RULES AS TO PRESUMPTIONS OF LAW

1. DEFINITION AND NATURE OF PRESUMPTION: There are certain

facts which the court may take as having been proved or is mandated by
statute to take such facts as having been established unless an affected
person rebuts such facts. Those facts are called presumptions of law.
Presumptions are facts which a court of law may take or must take as
having been established until the contrary is proved. There are
assumed facts, upon the establishment of other facts. As per
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C (as he then was) in
MADAGWA V. STATE (1988) LPELR-1804(SC, "A presumption of
fact is the logical inference of the existence of other facts from the
proved existence of other facts.
2. Presumptions therefore do not operate in a vacuum. Certain facts must
be proved before any presumption can operate against anybody or inure
in favour of a person. Fidelis Nwadialo in Modern Nigeria Law of
Evidence, (2nd Edition, 1999) at page 43, defined presumption as a
conclusion which may or must be drawn from a given set of facts until
the contrary is proved. A legal inference or assumption that facts exist,
based on the known or proved existence of some other facts or group of
facts. Most presumptions are rules of evidence calling for certain results
in each case unless the adversely affected party overcomes with other
evidence.
3. A presumption shifts the burden of production or persuasion to the other
party, who can then attempt to overcome the presumption: Black’s Law
Dictionary 9th Edition page 1304. "Presumption of law is in fact a
preliminary rule of law which may disappear in the face of rebutted
evidence. However, in the absence of evidence to the contrary, the
presumption stands." See Chief Afe Babalola (Ed): Law and
Practice of Evidence page 361. This is a very adequate definition of
presumption. I cannot put it better. A presumption of law is law and
the Court can make use of it. A presumption of law will however
fossilize into thin air if it is rebutted. Of course, a party can rebut
the evidence if it is a rebuttable presumption. Where presumption
is irrebuttable it stands for all time, like the rock of Gibraltar." Per

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 TOBI, JSC in ABUBAKAR & ORS V. YAR'ADUA & ORS (2008)
LPELR-51(SC) (P. 146, paras. A-D).
4. The Evidence Act, 2011 has made general and specific provisions on
presumption. Section 145(1)(2) of the Evidence Act, 2011, provides
that whenever it is provided by the Act that the court may presume a
fact, it may either regard such fact as proved unless and until it is
disproved, or may call for proof of it; whenever it is directed by the Act
that the court shall presume a fact, it shall regard such fact as proved
unless and until it is disproved; and when one fact is declared by the Act
to be conclusive proof of another, the court shall, on proof of the one
fact, regard the other as proved and shall not allow evidence to be given
for the purpose of disproving it. Arising from the above, the Evidence
Act, 2011 recognizes two types of presumptions – rebuttal
presumption and conclusive (irrebuttable) presumption.
5. PRESUMPTION OF GENUINENESS: Section 146 of the Evidence
Act, 2011. We have already dealt with this provision during our
consideration of public document and its admissibility. This provision
applies basically to public documents and it deals with the legal
consequence of certifying a public document in the manner
contemplated by section 104 of the Evidence Act, 2011. Section 146
provides that the court shall presume every document purporting to be a
certificate, certified copy, or other document, which is by law declared to
be admissible as evidence of any particular fact and which purports to be
duly certified by any officer in Nigeria who is duly authorised in that
behalf to be genuine, provided that such document is substantially in the
form and purports to be executed in the manner directed by law in that
behalf.
6. In OKONKWO V. PDP & ORS (2013) LPELR-22150(CA), it was held
thus: "SECTION 146(1) of the same Evidence Act 2011 (as amended)
provides thus: - - Presumption as to genuineness of certified
copies. (1) The Court shall presume every document purporting to
be a Certificate, Certified Copy or other document, which is by law
declared to be admissible as evidence of any particular fact and
which purports to be duly certified by any Officer in Nigeria who is
duly authorized in that behalf to be genuine, provided that such
document is substantially in the form and purports to be executed
in the manner directed by law in that behalf." There are two types of

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 presumptions of law, they are: - (1) Irrebuttable Presumptions (2)
Rebuttable Presumptions. While the former cannot be rebutted, the
latter can be rebutted by credible evidence. The presumption
envisaged by SECTION 146(1) of the EVIDENCE ACT 2011 (as
amended), is a rebuttable one in that a document is genuine, and
the burden is on the party challenging its genuineness to adduce
sufficient and probable evidence that such a document is not
genuine. See - JALINGO VS NYAME (1992) 3 NWLR (PART 231)
PAGE 538." Per JIMI OLUKAYODE BADA, J.C.A (Pp. 19-20, paras.
D-B).
7. In ODUBEKO V. FOWLER & ANOR (1993) LPELR-2235(SC) it was
held that ‘there is no known law, statutory or otherwise, which
forbids a hand-written copy of a typed document such as Exhibit
"L" from being tendered as a validly admissible evidence;
especially where the copy was certified. Moreover, neither the
parties nor the court quarrelled with the certification of the copy
(Exhibit L). Accordingly, Section 113(1) of the Evidence Act which
provides that:- "The Court shall presume every document
purporting to be a certificate, a certified copy or other document,
which is by law declared to be admissible as evidence of any
particular fact and which purports to be duly certified by any officer
in Nigeria who is duly authorised thereto to be genuine, provided
that such document is substantially in the form and purports to be
executed in the manner directed by law in that behalf." has sway
here. Thus, in the absence of any evidence to the contrary, there is
a presumption that things are rightly and properly done in
accordance with the maxim Omnia Praesumuntur Rite esse Acta”
8. PRESUMPTION AS TO TELEGRAPHIC AND ELECTRONIC
MESSAGES. Section 153 of the Evidence Act, 2011, provides that the
court may presume that a message forwarded from a telegraph office to
the person to whom such message purports to be addressed
corresponds with a message delivered for transmission at the office from
which the message purports to be sent; but the court shall not make
any presumption as to the person by whom such message was
delivered for transmission; The court may presume that an electronic
message forwarded by the originator through an electronic mail server to
the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission;

