NJALA UNIVERSITY COLLEGE

SCHOOL OF SOCIAL SCIENCE AND LAW

DEPARTMENT OF LAW - LLB3

LLB- LAW OF EVIDENCE

Topic : Rebuttal of Presumptions

Name of Student : Moses T Baio

Registration No :67981

Course : LLB 112

Module : Law of Evidence

Lecturer : Mr. R B Kowa Esq.

Student’s Signature: Date:

PART A

In Divorce or Matrimonial ("Generally where the legitimacy of

the child is in issue, a child born in wedlock is presumed to be
a child of the couple, this presumption, can however be
rebutted by evidence showing that the parties were living
apart and had no access to each other at the time of the
concession").

And this is the deep turn of Justice Tejan in the case of

George v George and Lowes ( 1970/71)

Using the dictum in the above case, discuss the presumption

of legitimacy, and relevant evidence in rebuttal.
ISSUE(S)

In the early 18th century and even today in some part of the world
paternity was and has always remain to be critical for the succession
of chieftaincy and the inheritance of property. Thus, the law has
always been concerned with fatherhood. This has been a moral issue
because of the church’s insistence on fidelity in marriage and celibacy
outside marriage.

The moral taint was so strong that law punished the child as well as
the mother. The disabilities of bastardy are the same under the civil as
under the common law, and in all ages and nations. This stigma of
bastardy lasted a lifetime and could blight the lives of the next
generation.

In addition to inheritance, a bastard was denied entrance into several

callings and certain civil rights. These harsh laws persisted until
relatively recent times in England and the United States. The stigma
of bastardy was such that the common law developed legal
presumptions in favor of legitimacy.

In the case of George v George and Lewis (1970) the issue is whether
the husband of a woman is the father of the child to whom she gives
birth; as the wife is presumed to be innocent under both common law
and statute and also, whether this presumption can be rebutted.
RULE

The position of the law dealing with the doctrine of presumption of

legitimacy is that a child of married woman is presumed legitimate
unless spouses judicially separated evidence of spouses living apart
for three years, nine months rebuts presumption as was established
in Re George v George.1

Additionally, this was also provided for in both section 23 (4) of the
Constitution of Sierra Leone2 “person who is charged with a
criminal offence shall be presumed to be innocent until he is
proved or has pleaded guilty” and section 2(1) of the Legitimacy
Act3, been an Act to amend the Legitimacy Act, 1926, to legitimate the
children of certain void marriages, and otherwise to amend the law
relating to children born out of wedlock.

(1) “Subject to the provisions of this section, the child of a

void marriage, whether born before or after the
commencement of this Act, shall be treated as the legitimate
child of his parents if at the time of the act of intercourse
resulting in the birth (or at the time of the celebration of the
marriage if later) both or either of the parties reasonably
believed that the marriage was valid”.

1
George v George and lewis (1970)
2
The Constitution of Sierra Leone, Act No. 6 of 1991, s23(4)
3
The Legitimacy Act (1959) UK, S2(1)
ANALYSIS

The presumption of legitimacy is one of the strongest presumptions in

law. The mere fact of birth is sufficient to give rise to the presumption.
It is not necessary to prove also that the person was born in wedlock.

This presumption can be rebutted only if it can be clearly established

that the child in question is illegitimate. The presumption of
legitimacy can be disputed only by the husband or wife or the
descendant of one or both. The question of illegitimacy in such a case
may be proved like any other fact

The presumption of legitimacy places the burden of proof upon those

contending for illegitimacy. The presumption of legitimacy is more
easily rebuttable where there is no evidence of a marriage.

However, the presumption of legitimacy of child born in wedlock may be wholly

removed by proper and sufficient evidence, showing that the husband was:

 impotent; entirely absent so as to have no intercourse or communication of

any kind with the mother.

 entirely absent at the period during which the child must, in the course of
nature, have been begotten; or

 only present under such circumstances as offered clear and satisfactory

proof that there was no sexual intercourse.

CONCLUSION

In re Mays' Estate Case4, the court observed that “The presumption

of legitimacy is in reality the presumption of the fact and of the

4
re Mays' Estate Case, 141 Pa. Super. 479 (Pa. Super. Ct. 1940),
validity of the marriage of the child's parents once parentage is
established. The presumption of legitimacy is not to be shaken by a
mere balancing of probabilities and the evidence to repel it must be

strong, satisfactory, and conclusive.”

In Leider, the supreme court of Pennsylvania stated that avoiding this

result is the primary justification for the rule. Thus, a child born in
wedlock, though born within a month or a day after marriage, is
legitimate by presumption of law.
Where the husband has access to the mother of the child, the
presumption that he is the father is conclusive. The fact that the wife
was living in adultery was not sufficient to destroy the legitimacy of a
child born in wedlock unless there be evidence from which a jury
could find non-access.

Therefore, to successfully rebut the presumption of legitimacy, the

evidence of non-access or lack of sexual intercourse or impotency
must be clear, direct, convincing, and unanswerable as was also
established in the case of Re George v George and Lewis.

PART B:
Any person who alleges that reasonable grounds exist for supporting
that the other party to the marriage is dead may present a petition to
the court to have it presumed that the other is dead and to have the
marriage dissolved.

Question. Outline and discuss the relevant provisions of the law in

establishing such grounds, in your discussion ensure that, you utilize
relevant statutory provisions and cases.

