Introduction to Presumptions DADA AFA

What are presumptions

To presume in its ordinary, literal sense is simply to take something for

granted or to suppose it to be true.

The word presumptions have a more technical meaning depending on the

branch of law. For instance, in the law of evidence, it is considered as a
device which the court uses to pronounce on an issue notwithstanding the
fact that there is no evidence about it.

They are basically aids to reasoning and argumentation which assume

certain matters.

Section 18(1) of NCD 323 defines a presumption. It provides that a

presumption is an assumption of fact that the law requires to be made
from another group of facts found or otherwise established in the action.

Under presumptions, there should be a primary fact or basic fact from

which a finding of an assumed fact is made.

Example, if A and B have been living together for many years with
offspring, this would a basic or primary fact from which an assumption
may be made to the effect that they are married.

Types of Presumptions

In terms of section 18(3) of the Evidence Act, presumptions may be:

a. conclusive or
b. rebuttable.

Conclusive Presumption

A conclusive presumption is an irrebuttable presumption. It is a

presumption which if once admitted, cannot be controverted or
contradicted. The effect of a conclusive presumption is that, the effect is
almost the same as that of the substantive law.

Section 24(1) of NRCD 323 reinforces the law common law rules on
conclusive presumption. The law is that, where basic facts give rise to a
conclusive presumption in an action, no evidence contrary to the
conclusively presumed fact may be considered by the tribunal of fact.

The principle of law is that the court must find the presumed fact from
the basic fact in order to prevent the adduction of evidence to rebut the
presumed fact.

This position of the law was given judicial backing by the Supreme Court
in In re Suhyen Stool: Wiredu & Obenewaa v Agyei & Others. The
court authoritatively declared that, the first condition in section 24(1) of
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NRCD 323 was that the basic fact that gave rise to a conclusive
presumption must first be found or otherwise established before the
disallowance of the contrary evidence.
Instances of conclusive presumptions

Sections 25 to 29 of the Evidence Act provides instances of conclusive

presumptions, but this is not to be treated as exhaustive.

a. Facts in documentary instruments

This is contained in section 25(1) of NRCD 323. The law is that, facts
recited in a written document are conclusively presumed to be true as
between the parties to the instrument, or their successors in interest,
except as otherwise provided by law or the rules of equity.

This law suggests that, once parties to a transaction have reduced their
transaction into writing, the document is conclusively deemed to reflect
their intentions. In other words, parties intend what they reduce into
writing.

Flowing from this section, evidence cannot be admitted to contradict the

terms of a document which parties have embodied in a document.

In African Distributors Co Ltd v CEPS, the Supreme Court applied

section 25(1) and ruled that the plaintiff company was bound by the
contents of a written agreement which had raised a conclusive
presumption against it.

b. Estoppel by conduct or statement

The effect of the law regulating this presumption is that, if a party by his
own statement or act intentionally causes a person to believe a thing to
be true and that person acts upon that belief, the truth of that thing shall
be conclusively presumed against that party or his successors in
interest and such relying person or his successors in interest, under
section 26 of NRCD 323.

Thus, if by one’s conduct or words another person acts to his detriment

upon the belief of that person’s words or conduct, the truth of that
person’s conduct is conclusively presumed against him and his successors
in interest. He or she is estopped from asserting a contrary claim.

c. Estoppel of tenant to deny title of landlord

A tenant is generally estopped from denying the title of his landlord. A

tenant who does so suffers the penalty of a forfeiture of his interest in the
property.
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The consequence of a tenant who denies the title of his land lord is
illustrated by the decision of Antie & Adjuwah v Ogbo, where the court
held that a tenant who denies the title of his landlord, either by claiming
that title to the subject matter is vested in himself or herself or someone
else forfeits his or her interest.

Except as otherwise provided by law, including a rule of equity, section

27 of the Evidence Act provides that the title of a tenant’s landlord at
the time of the commencement of their relation is conclusively presumed
to be valid in a claim by the tenant against the landlord’s title.

d. Estoppel of licensee to deny title of licensor

Any licensor is conclusively presumed to have a valid right to possession

of the immovable property in any claim by the licensee against him, as
spelt out in section 28.

