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15 Jan

EVIDENCE 1.7 CIRCUMSTANTIAL EVIDENCE AND PRESUMPTIONS

CIRCUMSTANTIAL EVIDENCE AND PRESUMPTIONS.

In Ahmed V State, circumstantial evidence was defined as evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. Gives rise to a logical inference that a fact exists or a particular happening in question occurred.

It is inference by the use of forensic reasoning and logical deductions.

e.g. in Nwaeze V The State the court noted that if MR A was last seen with Mr B before his dead body was found, Mr B would have to give a reasonable explanation to show that he was not the one that killed Mr A.

Ordinarily, our justice system places the onus of proving on the prosecution. But in the cases of presumption, the onus is on the defendant/accused to rebut the presumption. Note however that such proof is on a balance of probabilities-Adeniji V State.

To qualify as circumstantial evidence, it must point irresistibly to the defendant as the person who would have actually committed the offence-Ismail V State.

PRESUMPTIONS.
In Idahosa V Idahosa, it was defined as a conclusion drawn from a given set of facts until the contrary is proved.

Section 145 provides that whenever it is directed by this act that the court shall presume a fact, it shall regard such fact as proved until disproved.

Note that this does not automatically make a presumption evidence.

Presumptions distinguished from inferences:

An inference is a permissible deduction from the evidence before the court. While presumption is characteristically a rule of law. In other words; the former is permissible while the latter is mandatory which the law requires should be presumed in certain circumstances. Although (as was noted in Minski V US) that a mere inference may by its repetitive occurrence, notoriety or universal acceptance become a presumption of law.

The duty to presume arises when the EA directs. The provisions should be interpreted accordingly. For example; “may” means that it is rebuttable and can be disproved. “Shall” connotes that it is a conclusive evidence.

Can the court presume on top of a presumption: in Keer V US, the court noted said no. Except the existence of one fact ordinarily follows that the other fact would exist.

Conflicting presumptions: where two or more presumptions conflict, they neutralise one another-Section 133(3) EA. Sebastian Tar advises that where there is conflict between more than one presumption, the one that accords with innocence should prevail in criminal matters.

Presumption may be divided into:

  1. Presumption of Law: is a mandatory deduction which the law requires to be made-Abubakar V Yarádua. It is sub-divided into rebuttable and irrebuttable-Idahosa V Idahosa.
  2. Irrebuttable: in such a case, evidence proving the contrary would not be admitted. This presumption “stands for all time like the rock of gilbrata”-Abubakar V Yar’adua. They include: (Section 30 of the Criminal Code)
    1. That a child under 7 years cannot commit a crime.
    2. That a person under 12 “is presumed to be incapable of having carnal knowledge”.
  3. Rebuttable: can be disproved-Ismail V State. They include:
  4. Presumption of Innocence: provided under Section 36(5) of the 1999 Constitution. This enthrones the adversarial system of justice in Nigeria-FSC V Laoye.. Hostility of onlookers may not mean that this right has been contravened-Al-Mustapha V State. Further, Section 135(1) EA provides that the guilt of an accused should be proved beyond reasonable doubt-Jegede V State. No suspicion or probability… In has been held that requiring fine for bail amounts to an infringement of this right-Bamaiyi V State. “Beyond reasonable doubt” does not mean beyond every shadow of doubt-Alabi V State.
  5. **Section 146: Presumptions as to genuineness of certified copies of document which also purports to be duly certified by duly authorized officer is presumed to be genuine. ** Alhaji Daggash V Hajia Fati Bulama (2004) 14 NWLR pt 892 144 CA. Here the CTC of a Government white paper was accepted in evidence as it was duly certified by the secretary to the government of Borno State.
  • The officer must have purported to act in official capacity.
  • This presumption is rebuttable-Ukeje V Ukeje.

iii. Section 147: Presumption as to document produced before any court purporting to be a record that was given in evidence in a judicial proceeding or before an authorized officer or statements taken in accordance with the law are presumed to be genuine, was duly taken-Necha V INEC.

