Presumptions Under the Evidence Act 2011: How Nigerian Courts Assume Facts

A woman’s husband travels to Kano for business in 2015. He calls her once from the road and is never heard from again. Seven years pass. No letter. No phone call. No word through any family member or mutual acquaintance. In 2022, the woman wants to remarry. Must she produce proof that her husband is dead before she can do so, or does the law help her?

The law helps her. After seven years without being heard from, her husband is presumed dead under section 164 of the Evidence Act 2011. She does not need a death certificate. She does not need to produce a body. The law raises a presumption that relieves her of the difficulty of proving what may be impossible to prove directly.

This is what presumptions do. They are the law’s way of allowing courts and parties to assume the existence of certain facts without requiring direct proof, based on the connection between those assumed facts and other facts that have been proved or that are so well-established they require no proof at all. Understanding presumptions is essential because they affect the burden of proof, and the burden of proof determines who wins when evidence is uncertain.

What is a Presumption?

The word “presumption” is used in many sections of the Evidence Act 2011 but is not defined in the Act. The definition from Black’s Law Dictionary, adopted by Nigerian courts, describes a presumption as an inference as to the existence of one fact from the existence of some other facts, founded on a previous experience of their connection.¹

Lecturer Adigun puts it more practically: a presumption is a rule of law that allows a court to assume the existence of a fact without direct proof, based on the existence of other facts from which the assumed fact is reasonably inferred.²

The defining feature of a presumption is that it shifts the burden of evidence. When a presumption arises, the party against whom it operates must either disprove the presumed fact or adduce evidence sufficient to raise a doubt about it. If they fail, the court will treat the presumed fact as proved.

Classification of Presumptions

Presumptions are classified in two main ways: by their source (presumptions of law and presumptions of fact) and by their strength (rebuttable and irrebuttable).

Presumptions of Fact

Presumptions of fact are inferences that a court may, but is not required to, draw from proved facts. Section 167 of the Evidence Act 2011 provides the main categories. The word “may” in section 145(1) signals that these are discretionary inferences the court can draw if it finds the underlying facts established.

Section 167 recognises five presumptions of fact:

Section 167(a): a man is presumed to intend the natural consequences of his acts. This is the presumption of intention. If a man fires a loaded gun at another person at close range, the court may presume he intended to kill or cause serious harm.

Section 167(b): if a man is in possession of goods soon after they are stolen and no satisfactory explanation of his possession is given, the court may presume he either stole them or received them knowing they were stolen. This is sometimes called the recent possession presumption and is the clearest example of circumstantial evidence operating through a presumption. The word “soon” has been interpreted variously by the courts: some authorities say hours, others say up to a week or two, depending on the nature of the goods and the circumstances.

Section 167(c): if a state of things continues, the court may presume it continues to exist. This is the presumption of continuance, sometimes illustrated by pregnancy: if a woman was observed to be pregnant three months ago, the court may presume she is still pregnant today unless evidence of delivery or miscarriage is shown.

Section 167(d): if a thing is usually done in a certain way, the court may presume it was done in that way in the instance before the court. This is the presumption of course of business. If your employer usually sends your payslip by email and you deny receiving a particular payslip, the presumption is that it was sent and received in the usual way unless you prove otherwise.

Section 167(e): if a person deliberately withholds evidence that would clarify a disputed fact, the court may presume that the evidence, if produced, would be against the interest of the person withholding it. This is the presumption as to withholding evidence or the spoliation presumption.

Presumptions of Law

Presumptions of law are stronger. They are rules of law, not merely logical inferences. They may be either rebuttable or irrebuttable.

Section 145(1) provides that a court may presume the existence of certain facts. Section 145(3) provides that certain other facts shall be irrebuttably presumed. The difference is critical.

Rebuttable Presumptions of Law

A rebuttable presumption of law is one that the court shall draw until rebutted by contrary evidence. Once the presumption arises, the burden of evidence shifts to the opposing party to disprove the presumed fact or to raise sufficient doubt about it.

Presumption of Innocence

Section 36(5) of the 1999 Constitution establishes that every person charged with a criminal offence shall be presumed innocent until proved guilty. This is the most fundamental presumption in Nigerian law and it applies in all criminal proceedings. The prosecution cannot simply assert guilt. It must affirmatively prove every element of the offence, working against the presumption of innocence that protects the accused from the moment of charge to the moment of verdict.

Presumption of Marriage: Section 166

When a man and woman have lived together as husband and wife and this cohabitation has been sufficiently long-standing, the court shall presume the existence of a valid marriage between them. This is particularly important in disputes about inheritance, maintenance, and property rights where a formal marriage certificate may not exist.