Reference:

1. Berryman v Wise (1791) 4TR66

2. Morten v Williams (1964/66)
3. Williams V East India Company ( 1802)
4. Chard V Chard (1956)
5. Mahadervin v Mahadevan

INTRODUCTION
In the eighteenth and early nineteenth centuries the courts recognised
that in poor communications of the times disappearance did not
necessarily suggest death. Accordingly, there was a presumption of
continuance of life. Life was deemed to continue unless there was
evidence adduced to the contrary. At this stage long absence merely
went to rebut the presumption of continuance of life

Today, the general view is that there is a presumption of death. The

presumption of death is a rule of law which operates, so that the fact
of absence for seven years unheard of is to be taken by rule of law as
equivalent to death. That is, in the absence of evidence to the
contrary, the presumption compels a finding of the fact of a person’s
death once certain prescribed facts are established to the court’s
satisfaction.

LEGAL ISSUE
In the instant matter, the issue of law to be inquired into as was
adduced in the landmark case of  Chard V. Chard 1956 was whether
disappearance of a person unheard of gave rise for the court to draw
inference that such person was or is dead. Especially where such
person disappears and is unheard of for a long period. Thus, whether
there was no longer a presumption of continuance of life after several
years of disappearance.

THE POSITION OF THE LAW

The rule of law dealing with the doctrine of presumption of death was
established in the following decided cases; Doe d. George v. Jessen,
Ellenborough C.J. thought that seven years’ absence abroad was “fair
ground for the jury to presume that (the propositus) was dead at the
end of the seven years.” Similarly in Lloyd v. Deakin, the jury was
permitted to infer death from fourteen years’ absence.
Additionally, in Williams v East India Company, 1802, the law
presumes the affirmative of any fact, the negative of such fact must be
proved by the party averring it in pleading. So, where any act is
required to be done by one, the omission of which would make him
guilty of a criminal neglect of duty, the law presumes the affirmative,
and throws the burthen of proving the negative on the party who
insists on it.
Similarly, section 23 (4) of the 1991 Constitution of Sierra Leone
(person who is charged with a criminal offence shall be presumed to be
innocent until he is proved or has pleaded guilty) and the following
statutory instruments alludes to the case law position on the doctrine
of presumption of death.
For instance, in the Matrimonial Causes Act, 1950 petition for
presumption of death and dissolution of marriage is presented under
section 16 for the absence required by sub section (2) is absence from
the petitioner, not from any place. Additionally, Offences against the
Persons act 1861 section 57 any “Person marrying a Second Time whose
Husband or Wife shall have been continually absent from such Person for the
Space of Seven Years then last past, and shall not have been known by such
Person to be living within that Time”

ANALYSIS
 The presumption of death thus cannot arise until four “facts” are
found.
In summary form they are these:
I. absence for at least seven years - Offences against the Persons act
1861 section 57 any “Person marrying a Second Time whose
Husband or Wife shall have been continually absent from such
Person for the Space of Seven Years then last past, and shall not
have been known by such Person to be living within that Time”

II. unheard of him- In Re Watkins 1953 Harman J whilst unhappy

about A’s enquires to trace her first husband, felt that the fact that
neither A nor the relatives of the second husband had heard of
him, meant that he could infer death before the second marriage,
so A could claim on the second husband’s death

III. by persons who are likely to have heard, In Chard-v-Chard1956

the court refused to infer that Woman was dead at the time of
Husband’s re-marriage, notwithstanding the passage of 16 years,
as there was evidence the Woman might have not wanted anything
to do with the Husband. The re-marriage was held to be void. 

IV. all due inquiries having been made. here is no evidence he remains
alive, the people most likely to have heard from him have not and
inquiries of him have been unsuccessful Nepean v Doe d
knight1837

When combined the four facts give rise to a strong inference that the
person in question is dead

CONCLUSION
Thus, the presumption of death was strictly confined to presuming
death at the time of the action in which that fact was in issue. In that
respect the value of the concept was limited. Further, such stringent
conditions must be fulfilled before a presumption of death could arise,
that the courts have demonstrated a willingness to find death as a fact
on evidence insufficient to raise the presumption. In modern litigation
a similar approach has been adopted to “time of death problems.”
The courts are prepared to find that a person died before a given date
on evidence that he had been missing for a substantial period.
Matrimonial Causes Act, 1950

Offences against the Persons act 1861

The Legitimacy Act (1959 UK)

Superior Court of Pennsylvania Mays' Estate 141 Pa. Super. 479 (Pa. Super. Ct. 1940)
• 15 A.2d 569 Decided Oct 2, 1940

casetext.com/case/mays-estate

The 1991 Constitution of Sierra Leone

/SierraLeoneConstit.pdf

George v George and Lewis (SC 34 of 1968) [1970] SLSC 5 (21 January 1970); |
Sierra Leone Legal Information Institute (sierralii.gov.sl)
ttps://www.legislation.gov.uk/ukpga/1959/73/enacted
Legal Definitions Legal Terms Dictionary | USLegal, Inc.

Article : Modern Law Review September 1981 on Presumption of

Death by D . Stone

CASE LAWS:
Lloyd v. Deakin
Doe d. George v. Jessen
Nepean v Knight1837
Re Watkins 1952
Chard-v-Chard1956
Williams v East India Company, 1802,
Re Mays' Estate, 141 Pa. Super. 479 (Pa. Super. Ct. 1940