  1. Section 148: the court shall presume the genuineness of every document purporting to be:
  • Official gazette of Nigeria or State or other country.
  • Newspaper/journal.
  • Copy of the resolutions of the National Assembly or House of Assembly printed by the government printer.
  • Copy of a document directed by law to be kept by any person.
  1. Section 149: Presumption (as to regularity of seal and official authority to sign /attest) documents admissible in other countries.
  2. Section 150: presumption that every document purporting to be a power of attorney and to have been executed before and authenticated by a notrary public or any court, judge or magistrate or representative of Nigeria… was so executed and authenticated. In Melwani V Five Stars Industry Ltd, the court held that such documents shall be admissible in Nigeria in the absence of contrary evidence thereto. In Ayiwo V Akorede, it was executed before solicitor’s clerk. Court held not to be duly executed. In Nnaji V Ajise, it was held that a valid power of attorney obtained in Britain does not need to be authenticated in Nigeria.

VII. Section 151: Presumption as to public maps and charts made under the authority of any government or public municipal body to be correct and admissible.

VIII. Section 152: It is presumed that a book (containing relevant facts and produced for inspection by the court) was written and published by the person and at the time and place by whom or at which it purports to have been written or published.

VIII. Section 153: Presumption as to telegraphic and electronic messages (Read up).

IX: Section 154: presumption that documents not produced after due notice has been duly executed…  Read up. All these ones with “read up” were not fully discussed in class.

  1. Section 155: (Handwriting in document 20 years old)presumed that document up to 20 years old produced from proper custody… signature and other parts purported to be in the handwriting of Mr A is actually Mr A’s handwriting and signature and that it was duly executed or attested. This was applied in Ogbahon V Registered Trustees of Christ’s Chosen Church of God. Contrary evidence can be adduced to rebut this presumption. E.g. that it was obtained by fraud. This Section does not relate to the correctness of the contents-Osawe V Osawe. Just the handwriting and signature. Rockonoh Property Limited V NITEL and Nigerian Coal Corporation 2001 NWLR pt 733 468 SC since no prior approval of the minister was obtained, the deed of assignment amounts to a nullity and the presumption of due execution or attestation could not be raised in this case. Ayanwale V Odusanmi (2012) All FWLR pt 610 1246 SC. The plaintiff was able to tender the deed of transfer from the vendor to his late father and the document vesting ownership of the land that was transferred to him. The Supreme Court held that the documents were valid and at times it may be impossible to prove signature and handwriting as memory may fade.
  2. Section 157: dated documents are presumed to have been made on the day which it bears. If signed, presumed to be signed on that date. In Awojugbagbe Light Industries V Chinukwe, the court presumed that the date on the mortgage deed (8th October, 1985) was the date on which it was executed… even though it was argued that it was executed before the governor’s consent was obtained. The deed was saved by this provision in the absence of fraud, duress and collusion.

XII. Section 158: presumption that document not produced after due notice has been duly stamped. Can be rebutted

XIII. Section 159: presumed that any document signed and duly attested is presumed to have been sealed and delivered even though no seal appears on it. Awojugbagbe Light Industries V Chinukwe.

  1. Section 160: presumption as to alteration. (1) That an altered document cannot confer right unless the alteration was made before the completion of the document or with the consent of the other party to be charged under it. (3) provides that alterations are presumed to have been made before the deed was completed. (4) Alterations on will are presumed to have been made after the execution of the will. (7) an alteration which does not affect the right of the parties or legal effect of the instrument is immaterial.

XVI. Section 161: presumes that parties to any conveyance instrument relating to an interest in land are presumed to be of full age at the date of conveyance.

XVII. Section 162: Statement in certain documents[1] up to 20 years old are presumed accurate and in Adelaja V Fanoiki, the court noted that the party seeking to rely on such document need not further prove the veracity of facts and statements therein except this presumption is rebutted by the other party. If the document is undated, then it is impossible to calculate the date of such document-Omorinbola II V Military Governor of Ondo State. Thompson V Arowolo, the court noted that “20years” here means 20 years old at the date of contract in which the deed is sought to be relied on not 20years at the date of proceeding. Similar conclusion reached in Johnson V Lawanson and Agbeja V Agbeja.

XVIII. Section 163: In favour of a purchaser, a deed shall be deemed to have been duly executed by a body corporate if its seal is affixed thereto in the presence of and attested by a permanent officer/deputy (like secretary, clerk) and a member of the board of directors, council or other governing body of the corporation. The seller must be a corporate aggregate.

XIX. Section 164: presumes that a person that has not been seen or heard from (by those who ought to have heard from him if he were alive) for over 7 years is dead. Where they are more than 1 and the dispute is in relation to title to property, they are presumed to have died in order of seniority.

The Section does not presume the time of death. In State V Okechukwu, it was noted that this presumption did not extend to when the person died.