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 but the court shall not make any presumption as to the person to whom
such message was sent. This is a novel provision as same was not
contained in the repealed Evidence Act, 2004.
9. PRESUMPTION AS TO DATE OF DOCUMENT: Section 157 of the
Evidence Act, 2011, provides that when any document bearing a date
has been proved, it is presumed to have been made on the date it bears
and if more documents than one bear date on the same date, they are
presumed to have been executed in the order necessary to effect the
object for which they were executed, but independent proof of the
correctness of the date will be required if the circumstances are such
that collusion as to the date might be practised, and would, if practised,
injure any person or defeat the objects of any law. By this provision once
a dated document has been proved, the court assumes the document
was made on the date it bears and will not require the party propounding
it to prove the date it was made separately. Independent proof might be
allowed to show collusion as to the date the document bears. In
AWOJUGBAGBE LIGHT INDUSTRIES LTD V. CHINUKWE & ANOR
(1993) 1 NWLR (PT 270) 485 CA, it was held that regarding section 125
of the repealed Evidence Act, that the presumption created therein is
not conclusive but a rebuttable one which occurs only where fraud or
collusion is suspected. In the absence of fraud or collusion, the non-
production of evidence to show when the document was executed is of
no moment in the light of the said presumption.
10. PRESUMPTION OF DEATH FROM SEVEN YEARS. Section 164 of
the Evidence Act, 2011. It provides that a person shown not to have
been heard of for 7 years by those, if any, who if he had been alive
would naturally have heard of him, is presumed to be dead unless the
circumstances of the case are such as to account for his not being heard
of without assuming his death; but there is no presumption as to the
time when he died, and the burden of proving his death at any
particular time is upon the person who asserts it; for the purpose of
determining title to property where two or more persons have died in
circumstances in which it is uncertain which survived the other, they are
presumed to have died in order of seniority; there is no presumption as
to the age at which a person died who is shown to have been alive at a
given time.

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11. "Section 164(1) raises a presumption of death where a person has not
been seen or heard from for a period of 7 years by those who, if he had
been alive, would naturally have seen or heard from him." Per KEKERE-
EKUN, JSC in KEHINDE OLUDE V. THE STATE (2018) LPELR-
44070(SC) (P. 34, paras. B-C). In CHINEDU EKUMA v. THE STATE
(2018) LPELR-44633(CA) it was held that "The prosecution witnesses-
particularly PW2 gave evidence between 11/06/2010 to 25/03/2013. As
at the time the Charge was laid, there was no eye-witness to the murder
of Moses Akpa Nwafor. The time to presume him dead had not started to
run in accordance with S.164 of the Evidence Act 2011 when the
Appellant and other accused persons were charged for his murder. In
State v. Dr. Cosmas Ikechukwu Okechukwu (1994) LPELR-3224(SC)
the Supreme Court held on the facts in that case as follows: "There was
at the time of the selection no convincing evidence that the incumbent
Oluoha was actually dead nor the evidence to support the legal
presumption under Section 143 Subsection (1) of the Evidence Act (now
Section 144(3) of Cap. 112 of the Laws of Nigeria. 1990) which
provides:- 143(1) A person shown not to have been heard of for seven
years by those, if any, who, if he had been alive, would naturally have
heard of him, is presumed to be dead unless the circumstances of the
case are such as to account for his not being heard of without assuming
his death; but there is no presumption as to the time when he died, and
the burden of proving his death at any particular time is upon the person
who asserts it." The disappearance of the incumbent Oluoha came to
the notice of the kingmakers in September 1982 and the respondent was
installed by the kingmakers at Oluoha in December. 1986. Thus the
duration of the period, when the Oluohai became missing, was not up to
5 years at the time material to this case. Consequently, the presumption
was not available to the respondent." Per UWAIS, J.S.C (P. 36, paras.
B-G)." Per OGUNWUMIJU, J.C.A (Pp. 27-28 paras. B).
12. PRESUMPTION OF LEGITIMACY. Section 165 of the Evidence Act,
2011. It provides that without prejudice to section 84 of the Matrimonial
Cases Act, where a person was born during the continuance of a valid
marriage between his mother and any man, or within 280 days after
dissolution of the marriage, the mother remaining unmarried, the court
shall presume that the person in question is the legitimate child of that
man. "The law has always acknowledged the right of a woman to