The distinction between marriage as a fact and marriage as a law matters here. Marriage as a fact relates to the existence of cohabitation. Marriage as a law relates to the legal validity of the union including compliance with statutory formalities. The presumption helps bridge the gap where formalities were not observed.

Presumption of Legitimacy

A child born during a lawful marriage is presumed to be the legitimate child of the parties to that marriage. This presumption can only be rebutted by strong, distinct, satisfactory, and conclusive evidence. In Watson v Watson,³ the court held that the evidence must be strong and conclusive to displace the presumption. In Francis v Francis,⁴ the court held that the fact that a wife committed adultery after having intercourse with her husband and using contraceptives was insufficient to rebut the presumption of legitimacy of the resulting child. In Oduche v Oduche,⁵ the Nigerian court applied the presumption.

Presumption of Death: Section 164

Section 164(1) provides that when a person has not been heard of for seven years by those who would naturally have heard from them if alive, the person may be presumed dead. Two conditions must be satisfied: the persons who would naturally have heard from the missing person must have had no word; and the circumstances must suggest that the person has probably died.

Section 164(2) creates a presumption about the order of death where two or more related persons die in the same accident and the time sequence cannot be established. They are presumed to have died in order of seniority.

The relationship between the presumption of death (seven years) and the presumption of continuance (which can extend to eleven years in some authorities) has caused doctrinal confusion. The Presumption notes explain the reconciliation: if someone was alive at a particular time, the presumption of continuance means they are presumed still alive for a reasonable period thereafter. But once seven years pass without news to those who would naturally have heard, the presumption of death arises and shifts the burden. The person asserting the missing person is still alive then carries the evidential burden.

Presumption of Negligence: Res Ipsa Loquitur

Where something that caused harm was in the exclusive control of the defendant, and the event is of a type that does not ordinarily happen without negligence, the court may presume negligence. This presumption shifts the evidential burden to the defendant to explain the event or face an adverse finding. We examine this in the article on negligence in torts.

Presumption of Regularity: Section 168

Section 168 provides that judicial and official acts are presumed to have been regularly performed. When a person acts in a public official capacity, it is presumed they were duly appointed and that they performed their duties properly. This presumption applies unless evidence of irregularity is shown. The legislative organ does not need to show what provision of law it relied on in enacting legislation: the presumption is that it acted validly.

Presumption of Undue Influence: Section 144

Where a relationship of trust and confidence exists, such as between a spiritual leader and a follower, a doctor and a patient, or a solicitor and a client, and the person in the dominant position benefits from a transaction, the court may presume that the benefit was obtained through undue influence. The burden then shifts to the dominant party to rebut this presumption.

Presumptions as to Documents: Sections 146 to 163

Sections 146 to 163 of the Evidence Act 2011 provide a series of presumptions relating to documents, including presumptions as to telegraphic messages (section 153), presumptions as to handwriting in ancient documents (section 155), presumptions as to documents thirty years old (section 159), and presumptions as to maps and government documents.

The section 159 presumption is particularly important in land disputes. A document that appears to be thirty years old, produced from proper custody, and appearing genuine on its face, is presumed to be what it purports to be. The proponent need not prove its authenticity through formal means. This presumption reduces the burden of proof in cases involving old deeds and conveyances.

Irrebuttable Presumptions of Law

An irrebuttable presumption, also called a conclusive presumption, is one that cannot be disproved by any evidence. Section 145(3) of the Act signals these with the word “shall.” They are, in effect, rules of substantive law dressed in the language of presumption.

The most commonly cited irrebuttable presumptions relate to the capacity of young persons to commit crimes.

Section 30 of the Criminal Code provides that a person under the age of seven cannot commit a crime. This is expressed as an irrebuttable presumption. No evidence of precocity or intelligence will rebut it. A child under seven is simply incapable of criminal liability.

Under the common law position preserved in the Criminal Code for Southern Nigeria, a male under the age of twelve is irrebuttably presumed to be incapable of carnal knowledge. No evidence can rebut this presumption.

Strictly speaking, one can argue that what sections like section 30 of the Criminal Code establish is not really a presumption but a substantive incapacity. The language of “presumption” can be misleading. The note from the lecturer materials makes this point: what makes these irrebuttable is not the logic of inference but the policy decision that certain facts shall be treated as settled regardless of what the evidence might show.

The Relationship Between Presumptions and Burden of Proof

Every presumption, whether of law or fact, affects the burden of proof. This is what makes presumptions practically important rather than merely theoretical.