  1. Section 165: presumption of legitimacy in favour a “child[2]” born during the contrivance of a valid marriage or within 280 days from its dissolution (the mother remaining unmarried)… This Section takes priority to Section 84 MCA. In Idahosa V Idahosa, the court noted that this Section applies to both statutory, customary and Islamic law marriages. Further asserted that it can still apply even where the child was a product of an adulterous union. Provided the lawful husband subsequently acknowledges the child as his. In this case, the man did not complain that the appellant was not his son.

With advancement in science and technology, blood tests can now be conducted to ascertain paternity-Olatubosun V Niser 1988 3 NWLR pt 80 24 at 26 SC. In Megwalu V Megwalu, the court noted that the burden of proving that the child is not his rests on the man. Further noted that evidence may be construed from the opportunity of access to sexual intercourse between the husband and the wife, wife and outsiders, time and circumstances, physical condition of the husband and blood tests of the parties to confirm blood groupings.

XXI. Section 166 EA presumes marriage after sufficient/long cohabitation.

XXII. Section 167 empowers the court to presume the existence of any fact which it thinks likely to have happened. In particular, it may presume

  1. That a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen. Unless he can account for his possession.
  2. That the common course of business has been followed in particular cases.
  3. That evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. In Audu V State, the court held that this presumption should not shift the burden of proof from the prosecution in a criminal case.
  4. That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

These presumptions can only be raised for issues of fact and not law-Bambgoye V Uni Ilorin. In Eyisi V The State, the accused persons  were seen with stolen goods on the same night of the offence and they could not account. Therefore, the presumption under sub (a) was applied. In Kolawole V State, the court noted that the presumption under sub (a) can be raised against an accused found in possession of the missing money. In R v. Iyakwe, the accused was said to be a receiver where shoes stolen 5 months ago were found in his custody. In Eze V State, the Supreme Court noted that the presumption here is as to physical possession. In this case the appellant possessed the ignition key of the stolen motorcycle. The court held that he had to account. Noting that the question to ask is whether the court would be justified in convicting the appellant for robbery.

The accused’s explanation should be tenable. In Adekoya V State, appellant was in possession of two side mirrors from the stolen motorcycle 24 hours after the theft. The court held that the presumption can work against him unless he gives a reasonable explanation. In Nwocha V State, the court held that hearsay evidence would not suffice. In this case PW1 reported that she heard that the appellant was arrested for the robbery. Held that there was nothing to show that the appellant was in possession of the stolen car and the witness gave hearsay evidence.

XXIII. Section 168: presumption of regularity of official acts, minutes and so on.

168.-(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

(2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.

(3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duly of his trustees to execute in order to perfect his title.

(4) When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.

In Adighije V Nwaogu, it was held that this provision sought to presume formal requisites for all judicial or official acts have been complied with. In Amako V State, the court noted that this is a rebuttable presumption. Rebuttable and burden shifts onto the party intending to rely- Essien V Essien. This seeks to presume the regularity of official acts… to okay the record of proceedings of a court-Idemunia V State.

XXIV. Section 27 of the Criminal Code presumes that everyone is of sound mind until the contrary is proved by the person alleging insanity on a balance of probabilities-Oladele V The State. Doctor can give evidence of the appellant’s sanity or insanity and the appellant cannot claim that the doctor is biased-R V Latimer, DPP V Smith. Section 36(5) of the 1999 Constitution talks about proof beyond reasonable doubt and presumption of innocence.

Presumptions under Case Law.

  • Presumption that a man intends the natural consequences of his action-Hyam V DPP, DPP V Smith, R V Latimer, Akpabio V State.
  • Presumption of negligence or res ipsa loquitur (facts speak for themselves). Here the defendant is presumed to have been negligent and the burden of proving otherwise rests on him. UBN V BU Umeh and Sons.
  • Presumption of last seen: In JUA v. State, the court noted that the person last seen with the deceased bears full responsibility for his death except there is a tenable explanation adduced. This draws the inference that the accused killed the deceased-Ismail V State. In Haruna vs AG Fed, the court noted that the accused (who was last seen with the deceased) would have to offer an explanation. In Mbang vs State same conclusion reached.

A business registered in the name of two persons raises the presumption of joint business as between the two parties unless one proves that the business belongs to only one of them-Nwankwo V Nwankwo, Adefarasin V Dayek.

[1]            Instruments, Acts of National Assembly, Statutory declarations… and so on.

[2]            it used to be “son”.

Isochukwu

Quite eccentric really

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