Judicial Notice

Judicial

notice refers to facts which a judge may be called upon to receive and act upon,
either from his general knowledge of them or from inquiries to be made by
himself, for his own information from sources to which it is proper for him to
refer. It also refers to such facts which a court mandatorily takes as proved by
operation of law. See Section 122 (2) of Evidence Act. Amaechi v. INEC & 2
ORS. (2008) 1 SC PT 1 36@175-177, Amusa v. State 2003 4 NWLR pt 811
595@607.

The law preserves the distinction between facts of which a court shall
take judicial notice when called upon by a party to do so because these facts
which in exercise of its powers it may refuse to do so unless and until such
person produces the necessary material, or it has informed itself properly to
enable it to do so. See A-G Anambra State v Okeke (2002) FWLR (Pt 112),
175. See also, Section 122 (4) and Osafile v Odi (1990) 3 NWLR (Pt 137)
130.

Black’s Law Dictionary also defines judicial notice which is also termed,
Judicial Cognizance, as connoting a court’s acceptance for purposes of
convenience and without requiring a party’s proof of a well known and
indisputable fact; the court’s power to accept such a fact. Judicial Notice is the
acceptance of the truth, or the establishment of a fact or legal point. It means the
court accepting such facts or legal point without having either or any of the
parties adducing evidence in proof of it. Under Section 122 (1) of the Evidence
Act, it is clearly provided that no fact of which the court shall take judicial
notice under this section needs to be proved. See Adegboyega v Igbinosun
(1999) NMLR 9.

The court may take judicial notice of any fact, in criminal or civil
proceedings. Where the court needs to take judicial notice of a fact, evidence
need not be provided. On the other hand, the court cannot take judicial notice
of a fact that needs to be proved. See Daniel Holdings Ltd v UBA Plc.
(2005) 13 NWLR (PT 943) 533. See also, Okoro v Okoro (2010) 2 NWLR
(PT 1177) 198 @ 212; Moses v State (2003) FWLR (Pt 141) pp 1969,
Aromolaran v Oladele (1990) 7 NWLR (pt 162) pp 359.

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 The courts can take judicial notice of facts in 2 circumstances;

1. The courts can take judicial notice of facts exproprio motu (on its own
accord). See the Supreme Court in Victino Fixed Odds Ltd v Ojo (2010) 8
NWLR (Pt 1197); 486 @ 505. In that case, it was also decided that a judge is
only at liberty to raise suo motu matters it could take judicial notice of under the
provisions of the Evidence Act.
2. The court can take judicial notice of a fact after proper foundation is laid
by the provisions of Section 122 (4), if the court is called upon by any person to
take judicial notice of any fact. Note that it may refuse to do so unless and until
such a person produces any such book or document as it may consider
necessary to enable it to do so. See Osafile v Odi (1990) 5 SCNJ 118.

NOTE: Section 122 (4) is in pari material with Section 74 (3) of the Evidence
Act of 2004 which is now repealed.

For the purpose of this study, it is important to also note the following.
The court shall take judicial notice of the following;

i. Any or all of the 13 facts expressly listed in Sections 122 (2) (a-m)
ii. Facts of common knowledge in the locality. Section 124 (1) (a)-
Common knowledge in the locality in which the proceeding is being held,
or generally; or
iii. Facts which it can verify b y referring to an authoritative document or
books which it is proper for court to refer. Section 124 (1) (b).

SPECIFIC FACTS WHICH THE COURT SHALL TAKE JUDICIAL

NOTICE OF

Pursuant to Section 122 (2), the court is mandatorily required to

judicially notice the following facts;

a. All laws or enactments and any subsidiary legislation made under them
having the force of law now or previously in force in any part of Nigeria. See
Faroly Establishment v NNPC (2011) 5 NWLR (Pt 1241) pp 457 @ 475. In
this case, the court held that the court is under a duty to take judicial notice of
all laws or enactment.
Also, see the case of Global Soap & Detergent Industry Ltd v NAFDAC
(2012) 5 NWLR (Pt. 1294) 511 and the case of Karimu v Lagos State
Government (2012) 5 NWLR (Pt 1294) @ 620, where the Court of Appeal

