ABSTRACT
Presumption either of law or of fact, is an independent piece of evidence which may or must be drawn from a given sets of facts until the contrary is proved. In general sense, it has cut a niche for itself as it maybe employed in both Civil and Criminal cases. This study will therefore examine the various incidences where presumptions must or may be made before there can be a conviction and how they have been affected by various judicial and statutory authorities.
The essay would also analyse various decisions of the court on different issues arising from both presumptions of law and presumptions of facts and their legal effects. The essay posits that, presumption is popular and incontrovertible under virtually all legal systems and that under the Nigerian legal system, the popularity and controvertibility of presumption did not abase. This is established owing to the influence and interpretation of the provisions of the Evidence Act and the Criminal and Penal Codes (on presumptions) by the judges.
A conclusion made as to the existence or non-existence of a fact that must be drawn from other evidence that is admitted and proven to be true. If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced. A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reasonable person of average intelligence to reach the same conclusion.
Conclusive presumption is one in which the proof of certain facts makes the existence of the assumed fact beyond dispute. The presumption cannot be rebutted or contradicted by evidence to the contrary. For example, a child younger than seven is presumed to be incapable of committing a felony. There are very few conclusive presumptions because they are considered to be a substantive rule of law, as opposed to a rule of evidence.
The essay also focuses on the desirability of presumptions as a requirement in certain criminal and civil cases under the Nigerian Law of Evidence. Finally the analysis of the long essay examined the role of the court, and the juris prudential basis of the various statutory provisions in respect of presumptions in the Law of Evidence in Nigeria and in some other jurisdictions.
TABLE OF CONTENTS
ABSTRACT
TABLE OF CONTENTS
TABLE OF CASES
TABLE OF STATUTES
LIST OF ABBREVIATIONS
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
1.1.0: BACKGROUND TO THE STUDY
1.2.0: OBJECTIVES OF STUDY
1.3.0: FOCUS OF STUDY
1.4.0: SCOPE OF THE STUDY
1.5.0. METHODOLOGY
1.6.0: LITERATURE REVIEW
1.7.0: CONCLUSION
CHAPER 2
MEANING AND NATURE OF PRESUMPTIONS
2.0.0: INTRODUCTION
2.1.0: DEFINITION OF PRESUMPTION
2.2.0: NATURE OF PRESUMPTION
2.3.0: GENERAL CLASSIFICATION OF PRESUMPTION
2.3.1: REBUTTABLE PRESUMPTIONS
2.3.2: IRREBUTTABLE PRESUMPTIONS
2.4.0: FACTS PRESUMED NEED NO PROOF
2.5.0: CONCLUSION
CHAPTER 3
CLASSIFICATION OF PRESUMPTIONS
3.0.0: INTRODUCTION
3.1.0: PRESUMPTION OF LAW
3.1.1: PRESUMPTION OF MARRIAGE
3.1.2: PRESUMPTION OF LEGITIMACY
3.1.3: PRESUMPTION OF DEATH
3.1.4: PRESUMPTION OF NEGLIGENCE
3.1.5: PRESUMPTION OF REGULARITY
3.1.6: PRESUMPTION OF UNDUE INFLUENCE
3.2.0: CONCLUSION
CHAPTER 4
PRESUMPTIONS OF FACT
4.0.0: INTRODUCTION
4.1.0: PRESUMPTION OF INNOCENCE
4.1.1: PRESUMPTION OF GUILTY KNOWLEDGE
4.1.2: PRESUMPTION OF CONTINUANCE
4.1.3: PRESUMPTION OF COURSE OF BUSINESS
4.1.4: PRESUMPTION OF DOCUMENT CREATING OBLIGATION
4.2.0: PRESUMPTIONS UNDER THE COMMON LAW
4.3.0: A PERSON INTENDS THE NATURAL CONSEQUENCES OF
HIS ACTIONS
4.4.0: PRESUMPTION UNDER THE DOCTRINE OF RES
IPSA LOQUITO
4.5.0: CONCLUSION
CHAPTER 5
GENERAL CONCLUSION
5.0.0: CONCLUSION
5.1.0: RECOMMENDATION
BIBLIOGRAPHY
ARTICLES ON THE INTERNET
BOOKS
TABLE OF CASES
GHANA
- R v Kwashie, (1930) 13 WACA
NIGERIA
- Adegbola V Folaranmi And Ors (1921) 3 N.L.R 8 .