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 say who the father of her child is, and of course, where a child is
born within wedlock, the presumption is conclusive, that the child
is the seed or product of the marriage."  Per MBABA, JCA ANOZIA
V. NNANI & ANOR (2015) LPELR-24277(CA). "I had earlier referred
to the case of Anozia Vs. Nnani (2015) 8 NWLR (pt 1461) 241, to the
effect that when a child is born within wedlock, the presumption is
conclusive that the child is the seed or product of the marriage".
Per MBABA, JCA in DURU V. DURU (2016) LPELR-40444(CA) (P. 37,
paras. E-F). "Under the Bini Law and custom, there is no
illegitimate child. See The customary Laws of the Binis by USI
OSEMWOWA page 34. Children born and acknowledged by a father
to be his children are legitimate BANGBOSE V DANTEL 14 WACA
11 at 115; ALAKE v PRATT 15 WACA 20. There is a strong case of
legitimacy which was not rebutted by the Respondent. Under S. 148
of the Evidence Act and S.115 (3) of the Matrimonial Cause Act cap
220 Laws of Nigeria. Legitimacy is presumed "Where a person was
born during the continuance of a valid marriage between his
mother and any man or within 280 days after dissolution; the
mother remaining unmarried, the Court shall presume that the
person in question is legitimate son of that man". This section to
my mind covers the cases of all children born in any valid marriage
even when such marriage was contacted under Customary Law or
Moslem Law. See B.A. LAWAL & ORS V. MESSRS YOUNAN & ORS
(1961) WNLR P.197 at 201." Per SHOREMI, JCA in IDAHOSA V.
IDAHOSA & ORS (2010) LPELR-9072(CA) (Pp. 39-40, paras. C-A).
13. "Section 148 of the Evidence Act states that "Without prejudice to
Section 84 of the Matrimonial Causes Act where a person was born
during the continuance of a valid marriage between his mother and any
man or within 280 days after dissolution, the mother remaining
unmarried the Court, shall presume that the person in question is the
legitimate son of that man." While Section 84 of the Matrimonial Causes
Act, 1990, provides: "Notwithstanding any rule of Law, in proceedings
under this Decree either party to a marriage may give evidence proving
or tending to prove that the parties to the marriage did not have sexual
relations with each other at any particular time but shall not be
compellable to give such evidence if it would show or tend to show that a
child born to the wife during the marriage was illegitimate." Indeed,

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Section 148 of the Evidence Act embodies the rule of Law that a child
born while a marriage is valid or during two hundred and eighty days
after its dissolution shall be conclusive proof that it is the legitimate child
of the man unless it is proved by clear, and compelling evidence that the
husband and wife did not or could not have sexual intercourse. The
evidence required to rebut the presumption in Section 148 of the
Evidence Act must be strong, clear and conclusive as to lead to the
irresistible conclusion that the child is not the offspring of the husband.
The presumption cannot be displaced by mere balance of probabilities or
by circumstances casting doubt. See- ELUMEZE v. ELUMEZE 1969 All
N.L.R. p. 301; EGWUWOKE v. EGWUNWOKE NWADIKE & ORS. 1966
All N.L.R. p. 301; WATSON v. WATSON 1933 2 All E.R. p. 1013. The
principle underlying the rule is obvious. It is most undesirable to enquire
into the paternity of a child where parents have access to each other.
The presumption of Legitimacy under Section 148 of the Evidence Act is
a rebuttable presumption of Law which can only be displaced by
showing that the parties to the marriage had no access to each other.
Evidence must be strong, that is to say it must be proved that access
was impossible on account of illness, impotence. Furthermore, the
Appellant changed the surnames of the three children to "Kathiems".
The fact that she is living in notorious adultery is not sufficient to repel
the presumption in Section 148 of the Evidence Act. See- R. v.
MANSFIELD 1841 1 Q.B. p. 444; HOWES v. DRAEGER 1888 23 Ch.D
p. 173. In the instant case not a shred of evidence was led by the
Appellant that during the marriage she did not have sexual intercourse
with the respondent, or that access was impossible. The learned trial
Judge in my view was right when he held that - "The Appellant cannot be
heard to say that the respondent is not the natural father of the children.
It is scandalous and absurd on the part of the Appellant to say the first
two children are not the children of the respondent. By virtue of Section
148 of the Evidence Act the third child, Emmanuel who was born six
months after the Respondent left the matrimonial home is the child of the
respondent.... There is no evidence that the respondent could not have
been the father of the children." The trial Judge continued - "The fact that
the respondent did not go for medical tests which the Appellant
underwent does not mean that the respondent is sexually impotent " The
respondent's refusal to undergo medical examination does not amount

