Rebuttable Presumptions
Introduction:
One of the types of presumptions is rebuttable presumptions. This note will discuss the meaning of rebuttable presumptions, their effects, how a rebuttable presumption may be created, examples of rebuttable presumptions contained in the Evidence Act, 1975 (NRCD 323), and the procedure in applying rebuttable presumptions.
Meaning of a Rebuttable Presumption:
At its core, a rebuttable presumption is a presumption that can be displaced with evidence.
We may also define this type of presumption in terms of its distinct effect. In Section 20 of NRCD 323, it is provided that:
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.
Particularly in civil actions, Section 21(a) provides that:
A rebuttable presumption requires the tribunal of fact to assume the existence of the presumed fact unless and until the party against whom the presumption operates proves that the non-existence of the presumed fact is more probable than its existence;
In light of the above, a rebuttable presumption is a legal assumption that a fact is true until evidence is presented to prove otherwise. It places the burden of producing evidence and persuading the tribunal on the party challenging the presumption. Unless disproven, the tribunal must accept the presumed fact as true.
In the case of Pecore v. Pecore [2007] SCC No. 17, a rebuttable presumption was defined as follows:
A rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is led to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption.
In Halsbury’s Law of England, fourth edition Re-issue Volume 11(2) at paragraphs 1008-1009 page 883 , a rebuttable presumption was defined as:
One which leads to a decision on a particular issue in favour of a party who establishes it or relies upon it, unless it is rebutted . Rebuttable presumptions of law may be created by statute or may exist at common law, and may cast either a legal or an evidential burden on the party seeking to rebut the presumption.
This was cited with approval in the unanimous judgement of the Supreme Court in [2020 Election Petition Judgment] John Dramani Mahama v. Electoral Commission And Nana Addo Dankwa Akufo-Addo [2021] DLSC10003.
In Black’s Law Dictionary, it is defined as:
An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence.
Summarily, with rebuttable presumptions, the court assumes that some fact exists because other facts have been found or established to exist. However, this assumption may be changed upon the introduction of evidence to show that the assumed fact does not exist.
How a Rebuttable Presumption Can Be Created:
In Section 19 of NRCD 323, it is provided that:
An enactment providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption.
One such example is Section 188 (4) of the Companies Act, 2019 (Act 992) which reads:
A minute kept under subsection (1), if purporting to be signed by the chairperson of the meeting at which the proceedings took place or of the next succeeding meeting, is prima facie evidence of the proceedings.
Thus, the minutes of a meeting of directors, if signed by the chairperson of the meeting, give rise to a rebuttable presumption of all the proceedings of the meeting.
Effect of Failing to Introduce Evidence that is Contrary to the Existence of the Presumed Fact:
Once a rebuttable presumption is established by the establishment of the basic facts, the court must assume the existence of the presumed fact unless and until the non-existence of those facts are proved. This is provided for in Section 21(a) of NRCD 323 , which reads:
A rebuttable presumption requires the tribunal of fact to assume the existence of the presumed fact unless and until the party against whom the presumption operates proves that the non-existence of the presumed fact is more probable than its existence;
From the above, it may thus be said that if a party fails to prove the non-existence of the presumed fact, the court will assume its existence.
However, before the court assumes the existence of the presumed fact, the basic facts that give rise to the presumed fact must be established. Now the essential question is, when can it be said that the basic facts that give rise to the presumption have been established? The answer depends on whether the case is a criminal case or one where the standard of proof is preponderance of the probabilities.
A. Establishment of Basic Facts in Cases Where the Standard of Proof is Preponderance of the Probabilities:
In cases where the standard of proof is preponderance of the probabilities, Section 21(b) provides the following rules:
i. If reasonable minds would agree that the evidence produced in support of the existence of the basic facts renders the existence of those basic facts more probable than not, the basic facts would be said to have been established and the court must find that the presumed fact exists.
ii. However, if reasonable minds would agree that the evidence in support of the existence of the basic facts does not render the existence of those basic facts more probable than not, the basic facts would not be said to have been established and the court must find that the presumed fact does not exist.
To illustrate the above, if the death of a missing person is in issue, the basic facts are that:
i. The person has not been heard of for seven years. And that
ii. That there were diligent efforts to find him.
If the party arguing that the missing person is dead produces evidence that renders the existence of the above basic facts more probable than not, but the party arguing that the missing person is still alive does not introduce any evidence to show that the missing person is alive, the court should conclude that the missing person is dead.
B. Establishment of Basic Facts in Criminal Cases:
In criminal cases,Section 23(a) of NRCD 323 , it is provided that:
(a) the court shall not direct the jury to find a presumed fact against the accused if that fact is essential to guilt, unless on all the evidence a reasonable mind could have no reasonable doubt either as to the existence of the basic facts that give rise to the presumption or as to the existence of the presumed fact;
Therefore, before the jury is directed to conclude that the presumed fact exists, the prosecution must establish beyond a reasonable doubt, in the minds of reasonable persons, that the basic facts supporting the presumption are true.
