A Critical Analysis of Presumptions About the Law of Evidence
Chapter One
OBJECTIVES OF STUDY
The objective of this research is to critically analyze “presumptions” about the law of Evidence. And to critically examine whether it is compulsory or not that certain evidence can be presumed or certain conclusions can be drawn from a given set of facts as incontrovertible or can still be rebutted. More so, the study intends to show the capacity and status of persons giving or proving such facts as digits where presumptions are necessary. In addition, this research will examine in full presumptions of law, presumptions of facts, and their applicability under common law.
In conclusion, it is aimed that adequate recommendations would be made on the importance of its rigidity if any to help in the quick dispensation of justice, so that little time would be wasted debating on irrelevances.
CHAPTER TWO
MEANING AND NATURE OF PRESUMTIONS
INTRODUCTION
As a general saying, a house without a strong foundation will surely fall. The earlier chapter has discussed a brief introduction to presumptions under the law of evidence, but chapter two further elaborates on this topic and fully brings us to the full focus of the research. The scope of this chapter is however restricted to presumption under the Nigerian law of Evidence, its relative advantages and perceived defects especially with regards to the Evidence Act5.
Apart from using presumption to circumvent the general rule for establishing facts or relevant facts by leading positive evidence in support of such facts, presumption also saves time during the trial. For instance, sanity being the normal and usual condition of man, the law presumes that every individual is in that state6. It would have been an absurdity and onerous task for prosecution to bear the burden of proving in all cases that the accused is sane. Some presumptions are also moulded by social policy. An example is that of the presumption of legitimacy which ensures that children are not lightly held to be illegitimate because of the stigma that is associated with it7.
DEFINITION OF PRESUMPTION
Presumption as used in law is a conclusion derived from a particular set of facts based on law, rather than positive reasoning. It is a rule of law which allows a court to assume as fact to be true until such time as there is a preponderance of evidence which disproves the presumption8. Phipson defines a presumption as: a conclusion which may be drawn until the contrary is proved. Sometimes the presumption only arises if some basic facts are proved; sometimes it arises in all cases without proof of any particular fact.9
From the foregoing it is evident that each presumption is based upon a particular set of apparent fact paired with established laws, logic or reasoning. Also, presumption means that a certain conclusion must be drawn by the court until the contrary is proved.10 There are two types of presumptions, presumption of law and presumption of facts, this fact is proved by section 4(b) of the Evidence Act which provides that;
‘Wherever it is directed by this act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved’ In the case of presumption of law, the word ‘shall’ is emphasized while the clause ‘may’ is used in the case of presumption of fact. Presumption of fact is one in which is dependent upon logical reasoning and which the court is free to draw conclusion if he so likes, while presumption of law is the one prescribed by law and which must be drawn in the absence of any evidence to the contrary.
The distinction between classifications of presumption would be further and elaborately discussed. Also the relevance of presumption the subject ‘facts presumed need no proof’ summarily means that the effect of most presumptions is to establish a fact without any or complete proof. Finally, chapter two elaborately introduced the topic presumptions under the law of evidence.
CHAPTER THREE
CLASSIFICATION OF PRESUMPTION
INTRODUCTION
It is pertinent to note that there two types of presumptions, presumption of law and presumption of fact and it was further emphasized that where the relevant provision of the Act or any law that the courts ‘may presume’ a fact a presumption of fact is created.
This chapter majorly focuses on presumptions of law and the types of law, some of which are, presumption of marriage, presumption of legitimacy among others.
PRESUMPTION OF LAW
In presumptions of law the conclusions to be deduced from the given sets of facts are prescribed or stipulated by law and must always be drawn as the inevitable consequence of this facts. For example, if two persons are proved to be parties to a conveyance, then a conclusion directed by law26 to be inferred from this established fact, unless the contrary is proved, is that both of them are of full age at the time of conveyance. This conclusion is therefore a presumption of law. It is not necessarily logically inferable from the proved fact but the court is bound to arrive at it there from because the law has so enjoyed.
CHAPTER FOUR
PRESUMPTIONS OF FACT
INTRODUCTION
Presumptions of facts are simply instances of circumstantial evidence. It applies on the proof or admission of a basic fact from which another fact may be presumed in the absences of sufficient evidence to the contrary.80 Facts so inferred are said to be presumed, i.e taken for granted until the opposite party proves the contrary. It is a good act of reasoning where much knowledge is derived. Indeed, it will be very difficult to bring offenders to justice if no fact could be ascertained by inference. Section 149 of the Evidence Act fortifies the ascertainment of facts by inference when it provides that:
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
In summary and in conclusion, presumption has been defined in the body of this work in section 4 (b)137 the Act provides that ‘whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.’