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took judicial notice of the gazettes containing Legal Notice No. 36 of the Lagos
State Government.
b. All public acts or laws passed or to be passed by the National Assembly
as the case may be and all subsidiary legislation made under them, and all local
and personal acts or laws directed by the National Assembly or a State House of
Assembly to be judicially noticed.
c. The course of proceedings of National Assembly and of the Houses of
Assembly of the States of Nigeria.
d. The assumption of office of the President, a state Governor or Chairman
of a Local Government Council, and of any seal used by any such public
officer.
e. The seals of all of the courts of Nigeria, the seals of notaries public, and
all seals which any person is authorized to use by any Act of the National
Assembly or other enactment having the force of law in Nigeria.
f. The existence, title and national flag of every state or sovereign
recognized by Nigeria.
g. The divisions of time, the geographical divisions of the world, the public
festivals, fasts and holidays notified in the Federal Gazette or fueled by an Act.
See the case of Auto Import Export v Adebayo (2003) FWLR (pt 140) @
1686, where the court relied on the provisions of Section 74 (1)(g) of the
Evidence Act 2004 which is similar to Section 122 (2) (g) to take judicial
notice of 1st of October as a public holiday.
h. The territories within the commonwealth
i. The commencement, continuance and termination of hostilities between
the Federal Republic of Nigeria and any other State or body of persons.
j. The names of the members and the officers of the courts and of their
deputies and subordinate officers and assistants and also of all officers acting in
execution of its processes, and of all legal practitioners and other persons
authorized by law to appear or act before it.
k. The rule of the road, at land or at sea.
l. All general customs, rules and principles which have been held to have
the force of law in any court established by or under the constitution and all
customs which have been duly certified to and recorded in any such court;
m. The course of proceedings and all rules of practice in force in any court
established under the constitution. In the case of Clemco Industries Ltd v The
Owners of M V RAB (2002) FWLR (pt122) 39. The Court of Appeal relied
on Section 74 (1) (m) of the Evidence Act of 2004, now repealed, to hold that

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it was not out of place for a superior court of record to take judicial notice of all
applications before it.

DISSIMILARITIES

The dissimilarities between Section 74 (1) of the Evidence Act 2004, now
repealed and Section 122 (2) of Evidence Act 2011 are as follows;

1. Under Section 122 (2) (b) of the Act, the court shall also take judicial
notice of all public acts or laws passed or to be passed by the National
Assembly of a State House of Assembly and all subsidiary legislations made
under them and all local and personal acts or laws directed by the National
Assembly to be judicially noticed. This was previously limited to the National
Assembly.
2. Under Section 122 (2) (d) of the Act, the courts hall take judicial notice
of not only the assumption of office of a president but also that of a State
governor or Chairman of a local government council and of any seal used by
such public officer. This was previously limited to the President.
3. Under Section 122 (2) (e) of the Act, the court is to take judicial notice
of all the seals of all the courts in Nigeria. This was previously worded to
include all seals of which English Courts took notice.
4. Under Section 122(2)(h) of the Act, there is no legal allowance for
judicial notice of territories under the dominion of the British Crown as was
expressly provided for in Section 74 (1)(h) of the repealed 2004 Evidence
Act.
5. In Section 122(2) (l) of the 2011 Evidence Act, the court is no longer
expressly mandated to take judicial notice of all customs, rules and principles
which have been held to have the force of law in or by any superior courts of
law or equity in England as was hitherto the case in Section 74 (1) (l) of the
now repealed 2004 Act. Thus, English general customs, rules and principles
and indeed those of other jurisdictions will now require to be specifically
pleaded and proved by the person relying on them in view of the changes in
Section 122 (2) (l) of this Act.
Note: The difference between the Two Acts; where courts in England are not
recognized automatically but courts in Nigeria are.
6. Under the new Evidence Act, Section 122(2)(m), the court shall take
judicial notice of the course of proceeding and all rules of practice in force any
court established by or under the Constitution only. The practice before now
was that vide Section 74(1)(m) of the repealed Act, Judicial notice could be
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accorded to the course of proceedings and all rules of practice in force in the
high court of justice in England.

