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THE TWO FACETS OF BURDEN OF PROOF

Dictum

The phrase burden of proof in civil cases has two distinct meanings which are; firstly, there is the pleadings, it is the legal burden of proof or the burden of establishing a case. Then secondly, there is the burden of proof in the sense of adducing of evidence, which is described as the evidential burden. The burden of proof in the first sense is always stable, but the burden of proof in the second sense, oscillates and constantly shifts like a chameleon changing its colour, according to how the evidence preponderates on the scale of justice. See the cases of ODUKWE VS OGUNBIYI (1998) LPELR- 2239 PAGE 1 AT 17; (1998) 8 NWLR (PT. 561) 339, ADIGHIJE VS NWAOGU (2010) 12 NWLR (PT. 1209) 119 AT 463 AND OKOYE VS NWANKWO (2014) LPELR-23172 PAGE 1 AT 21; (2014) 15 NWLR (PT. 1429) 93. It is settled law, that in civil cases, the legal burden of proof in the sense of establishing a case lies on the claimant/Petitioner as in this petition, being the person who would fail if no evidence was adduced at all. However, this is not invariably so, as there are circumstances in our adjectival law, when the burden of proof shifts to the defendant. /Respondent as in this petition. See the cases of OSAWARU VS EZEIRUKA (1978) 6-7 SC 135 AT 145, NWAVU VS OKOYE (2008) LPELR-2116 PAGE 1 AT 31, (2008) 18 NWLR (PT. 1118) 29 AND EZEMBA VS IBENEME (2004) LPELR-1205 PAGE 1 AT 20-21. AGAGU & ORS V MIMIKO 2009 LPELR 21149 (CA); BOLAJI & ANOR V INEC & ANOR 2019 LPELR 49447 (CA); SEN JULIUS ALIUCH & 1 OR V CHIEF MARTIN N. ELECHI 7 2 ORS 2012 LPELR -7823 SC PG 43 PARAS B-E.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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BURDEN OF PROOF WHERE PARTY ALLEGES THE NEGATIVE

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BURDEN OF PROOF IS ON PROSECUTION TO ESTABLISH MURDER

It is however settled law that it is the duty of the prosecution to establish or prove the charge/case against an accused person. In other words, it is the prosecution that bears the burden of proving the guilt of the accused person. For the court to come to the conclusion that the prosecution has discharged...

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THE TWO DISTINCT MEANINGS OF BURDEN OF PROOF

This position reminds one of the decision of this Court in Elemo v Omolade (1968) NMLR 359, where it was held that burden of proof has two distinct and frequently confusing meanings. It means: (a) the burden of proof as a matter of law and pleadings; the burden as it has been called of establishing...

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LEGAL BURDEN VS EVIDENTIAL BURDEN

Burden of proof is two-fold. The first is the abitity of a plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which...

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SECTION 131 EVIDENCE ACT, HE WHO ASSERT MUST PROVE

Section 131 of the Evidence Act states that any person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts shall assert and prove that those facts exist U. I. C. Ltd Vs T. A. Hammond Nigeria Ltd (1998) NWLR (Pt 565) 340, Okoye Vs...

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BURDEN OF PROOF ON HE WHO WILL FAIL

In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. – Niki Tobi, JSC. Calabar CC...

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