In essence once a fact or facts in issue due presumed, no evidence is required of a fact which is presumed in a party’s favour thus presumptions are therefore one of the ways in which matter may be established otherwise than by evidence.
The work has examined two main types of presumptions, presumptions of law and presumptions of fact. It was pointed out that presumptions of law can be further divided in to irrebuttable and rebuttable presumptions.
There have always been criticisms on this classification138 based on the ground that it is why difficulty draws the line between both presumptions of law and that of fact. This essay was able to beyond reasonable doubt strike out the differences without any ambiguity. For instance Rebuttable presumptions of law which is so much similar to that of presumption of fact was differentiated from the latter on the basis the once there are the requisite premise, a presumption of this type must be draw by the court. The injunction to this effect is given by law.
Unless there is other evidence proving the intraday, the fact thus presumed is deemed to by fully established. The chief effects of presumption of law are to prove negative asserters, which very way139. While on the other hand, a presumption of fact is the logical inference of the existence of given facts from the proved existence of other facts. In most cases it exists as an example of circumstantial evidence.
In all cases of presumptions of fact, the court is free to draw a particular inference from proved facts. The court is not, however, obliged to draw the influence even though no further evidence in rebuttal is offered by the party to be affected by the inference140.
RECOMMENDATION
Various books and authors in Nigeria especially, have grossly, or by chance of necessity discussed the scope of presumptions in their works, but none of them have however, tried to go beyond the scope to see the possibility of the presumptions available not being able bring about justice and fairness. For instance in the case of Dickson Igbokwe & ors v University College Hospital Board of Management141, the deceased was a patient in the defendant’s hospital who has just given birth to a baby and was diagnosed as a suspected case of post natal psychosis.
She had been given sedative and the Doctor on duty had instructed the staff nurse to keep an eye on her. Later, she was found missing on her bed. There was evidence to the effect that if the nurse had kept an eye on her, the resultant accident would not have happened. It was held that the facts of the case raised a presumption of negligence.
In Failure-to-Warn products liability142 cases, plaintiffs traditionally have been required to prove that the defendants placed a product on the market without adequate warning or instruction, and this failure to warn was a proximate cause of their injuries. One link in establishing causation is showing that a warning has been given, the plaintiff would have read and heeded the warning, thereby averting the injury. A common issue is which party has the burden of proving that the plaintiff would have read and heeded the warning?
It is based on this resolution that this study or essay will suggest that jurisdictions should decide in favour of the plaintiffs by invoking a presumption, colloquially known as the ‘heeding presumption’: that they would have read and heeded a warning, thus shifting the burden to the defendant to rebut.
The law remains in most society the instrument of cultivating and accommodating changes in the social and moral ways of life of the people and the judges interpreting the laws, therefore Nigerian government through the legislative arm should stand up to the challenges that have been posed against the sanctity of justice, it is believed that much will be achieved to lay rest permanently on the full dependence on some certain facts that need no proof so that the burden of prove would not always lie on the plaintiff so that no gross injustice would be meted on any individual since all law seeks is justice and fairness to all.
BIBLIOGRAPHY
ARTICLES ON THE INTERNET
- Enloe J.‘Presumpion’,<http://www. It’stheNameoftheGamecheckart%.pdf> Assessed on 23rd March 2011
- Guide to Defeating the Heeding Presumption in Failure-to-warn Cases; C.A. Daniel. Defense Counsel <http://www.alternativestolawofevidence.com Tuesday, April, 2003.
- Aguda T.A, The law of Evidence, Fourth Edition. Spectrum Law Publishing 1999.
- Akintola A.L and Adedeji A.A, Nigerian Law of Evidence, A Book of Readings in honour of Oluwarotimi O. Akeredolu SAN. University Press PLC2006
- Alan T, Principles of Evidence, Cavendish Pub. Ltd, Second Edition(2001)
- Heydon J.D and Ockleton M, Evidence Cases and Materials 4th (London: Butterworths,1996)
- Keane A, The Modern Law of Evidence 4th (London:1996)
- Phipson’s Manual of Law of evidence, (10th), London Sweet and Maxwell (1987)
- Phipson’s Manual of Law of Evidence (13th), London Sweet and Maxwell (1990)
- Nwadialo F, Modern Nigerian law of Evidence, Ethiope Publishing Corperation. 1996.
- Raisbeck B.L, Ed. Revision Workshop, Evidence (HLTPublications)