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 to withholding evidence as envisaged under Section 149 (d) of the
Evidence Act. When a party does not call a witness who is available and
is acquainted with the facts of the case, the presumption is that if the
witness was called, the evidence he would have given would be
unfavourable to the party at whose instance, he came to Court to give
evidence. It is thus, legitimate to draw an adverse inference if the
witness abstains from coming to Court to give evidence. See
IWUCHUKWU v. ANYANWU 1993 3 NWLR Pt. 311 p. 318; In re:
ADEWUMI & ORS. 1988 3 NWLR Pt. 83 p. 483; BAMGBOSE v. JIAZA
1991 3 NWLR Pt. 177 p. 64. Indeed, when a child is born in a valid
marriage the Law presumes that the married couple had sexual
intercourse between themselves. I am satisfied that the trial Judge was
right in his findings that the three children are indeed the children of the
respondent. The Appellant being unable to rebut the presumption in
Section 148 of the Evidence Act." Per RHODES-VIVOUR, J.C.A (Pp. 7-
11 paras. B-B) in ODUCHE V. ODUCHE (2005) LPELR-5976(CA).
14. In ODUCHE V. ODUCHE (2005) LPELR-5976(CA) the Respondent
commenced divorce proceedings against his wife, the Appellant, before
the High Court of the Federal Capital Territory, holden at Gwagwalada,
Abuja. He petitioned the Court to dissolve his marriage with the
Appellant contracted on the 8 th day of September 1984. His ground for
the petition was that the marriage had broken down irretrievably in that
the Appellant deserted him and committed adultery. The respondent
further claimed for custody of the three children of the marriage, and an
order directing the Appellant to revert the new surnames given to the
children by her in their various schools to their real surname - ODUCHE.
15. The Appellant in her answer to the 2 nd amended petition filed a further
amended Answer and cross petition seeking a dissolution of the
marriage on the ground of living apart for a continuous period of three
years, immediately preceding the presentation of the petition. In addition,
the return of her personal properties or payment of current value for
same, and custody of the three children of the marriage. Both parties
gave evidence and tendered forty-five Exhibits. The respondent called
two witnesses in support of his case, while the Appellant did not call any
witness. The learned trial Judge, A.A Kolojo J in a considered Judgment
delivered on the 14th of November 2000, held in favour of the
respondent. Being dissatisfied with the decision of the trial Court, the

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 Appellant appealed to the Court of Appeal. The Court determined the
appeal based  on the following issues (amongst others) for
determination: Whether the learned trial Judge erred in Law, when he
held that the presumption under Section 148 of the Evidence Act was
not rebutted in this trial; Whether the trial Judge erred in Law, when he
held that the fact that the respondent did not go for medical test which
the Appellant underwent does not mean that the respondent is sexually
impotent." The appeal was dismissed.
16. “DNA test has to do with the use of genetic analysis, scientifically, to
determine the paternity of a child, i.e, whose male spermatozoa fertilized
the egg of a female, and, I think, this is usually applicable and relevant
where there is dispute as to the paternity of a child, or where there is
disputing claims or uncertainty as to the paternity of an individual, See
the case of Olayinka Vs Adeparusi & Anor (2011) LPELR 8691 CA,
where this Court, per Denton West JCA held: "... If a party is claiming
paternity, it is trite that a Court of law should be allowed to determine
same on proof of evidence relating to paternity, which could only be
done by referral for a DNA test of the parties involved. After such test the
Court has a duty to declare, the actual father of the child in dispute in
consonance with the evidence at its disposal. DNA, that is,
"Deoxyribonucleic acid" is a molecule that contains the genetic code of
any organism. It is hereditary and has become a euphemism for
scientific analysis of genetic Constitution, to determine one's roots. I
doubt whether that form of proof can be ordered or is necessary to
determine the paternity of a 57 years old man, who does not complain
about his parenthood, just to please or indulge a self-acclaimed
predator, who emerges to destabilize family bonds and posts as a
biological father!. I think it is only the 2nd Respondent (a mature adult)
that can waive his rights and/or seek to compel his parents (or those
laying claim to him) to submit to DNA test to prove his root. Of course,
where one is a minor (not mature adult) and his paternity is in issue, the
Court can order the conduct of DNA test, in the overall interest of the
child, to ascertain where he belongs." Per MBABA, J.C.A (Pp. 18-20
paras. E) in ANOZIA V. NNANI & ANOR (2015) LPELR-24277(CA)
17. ANOZIA V. NNANI & ANOR (supra) borders on the Paternity of a Child.
The Appellant, in the main suit prayed for a declaration of paternity of
the 2nd Defendant to wit: that the Claimant is the father of the 2 nd

