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BURDEN OF PROOF LIES ON THE PLAINTIFF

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Dictum

The general rule in civil cases is that the burden of proof rests upon the party who substantially assert the affirmative before the evidence is gone into. Therefore, the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side…Where the plaintiff as in this case, pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstances of its occurrence, which give rise to the breach of the duty of care owed the plaintiff. And that it is only after this, that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.

– Shuaibu JCA. Diamond Bank v. Mocok (2019)

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PLAINTIFF HAS ONUS TO PROVE LEGAL CAPACITY WHERE CHALLENGED

I think the learned Justice, with respect, was in error when he said that “the onus is on a plaintiff to aver its legal capacity.” I think the correct statement of the law is that where the legal capacity of the plaintiff is challenged by the defendant, the onus is on the former to prove his legal capacity. I believe it is this error that led their Lordships astray. This burden to prove a matter can only be discharged by leading evidence, oral or documentary, in proof of same. The plaintiff was not given the opportunity to do so in this case, before her action was struck out. I think both courts below are wrong in the course taken by them.

— Ogundare, JSC. Bank of Baroda v. Iyalabani (2002) – SC.59/1998

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PLAINTIFF MUST RELY ON HIS OWN STRENGTH, NOT WEAKNESS OF THE DEFENCE

It is settled that in a claim for declaratory reliefs, the plaintiff must prove his entitlement thereto, by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence. Indeed, a declaratory relief will not be granted on the basis of an admission by the adverse party. See MOHAMMED V WAMMAKO (2018)7 NWLR (pt 1619) 573 at 591 – 592. — M.L. Shuaibu, JCA. Ekpo v GTB (2018) – CA/C/324/2013

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CIVIL SUIT IS DECIDED ON THE BALANCE OF PROBABILITIES

Now, civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts and the onus of adducing further evidence is on the person who will fail if such evidence is not adduced. See Osuji v Eke [2009] 16 NWLR (Pt 1166) 81.

— O.A. Obaseki-Osaghea, J. Akinsete v Westerngeco (2014) – NICN/LA/516/2012

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BURDEN OF PROOF IN CIVIL CASES

It is to be noted that in civil cases, the proper question for the Court to determine in order to effectually and completely determine the case between the parties is: Whether the Plaintiff has proved his case upon preponderance of evidence as required by law? This question is in line with our law, that the onus is on the Plaintiff to prove his case by preponderance of evidence and the burden of proof does not shift. There is a plethora of judicial authorities on this. Let me quote extensively what the Court said in Odum v. Chibueze (2016) All FWLR (Pt. 848) 714 at 742 743 to wit: “Now, one of the most firmly established principle of legal adjudication is that in a civil suit, the person who asserts a fact has the primary burden of proving the assertion. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, (2005) All FWLR (Pt. 246) 1231; Olaleye v. Trustees of ECWA (2011) All FWLR (Pt. 565) 297, (2011) 2 NWLR (Pt. 1230) 1; Imonikhe v. Unity Bank – Plc. (2011) All FWLR (Pt. 586) 423; (2011) NWLR (Pt. 1262) 624. In other words, the onus of proof of an issue rests upon the party whether claimant or Defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleading place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. The true meaning of the rule is that where a given allegation whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him Elemo v. Omolade (1968) NMLR 359; Fashanu v. Adekoya (1974) 6 SC 83; Atane v. Amu (1974) 10 SC 237; Kate Enterprises Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt. 5) 116 and Ogboru v. Uduaghan (2011) All FWLR (Pt. 577) 650, (2011) 2 NWLR (Pt. 1232) 538.”

— I.E. Ekwo J. Mbah v. NYSC, Ibrahim Muhammad (FHC/ABJ/CS/611/2023, 10-NOV-2023)

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HE WHO ASSERTS MUST PROVE

The burden of proving a particular fact is on the party who asserts it. See Okubule v. Oyagbola, (1990) 4 N.W.L.R. (Pt.147) 723; and Ike v. Ugboaja (1993) 6 N.W.L.R. (Pt.301) 539. That is the position in civil cases but the onus does not remain static. It shifts from side to side, where necessary, and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced.

– Adio, JSC. UBN v. Ozigi (1994)

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WAYS OF PROVING THE COMMISSION OF A CRIME

There are 3 ways to prove the commission of a crime as enunciated in the case of Lucky vs State (2021) LPELR 53541 (CA) page 88, which are:
a. The confessional statement of the accused person; b. Through circumstantial evidence; c. Evidence of an eye witness to the crime.

– PER I.S. BDLIYA, J.C.A. Barma v. State (2022) – CA/G/119c/2021

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