Grand Master - , 5:49 am On 10 Oct 2017
WHAT IS PRESUMPTION IN LAW?
Legal presumption refers to the conclusion which the court draws for a set of facts without the need for proof'; they are assumption based on existing facts until the contrary is proved.
Examples of Legal Presumption includes:
1. A person who is missing and is not heard from in seven years is presumed to be dead.
2. A child born of a husband and wife living together is presumed to be the natural child of the husband.
TYPES OF PRESUMPTIONS
There are basically two types of presumptions
1. Rebuttable presumptions of law
2. Irrebuttable presumption of law
The major difference between the two is that in rebuttable presumption of law, evidence of rebuttal is admissible whereas in irrebutable presumptions of law, evidence of rebuttal is not admissible.
An example of an irrebutable presumption could be found in the criminal code in that a child below the age of 7years is presumed to be incapable of committing an offence; also, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge as provided in s. 30 of the Criminal Code. This is not open to any proof of the contrary; so far as the child is 7years and under he cannot commit an offence in the eyes of the law and it makes no difference that the particular child possesses sufficient intelligence to understand the nature of the act.
Also, by virtue of section 145(3) of the Evidence Act 2011, when a fact is said to be conclusive proof of another, it is not open to evidence of rebuttal.
There are two instances of a rebuttable presumption of law dealt with in section 145 of the Evidence Act 2o11. These are:
1. Facts which the court may presume: Where the words 'may presume' is used the court may either raise a presumption or call for the facts to be proved. That is, it's in the discretion of the court.
2. Facts which the court shall presume: Where the words 'shall presume' is used, the court shall raise a presumption. The court has no discretion in this.
EFFECT OF PRESUMPTION
Once a fact is presumed, it is regarded as proved until it is disproved. That is, the party in whose favour it was raised is dispensed of the need to call evidence to prove the presumed fact, the burden therefore shifts to the party against whom it was raised to disprove it.
For instance, an accused person need not prove his innocence until he is proven guilty. That is, because of the presumption of innocence contained in section section 36(5) of the 1999 CFRN, an accused person is relieved of the burden of proving his innocence until it is disproved.
EXAMPLES OF PRESUMPTIONS
a. Presumption of legitimacy- s. 165 EA.
b. Presumption of Marriage - s. 166 EA.
c. Presumption as to power of attorney- s. 150 EA.
d. Presumptions as to documents 20 years and above- ss. 155 & 162 EA.
e. Presumption of death from 7 years absence- s. 164 EA.
f. Presumption of stealing- s. 167(a).
g. Presumption of longevity- . 167(b).
i. Presumption as to unfavourability of documents not tendered. s. 167 (d) EA.
h. presumption of regularity. s. 167 (c)
I. Every adult person is presumed sane and responsible for his acts until the contrary is proved. S. 27 of the Criminal Code
j. Presumption of innocence. S. 36(5) of the 1999 CFRN