- Alarape Lawal v A. Yeeuopman and Sons and Others (1959) W.R.N.L.R, p. 155.
- Aigu Obarughan v The State (Jan – March 2004) N.S.C.Q.L.R. p. 442S.A.
- Ashimowu Aduke v R.O. Oyenubi, (196)8 N.M.L.R 477.
- Bamgbose v Daniel (1954), 14 WACA p. 116.
- Benson v Onitiri (1960) 5 FSC, p. 69.
- Chief Imam Ashaya Tijani v. Bishop Aboyade Cole, (1958) L.L.R 58.
- Dickson Igbokwe v UCH Board of Management. (1961) WNLR, p. 173.
- Doctor Mohammed Ashard v Commissioner of police (1963) N.N.L.R. p.80.
- Emmanuel Ibesiako V Commissioner of police (1963) 1 All N.L.R. 61.
- Employers Mutual & General Insurance Association Ltd. v Ladun Martins (1969) N.M.L.R 236.
- Elumenze v Elumenze (1969) ALL NLR, P.311.
- Frank Montague Macaulay v Abudu Kadiri Dawodu Seriki And Another (1925) 6 N.L.R. 92.
- Johnson v Lawanson. (1971) All NLR, p. 56.
- Kinnani v Borno N.A. (1957) NLR 40 at p. 42.
- Lagos Municipal Transport Service v Peter Ibechim (1961)L.L.R. 146.
- Maurice Gualin Limited v Wahab Atanda Aminu, Unreported Appeal No. 17 of 1957 of the Privy Council. Decided on 24th July 1958.
- Nigerian Air Force v Ex-Wing Commander James, (2002) 12 SCNJ , p. 379.
- Ogiamen v Ogiamen, (1967), NMLR, P. 245.
- Olaiya v Ososanmi (1961), p. 146 WNLR, p. 173.
- Oruche v Commissioner of police (1963) 1 All N.L.R 262.
- Queens v The Africa Press Ltd. And Another (1957) W.R.N.L 34.
- R v. Anya Ugwuogo & Anor, (1943) 9 W.A.C.A. 73.
- R v Daniel Ajibola & ors (1960) W.N.L.R. 170, at p.174.
- R v Ise Braimoh & Anor, (1943) 9 W.A.C.A. 197 at 199.
- R v Okere Iregbu (1938) 4 W.A.C.A. 32.
- R v Palmer Iyakwe (1944) 10 W.A.C.A. 180.
- R v Sunday Jumbo (1960) L.L.R. 192.
- Sanya v Jonson, (1974) 11 SC, p. 207.
- Shitta Bey v. Attorney – General of the Federation & Anor. (1998) 7. S.C.N.J, 264.
- State v Aiyeola, (1969) 1 All NLR, p. 303.
- State v Peter Nwomukoro (1981) 1-3 C.C.H.C.J, p. 340.
- Thompson v Adefope (1969), 1 All NLR, p. 322.
- Tulu v. Bauchi N.A (1965) NMLR, p. 343.
- Victor Mukete & Ors. V. Nigerian Broadcasting Corporation & Anor (1961) All N.L.R. 482.
- Williams v Akinwumi (1996) 1 All NLR, p. 115.
- Yerokun v M. Adeleke, (1960) 5 FSC, p. 126.
- Yiola v Dimbriwe Silli (April – June 2002), N.S.C.Q.L.R. p. 1264.
UNITED KINGDOM
- Allcard v Skinner (1887) 36 Ch. D. 145.
- Aronegary v. Aigalie, (1881) 6 AC, p. 364.
- Barkway v South Wales Transport Co. Ltd (1948) 2 All E.R. 460.
- Dillion v. R (1982) A.C 484.
- Gibbins v. skinner (1951) 2 K.B 379.
- Morris v Davies (1837) 5 CI. Fin. 163 & 165; 7 E. R. 365.
- Piers v Piers (1849) 9 E.R 118.
- Preston -Jones v Preston-Jones (1951) A C 391.
- Prudential Assurance Co. v Edmonds (1877) 2 App. Cas. 487.
- R v. Langton (1876) 2 Q.B.D. 296.
- R v Lumley (1869) L.R.I.C.C.R. 196.
- R v. Roberts (1878) COX 101.
