Introduction to Presumptions

Introduction:

This note will discuss the meaning of presumptions, the two types of presumptions, and the rationale and effects of presumptions.

Meaning of Presumption:

In Section 18(1) of the Evidence Act, 1975 (NRCD 323) , a presumption is defined as:

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

This definition can be broken down as follows:

i. There are several facts in a case.

ii. If a fact or group of facts in the case is found or established to exist, such existence provides a legal basis to assume the existence of some other fact in the case.

To illustrate the above breakdown in light of the well-known presumption of death, if it is being disputed in a probate action that a person is dead, and it is established by evidence that:

i. Diligent efforts have been made to find a person. And

ii. That he has not been heard of for seven years despite the efforts,

Then another fact, that the person is dead, is equally assumed to exist. Here, there is no need to lead evidence specifically on the death of the person, say by providing a death certificate. By simply establishing the facts of diligent efforts to find the person and the fact that he has not been heard of for seven years despite the efforts, the fact that the person is dead is assumed.

According to the learned author S.A. Brobbey in his book, The Essentials of the Ghana Law of Evidence at page 331, the fact that is proved by evidence is known as the primary, basic, or fundamental fact, and the fact that is presumed is, you guessed it, the presumed or assumed fact . In our example above, the fact that a person has not been heard of for seven years despite efforts to find him is the primary or fundamental fact, and the fact that the person is dead is the presumed or assumed fact. These terms are equally used throughout NRCD 323.

Types of Presumptions:

There are two types of presumptions:

i. Rebuttable presumption.

ii. Conclusive presumption.

These types are recognised in Section 18(3) of NRCD 323 , which reads, “A presumption is either conclusive or rebuttable.”

According to Black’s Law Dictionary, 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. - Also termed prima facie presumption; disputable presumption; conditional presumption

Thus, the production of contrary evidence on the non-existence of a fact may displace the presumption of the fact's existence.

On the other hand, a presumption is said to be conclusive if it cannot be overcome by any additional evidence or argument. Thus, there is no amount of evidence that can prove that the presumed fact does not exist. One example of such a presumption is the truthfulness of facts contained in a written instrument.

These types of presumptions are discussed extensively in separate notes.

Rationale for Presumptions:

There are several bases for presumptions. These are now highlighted.

1. Public Policy:

Certain presumptions are meant to preserve public policy. In the case of Export Finance Company Ltd v. Ghana Revenue Authority & Anor [2022] GHASC 96 (30 November 2022) , the Supreme Court of Ghana cited with approval the following definition of public policy as:

That principle of law which holds that no subject can lawfully do that which has the tendency to be injurious to the public, or against the public good....

At its core, public policy consists of principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society.

An example of a presumption that is based on public policy is the presumption in Section 32(1) of NRCD 323 that children born to a woman during the course of marriage are the children of the husband of the woman. This presumption is to prevent a situation where a child is denied the benefits and care that come with being the legitimate child of the husband of his/her mother.

2. Saves Time:

As we will soon see in the discussion on the effects of a presumption, there is no need to lead evidence to prove a presumed fact. The effect of this is that time is not spent proving presumed facts.

3. Fairness and Justice:

Presumptions such as the presumption of innocence are deemed to promote fairness and justice. It would not be fair for a person to be arrested and requested to prove that he is not guilty of an offence.

4. Probability:

Once certain facts are proved to exist, the probability that other facts are true is high. In light of this high probability, the law allows for the presumption of certain facts.

Effect of a Presumption:

A primary effect of a presumption is that it can shift the burden of proof to the party against whom the presumption exists. According to Brobbey [1],

Presumptions raise a number of issues which mainly concern the person on whom the onus of proof should be at any given time. Presumptions may therefore create evidential burdens.

Several cases have upheld this position. In the case of Barake v. Barake [1993-94] 1 GLR 635 , for instance, the petitioner, among others, tendered in evidence a marriage certificate certifying a marriage in 1969. In speaking on the effect of this, the court said:

It can therefore be said with some degree of certainty that the presumption of validity and legality of the marriage was duly established by the petitioner.

Once that presumption has been established, the onus shift to the party contesting it to establish the contrary. To discharge that onus in the instant case, it was incumbent on the first respondent to establish the invalidity of the 1969 city council marriage.

