Some Specific Presumptions: Presumption of Death, Presumption of Partnership, Landlord, Tenants, Principal, Agent, Presumption of Ownership, Presumption of Good Faith in a Question as to the Good Faith of a Transaction, Presumption of Legitimacy, and Presumption of Marriage

Presumption of Death

          Under section 164(1) of the Evidence Act 2011 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 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; but there is no presumption as to the time he died and the burden of proving his death at any particular time is upon the person who asserts it.

By subsection (2) of that section, for the purpose of determining title to 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. See generally Chard v Chard (1955) 3 All ER 721 at 728; (1955) Probate 259. Lastly, by subsection (3) of section 164, there is no presumption as to the age at which a person died; who is shown to have been alive at a given time: Re Vhene’s Trust (1870) 5 Ch. App. 139.

2.     Presumption of Partnership, Landlord, Tenants, Principal, Agent, etc

          Under Section 142 of the Evidence Act 2011, when the question is whether persons are partners, landlord, and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.

3.     Presumption of Ownership

          By section 143 of the Evidence Act 2011, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. As was pointed out by the Supreme Court in Da Costa v Ikomi, this section only creates a presumption of ownership and does no more; it cannot stand where another person proves a better title. The case of of Amakor v Obiefuna (1974) 3 SC 67 is instructive.

4.     Presumption of Good Faith in a Question as to the Good Faith of a Transaction

          By section 144 of the Evidence Act 2011, where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Of course this presumption related to the issue of fiduciary relationship.

5.     Presumption of Legitimacy

          By section 165 of the Evidence Act 2011, 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, the mother remaining unmarried, the court shall presume that the person in question is the legitimate son of that man. This means that there is a presumption of legitimacy until the contrary is proved and the standard is as strong as that of preponderance of evidence.   The case of Chard v Chard (supra) relates to this presumption of legitimacy. The following cases are also instructive: (i) Elumeze v Elumeze (1969) 1 All NLR 311; (ii) Ogbolo v Onah (1990) 1 NWLR (Pt. 126) 357 and (iii) Asere v Asere (1991) 6 NWLR (Pt. 197) 316.

6.     Presumption of Marriage

          This is not provided for under the Evidence Act as there is no specific provision under the Evidence Act for his particular presumption. However, it is covered under a common law presumption. What that presumption means is that where there is a de facto celebration of marriage as opposed to a de jure celebration whether under statutory or customary law, there is a strong evidence or presumption in favour of the validity of marriage.

In fact, this presumption relates to the validity of marriage. In Piers v Piers (1849) 2 HLC 331, where the marriage was celebrated in a private house without a license or evidence of a license being given; the House of Lords held that even where the two parents are Whites and the wife keeps a black boy friend; the mullato child will be legitimate. In other words, the House of Lords held that there was a valid marriage. This presumption of validity covers both the formal and essential validity of marriage: Adegbola v. Folaranrni (1921) 3 NLR 89.

In that case, one Harry Johnson got married in Nigeria to one Oniketan under customary law and had a child by her. He was subsequently seized and made a slave and shipped to the West Indies where he lived for about forty years, his wife and child remaining at Awe Western Nigeria, his home town. In the West Indies he was converted to the Christian faith and became a member of the Roman Catholic Church. Meanwhile he got married to one Mary in a Roman Catholic Church in the West Indies and Mary subsequently came to live with him in Lagos where they, on their arrival there, were received into the Roman Catholic Church and took sacrament.

          There was no evidence that the man has got a divorce from his former wife under customary law and no certificate was produced to the court as evidence of the celebration of the marriage in the West Indies, yet it was held that the existence of this latter marriage must be presumed. It is instructive to note that today, this presumption or decision can be justified under the presumption that the spouse of the former valid customary law marriage had died, he not having heard from her for more than seven years as otherwise the later marriage would have been voided or void and of no effect.

          Hence, once a marriage has been proved to be celebrated, there is a presumption that the form it took was valid. Once the party who alleges the existence of the marriage has tendered evidence that the marriage was celebrated with the full intention of the parties concerned, then the party alleging the opposite has to disprove the validity of the form of the celebration of the marriage.

          There is also another presumption in relation to marriage, which is that where a husband and wife live together, or where a man and a woman are proved to be cohabiting, there is what is called presumption by reputation that their living together was as a result of having contracted a valid marriage and not in concubinage of sin, until the contrary is proved.

In Valaider Aronegary v Sembecutty Vaigalie (1881) 6 App. Cas. 364 at 371, the Privy Council opined that “where a man and woman are proved to have lived together as man and wife, the law will presume unless the contrary be clearly proved, that they were living together in consequence of valid marriage and not in a state of concubinage.” The court further held that the lower court erred in holding that the plaintiff who contended that she has been validly married according to Tamil Customs, had to prove either their nature or that the alleged marriage complied with them.

In Ogunbowale v Raji (1974), the court presumed the existence of a valid marriage where a man and a woman were shown to have lived together for seventeen years.
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