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 Defendant born in 1957 by the 1 st Defendant, by reference of the parties
to a laboratory for a DNA test and judicial pronouncement made of the
result thereof; Consequential order directed to the 2 nd Defendant to
change to the surname of his Native father, id est, Anozia Onowu of
Umuosu Quarters of Oguta in accordance with Native justice,
equity and good conscience. Appellant had filed his statement of
claim, which was stoutly denied by the Defendants, who also filed their
defence. Without allowing the hearing of this rather strange claim,
Appellant brought an application on 3/7/12, seeking: (1) An Order setting
the suit down for an order of Court referring the parties to a DNA test
and (2) To issue bench warrant for the arrest and detention of the 1st
and 2nd defendants for their failure to react or respond to this suit, as
prescribed in the High Court Rules. The trial Court dismissed the
application. Dissatisfied, the Appellant brought this appeal. The
Appellant formulated five issues for determination while the Respondent
formulated one. The Court determined the appeal on the Respondent's
issue as follows: Whether from the facts, state of pleadings and
circumstances of this case, the trial Court ought to have acceded to the
interlocutory prayers of the Appellant before proceeding to the hearing
and determination of the substantive suit. In the final analysis, the Court
held that the appeal lacked merit and it was accordingly dismissed.
18. PRESUMPTION OF MARRIAGE. Section 166 of the Evidence Act,
2011 provides that when, in any proceeding whether civil or criminal,
there is a question as to whether a man or woman is the husband or wife
under Islamic or Customary law, of a party to the proceeding the court
shall, unless the contrary is proved, presume the existence of a valid and
subsisting marriage between the two persons where evidence is given to
the satisfaction of the court of cohabitation as husband and wife by such
man and woman.
19. PRESUMPTION AS TO THE EXISTENCE OF CERTAIN FACTS:
Section 167 (a)-(d) of the Evidence Act, 2011, provides that the court
may presume the existence of any fact which it deems likely to have
happened, regard shall be had to the common course of natural
events, human conduct and public and private business, in their
relationship to the facts of the particular case, and in particular the court
may presume that- (a) a man who is in possession of stolen goods soon
after the theft is either the thief or has received the goods knowing them

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 to be stolen, unless he can account for his possession; (b) a thing or
state of things which has been shown to be in existence within a period
shorter than that within which such things or states of things usually
cease to exist, is still in existence. (c) the common course of business
has been followed in particular cases; (d) evidence which could be and
is not produced would, if produced, be unfavorable to the person who
withholds it; and (e) when a document creating an obligation is in the
hands of the obligor, the obligation has been discharged. In PEOPLE
OF LAGOS STATE V. UMARU (2014) LPELR-22466(SC), it was held
that "It behooves me to make a general observation before I come
to the specific segments/conditions/elements/constituents of
Section 149 of the Evidence Act. The section makes it discretionary
for a Court to presume the existence of facts likely to have
occurred regard being had to the course of common or natural
events, human conduct and public or private business in their
relation to the facts of the particular case. This is part of its
reasoning process. The perception, however, is confined to matters
of fact alone not matters of law. See: BAMGBOYE v. UNIVERSITY
OF ILORIN [1999] 70 LRCN 2146. Again, in the case of BOZIN v. THE
STATE [1985] 2 NWLR [part 8] 467, this Court, while interpreting
Section 149 of the Evidence Act, held that the five matters
enumerated in the section which the Court may presume are
neither exhaustive nor conclusive and do not derogate from the
general statement of the section that the Court may presume the
existence of a fact which it thinks likely to have happened having
regard to the common course of natural event or course of human
conduct." Per JOHN AFOLABI FABIYI, J.S.C (P. 50, paras. B-G).
20. PRESUMPTION AS TO INTENTION. Whether a person is presumed to
intend the natural consequences of his act "The act of the Appellant was
intentional with the knowledge that death or grievous harm was its
probable consequence. The Appellant is deemed to intend the natural
consequences of his act. A man who stabs another on the neck region
with a bottle is deemed to have intended to kill or cause grievous bodily
harm. See Abogede v. The State (1996) NWLR 223 at 238. The
intention to kill or cause grievous harm can be inferred from the nature of
the weapon used. See GARBA V. THE STATE (2000) FWLR (PT.24)
1448 at 1459." Per OGUNBIYI, J.S.C (Pp. 31 paras. D) in HARRISON

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 OWHORUKE v. COMMISSIONER OF POLICE (2015) LPELR-
24820(SC).
21. PRESUMPTION FROM RECENT POSSESSION (THE DOCTRINE OF
RECENT POSSESSION). Section 167(a) of the Evidence Act, 2011, is
what is known as the doctrine of recent possession. It is applicable to
prosecution for offences of stealing, receiving of stolen goods and
robbery. In MADAGWA V. STATE (1988) LPELR-1804(SC), the
Appellant was changed with armed robbery under the provisions of the
Robbery and Firearms (Special Provisions) Act. The case against the
Appellant is that the Appellant with two others armed with offensive
weapons robbed someone of a car. The case of the prosecution was
founded on the evidence of four eyewitnesses. One witness testified that
he saw the Appellant robbed the car with offensive weapon, while the
other three witness testified that they saw the Appellant with the stolen
vehicle a few hours after the robbery. The Appellant was convicted for
robbery on the doctrine of recent possession.
22. Explaining the operation of this presumption in MADAGWA V. STATE
(1988) LPELR-1804(SC), ADOLPHUS GODWIN KARIBI-WHYTE,
J.S.C (as he then was) said thus: "I have already stated in this
judgment that the fact that the goods are stolen goods is an
essential element in the presumption. The other essential facts are
that the accused must be in possession, and the possession must
have been soon after the theft. I shall explain these two
expressions as they apply to the presumption. It is essential that
the stolen goods must be in the possession of the accused. This
must be proved beyond reasonable doubt - See R. v. Obiase (1938)
4 WACA. 16. However, where possession is not proved in the
accused the presumption cannot be drawn. - See R. v. Bamin
(1946)12 WACA.8 (S.L.). It is well understood in our jurisprudence
that the concept of possession is invariably related to the character
of the property. My brother Oputa, JSC, expressed it succinctly in
the recent case of Eze v. State (1985) 3 NWLR (Pt.13) at p.438 when
he said, "Possession does not only imply physical power or
custody over the res but also (and even more importantly) the
power to exclude others" It includes exclusive control. Soon after
the theft the proximity of the time of possession to the theft seems
to be an essential requirement of the presumption whether the

