DASHE & ORS V DURVEN & ORS (2019) LPELR-48887 where my learned brother Ugo, JCA held: “While it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff’s case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: “Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms’ negative and affirmative’ are after all, relative, and not absolute.” ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola’s Law & Practice of Evidence in Nigeria, and Muraina & Ors v. Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence offact lies is on the party against whom judgment would be given if no evidence were produced on either side.”
— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)
