A presumption of law, it has been pointed
out, is one which is prescribed by law and which must be drawn in the absence
of any evidence to the contrary. Presumptions of law are divided into two,
namely, irrebuttable presumptions of law and rebuttable presumptions of law.
Irrebuttable Presumptions of Law
If a presumption is irrebuttable
presumption of law, it means that if a certain fact is proved, then the court
must draw a certain conclusion from the proved fact and such conclusions are
conclusive, unquestionable and incontrovertible. The court is under a mandate
or obligation to draw such conclusions and no evidence is receivable to
dislodge, upset or negative such presumptions. Irrebuttable presumptions of law
provide excellent examples of conclusive evidence.
There are few presumptions of law
which are irrebuttable and they have been said to be rules of substantive law.
Coming under this heading are the presumptions that a child under 7 years is
presumed to be incapable of committing an offence and that a male person under
the age of 12 years is presumed to be incapable of having carnal knowledge as
provided in section 30 of the Criminal
Code. Another irrebuttable presumption of law, otherwise known as estoppel by record, is provided for
under section 173 of the Evidence Act
2011 which states that
Every judgment is conclusive proof, as against parties
and privies, of facts directly in issue in the case, actually decided by the
court, and appearing from the judgment itself to be the ground on which it was
based; unless evidence was admitted in the action in which the judgment was
delivered which is excluded in the action in which that judgment is intended to
be proved.
Rebuttable Presumptions of Law
Rebuttable presumptions of law are in fact not properly so called, but rather can be seen
as the rules of substantive law. A rebuttable presumption of law is one
prescribed by law and which must be drawn in the absence of any evidence to the
contrary. Where a presumption is rebuttable, evidence contrary to the fact
presumed is permissible and may be given. If this other evidence is accepted by
the court, the presumption is disproved or displaced. A rebuttable presumption
of law therefore takes effect prima facie. The conditions for the application
of a rebuttable presumption of law are fixed and uniform and in consequence it
alters the burden of proof of an issue.
Also,
a rebuttable presumption of law is to the effect that upon prove of a basic
fact, the presumed fact arises. For example, under Section 27 of the Criminal Code, every adult person is presumed
sane and responsible for his acts until the contrary is proved. Also, by section 36(5) of the 1999 CFRN (as
amended) every person charged with a criminal offence shall be presumed
innocent until he is proved guilty. Again, 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.
Additionally, under section 164(1) of the Evidence Act 2011, the
law is that a person 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 assuming his death. Also, in section 165 of the Evidence Act 2011¸ it is stated that 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
legitimate child of that man.
Our last example is in section 166 of the Evidence Act 2011, which
states that when, in any proceeding whether civil or criminal, there is a
question as to whether a man or woman is the husband or wife under Islamic or
Customary law, of a party to the proceeding; the court shall, unless the
contrary is proved, presume the existence of a valid and subsisting marriage
between the two persons where evidence is given to the satisfaction of the
court, of cohabitation as husband and wife by such man and woman.
The distinction between rebuttable presumptions of law and irrebuttable presumptions of law is
that, whereas in the former, evidence is admissible to dislodge such
presumptions, in the latter, no evidence may be adduced and if adduced,
receivable in rebuttal of such presumptions. Most presumptions of law are
rebuttable. So also are all presumptions of fact.
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