In the case of Bisi and Others v. Tabiri Alias Asare [1987-88] 1 GLR 360-413 , the Supreme Court, in speaking on the acquisition of family property, said:

It is quite clear from the authorities that the presumption of intention to found family property is established once the requisite contribution, real or substantial in the present-day judicial thought, is proved by the plaintiff. Thereafter the burden of persuasion is assigned or imposed on the defendants against whom the presumption is directed to prove the contrary by a preponderance of the probabilities: see section 21 of N.R.C.D. 323.

The above general effect of presumption can be further varied based on whether the presumption is conclusive or rebuttable, and based on whether the case is a civil or criminal case. These are now discussed.

A. Effect of a Conclusive Presumption:

The effect of a conclusive presumption is provided in Section 24(1) of NRCD 323 as follows:

(1) Where the basic facts that give rise to a conclusive presumption are found or otherwise established in the action, no evidence contrary to the conclusively presumed fact may be considered by the tribunal of fact.

In the recent case of Boakye & Anor v. Asiedu [2021] GHASC 127 (15 December 2021) , the Supreme Court, in speaking on conclusive presumptions, advanced that:

A conclusive presumption operates to disallow the presentation of contrary evidence, and the basic facts that give rise to a conclusive presumption must first be found or established before the application of the legal effect or consequences of a conclusive presumption. See In re Suhyen Stool; Wiredu & Obenwaa v. Agyei & Others [2005 - 2006] SCGLR 424

In said In re Suhyen Stool; Wiredu & Obenwaa v. Agyei & Others (supra) , the Supreme Court stated that:

The essence of conclusive presumption is to stop the other party in the first place from adducing evidence to the contrary.

Summarily, the party against whom a conclusive presumption operates may be prevented from producing evidence to show the non-existence of the fact that is conclusively presumed to exist. The court simply takes an entrenched view on the existence of a and will not allow evidence directed at changing this view.

B. Effect of a Rebuttable Presumption:

Once a rebuttable presumption is established, the opposing party has to lead evidence to prove the non-existence of the fact. This is provided in Section 20 of NRCD 323 as follows:

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.

C. Effect of a Presumption in Civil Cases:

In civil cases, a presumption is an exception to the rule that he who avers must prove as provided in Section 11(1) of the Evidence Act, 1975 (NRCD 323) and stated in the cases of Dua v. Afriyie and Others [1971] 1 GLR 260 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 .

Once the rebuttable presumption is established, the other party has the burden of producing evidence to persuade the court as to the non-existence of the presumed fact. The provision in Section 20 of NRCD 323 on the effect of a rebuttable presumption and cases of Barake v. Barake (supra)and Bisi and Others v. Tabiri Alias Asare (supra), all of which have cited in extenso above, are authorities for this position.

D. Effect of a Presumption in Criminal Cases:

At the start of a criminal case, there is a presumption that the accused is innocent until proven guilty. This presumption is given constitutional backing in Article 19(2)(c) of the 1992 Constitution, which reads:

19 (2) A person charged with a criminal offence shall-

(c) be presumed to be innocent until he is proved or has pleaded guilty;

The effect of this presumption is that the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. This has been stated in a host of cases, including Gligah & Atiso v. The Republic [2010]. SCGLR 870 and Commissioner of Police v. Isaac Antwi [1961] GLR 408 .

At the close of the prosecution case, the establishment of a prima facie case rebuts this presumption, and the accused is required to provide an explanation to raise reasonable doubt as to his guilt. A prima facie case is said to be established if the prosecution has proved all the elements of the offence.

The above position was stated in the cases of The State v. Sowah and Essel [1961] GLR 743-747 and Antwi v. C.O.P. [1961] G.L.R. 408. In The State v. Sowah and Essel (supra), the court said:

In a criminal case, except in the instance of sanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed , and which, therefore, calls for explanation by the accused.

In Antwi v. C.O.P. (supra), the court again said:

Where the prosecution gives some prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which rests upon them

If, after the establishment of a prima facie case, the accused fails to raise reasonable doubt as to his guilt, he is likely to be pronounced guilty.

The effect of a presumption in a criminal case is also stated in Section 22 of NRCD 323 as follows:

In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact

Here, what is essential to note is that in criminal cases, a presumption only arises if the prosecution proves the existence of the basic or primary facts beyond reasonable doubt. Thus, a presumption will not arise against the accused in a criminal action if the prosecution simply shows that the existence of the basic facts is more probable than its non-existence.

Conclusion:

This note is merely an introductory note on presumptions. In subsequent notes, we will discuss the relationship and distinction between presumptions and inferences and the two types of presumptions highlighted above.