The obligation of a court of law to take judicial notice of the facts listed in
Section 122 of the Evidence Act is mandatory or strict. Courts are under no
obligation to all for evidence of their content and or address of counsel before
doing so. See BON Ltd v Babatunde (2002) FWLR (Pt 119) @1452 and the
Supreme Court decision in Victino Fixed Odds Ltd v Ojo (supra). In Joseph v
The State (2011) 16 NWLR (Pt 1273) @pg 226; the Supreme Court upheld the
decision of a learned trial judge, who took judicial notice that a particular
highway, on which accident had occurred was a Federal highway under Section
74 of the repealed Evidence Act now Section 122 of the Evidence Act 2011
by virtue of legal notice No. 60 of 1977.

JUDICIAL NOTICE OF FACTS CAPABLE OF VERIFICATION AND

FACTS OF COMMON KNOWLEDGE

Apart from the 13 facts specifically listed in Section 122 (2) of the Evidence
Act as facts which the courts must take judicial notice of, there is provision in
the Evidence Act that the courts can take judicial notice of other facts of
common knowledge or notorious facts, this shows that the list in Section 122
(2) is not exhaustive. Section 124 covers notorious facts. In Section 124 (1), the
Act provides that “Proof shall not be required of a fact, the knowledge of which
is not reasonably open to question and which is;

a) Common knowledge in the locality in which the proceeding is being held;

or generally
b) Capable of verification by reference to a document. The authority of
which cannot reasonably be questioned.”

See the cases of Auto Impex v Adebayo (2005) 19 NWLR (Pt. 959) 44,
Yinusa Bakare v Rasaki Ishola (1959) 3 WRNLR 106. The court enjoys
wide powers in this regard vide Section 124 (2) which provides that

“The courts may acquire in any manner it deems fit, knowledge of a fact which
subsection 1 of this section refers and shall take such knowledge into account.”

However it is important to note that in the exercise of the wide powers

conferred by the court, vide Sections 124 (1) and (2), it must give parties to the
proceedings, opportunity to make submissions and make reference to relevant
information as may be related to the acquisition and use of such knowledge so
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as to ensure that no party is unfairly prejudiced. Before now courts had actually
taken judicial notice of quite a number of notorious facts.

As seen in the case of Kopec Construction Ltd v Ekisola (2010) 3

NWLR (Pt 1182) 618 @655, where the Supreme Court took judicial notice of
the fact that Nigeria is blessed with a diversity of tribes, customs, languages and
legal cultures and as such it is not that easy for one to dismiss by mere wave of
hand the preposition that under some native laws and customs, the minimum
requirement for a transaction to be valid is that there must be at least 2
witnesses.

In Ebe v Commissioner of Police (2008) 1 SCNJ 462, the Supreme

Court held that courts ought to take judicial notice of the fact that the
commissioner of police could possibly be involved in many court cases at the
same time. It would therefore be impossible for him to be physically present in
all the courts at the same time and at the time to be able carry on his duties as
commissioner of police, apart from the prosecution of cases in his official
capacity; the law does not compel the impossible. The Latin expression for this
is Impotentia excusat legem. Therefore the insistence on the personal

appearance of the COP, who was the appellant before the lower court, was
absolutely wrong because a counsel was regularly appearing for the appellant.

WHEN WILL THE COURT REFUSE TO TAKE JUDICIAL NOTICE

In appropriate scenarios, the courts have refused to take judicial notice of

facts that are not notorious, it is the law that courts cannot take judicial notice of
facts which need to be proved. In Okoro v Okoro (2010) 2 NWLR (PT. 1117)
198; the Court of Appeal relied on the decision in Daniel Holdings Ltd v UBA
Plc (2005) 13 NWLR pt 943 @533 to hold that “Bank rate, issued by the
CBN in occasional circulars is not a matter to take judicial notice of under the
Evidence Act as there must be evidence on it”

It further held that:

“Indeed, it would be doing injustice to adjudicative discretion, to accord

judicial notice to circulars dished out from the CBN and that would amount to
mortgaging our fragile judicial independence.”

