By Paul Omobhude Esq., Associate Counsel – AAA Chambers
Samson lives with Stacie, whom he often refers to as his wife. Together they have a son named Princewill who is just 6 years old. Their maid, Julia, has reported to the police that the couple’s son, Princewill, raped her when both his parents were out at a dinner party. On getting to hear about their maid’s report against their son, Samson took to his heels and is yet to be seen for 7 years since the ugly incident was reported.
The above scenario raises a lot of presumptions about the characters mentioned. In the scenario, you can highlight presumption as to marriage, the presumption as to death and presumption as to the incapacity of a child to commit the offence of rape. To successfully tackle the issues raised by the scenario, ‘presumption’ will be called to aid, hence the necessity of a critical analysis of evidential presumptions and its implication on the burden of proof.
Understanding Presumptions
Presumptions arose from the need to ease the burden on a party who would have laboured in vain to prove his case from circumstantial evidence. It was made part of English law byEdward Coke in the 17th century. Presumption is one of the exceptions to the rule that he who asserts must prove. Though not defined by the Evidence Act, presumptions simply connote an assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. It could also be an inference as to the existence of one fact from the existence of some other fact founded upon previous experience of their connection.
Section 145 of the Evidence Act provides thus:
(i) Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.
(ii) Whenever it is directed by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
(iii) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
Classification of Presumptions
Generally, presumptions are either law or fact.
Presumption of Law
Presumption of law simply means a presumption prescribed by law and which must be drawn in the absence of any evidence to the contrary. Presumption of law refers to the conclusions that can be deduced from the given set of fact that are prescribed or stipulated by law and must always be drawn as the inevitable consequence of these facts. Presumption of law is further divided into:
Rebuttable presumption (Presumptio Juris)
Rebuttable presumption simple means a presumption the court would disregard where there is more cogent or superior evidence to the contrary. In other words, a party against whom the presumption is made is not precluded from leading evidence to disprove the presumption.
Section 145{2} of the evidence Act, 2011 provides that: Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
Irrebuttable presumption (Presumptio Juris et de jure)
Irrebuttable presumption is conclusive and incontrovertible and does not admit of evidence in disproof. Section 145{3} of the Evidence Act provides thus: When one fact is declared by this Act to be conclusive proof of another, the court shall; on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.
Examples and Scenarios for Rebuttable Presumption
Examples of rebuttable presumptions cannot be exhausted but it is apposite to state a few here under
PRESUMPTIONS AS TO GENUINENESS OF DOCUMENTS 20 YEARS AND ABOVE – SECTIONS 155 & 162 EVIDENCE ACT.
This presumption presupposes that a document proven to be 20 years of age or recitals or information contained in a document that is proven to be 20 years of age is genuine and accurate until the contrary is proven.
Therefore where there is a controversy between Mr A and Mr B as to ownership of a particular land, and Mr A produces a deed of Assignment executed in 1993 or produces a certified true copy of a deed of assignment executed in 1993, the court is likely to presume that that deed of assignment is genuine or that the information contained therein is genuine.
PRESUMPTION AS TO THE EXISTENCE OF A MARRIAGE – SECTION 166 OF THE EVIDENCE ACT, 2011
Where a man {Mr A} and a woman {Mrs C} are living together {cohabiting}, it can easily be presumed that they are living together as husband and wife. Furthermore, where Mr Aand Mrs C went through a regular ceremony of marriage under the Act or customary law, their marriage is presumed to be valid.
PRESUMPTION AS TO LEGITIMACY – SECTION 165 OF THE EVIDENCE ACT, 2011; SECTION 84 OF THE MATRIMONIAL CAUSES ACT
The presumption that a child born during the subsistence of marriage is legitimate. Furthermore, if the child was born within 280 days of the dissolution of the marriage, the child is presumed to be the child of the man and woman. However, the man may be able to rebut this by DNA tests. It is often called in aid especially in Wills matter when there is controversy that a person may not have been the child of the deceased.
PRESUMPTION AS TO DEATH – SEE SECTION 164 OF THE EVIDENCE ACT, 2011.
A person that is shown not to have been heard of for 7 years by those, if any, who if he had been alive would naturally have heard of him is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuring his death.
For the purpose of determining title to the property where two or more persons have died in circumstances in which it is uncertain which survived the other, they are presumed to have died in order of seniority. Section 164{2} Evidence Act.
PRESUMPTION OF NEGLIGENCE { res ipsa loquitur}
If A while driving his car hit B from behind, the law will presume that it is the negligence of A that resulted in the accident.
In EJISUN V AJAO & ORS {1975} 1 N.M.L.R. P.4, the Court held that the 1st Defendant’s vehicle had knocked down the plaintiff from behind raises the presumption that the 1st Defendant must have driven his vehicle negligently. The onus is on the 1st Defendant to offer due explanation showing that he was not negligent and having failed to do so, he is liable for negligence.