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 accused is the thief; or received them with knowledge that they are
stolen goods- See R. v. Kwashie (1950) 13 WACA. 86 only 90
minutes R. v. Sunday Jumbo (1960) LLR. 192 a few hours R. v.
Opara (1961) WNLR. 127. This imports the English law doctrine of
recent possession. There have been several cases in our courts
prescribing the period within which the possession of stolen goods
by the accused has been used to presume the possessor as the
thief. In Nwachukwu v. State (1985) 3 NWLR (Part 11) 218, Appellant
after presenting a toy gun to his victim, snatched the bag of money
carried by his victim and ran away. He was chased into a house and
with the assistance of the Police, arrested hiding under the bed and
lying on the bag of money. It was held that Section 148(a) of the
Evidence Act applied since the accused was found lying on the bag
containing the money subjected matter of the robbery, so soon
after the robbery. The presumption that accused was one of the
robbers was one which on the facts ought to be drawn and was
drawn."
23. PRESUMPTION OF CONTINUANCE. This is governed by section
167(b) of the Evidence Act, 2011. This presumption clearly depends on
the proof of other facts and it will arise when a thing or state of things
which has been shown to be in existence within a period shorter than
that within which such things or state of things usually cease to exist.
One of the most common applications of this presumption, is the
presumption in favour of the continuance of human life. A person
alive and healthy is generally presumed to be alive a short while after.
The presumption has in fact been extended by the English courts by
giving a rather wide meaning to the phrase ‘a short while after’. This has
been held to cover a period of eleven years and even seventeen years:
R v Wilshere (1881) 6 QBD 366. 106 R v Jones (1883) 15 Cox CC
284. In Nigeria, it has been applied to dispute over title to land. In
ONOBRUCHERE V ESEGINE (1986) 1 NWLR (Pt.19) 799, it was held
that the Defendants having thus admitted that at one time the radical title
was in the plaintiffs, the onus is on them (the defendants) to prove that
that radical title had been extinguished by the alleged sale pleaded by
them. The apex court was of the view that the Defendant having
admitted that title to the disputed land once resided in the Plaintiff, by the
presumption of continuance under section 148(b) of the repealed

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 Evidence Act, now section 167(b) of the Evidence Act, 2011, the
Plaintiffs who are successors to the original founder of the land, are still
the owners. When it is accepted by both sides and found as a fact by the
court that the plaintiffs’ ancestor was the “original founder” of the land in
dispute, the presumption will be that the plaintiffs as his successors in
title continued to be owners of the land in dispute until the contrary is
proved. Section 148 (b) of the Evidence Act, Cap. 62 of 1958 refers.
"... This is premised on the position of the law, that the law presumes
that a state of things shown to exist continues to exist unless the
contrary is proved." Per RHODES-VIVOUR, JSC in ODUTOLA & ORS
V. MABOGUNJE & ORS (2013) LPELR-19909(SC) (P. 28, paras. A-B).
Following the above principle, the apex held that having shown that the
testator was of sound mind at the time of making the disputed will, it will
be presumed that the testator continued to be of sound mind months
later at the time of making the codicil and it was for the person who
asserted the contrary to so prove.
24. PRESUMPTION THAT THE COMMON COURSE OF BUSINESS HAS
BEEN FOLLOWED. It is governed by section 167(c) of the Evidence
Act, 2011. This presumption like the other discussed above requires the
proof of other facts before the courts can presume that the common
cause of business has been followed. In NATIONAL EMPLOYERS
MUTUAL GENERAL INSURANCE ASSOCIATION LTD V. MARTINS
(1969) LPELR-25570(SC), one of the questions before the Court was:
whether proof that a letter was properly addressed and posted is prima
facie evidence that it was delivered to the addressee in due course. It
was held that proof that a letter was properly addressed and posted
is prima facie evidence that it was delivered to the addressee in due
course. But where, as in this case, the addressee has led evidence
that he did not receive the letter, then a straight issue of fact is
raised, and before making as finding of fact as to the delivery or
non-delivery of the letter, the Court ought to examine the evidence
carefully.
25. "This appeal turns substantially on the receipt or non-receipt of a letter
said to have been written on 25/3/99 by the Appellants and mailed to the
respondent in her overseas address which the respondent denied
receiving. Section 167 Evidence Act states that: - "167 The Court may
presume the existence of any fact which it deems likely to have