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It is important to note that in view of the provisions of Section 124 of the
Evidence Act, the courts will now take judicial cognizance of more facts that
ever before, as they have been expressly authorized to do so- Section 124 (2).

According to Section 124,

(1) Proof shall not be required of a fact the knowledge of which is not
reasonably open to question and which is-
a) Common knowledge in the locality in which the locality in which the
proceeding is being held, or generally; or
b) Capable of verification by reference to a document the authority of which
cannot reasonably be questioned.
(2) The court may acquire in any manner it deems fit, knowledge of a fact to
which subsection 1 of this section refers, and shall take such knowledge into
account.
(3) The court shall give to a party to any proceeding such opportunity to
make submission and to refer to a relevant information, in relation to the
acquiring or taking into account of suck knowledge, as is necessary to ensure
that the party is not unfairly prejudiced.

Section 124 (3) comes in to reduce the effect of Section 124 (2). As a
consequence of Section 124, archaic, outdated and anachronistic decisions that
were reached in the past, that do not reflect current realities, legal or factual are
therefore overdue to be overruled.

See for example, the curios case of Areh v The Police (1959) WNLR
230 where the court refused to take judicial notice of the fact that a state owned
General hospital is a public place. Also, in Mukete v NBC (1961) 1 ANLR
482; the court refused to take judicial notice of the fact that broadcasts from a
radio station are made from written scripts.

DISCRETION OF THE COURT TO SEEK ASSISSTANCE AND

OBLIGATION ON THE PARTY TO ASSIST THE COURT

By virtue of Section 122 (3) of the Act, it is enacted that in all cases in
subsection 1 of this section and also on all matters of public history, literature,
science or Art, the court may resort for its aid to appropriate books or
documents of reference. It follows that, for a court to take judicial notice of
facts suo motu, the court must be up to date on latest developments in the
subject matter under consideration.

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 In Orugbo v Una (1991) 1 NWLR (Pt 167) @ 369; Section 74 (2) of
the now repealed Evidence Act 2004 which was the Evidence Act 1990 and
which is in pari materia with Section 122 (3) of Evidence Act 2011 was
interpreted by the Supreme Court as empowering a court to place reliance on
legal and other written material not relied upon by counsel on the other side. For
a court to do so suo motu, it is not an exhibition of bias o the part of the judge,
this is because, a judge is not under any obligation to give notice to the parties
that he intended to use the material.

See the case of Chief Omini v. Chief Eno (2010) 8 NWLR (Pt 1197);
453 @ 467 – 468, where the Court of Appeal held that the court has power to
take judicial notice of all statutes and care laws in Nigeria, asides from the ones
cited by counsel and apply them to its judgments.

Finally, a court called upon by any person to take judicial notice of any fact may
refuse to do so unless and until such a person produces any book or document
as it may consider necessary to enable it to do so. See AG Anambra State v
Okeke (2002) FWLR (Pt 112) @175; Osafile v Odi (1990) 5 SCNJ 118,
Okoro v Okoro (2010) 2 NWLR (PT. 1117) 198 and Daniel Holdings Ltd v
UBA Plc (2005) 13 NWLR (PT. 943) 533 where the courts delivered as
interpretation of the statutory provisions in Section 74 (3) of the repealed
Evidence Act which is similar to Section 122 (4) of the Evidence Act 2011.

FORMAL ADMISSIONS

A party may admit a fact for purposes of the trial, thus saving his adversary the
trouble and expense of proving them. In a civil case, he may be induced to do so
by the possibility that he will be made to bear the cost of proving such facts, if
he does not admit them.