- R v Wilshere (1881)6 Q.B.D 366.
- Scott v The London Dock Co. (1865) 3 H. & C. 596 at 601.
- Watson v Tate (1937) 3 All E.R 105.
TABLE OF STATUTES
NIGERIA
- Constitution of the Federal Republic of Nigeria 1999, Cap. 24, LFN 2004.
- Constitution of the Federal Republic of Nigeria, Cap 112 as amended Laws of the Federation 1990
- Criminal Code Act Cap C38 LFN 2004
- Evidence Act Cap E14 LFN 2004
- Penal Code Act Cap P3 LFN 2004
- Section 30 Bill of Exchange Act 1882
- The Intestate Estates Act 1952.
LIST OF ABBREVIATIONS
- AC: Appeal Cases
- CAMA: Companies and Allied Matters Act
- Cap: Chapter
- CC: Criminal Code
- CCHCJ: Selected Judgements of The High Court of Lagos (Cyclostyled)
- CH: Chancery Division
- SC: Supreme Court
- EA: Evidence Act
- ER: English Reports
- FSC: Federal supreme Court Cases
- JSC: Justice of the Supreme Court
- LFN: Laws of the Federation of Nigeria
- LJ: Law Journal Reports
- LLR: Lagos Law Report
- LNN: Laws of Northern Nigeria
- LQR: Law Quaterly report
- NIG: Nigeria
- NLR: Nigerian Law Report
- NSCQLR: Nigerian Supreme Courts Quaterly Law Report
- NMLR: Nigerian Monthly Law Report
- NNLR: Northern Nigerian Law Report
- NWLR: Nigerian Weekly Law Report
- PC: Penal Code
- QBD: Queens Bench Division
- RTA: Road Traffic Acts
- SCNJ: Supreme Court of Nigeria Judgements
- WACA: West African court of Appeal
- WNLR: Western Nigeria Law Report
CHAPTER ONE
GENERAL INRODUCTION
1.0.0: INTRODUCTION
Presumption is an important topic in the law of evidence; it is a creature of common law which is of immense importance in Nigeria and has been applied in the law of evidence, Law of evidence is the study of the means by which disputed facts are proved to be true or untrue in any trial before a court of law or an agency that functions like a court. A court, faced with the problem of the determination of a suit before it, can solve such a problem only after making an inquiry into the relevant facts of the case as put before it by the parties, drawing inferences from those facts and listening to arguments of parties to the case or of the legal practitioners representing them.
Likewise, presumption generally means a conclusion which may or must be drawn from a given set of facts until the contrary is proved. It is one of the classes of Facts or Matters that “do not require to be proved” under the Law of Evidence. Others which are i) facts admitted for the purpose of trial ii) facts judicially noticeable and iii) facts presumed which is our case study.
Chapter one of this work deals with the general introduction while chapter two deals with the meaning and nature of presumption generally. In chapter three, the classification of presumptions was dealt with in a broad sense with a special attention to presumptions of law while chapter four concentrates on presumption of fact and finally, chapter five deals with the summary of findings, conclusion and recommendations.
1.1.0: BACKGROUND TO THE STUDY
The essence of presumption can be illustrated in the example below;
If a person is standing trial on an allegation that he has committed an offence, if it is proved that he is incapable of committing such offence beyond reasonable doubt, then the presumption that that he is incapable of committing such offence must be drawn in his favour by the court and once this presumption is drawn, no evidence in rebutter would be entertained or admissible. For example, Section 30 of the Criminal Code states that a male person under the age of twelve was incapable of having carnal knowledge of a girl or woman. Presumption is a very broad topic that stretches itself at all angles of possible conflicts that could come up under law or in court. For instance, we have presumption of law, which its basis is that where the relevant provision of the act or any law states that the courts shall presume fact a presumption of law is created, and where the relevant provision of the act or any law states that the courts may presume a fact a presumption of fact is created.
In conclusion this essay is going to expatiate and prove with relevant cases and statutory how presumption of fact is dependent upon logical reasoning and how the presumption of law is prescribed by law in the absence of any evidence on the contrary.
1.2.0: OBJECTIVES OF STUDY
The objective of this research is to critically analyse “presumptions” in relation to the law of Evidence. And to critically examine whether it is compulsory or not that certain evidence can be presumed or certain conclusions can be drawn from a given sets of facts as incontroversible or can still be rebutted. More so, the study intends to show the capacity and status of persons giving or proving such facts as digits where presumptions are necessary. In addition this research would examine in full presumptions of law, presumptions of facts and their applicability under common law.