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 happened, regard shall be had to the common course of natural events,
human conduct and public and private business in their relationship to
the facts of the particular case..." In Ogbuanyiya v. Okudo (No. 2)
(1990) 4 NWLR (pt. 146) 551 the issue before the Supreme Court was
whether the Court of Appeal on the evidence before it was entitled to
presume in the absence of the Writ of Summons, the existence of a Writ
of Summons signed by a Judge which commenced the action in this
case. This Court relying on Sections 148(c) and 149(1) of the Evidence
Act (now Sections 167(c) and 168(1) Evidence Act 2011 while agreeing
with the Court of Appeal that where a plaintiff has done all that is
required of him in law to commence an action, he cannot be held
responsible for every other failure attributable to official negligence. This
Court went on to say that the Court is bound to draw the inference where
there is no evidence to the contrary, and further added that there is also
the presumption that where there is no evidence to the contrary things
are presumed to have been rightly and properly done which is expressed
in the common law maxim in latin omnia praesumuntur vite esse acta.
There is presumption that where a letter has been properly addressed
and mailed, the letter will be presumed to have been received by the
addressee. See: Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188; Amodu
v. Amode (1990) 5 NWLR (Pt. 150) 356." Per KUMAI BAYANG
AKA’AHS, J.S.C (Pp. 11-13, paras. F-C) in UNILORIN & ORS V.
OBAYAN (2018) LPELR-43910(SC).
26. BENIN ELECTRICITY DISTRIBUTION COMPANY PLC v. MR.
NAPOLEON ESEALUKA (2013) LPELR-20159(CA) Presumption of
facts as to posted letters "I am aware of the old Supreme Court Rules in
Order VIII Rule 4(2) which provides that any notice which is required to
be given shall be deemed to be duly given if forwarded by registered
post addressed to the person to whom such notice is required to be
given. In Monday Enweliku v. The State (1970) All NLR 57, the Supreme
Court per Coker JSC was of the view that such notice is deemed to have
been given on the day it was delivered for registered posting. The law is
then that ordinarily if postage is proved, the termination or dismissal
would take effect from the date of postage. In Jinadu v. Esurombi-Aro
supra, this Court held that there is a presumption that a letter sent by
post was received by the addressee and that it is not open to the
addressee to contend that the presumption is not available to the

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 addressor where the addressee fails to show that the mode of delivery
was other than by post. See also Akintunde v. Ojekiere (1971) NMLR
Pg.91; WASA v. Kalla (1978) 3 SC Pg.21. It stands to reason that where
a document is shown to have emanated from a particular person, the
burden is no longer on that person to show that it was received. The
presumption is activated when the document is actually shown to have
been posted. Then it is presumed that it was received. The presumption
of receipt must be rebutted by the addressee." Per
OGUNWUMIJU ,J.C.A (Pp. 21-22 paras. D).
27. "It is to be noted that the condition required in the Rules of the Court to
confirm service is, whenever the Court is satisfied. This satisfaction can
be by any proof, which by today's practice can be by email message,
text message or phone call. By practice of the ordinary course of
activities of this Court, the Panel must have been satisfied by the Court
Bailiff's response, being an Officer of the Court, of due service of the
originating or hearing notice before proceeding with the appeal. By
Section 167 (c) of the Evidence Act 2011: "The Court may presume the
existence of any fact which it deems likely to have happened, regard
shall be had to the common course of natural events, human conduct
and public and private business, in their relationship to the facts of the
particular case, and in particular the Court may presume that-(c) The
common course of business has been followed in particular cases." Per
BANJOKO ,J.C.A in ARQUIETETURA ENGENHARIA COMMERCIAL
LTD v. SARAHA HOMES (NIG) LTD & ANOR (2022) LPELR-
57383(CA) (Pp. 26-27 paras. F)
28. PRESUMPTION OF WITHHOLDING OF EVIDENCE. Section 167(d) of
the Evidence Act, 2011 regulates this presumption and it arises where
there is evidence in possession of party and that party refuses to
produce it in evidence. In the circumstance, the court will be entitled to
assume that had the evidence been produced, it would have been
detrimental to the party withholding it. The presumption deals with
withholding of evidence and not a particular witness or evidence and it
will only arise, where the party withholding the evidence fails to call
evidence on a fact for which evidence is withheld. And this is because a
party is bound to call any particular evidence in proof of a fact, if he
could do it otherwise. In DANBABA V. STATE (2018) LPELR-
43841(SC), the Appellant pleaded insanity but failed to produce a