See the remainder of Section 23.
Effect of Introducing Evidence that is Contrary to the Existence of the Presumed Fact:
In most cases, a party against whom a rebuttable presumption operates will introduce evidence in an attempt to rebut the presumption. Where that is the case, the applicable provision is Section 21(c) of NRCD 323 . The rules in this subsection may be summarized as follows:
i. If reasonable minds will conclude that the evidence to rebut the presumption renders the non-existence of the presumed fact more probable than not, the court shall find that the presumed fact does not exist.
ii. However, if reasonable minds will conclude that the evidence to rebut the presumption does not render the non-existence of the presumed fact more probable than not, the court shall find that the presumed fact exist.
To illustrate, in an action where it is presumed that a person is dead because the basic facts that give rise to the presumption have been established, the court will subsequently hold that presumption of death does not exist if the person against whom the presumption operated produces evidence to show that it is more probable that the person presumed dead is alive than dead. If the person against whom the presumption operated fails to produce evidence of such quantum and quality, the presumption will still hold despite the fact that he introduced evidence in an attempt to rebut the presumption.
In criminal cases, Section 22 provides that a presumption against an accused can be rebutted if the evidence introduced by the accused raises reasonable doubt as to the existence of the presumed fact.
Rebuttable Presumptions in the 1992 Constitution:
1. Presumption of Innocence:
In Article 19(2)(c) of the 1992 Constitution, it is provided that:
A person charged with a criminal offence shall-
be presumed to be innocent until he is proved or has pleaded guilty;
2. Presumption of the Citizenship of a Child of Seven Years and Below:
In Article 6(3) of the 1992 Constitution, it is provided that:
A child of not more than seven years of age found in Ghana whose parents are not known shall be presumed to be a citizen of Ghana by birth.
This is rebuttable because once it is established at trial that the child is not a Ghanaian, perhaps by showing evidence of the child’s foreign parentage, such as birth records, testimony from biological parents, or official immigration documents, the presumption of Ghanaian citizenship will no longer apply.
3. Presumption that a Person Named in an Instrument Executed Under the Hand of the Chairman of the Electoral Commission and Under the Seal of the Commission and Stated to be Declared Elected as President, was Elected as President:
In Article 63(9) of the 1992 Constitution, it is provided that:
An instrument which
a. is executed under the hand of the Chairman of the Electoral Commission and under the seal of the Commission; and
b. states that the person named in the instrument was declared elected as the President of Ghana at the election of the President, shall be Prima facie evidence that the person named was so elected.
In the relatively recent case of [2020 Election Petition Judgment] John Dramani Mahama v. Electoral Commission And Nana Addo Dankwa Akufo-Addo (supra) , the Supreme Court, speaking on this provision, said:
The presumption that is raised in Article 63(9) of the 1992 Constitution undoubtedly is a rebuttable one as the 1992 Constitution makes room for the contestation of the Instrument aforesaid. Being a rebuttable presumption therefore, there is no gainsaying that the onus of its rebuttal lies on the party against whom the presumption operates.
Rebuttable Presumptions in NRCD 323:
In Section 30 of NRCD 323, it is provided that:
Rebuttable presumptions include, but are not limited to, those provided in sections 31 to 49 and 151 to 162.
We will now briefly discuss these provisions and the rebuttable presumptions they contain.
1. Rebuttable Presumption on Validity of Marriage:
Per Section 31 of NRCD 323, a marriage, whether monogamous or polygamous, is presumed to be valid if celebrated before witnesses.
2. Rebuttable Presumption on Legitimacy of Children:
Per Section 32(1), a child is presumed to be fathered by his mother’s husband if the child was born during the marriage of his or her mother to her husband. The husband referred to here is the husband of the child’s mother at the time of the child’s birth.
Per Section 32(2), a child is presumed to be the child of an earlier marriage (therefore fathered by his/her mother’s ex-husband) if he was born within 300 days after the end of the marriage.
These presumptions can both be rebutted by evidence. For instance, it may be proved that the husbands of the mother of the child are impotent.
3. Rebuttable Presumption of Death After Seven Years’ Absence:
Per Section 33, a person who has not been heard of for seven years despite diligent efforts to find him is presumed to be dead.
In the case of Chard v. Chard & Ors. [1955] 3 W.L.R. 95 , it was clarified that the person must not be heard of from persons who are likely to hear from him/her. In that case, the petitioner sought to annul his 1933 marriage to the respondent on the grounds that he married another woman in 1909. The main issue turned to whether that woman he married in 1909 was alive in 1933 when he married the petitioner. The petitioner has not heard from her since 1917. The court held that the woman will not be presumed to be dead because there were many factors that could have caused her to not be heard of by the petitioner or his family, particularly the petitioner’s career of crime, and the fact that the petitioner or his family have not heard from her cannot be grounds for presuming that she is dead. In concluding, the court, speaking through Sachs J., advanced that:
Whereas regard “A. B.” there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first, that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstance, “A. B.” will be presumed to have died at some time within that period.
