The Influence of Presumptions on Burden of Proof

It is instructive to note that the existence of a presumption of law may also determine the incidence of burden of proof. A presumption saves the party who can invoke it from proving certain fact in the first instance and puts the onus on the other side. If the basic facts which will invoke such presumption are admitted in the pleadings then the onus lies at the outset of and throughout the trial on the party denying the presumed fact to disprove it. Thus, a person can assert a positive affirmation without the burden of proving its existence because there is a presumption in his favour or to his advantage. Every presumption in favour of a party takes away the duty to prove or the burden of prove.

The point is emphasized that the underlying principles of burden of proof highlighted above is subject to the existence of any presumption which may arise on the pleadings. Thus, the fact that a party is asserting a positive allegation does not necessarily mean that he bears the burden of proof. He may have a presumption of law in his favour and once a presumption is in his advantage, he is relieved of the burden of proof.

For example, under section 28 of the Criminal Code, every body is presumed same until the contrary is proved. Hence, since the prosecution bears the burden of proof in criminal cases, that presumption operates in his favour and relieves him of the burden of proving the sanity of the accused. Similarly, under section 36(5) of the 1999 Constitution (as amended) there is a presumption of innocence in favour of a person charged with an offence. Therefore, the onus is on he who is alleging that a person is guilty of a criminal offence to prove same.

Another example is that a child who is born in lawful wedlock is presumed legitimate. Accordingly, it is the person who asserts the negative that the child is illegitimate that will have the burden of proving the assertion. The last example is that which stipulates to the effect that a person in possession is presumed to be the owner of the land. If, therefore, in an action for declaration of title to land, it is conceded by the pleadings or by evidence that a party is in possession of the land, then the burden of proof of ownership is on the other party who affirms that his opponent is not the owner.

The implication of the forgoing is that the existence of any presumption may cast the burden of proof on a party who otherwise would not have had the burden cast on him on the pleadings. In Olaiya v Osasanmi (1959) WRNLR 264, the plaintiff sued the defendant for negligence allegedly committed by the defendant’s servants or agents. A Crane which was being operated by the servants or agents of the defendant in the course of building operations carried on by the defendant fell on the plaintiff whilst making use of a public pathway normally used by members of the public. On these facts, it was held that the maxim res ipsa loquitur applied to put the onus on the defendant to disprove negligence.

Also, in Igbokwe & Anor v University College Hospital Board of Management (1961) WNLR 173, the deceased who was an in-patient in the defendant’s hospital, was one night discovered missing from her bed. She had just given birth to a baby and was diagnosed as a suspected case of post-natal psychosis. She had been given some sedative and the doctor on duty had instructed a staff nurse to keep an eye on her. It was held that the facts of this case raised a presumption of negligence and the maxim res ipsa loquitur put the onus on the defendant to disprove negligence.

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