Formal admsssions are only binding for the purposes of the case which
they are made. See Sani v Lemonu (1977) 2 SC 115-116. Formal admissions
must be distinguished from from informal dmissions, which are items of
evidence consisting of a statement oral of documentary, which suggests any
interference as to any fact in issue or relevant fact and which is made by certain
persons in certain circumstances.

When both parties have come to an agreement about certain matters in

their pleadings, such matters should not be proved further (need not be) and
courts should accept such agreed facts as established. See the cases of

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Okparaeke & Ors v Obidike Egbuonor & Ors (1941) 7 WACA Pg 53;
Bendel Pilgrims Welfare Board v Iruwo (1995) 1 NWLR.

A legal practitioner has an implied authority to make admissions on behalf of

his client in civil cases. See the case of Marine & General Assurance Co Ltd
v Antoinne Resek & Anor (unreported suit) FCA/L/92/83, Judgment
delivered on 14/3/84.

Section 21 (1)-Statements made by a party to the proceeding or by an agent to

any such party, whom the court regards, in the circumstances of the case, as
expressly or impliedly authorized by him to make them, are admissions.

Note however, that pleadings are not receivable as evidence against a

party in proof of the truth of the fact there in states, unless verified by oath or
signed by him or otherwise adopted by him. Ayeni v Sowemimo (1982) 5 FC
60.

Section 123-No fact needs to be proved in any civil proceeding which the
parties to the proceeding or their agents agree to admit at the hearing, or which,
before the hearing, they agree to admit any writing under their hands, or which
by any rule or pleading in force at the time they are deemed to have admitted by
their pleadings; Provided that the court may, in its discretion, require the facts
admitted to be proved otherwise than by such admissions.

Note that Section 123 does not apply to criminal cases and proceedings.

Formal admissions are binding and cannot be varied. Section 20 defines

admissions.

Informal admissions are ones which can be denied mainly because it was not
made directly to the court.

NOTE: for the distinction between formal and informal admissions, Nwanko v.
Nwanko 5 SCNJ @ Page 44

Formal admissions only apply in civil proceedings while informal admissions

apply in both civil and criminal proceedings.

In a criminal trial, there is proof of evidence which could also be a form of

frontloading.

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Formal admissions even though they are contained in pleadings, they can also
be constituted by duly executed agreement. Kwara State Ministry of Health v.
Mallam Issah Electrical Enterprises (2012) 3 NWLR Pt. 1287 @ 258

Does the fact that an admission has been made mean that the court would
overlook all other evidences and facts? It is the duty of the court to look into
all evidences and facts.

Note that the fact that an admission has been made does not preclude the court
from looking into other collateral evidence or surrounding circumstances
because it is the duty of the court to take into account all the collateral
evidences in which the eveidence was made and the collateral circumstances
and the weight attaché to it, as an admission does not per say amount to
conclusive proof. Kaydee Ventures Ltd. V. Hon. Minister of FCT & 2 ors.
(2010) 2 SCNJ 276 Pg 301 In cases of ownership of land, the onus is on the
plaintiff to prove his ownership.

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 PRESUMPTIONS

The Evidence Act contains no direct definition of the term “presumption”. The
definition or meaning of presumption must be read from the provisions of
Section 145 (2) of the Evidence Act which provides that:

“Whenever it is provided by this Act that the court may presume a fact, it may
regard such fact as proved unless and until it is disproved, or may call for proof
of it.”

From the provision of 145 (2), an inference can be drawn that presumption
means that, courts must draw certain conclusions in certain circumstances,
unless the contrary is proved. Therefore, where no proof to the contrary is
demonstrated in circumstances provided for in the Evidence Act, the court must
take certain facts as proven.

Presumptions can obviate the need for proof, and make the legal process easier
where they are irrebuttable. Examples of rebuttable presumptions include: the
presumption of death, legitimacy, and marriage. They are discussed hereunder.

From the provisions of Section 145 (1), it is clear that it is not in all cases that
the court shall draw conclusive proof in the absence of evidence to the contrary.
This is because Section 145 (1) of the Evidence Act allows the court to exercise
a discretion to call for proof of certain evidence or facts, which it had a choice
to draw a presumption upon.