PRESUMPTION AS TO THE REGULARITY OF A BOARD OF DIRECTOR’S ACTION ON BEHALF OF A COMPANY AND REGULARITY OF DEEDS EXECUTED BY A COMPANY – SECTION 63 OF THE COMPANIES AND ALLIED MATTERS ACT, 2004, AND SECTION 163 EVIDENCE ACT, 2011.
This presumption presupposes that an act executed by the board of directors of a company on behalf of the company is regular and valid because of the presumption that board of directors of the company has the power to act on behalf of the company.
For example, in BETRACO CO LTD. V SPRING BANK LTD. {2015} 5 NWLR {PT. 1451} 107, the court held that the security given by the board of director of the company was regular as the outsider had no obligation to investigate whether the board had the power to act in the capacity in which they did.
EXAMPLES AND SCENARIOS OF IRREBUTTABLE PRESUMPTION
PRESUMPTION UNDER SECTION 36 {6} OF THE COMPANIES AND ALLIED MATTERS ACT, 2004
By virtue of section 36 {6} of the Companies and Allied Matters Act, the certificate of incorporation of a company is a prima facie evidence that a company has met all the requirements for the registration of a company. The certificate of incorporation is evidence to the fact that a company was duly registered.
PRESUMPTION THAT A CHILD BELOW 7 YEARS CANNOT BE CRIMINALLY RESPONSIBLE. {SECTION 30 CRIMINAL CODE ACT}
The law presumes that a child below 7 cannot have a guilty mind and therefore cannot be guilty of a crime. Consequently, once there is a finding that a child is below 7, the court will try such a child and in fact will not allow evidence to be led to show that the child had the capacity to commit a crime.
PRESUMPTION A MALE PERSON UNDER THE AGE OF 12 YEARS CANNOT HAVE CARNAL KNOWLEDGE {SECTION 30 CRIMINAL CODE ACT}
The court will not allow evidence to be led to show that a male person under the age of 12 had carnal knowledge of another person. Once there is a finding that the male person is under the age of 12, such a person can only be tried in a juvenile court and only for sexual assault.
PRESUMPTION OF FACTS
Facts are the basis on which every case is built. Presumption of facts is simply logical inference or conclusion that can be drawn from proven facts or circumstantial evidence.
Section 145 {1} of the Evidence Act provides that whenever it is provided by this act that the court may presume a fact it may either regard such fact as proved unless and until it is disproved or may call for proof of it.
Section 167 of the Evidence Act further provides that 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, and in a particular court.
For facts to be presumed by the court they must be facts which are relevant to the facts in issue or facts contemporaneous with the events in issue or facts which accompany and explain facts in issue.
PRESUMPTION AS TO UNFAVOURABILITY OF DOCUMENTS NOT TENDERED –SECTION 167 {D} EVIDENCE ACT.
There is a presumption of law that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. – ZENITH BANK PLC V BUSINESS GOLD LTD. {2017} 17 NWLR {PT. 1595} 487 AT 491, RATIO 1.
However in practice Where A put B on notice to produce a document for court’s inspection, and B neglects to produce such document, A is at liberty to present before the court, the one in his possession {that is the secondary document} – NWEKE V STATE {2017} 15 NWLR {PT. 1587} PAGE 120; EMEKA V CHUBA-IKEAZU {2017} 15 NWLR {PT. 1589} PAGE 345
The party who is put on notice is not under obligation that he must produce the document, furthermore, the party put on notice must be in the position to produce the document.
PRESUMPTION AS TO DOCUMENTS IN THE HANDS OF THE OBLIGOR {DEBTOR} – SECTION 167 {E}, EVIDENCE ACT
If by contract, A {creditor} gives B {debtor} a credit facility and receives B’s documents with respect to B’s property as security for the loan, and afterwards those documents are found in B’s possession. It is presumed that B came to be in possession because he has discharged his obligation under the contract. It can be rebutted by A showing that B either sole the document, or got it by false pretence, or duress, or fraud to dislodge A of the document.
Presumption as to the fact 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 – Section 167 {a} of the Evidence Act, 2011
In BANJO V STATE {2013} 16 NWLR {PT. 1381} PAGE 455. The accused was found in possession of some robbed goods immediately after a robbery incident and was unable to account for how the goods got into his possession. It was held that he was part of the robbers that participated in the robbery. The presumption can be rebutted by the accused giving cogent reasons as to how he came about the property.
PRESUMPTION AS TO THE HOLDING OF A MEETING VALIDITY OF MINUTES OF MEETING OF A CORPORATE BODY AND APPOINTMENT OF PRINCIPAL OFFICERS. – SECTION 168 {4} OF THE EVIDENCE ACT, 2011
Where minutes of a meeting purportedly held by a company is produced and shown to be signed by the chairman, it is presumed that such meeting was held and furthermore, appointments made during such a meeting is validly made until the contrary is proven.
PRESUMPTION AND RES GESTAE
As already established, presumption is the assumption that a fact exists based on a known or proven existence of other facts. Res gestae, on the other hand, means “things done” or “event that occurred.” It is a common law doctrine that acts as a cloak for admitting evidence which borders on hearsay, which should not be admitted, save that they have met the criteria for admitting res gestae.