In conclusion, it is aimed that adequate recommendations would be made on the importance of its rigidity if any so as to help in quick dispensation of justice, so that little time would be wasted debating on irrelevances.
1.3.0 FOCUS OF STUDY
The focus of this essay is to enable an analysis of presumption, its effects, adequacy, universality and limitation.
The various types of presumption of law and that of facts will also be examined and its proportionality which the law require that the mode or repealing the presumption especially in cases of presumptions of facts.
1.4.0: SCOPE OF THE STUDY
The scope of this study is centered on the provisions of the Nigerian Law of Evidence but certain laws in other jurisdictions would be compared to the provisions of the Act. A review is done on all aspects of presumptions including overview on some locus clasicus. Based on this research, adequate recommendation would be made.
1.5.0: METHODOLOGY
The methodology employed in this research project is as follows:
- Citing the relevant provisions of the law which are known under the law of evidence,
- Judicial precedents
- Bringing together what other scholars have said regarding presumptions
- The use of illustrations for the purpose of lucidity.
Other sources of law are also the basis of the data for this research work, thus, the Evidence Act Cap E14 LFN 2004, law textbooks, law reports, Journal Articles on Law and various statutes and cases on the subject matter are the sources of the research.
1.6.0 LITERATURE REVIEW
There have been many scholarly works on presumptions, but none has actually dealt with the topic or subject matter of this research. The failure of these scholars of the existing works not to treat presumption as a special aspect of evidence does not however mean their work is a failure or not important. This does not suggest that that the existing works are irrelevant to the subject matter of the work. Some of them are quite invaluable and imperatively insightful.
To support the assertion that there are quite works on presumptions by authors and scholars of Law of Evidence, a few textbooks, journals and internet materials dealing with this subject would be consulted. Most of these works merely have chapters that refer to presumptions under law but are not comprehensive enough as they only give an introduction and summary of the subject matter.
Taylor[1] simply defines presumption as ‘Thus, on the basis of X (the basic fact), we assume Y (the presumed fact).’ which is quite hard to understand, because it is not explanatory enough, Aguda T.A[2] however postulated that ‘neither the Evidence Act or any other statute of general application has defined the word presumption' even though a large number of sections[3] of the Act are devoted to a presumption as to some documents or matter or the other. Finally, Nwadialo[4] was quite straight forward he defined presumption as ‘a conclusion which may or must be drawn from a given sets of facts until the contrary is proved’.
The law of presumptions is seen as having problems of terminology and classification as the subject of burden and standard of proof with which it is closely interrelated. This research started by stating the conventional classification of presumption which include the Rebuttable presumption of law (praesumptiones iuris sed non ciure), and Irrebuttable presumption of law (praesumptiones iuris hominis). The second comprising rules of substantive law expressed as presumption and the third comprising a number of examples of circumstantial evidence, also expressed as presumptions finally this research considers presumptions without basic facts, comprises a number of rules relating to the incidence of burden of proof.
In conclusion in ensuring the analysis of the aforementioned categories of presumptions references would be made by way of examples, to the more importance of the common law and statutory presumptions.
1.7.0 CONCLUSION
This chapter introduces the topic by tracing the essence of presumptions under the law of evidence. Also discussed are the objectives of this study, which is to examine whether it is compulsory or not that certain evidence can be presumed or certain conclusions can be drawn from a given sets of facts as incontroversible or can still be rebutted. Also discussed is the focus of this essay is to enable an analysis of presumption, its effects, adequacy, universality and limitation. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption.
Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof he is not; a person who has disappeared and not heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty.
These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. Finally the scope of this study is centered on the provisions of the Nigerian law of evidence but certain laws would be compared to the provisions in other jurisdictions.
[1]Alan T, Principles of Evidence, (2nd ed. Cavendish Publishing Ltd, London 2001) 35.
[2] Aguda T.A, The Law of Evidence (4th ed. Spectrum Law Publishing, Ibadan 1999) 34.
[3] Evidence Act Cap E14 LFN 2004.
[4] Nwadialo F, Modern Nigerian Law of Evidence(4th ed. Ethiope Publishing Corporation, Benin, 1986) 17.