The effect of a licensee who denies the title of his licensor is the
same as that of a tenant or denies the title of his landlord. He or
she forfeits his interest and this has been made abundantly clear
in Antie & Adjuwah v Ogbo.

e. Estoppel of bailee, agent or licensee

By section 29 of NRCD 323, the title of a bailor, principal or licensor is

conclusively presumed as regards movable property entrusted in the
hands of the bailor or agent, unless the bailee, agent or licensee can
prove that he was compelled to deliver the property to a person who is
better entitled to it than the bailor, principal or licensor.

Rebuttable Presumptions

A rebuttable presumption is an inference drawn from certain facts that

establish a prima facie case which may be overcome by the introduction
of contrary evidence.

In section 19 of the Evidence Act, it is gleaned that, a rebuttable

presumption is created by prima facie evidence led from a fact or a group
of facts.

Effect

According to section 20 of the Evidence Act, a rebuttable presumption

imposes upon the party against whom it operates the burden of producing
evidence and the burden of persuasion as to the non-existence of the
presumed fact.
Introduction to Presumptions DADA AFA

This means, the other party is to establish evidence to the contrary which
will rebut the presumed fact.

The Supreme Court decided case of Ghana Ports and Harbour

Authority v Nova Complex Ltd also stipulates the effect of a rebuttable
presumption. In this case, the court ruled that a rebuttable presumption
has prima facie effect only and the presumed facts may therefore be
replaced by evidence.

Instances of Presumptions

Validity of Marriage

Section 31(1) of NRCD 323 provides that:

A marriage which has been celebrated before witnesses is presumed to be

valid.

By section 31(2), the provision applies whether or not the witnesses to

the marriage are called as witnesses in the action.

Finally, the law applies to both monogamous and polygamous marriages.

This is the effect of section 31(3).

The presumption of marriage may be displaced by evidence to the

contrary. This could be evidence to the effect that the parties do not have
the requisite capacity to contract a marriage according to the law of place
of domicile at the time the marriage was contracted.

For instance, in the case of Mette v. Mette, a domiciled Englishman

contracted a marriage in Frankfurt with a deceased wife’s half-sister, a
domiciled German woman. It was presumed to be valid then. However,
the English courts in determining the validity of the marriage pronounced
it as void because the Englishman did not have the capacity under English
law to contract such a marriage since it was prohibited in England.

On the local scene, a case in point is Ramia v Ramia. In that case, the
parties were married customarily for three years. They later married
under Cap 129. The marriage certificate showed that the marriage was
registered on the same day that it was celebrated. The court held that the
marriage certificate satisfied the presumption of validity and
presumptions of legality in favour of the marriage. Evidence to the
contrary was not led.

In Barake v Barake, Brobbey J applied the law that once that

presumption has been established, the onus shifts to the party contesting
it to establish the contrary.

Legitimacy of Children
Introduction to Presumptions DADA AFA

A child born during the marriage of the mother is presumed to be the child
of the person who is the husband at the time of the birth. This law is
enacted in section 32(1) of NRCD 323.

Generally, the law leans in favour of legitimacy of children and frowns on

bastardry and would therefore not deprive a child of his parentage.

The case of Daboa Dagarti v Dornipea is authority for the principle that
the of presumption of legitimacy may be rebutted by evidence to the
effect that at the beginning of the marriage, the wife of the current
husband was already with child.

A child of a woman who has been married, born within 300 days after the
end of the marriage, is presumed to be the child of that marriage, as
contained in section 32(2) of the Evidence Act.

300 days has been interpreted in the Commentary of the Evidence

Decree to mean 10 months. Therefore, a child born 10 months after the
dissolution of the marriage is not presumed to be the child of the husband
of that marriage.

Presumption of Death

Section 33(1) provides that where a person has not been heard of for
seven years despite diligent effort to find him, he is presumed dead.

Section 33(2) is to the effect that the presumption does not apply as to
the particular time when he died.