In that case, there was no one who had been shown to be likely to hear from her (the woman married in 1909) and it cannot be presumed that she is dead simply because the petitioner has not heard from her for over seven years.
4. Rebuttable Presumption of an Older Person Pre-Deceasing a Younger Person for Simultaneous Deaths (Commorientes):
Per Section 34, if two or more persons die and it is uncertain who survived the older, the older is presumed to have predeceased the younger. A similar provision is made in Section 7(7) of the Wills Act, 1971 Act 360.
5. Owner of Legal Title Also has Beneficial Title:
Per Section 35, the owner of the legal title to property is presumed to be the owner of the full beneficial title.
A legal title is any legal evidence of a person's ownership rights in property, such as an instrument (such as a deed) that constitutes such evidence of a person’s ownership rights. Once a person has this evidence, he is presumed to fully own the beneficial title. The beneficial title refers to the full ownership rights, such as the right to use, enjoy, and benefit from the property.
6. Transfer of Immovable Property by Trustee or Some Other Person:
Per Section 36, it is provided that:
A trustee or other person, whose duty it was to convey immovable property to a particular person, is presumed to have actually conveyed to him when such presumption is necessary to perfect title of such person or his successor in interest.
This presumption appears to operate on the equitable maxim of equity regards as done that which ought to be done.
Note that before the presumption is made that an actual conveyance has been made, the presumption must be necessary to give the transferee a good title to the property being transferred. To illustrate this presumption, suppose a trustee was supposed to transfer land to a beneficiary but failed to complete the paperwork. If the beneficiary has been in possession and the transfer is essential to establish their rightful ownership, the law may presume that the transfer occurred. This prevents unfair technical obstacles from interfering with rightful ownership.
7. Presumption of the Regular Performance of Official Duty:
Per Section 37, it is provided that:
(1) It is presumed that official duty has been regularly performed.
(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.
In the Supreme Court case of Brobbey and Others v Kwaku (1995-96) 1 GLR 125 , Aikins JSC, in speaking on Section 37, stated that:
This states the common law presumption of omnia praesumuntur rite esse acta [meaning All things are presumed to be done in proper and regular form; all things are presumed to have been rightly and regularly done] and the Commentary on the Evidence Decree confirms at page 31 that it is generally applied to judicial and governmental acts, but may also be applied to duties required to be performed by law.
It emphasises that the presumption does not apply in the case of arrests made without a warrant, for example, because there is a presumption that such arrests are unlawful, that is the burden of persuasion is on the officer or prosecution to justify the arrest. The section therefore follows the common law in this regard.
This position was cited with approval in [2020 Election Petition Judgment] John Dramani Mahama v. Electoral Commission And Nana Addo Dankwa Akufo-Addo (supra) .
8. Presumption that People Intend the Ordinary Consequences of their Voluntary Acts:
In Section 38, it is provided that:
(1) A person is presumed to intend the ordinary consequences of his voluntary act.
(2) This section is not applicable in a criminal action to establish specific intent where specific intent is an element of the crime charged.
9: Presumption that Courts or Judges Have Acted in the Lawful Exercise of its Jurisdiction:
In Section 39, it is provided that:
(1) Any court of Ghana, or any court of general jurisdiction in any other state or sub-division of a state, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction.
(2) This section 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.
In the Commentary on the Evidence Decree, 1975 NRCD 323, the following explanation is provided on the meaning and coverage of Section 39:
Section 39 – This section states the common law corollary to the presumption of regularity. It presumes the regularity of the exercise of judicial jurisdiction when a court action is under collateral attack. In other words, the presumption does not apply if the challenge is raised as an issue when the judgment is on appeal or under review or the subject of supervisory proceedings.
10. Presumption that Foreign Law is the Same as the Law of Ghana:
In Section 40, it is provided that the law of a foreign state is presumed to be the same as the law of Ghana.
11. Presumption of Continuation:
In Section 41, it is provided that:
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 usually cease to exist is presumed to be still in existence.
For example, if it is shown that a piece of land was registered in someone's name last week and no record of transfer or sale has been produced, the law presumes that the person still owns the land, as land ownership does not ordinarily change within a short period without some formal action.
12. Presumption of Full Age and Sound Body:
In Section 42, it is provided that “a person is presumed to be of full age and of sound body.”
13. Presumption of Ownership Based on Possession:
In Section 48, it is provided that:
(1) The things which a person possesses are presumed to be owned by him.
(2) A person who exercises acts of ownership over property is presumed to be the owner of it.
14. Presumption of the Authenticity of Public Publications, Law Reports, Statutes:
In Section 151, it is provided that:
Books, pamphlets, gazettes or other publications purporting to be printed or published by a public entity are presumed to be authentic.
In Section 152, it is provided that:
Printed and published books of statutes or reports of the decisions of the courts of any nation and books proved to be commonly admitted in those courts as evidence of the law of that nation are presumed to be authentic.
Conclusion:
This note discussed the meaning of rebuttable presumptions, how they can be created, effect of failing to adduce evidence to rebut a presumed fact, and some examples of rebuttable presumptions.