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 medical report on his mental state. It was held that "The defence
pleading the presumption in Section 169(d) of the Evidence Act,
2011, submits that the prosecution withheld evidence by not
subpoenaing Kware Hospital to produce the report of the hospital
affirming the mental state of the Appellant. The defence was also
aware of the report but did not also produce it. This thus raises the
presumption that the defence failed to produce evidence, which
could be produced, because its production would be unfavourable
to their plea of insanity." Per EJEMBI EKO, J.S.C (P. 44, paras. C-E).
29. In NIGERIAN ADVERTISING SERVICES LTD. V. THE UNITED BANK
FOR AFRICA PLC. (2005) ALL FWLR (Pt 284) P 275, the defendant
pleaded that purchase money was paid into the Plaintiff’s account. The
account was in the custody of the Respondent bank. The Court said the
best evidence to that effect would have been the Plaintiff’s statement of
account which was in the custody of the bank. Again, the Defendant
pleaded that it wrote a letter to the Plaintiff that the mortgage property
had been sold, but the letter was not tendered. The apex court held by
section 149(d) of the Evidence Act, 2004 (repealed), a provision which is
on all fours with section 167(d) of the Evidence Act 2011, the
presumption is that there was no such payment into the Plaintiff’s
account and there was no such letter written to the Plaintiff by the
Defendant.
30. In OCHANI V. STATE (2017) LPELR-42352(SC), it was held as per
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C that
"As regards the failure of the prosecution to call the persons
named by PW1 as being present at the scene and the invitation to
the Court to invoke the provisions of Section 167 (d) of the
Evidence Act against the respondent, the two lower Courts have
correctly stated the position of the law that the prosecution is not
bound to call every witness listed in the proof of evidence if it is
satisfied that the witnesses called are sufficient to discharge the
onus of proof beyond reasonable doubt. It is pertinent to observe
that Section 149 (d) of the Evidence Act (now Section 167 (d) of the
2011 Act) relates to evidence that is withheld and not to the fact
that a particular witness was not called. See: Oguonzee vs The
State (supra) at page 229 B-F. The Appellant was also at liberty to
call witness not called by the prosecution."

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31. PRESUMPTION OF REGULARITY. Section 168 of the Evidence Act,
2011 provides that 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; 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.
32. PRESUMPTION OF SANITY. In STATE V. JOHN (2013) LPELR-
20590(SC), it was held that "the position of the law is that every person
is presumed to be sane until the contrary is proved. See (Section 27 of
the Criminal Code Act).
33. PRESUMPTION AS TO ALTERATION "There was nothing to show that
the date on exhibit A was altered after execution. Therefore, there is
presumption that same was altered before execution and as such is
protected by Section 160(1) and (3) of the Evidence Act, 2011. For ease
of appreciation, I shall reproduce in extenso, Section 160(1) and (3)
hereunder, thus: "Section 160(1) No person producing any document
which upon its face appears to have been altered in a material part can
claim under it the enforcement of any right created by it, unless the
alteration was made before the completion of the document or with the
consent of the party to be charged under it or his representative in
interest. (3) Alterations and interlineations appearing on the face of a
deed are in the absence of all evidence relating to them presumed to
have been made before the deed was completed." Exhibit A on the face
of it appears to have been altered from 1970 to 1971 and same was
perfected on 11th August 1971, therefore it is safe to conclude that it was
altered before completion and as such protected by Section 160 (1) and
(3) of the Evidence Act, 2011; reproduced above." Per ABDULLAHI,
JCA in BABATAYO & ANOR V. OJOLO & ANOR (2017) LPELR-
43703(CA) (Pp. 24-25, para. B). In OBULADIKE V. NGANWUCHU
(2013) LPELR-21265(CA) it was held presumption as to alterations and
interlineations appearing on the face of a deed "Second, by Section
127(2) of the Evidence Act (now Section 160(3) Evidence Act 2011)
alterations and interlineations appearing on the face of a deed are in the
absence of any evidence relating to them are presumed to have been
made before the deed was completed." Per OWOADE, J.C.A (Pp. 86
paras. B)

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34. PRESUMPTION OF LAW AS TO POSSESSION - "The presumption
under Section 143 of the Evidence Act is that a person in possession of
property is presumed to be the owner thereof as noted above strongly
favours the defendant/Appellant." Per MUKHTAR, JCA in UGWUNZE
V. ADELEKE & ORS (2007) LPELR-8101(CA) (P. 36, paras. B-C).
35. PRESUMPTION RELATING TO BIRTH CERTIFICATES. A birth
certificate is conclusive proof that the person named therein was born on
the date stated and the parents are those spelt out in the document.
Once the authorized government official appends his signature and
stamp on a document and such authentication is not contest by the
adverse party, the presumption of regularity will be ascribed to it: UKEJE
V. UKEJE (2014) ALL FWLR (PART 730) P 1323 PP 1335 PARAS A-
B.
36. CONFLICTING PRESUMPTIONS: Effect of conflicting presumptions "it
is, settled that conflicting presumptions neutralize each other and leave
the case at large to be determined solely on the evidence given: see R
v. Willshire (1880) 6 Q.BD. 366; Westwood v. Chettle (1895) 98 L.T.J.
228." Per NNAEMEKA-AGU ,J.S.C (Pp. 22 paras. B) in AGBONIFO V.
AIWEREOBA & ANOR (1988) LPELR-245(SC)

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