in Idahosa v Idahosa noted that ‘valid marriage’ as used in the section means the presumption is not limited to only statutory marriages but it extends to both Islamic and customary marriages. Furthermore, the court noted that where a woman gives birth to a child who is the product of adultery, provided the man acknowledges the child as his, the presumption under the section avails. In Megwalu v Megwalu, the court stated that where a woman has a child as a result of an adultery committed and issues arise as to the paternity of the child, the court will presume paternity in favour of the husband until this presumption is rebutted by the third party who is not married to the mother.
Presumption of Marriage
By S. 166 EA, where two people cohabit as husband and wife, the court will presume that there is a valid marriage between the two under customary law or Islamic law until this presumption is rebutted.
Presumptions of facts (S. 167 EA)
The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case. In particular, the courts may presume:
a. Stolen goods: A man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In Eze v State, it was noted that the courts are not bound to raise such presumption and physical possession is what’s envisaged by the provision. Thus, the possession (in one’s pocket) of the ignition key of a stolen motorcycle raises such presumption. In Eyisi v The State, the accused were found with the stolen goods the same night they were stolen. They were held guilty based on this presumption since they could not account for their possession of the goods. Similarly, in Adekoya v The State, the accused was found in possession of the two side mirrors from a stolen motorcycle 24 hours after the theft was committed. He was held guilty as his attempt to rebut the presumption failed.
S. 167(b): existence of things. S. 167(c): common course of business.
S. 167(d): where evidence can be produced but a party to the action is unwilling to produce it, the court will presume that such evidence is unfavourable to the person withholding it. But the point must be noted that in a criminal case, this does not shift the burden from the prosecution.
S. 167(e): when a document creating an obligation is in the hands of the obligor, it is presumed that the obligation has been discharged.
S. 168 deals with presumption of regularity of official acts, minutes etc. In Idemudia v State, s. 215 of the Criminal Procedure Law provides that in a criminal case, the charge must be read and explained to the accused. The SC noted that where there is a counsel in the case defending the accused, the provision is deemed to have been complied with even if not stated in the record of proceedings. But please note that this provision only applies to official acts (Torri v NPSN). However, the case of Essien v Essien shows that the presumption of regularity can be rebutted by showing that the inaccuracy of the produced record.
Presumption of sanity
S. 27, Criminal Code provides that every person is presumed to be of sound mind, and further to have been of sound mind at any relevant time until the contrary is proved. The onus is on the accused to prove defence of insanity. Note that where the accused’s sanity has been confirmed by a doctor, the former can’t claim the doctor was bias (Oladele v State). But the accused’s sanity/insanity must be proved beyond reasonable doubt [S. 36(5)].
Presumption under the common law
Where the plaintiff was injured as a result of a particular object, thing or state of affairs in the exclusive possession of the defendant, the presumption of negligence will arise against the defendant until he proves reasonable care and diligence (res ipsa loquitur which means the facts speak for themselves).
Where a person who has disappeared or cannot be found or who has been found dead was last seen with another living person, that latter person is presumed to have caused his disappearance or death. In Moses Jua v The State, a motorcycle was stolen in which the accused was the suspect. A Police Constable took the accused to Ipee to produce the particulars of the motorcycle. That was the last time the constable was seen alive. The court held that the accused bore the full responsibility of the deceased’s death. He was held guilty since he could not provide satisfactory answer to the whereabouts of the deceased based on the doctrine of last seen.