Res gestae act as a cloak to prove facts assumed or presumed to exist because res gestae is basically a term that refers to: – relevant fact or events in issue, events contemporaneous with the events at issue, facts which accompany and explain facts in issue.
For example where a there is a fight between a man and his wife in a locked room and then their neighbour hears a scream/shout from the wife in locked room saying “I am dead” or “John has killed me”, that statement though it’s a hearsay is contemporaneous with the event in that room, therefore it becomes admissible and an inference or presumption can be drawn that the husband {John} killed his wife. – Sunday Akpan V. The State (1967) NMLR 185.
Section 4 of the Evidence Act provides that facts which, though not an issue, as to form part of the same transaction, are relevant, whether they occurred at the same time or place or at the same times or places.
CONDITIONS FOR THE ADMISSIBILITY OR RES GESTAE
Res Gestae are exceptions to hearsay principle and are admissible only where;
- The act said or done is contemporaneous or closely interwoven with the fact in issue: The statement must have been made substantially simultaneously with the action or event which it accompanies in time, place and circumstances that they are regarded as part of the thing done. – Section 4 evidence Act.
- The act said or done must be relevant to the fact in issue: The traditional view is that statements and declarations which form part of res gestae are admissible to explain or corroborate the fact in issue which they accompany. They do not prove the truth of what they assert.
- The statement or declaration must be made either by the actor or the victim.
Furthermore, the purport of section 7{b} of the Evidence Act is that facts which support or rebut an inference suggested by a fact in issue or relevant are admissible.
PRESUMPTION AND ADMISSION
Admissions are statements or conduct from which inferences {presumptions} can be drawn with regard to the fact in issue.-Section 20 of the Evidence Act, 2011
Where a party admits a certain fact, such fact need no further proof. Consequently, necessary inferences {presumption} can be drawn from such admission. However, in some cases, the law may require that a particular fact be proved other than by admission. Where such a fact is proven other than by admission then the court must draw the necessary inference or presumption- Section 123 of the Evidence Act, 2011.
However, by Section 27 of the Evidence Act, 2011, admissions are not conclusive of a matter, it only acts as an estoppel on the person who admits a fact from denying it.
PRESUMPTION AND JUDICIAL NOTICE
Section 122 of the Evidence Act provides that no fact which the court shall take judicial notice under this section needs to be proved. In Maitumbi v Baraya {2017} 2 NWLR P. 347 at 363 Ratio 22; the court held that judicial notices are usually matters which the court is expected to accept as proved without the necessity of calling evidence.
Judicial notices are facts which have become so notorious that the court takes judicial notice of them. However, the distinction between judicial notice and presumption is that presumption is not subject to the court’s discretion, it is static in the sense that if a legislation presumes a fact to exist, the court has no option than to presume those facts when successfully proven while judicial notice in some cases may be static or discretionary; that is, where the court is called upon to take judicial notice of any fact it may refuse to do so unless such a person produces any book or document which the court must consider to enable it to take judicial notice of that fact. – Section 122{4} of the Evidence Act.
In Maitumbi v Baraya {Supra} Ratio 23, the court held that facts provided under section 122{1-2}{a-m} are facts which must be taken judicial notice of while cases under sections 123-124 are facts that may not be taken judicial notice of.
IMPLICATION OF PRESUMPTIONS ON THE BURDEN OF PROOF
Presumption is an exception to the rule that he who asserts must prove. Generally, the burden of proof in a civil matter is on the person who asserts a position of fact. He has a burden on him to lead evidence to prove his assertions. The law is that he who asserts must prove. See section 131 {1} of the Evidence Act, 2011.
However, where a law presumes the existence of a certain fact in favour of a person, such a person need not lead evidence in proving the existence of the already presumed fact. The burden will shift from him/her to the other party against whom the facts have been presumed, therefore, it is now on the person against whom such fact has been presumed to lead evidence to the contrary. Otherwise, the presumed fact remains uncontradicted even where evidence is not led to sustain the presumption.
In criminal cases, the burden to prove the guilt of an accused person rests on the prosecution by virtue of section 36{5} of the Constitution of the Federal Republic of Nigeria, 1999. This does not shift. However, in some circumstance where certain presumption has by operation of law established a presumption against an accused, it is the duty of the accused person to rebut the presumption.
For example, everyone is presumed to be sane at all times by virtue of section 27 of the Criminal Code Act, therefore, to rebut that, the accused person must lead evidence to show that he was indeed insane to come under the defence of insanity.
CONCLUSION
Facts presumed by law under any statute need not be proven. Presumption eliminates the burden of proof on persons in whose favour it is presumed. In this regard, it is pertinent that one have an idea of these presumptions so as to reduce the pressure of having to prove the existence of facts which are already in his favour. Knowing these presumption saves time and further helps a lawyer to ask valid questions during the examination of witnesses.
Finally, though presumptions are classified as presumption of law or fact, it is relatively very difficult to draw a clear line of distinction between both and furthermore, the classification of presumption into the presumption of law or fact does not imply any alteration in the legal effects of presumptions.
Leave a Reply