Presumptions in law

Introduction to presumptions of law.

The word, “Presumption” does not enjoy the benefit of a definition under the Act. Be that as it may, a presumption may be defined as “ a conclusion which may or must be drawn from given set of facts until the contrary is proved.”

Types of Presumptions in law

  1. Presumption of law
  2. Presumption of fact

Presumption of law is one which is prescribed by law and which must be drawn in the absence of any evidence contrary. It should be noted that the effect of presumptions generally is to establish a fact as proved even though no evidence has been offered in proof, thereof. It is often said that, presumptions operate as a substitute for evidence. In Abubakar V. Yar’adua (2009) ALL FWLR (pt 457)1 140, per Tobi, JSC.

Presumption of fact is one which is dependent upon logical reasoning. A presumption of fact is essentially, an inference from circumstantial evidence which is usually resorted to in the absence of direct evidence to establish the guilt of the accused for stealing or receiving stolen property. A number of these presumptions are provided for in Section 167 (a-e) of the Evidence Act.

Presumption of Intention

A man is presumed to intend all the consequences likely to follow directly from his conduct. See the case of R. Aru “a man who posted a letter containing criminal libel was held to have delivered it with intent that it should be read by the addressee.

Presumption in criminal law system

  • Presumption of Guilty Knowledge: or possession of stolen goods. Section 167(a) provides that: – a man who is 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. See the case of R. V. Braymo, R. V. Jombo
  • Presumption of Continuance: section 167(b) states that: A thing or state of things which has been shown to be in existence, within a period shorter than that, within which such things or states of things usually cease to exist, is still in existence. A common application of this presumption is the presumption in favour of the continuance of human life. See the case of Queen V. The African Press Ltd
  • Presumption as to the course of business:- Section 167(c) of the Evidence Act states that; the common course of business has been followed in particular cases; if a particular procedure is always adopted in a transaction, until the contrary is proved, the court may presume that the same procedure was followed in a given instance of that transaction. See the case of Victor Mukete & Ors V. Nigerian Broadcasting Corporation & Anor.
  • Presumption of withholding Evidence: Section 167(d) provides that: if a party to a suit does not produce evidence which he is supposed to produce, then it may be presumed that the evidence will be unfavourable to him if produced. See the case of Isah Onuh & 5 Ors V. Ibrahim Idu & 5 Ors.
  • Presumption relating to document creating obligation: By Section 167(e) there is a presumption to the effect that “when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. An obligor is the person who owes the obligation while the oblige is the person in whose favour the obligation is created. See the case of Macaulay V. Seriki

Rebuttable presumption

If a presumption is a rebuttable presumption of law, it means that once certain given facts are proved, then the court is obliged or mandated to presume the existence of other facts, unless and until the contrary is proved.

The effect of these presumptions, is twofold; first, to regard a fact as proved by relieving the party who ordinarily would have had the burden of proof of that burden, and second, to shift the burden of proof. In Ismail V. The State, the Supreme Court graphically captured the meaning and essence of rebuttable presumptions as follows:

“A rebuttable presumption of law is one which leads to a decision on a particular issue in favour of the party who establishes it or relies upon it, unless it is rebutted. Rebuttable presumptions of law may be created by statute, or may exist as common law, and may cast either a legal or an evidential burden on the party seeking to rebut the presumption. ..”

Rebuttable presumption example

Presumption of innocent:

this is a presumption of importance in that, it has constitutional recognition. Section 36(5) of the 1999 Constitution (as amended) as follows: “Every person charged with a criminal offence shall be presumed innocent until he is proved guilty.”

By this presumption, every accused person appearing before a court is presumed to be innocent of the charge until the prosecution can prove the guilt of the accused person. See the case of Uche Williams V. State (1992)10 SCNJ. 74 at 80, Per Kutigi, JSC.

  • Presumption of validity of marriage: where it is proved that a man and a woman went through an apparently regular ceremony of marriage, either under the Marriage Act or under customary law, there is a rebuttable presumption of the validity of the marriage. Piers V. Priers (1849)2 H.L. cas 331; E.R. 1118.
  • Presumption of Legitimacy: Section 165 of the Act provides inter alia that: without prejudice to Section 84 of the matrimonial Causes Act, where a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, the court, shall presume that the person in question is the child of that man. This provision is the same as that provided in Section 115(3) Matrimonial Causes Act 1970. See the case of Idahosa V. Idahosa
  • Presumption of Sanity: Section 27 of the Criminal Code, there is a rebuttable presumption that every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. This presumption also covers the presumption that every person accused of the commission of any crime is of sound mind and ipso facto capable of standing his trial until the contrary is proved. See the case of Anthony Ejinima V. The State (1991)7 SCNJ (PT 11)318
  • Presumption of Death: Section 164(1) provides inter alia that: a person shown not to have been heard of for seven years by those, if any, who, if he had been alive, would naturally have heard from him, is presumed to be dead unless the circumstances of the case are such to account for his not being heard of, without assuming his death…. See the case of Prudential Assurance Co. V. Edmonds.
  • Presumption of Negligence: Section 168 of Evidence Act, this is a common law presumption usually raised in actions for negligence. The presumption is usually expressed in the latin maxim, res ipsa loquito – meaning the fact speaks for itself. The presumption is raised where the plaintiff is injured as a result of something under the management and exclusive control of the defendant or his servant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.

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