PRESUMPTION OF FACT

A presumption of fact is defined in AGUDA to mean the logical

inference of the existence of other facts, i.e. if certain facts exist, certain
deductions must be made from these facts. ( they are actually aspects of logical
reasoning) Section 167 of the Evidence Act 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:

1. Section 167 (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 to be stolen, unless he
can account for his possession; See the case of Eze v State (1992) 7 NWLR (Pt
251). This is known as the Doctrine of Recent Possession. See Udoh v State

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 (1993) 5 NWLR (Pt 295) @ p 556, Nwachukwu v State (1985) 3 NWLR (Pt
11) @ p 218.
Note that for Section 167 (a) to apply, there must be evidence that;
i. The accused person was found in possession of some goods.
ii. That such goods were ‘RECENTLY’ stolen
iii. That the accused could not offer any satisfactory explanation as to why he
was in possession of the goods.

But if the accused was found with the goods, after sufficient effluxion of time,
he may be guilty of receiving but not stealing. R v Palmer Iyakwe (1944)
WACA @ 180.

2. Section 167 (b)- A thing or state of things which have 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.
There is no case law to this effect but it can be applied in a case of a woman
who is two months pregnant in April, it is assumed she will still be pregnant in
August.
3. Section 167 (c)- The common course of business has been followed in
particular cases. See the case of Omoboriowo v Ajasin (1984) 1 SCNLR 108;
where in an election petition matter, authenticity of documents, tendered by the
party were considered. The Supreme Court, in considering the provisions of
Section 148(c) of the Repealed Evidence Act, now Section 167 (c) of the
2011 Evidence Act, held inter alia that:
“there is in law a rebuttable presumption that the result of any election
declared by the Returning Officer is correct and authentic, by virtue of Sections
155, 148 (c) and 149 (1) of the Repealed Evidence Act; (now sections 14, 167
(c) and 168 (1) of the Evidence Act 2011 respectively) and the burden is on the
person who denies the correctness and authenticity of the Returning Officer to
rebut the presumption. Where a denial is based on a mere complaint that the
petitioner scored the majority of lawful votes, the rebuttal needs only to be
proved within the balance of probabilities.”
See also, R v Ugwuoso & Anor (1942) 9 WACA @ 73, Ashard v COP (1963)
NNLR @ p 80.
WHAT DOES THIS PRESUMPTION MEAN?
If a particular procedure is always followed or adopted in a transaction, until the
contrary is proved, the court may presume that such procedure was followed in
a particular instance of that transaction.

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4. Section 167 (d)- Evidence which could be and is not produced would, if
produced, be unfavorable to the person who withholds it; and failure to call
evidence, creates a presumption that if the evidence was called it would have
been unfavorable to the party who with holds it. See Onwujuba v Obienu
(1991) 4 NWLR (Pt 183) @ 16; Mukete & Ors v NBC & Anor (1961) ANLR
@ 482.
In Onwujuba v Obienu , it was held that Section 148 (d) now Section 167 (d)
deals with failure to call evidence and not failure to call a particular witness.
See also Ndidi v. State (2005) 17 NWLR pt. 953 @17 pp@31
A party is not under any obligation to call a particular witness. See Bello v
Kassim (1969) NMLR p 148. Before this presumption can apply, it must be
shown that,
i. The evidence in question indeed exists.
ii. That the evidence could be produced by the application of human
diligence and knowledge
iii. That the evidence was not produced
iv. That the evidence was withheld by the party who could have produced it.

See: NSC Nig. Ltd v Innis-Palmer (1992) 1 NWLR (Pt 218) @ p422.

This presumption does not apply to accused persons in criminal cases. See
Mandilas & Karaberis v IGP (1958) 3 FSC p 20. In a criminal case, it does
not apply to the accused but in civil cases, it applies to both parties. See
Enahoro v Queen (1965) NMLR 267.