When a rebuttable presumption of law arises, the evidential burden shifts to the opposing party. They must adduce evidence sufficient to displace the presumption. If they succeed in raising a genuine issue, the presumption may no longer operate and the original party may need to prove the fact through other means. If they fail, the court will find the presumed fact proved.

This shifting of the evidential burden is not the same as shifting the legal burden. The legal burden in a civil case remains on the plaintiff, and in a criminal case remains on the prosecution. Presumptions shift the evidential burden but not the legal one. We examine the distinction fully in the article on burden and standard of proof.

In Osagiede v State,⁶ the Supreme Court confirmed that the ultimate burden in criminal cases never shifts from the prosecution. A presumption operating in favour of the prosecution shifts the evidential burden to the accused but does not remove the prosecution’s ultimate duty to prove guilt beyond reasonable doubt.

A Quick Reference Table

Key Cases

Watson v Watson (1954) 2 All ER 1012 The court held that the presumption of legitimacy can only be displaced by strong, distinct, satisfactory, and conclusive evidence.

Francis v Francis (1959) 3 All ER 206 The court held that a wife’s adultery, even combined with the husband’s use of contraceptives during intercourse with her, was insufficient to rebut the presumption of legitimacy.

Oduche v Oduche (2006) NWLR (Pt. 972) The Nigerian court applied the presumption of legitimacy and affirmed that it is not easily displaced.

Rex v Wilshere The court held that a person known to be alive can be presumed to continue living for up to eleven years under the presumption of continuance.

Osagiede v State (1995) 1 NWLR (Pt. 373) 532 The Supreme Court held that the ultimate burden in criminal cases never shifts from the prosecution, even when presumptions operate in favour of the prosecution.

Problem Question Framework

When a problem question raises issues about whether a party must prove a particular fact, or about who carries the burden on a specific issue, apply this framework.

First, identify whether any presumption is triggered by the facts of the problem. Check the section 167 presumptions of fact. Check the major presumptions of law: death after seven years, legitimacy, marriage from cohabitation, regularity, and innocence.

Second, identify the type of presumption. Is it a presumption of fact that the court may draw, or a presumption of law that the court shall draw until rebutted? Is it rebuttable or irrebuttable?

Third, determine the effect on the burden of evidence. If a presumption arises, who now carries the evidential burden? What must they do to displace the presumption?

Fourth, consider whether the presumption has been rebutted. Has the opposing party adduced sufficient evidence to raise a genuine issue about the presumed fact? If not, the presumption stands and the court will find the fact proved.

Fifth, consider the constitutional dimension. The presumption of innocence under section 36(5) of the 1999 Constitution operates in all criminal proceedings and cannot be displaced merely by a statutory reverse burden without the court ensuring the displacement is proportionate and constitutionally justified.

Common Student Mistakes

The first mistake is treating presumptions of law and presumptions of fact as the same. They are not. Presumptions of law are mandatory: the court shall draw them. Presumptions of fact are discretionary: the court may draw them. The practical difference is that a court that fails to apply a legal presumption has made an error of law, but a court that declines to draw a factual inference has exercised its discretion.

The second mistake is confusing rebuttable and irrebuttable presumptions. A rebuttable presumption can be displaced by evidence. An irrebuttable presumption cannot, regardless of what the evidence shows. Students who say a child under seven “can be found criminally liable if the evidence shows sufficient intelligence” have confused the irrebuttable presumption with a rebuttable one.

The third mistake is treating presumptions as shifting the legal burden. They do not. Presumptions shift the evidential burden. The legal burden in criminal cases remains on the prosecution throughout.

The fourth mistake is forgetting that the presumption of death requires two conditions: seven years without news to those who would naturally hear, and circumstances suggesting death. Meeting only one condition is insufficient.

The fifth mistake is treating the presumption of continuance and the presumption of death as conflicting. They are not. Continuance applies when a person was alive recently and the question is whether they are still alive now. Death applies after seven years of silence to those who would normally have heard. A careful reading of each provision shows they operate on different time frames and different triggers.

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Footnotes

¹ Black’s Law Dictionary (9th edn, West 2009) 1302; M Adigun, Facts that are not required to be proved (University of Ibadan Faculty of Law Lecture Slides 2021) slide 8.

² Adigun (n 1) slide 8.

³ Watson v Watson (1954) 2 All ER 1012.

⁴ Francis v Francis (1959) 3 All ER 206.

⁵ Oduche v Oduche (2006) NWLR (Pt. 972).

⁶ Osagiede v State (1995) 1 NWLR (Pt. 373) 532.