In this presumption however, the legal burden remains on the party in

whose favour the presumption operates. The evidential burden is on the
party against whom it operates.

Simultaneous deaths

Under section 34 of NCRD 323 where two people die simultaneously,

the younger is presumed to have outlived the older one. This law is known
as the commo rientes rule in the interpretation of wills.

In Re Rowland, a home-made will left everything to the testator’s wife in

the event that the wife died, preceding or coinciding with his own demise.
The couple died in a boating accident together and there was no
indication of who died first.

The judge said the word ‘coincide’ means simultaneous and that the
deaths did not coincide as they could have been seconds of even minutes
apart. This meant the wife was deemed to have survived him as she was
Introduction to Presumptions DADA AFA

younger and inherited estates which passed to different beneficiaries

under her own will.

Ownership of legal title and beneficial title

Section 35 of the Evidence Act is to the effect that whoever owns a legal
title is presumed to own the beneficial title.

Transfer by trustees

In section 36 of the Evidence Act, transfers effected by a duly appointed

trustee are presumed to have been properly made unless the contrary is
proved by evidence.

Regularity of Official Acts

Section 37(1) of NRCD 323 provides that, it is presumed that official

duty has been regularly performed. This is in accordance with the latin
maxim omnia praesumuntur rite et solemniter esse acta which means
that official duties are presumed to be performed regularly.

The Supreme Court in Seidu Mohammed v Saabaye Kangbere held

that, the presumption of regularity in law had been given statutory
recognition in section 37 of the Evidence Act. This meant that
institutions of the State like the Land Registry were presumed to conduct
their affairs with a certain degree of regularity in line with the statutes
that had established them.

However, by section 37(2), this presumption does not apply to an issue

as to the lawfulness of an arrest if it is found or otherwise established that
the arrest was made without a warrant.

Intentions and ordinary consequences of voluntary actions

A person is presumed to intend the ordinary consequences of his

voluntary act. This is the law in section 38(1) of NRCD 323.
The rationale for this provision is that when a man does something
consciously and deliberately, and not by accident, he will be deemed to
have intended the results that flow from his conduct.

The presumption does not apply as regards specific intent in a criminal

action if the specific intent is an element of the crime charged, according
to section 38(1) of the Evidence Act.

Judicial Jurisdictions

Section 39(1) states the presumption of law that any court of Ghana, or
any court of general jurisdiction in any other state or sub-division of a
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state, or any judge of such a court, acting as such, is presumed to have

acted in the lawful exercise of its jurisdiction.

This section re-affirms the proposition that judges and judicial officers are
presumed to have been appointed to perform their duties and further
presumption to have acted within their jurisdiction.

Nonetheless, by section 39(2), the presumption applies only when the

act of the court or judge is under collateral attack, namely where the
jurisdiction of the court is not directly in issue.

Innocence of an accused

It is provided in Article 19(2)© of the 1992 Constitution that a person

charged with an offence shall be presumed to be innocent until he is
proved or has pleaded guilty.

Foreign Law.

The law of a foreign state is presumed to be the same as the law of

Ghana. This is the law in section 40 of the Evidence Act.

Conflicting presumptions

Where two presumptions conflict in the same case, they will cancel each
other if they are of equal status. If a compelling presumption conflicts with
a rebuttable presumption, it is only logical for the compelling or
irrebutable presumptions to prevail. Case for reference is R v Wilshere.

Presumption in the law of interpretation

Even though the discussion of presumptions may be relevant to

the study of the law of evidence, it must be emphasized that, we
are more concerned with presumption as understood in the law of
interpretation.

In the context of interpretation, they are principles of law or interpretative

criteria taken for granted or assumed by the courts to have been taken for
granted.

It must be noted that these principles, according to Cross apply although

there is no question of linguistic ambiguity in the statutory word under
construction.

There are a host of presumptions, however, they may be collectively

grouped under:

1. Presumptions derived from legal policy

2. Presumption based on nature of legislation
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3. Presumption of linguistic canons of interpretation