However, this presumption will apply to the prosecution in criminal cases where
it fails to call evidence. See Ogbodu v State (1987) 2 NWLR (Pt 54) @ p 20.
In Ndidi v State (2005) 17 NWLR (pt. 953) 17 @ 31, it was held that this
section applies to failure to call evidence and not failure to call a particular
witness.

5. Section 167 (e) - When a document creating an obligation is in the hands of the
Obligor, the obligation has been discharged. See Macaulay v Seriki (1925) 6
NLR 92.

SECTION 168 (1) - REGULARITY OF JUDICIAL OR OFFICIAL ACTS

This Section deals with the presumption called, The Presumption of Regularity
of Judicial or Official Acts. See Adamu v Akukalia (2007) 4 NWLR (Pt 1023)

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@ P 89, Oyakhire v State (2007) All FWLR (Pt 344) p 1, Udeh v State
(1999) 7 NWLR (Pt 609) p 1.

SECTION 165 – PRESUMPTION OF LEGITIMACY

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 the dissolution of the marriage, the mother
remaining unmarried, the Court shall presume that the person in question is the
legitimate child of that man.

NOTE: This applies to any valid marriage; even if there are multiple spouses.
The application of this presumption is not confined only to a monogamous
marriage. This presumption applies and can be raised in favour of all children
born within the continuance of any valid marriage or so soon thereafter, even if
such marriage was contracted under Islamic or Customary law. Note that it is
also a rebuttable presumption. See the case of Ogbole v Onah (1990) 1 NWLR
(Pt 126) p 357 @ 365.

SECTION 164 (1) - PRESUMPTION OF DEATH

The presumption of a person being dead under Section 164 (1) cannot come in
where a person seeking to rely upon the presumption is not one of those who
would have heard of him or who naturally could have been said to have heard
from him if he is alive.

This presumption arises from a great lapse of time because it is considered

extraordinary that the party in question being alive would not have been heard
of. In other words, it is presumed that his not being heard of had been
occasioned by his death. See the cases of Re: Rhodes (1887) 36 Ch. D 586 and
State v Okechukwu (1994) 9 NWLR (Pt 368) @ 273.

Note that there is no presumption as to the exact time when the person died and
the burden of proving his death at any particular time is upon the person
asserting it. See State v Okechukwu (supra) and Prudential Assurance
Company v Edmonds (1887) 2 AC 487 @ 513. Where the court stated:

“You cannot say that man has never been heard of, when in the first place, one
of his nearest relations actually comes and says she saw him alive and well
within 3 years. Still less can you say he has never been heard of, when every
member of the family states that they heard that which he stated.”

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OTHER PRESUMPTIONS

A presumption is raised in respect of a person who provides the money for the
purchase of goods that he is the owner of such goods. Such presumption of
ownership is consistent with human conduct. See Nsirim v Onuma
Construction Co Nig Ltd (2001) FWLR (Pt 4) @ 405. See generally: Ss.146-
163 for other presumptions.

PRESUMPTION OF INNOCENCE

There is a presumption that an accused person who denies the accusation is

innocent. This makes it the duty of an accuser to prove the guilt of the accused.
See: Woolmington v DPP (1935) AC 462 where Lord Sankey made his
famous golden thread statement:

“Throughout the web of English criminal Law one golden thread is

always to be seen that it is the duty of the prosecution to prove the prisoner’s
guilt subject to… the defence of insanity and subject also to any statutory
exception. If, at the end of and the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or the prisoner…
the prosecution has not made out the case and the prisoner is entitled to an
acquittal. No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained”

Apparently, Nigeria inherited that reasoning.

See also, the case of Kinnami v Bornu Native Authority (1957) NRNLR
page 40. Section 151 of the Evidence Act of 2011 places this burden of proof
of the accused on the prosecution and he must discharge this duty beyond
reasonable doubt. It is also sacrosanct to note that this presumption of innocence
is constitutionally provided for under Section 36 (8) of the 1999 Constitution
of the Federal Republic of Nigeria.

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