The law is elementary that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
– Niki Tobi, JSC. Calabar CC v. Ekpo (2008)
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In determining either the preponderance of evidence or the balance of probabilities in the evidence, the court is involved in some weighing by resorting to the imaginary scale of justice in its evaluation exercise. Accordingly, proof by preponderance of evidence simply means that the evidence adduced by the plaintiff,(in our context the petitioner or appellant) should be put on one side of the imaginary scale mentioned in Mogaji v Odofin (1978) 3 SC 91 and the evidence adduced by the defendant (in our context, all the respondents) put on the other side of that scale and weighed together to see which side preponderates. In arriving at the preponderance of evidence, the Court of Appeal in its capacity as a court (tribunal) of first instance need not search for an exact mathematics figure in the imaginary “weighing machine” because there is in fact and in law no such machine and therefore no figures, talk less of mathematical exactness. On the contrary, the Court of Appeal, in its capacity as a court (tribunal) of first instance, should rely on its judicial and judicious mind to arrive at when the imaginary scale preponderates; and that is the standard, though oscillatory and at times nervous. I will be guided by the above principles on burden and standard of proof when considering Issues 2 and 4 of the appellant’s Brief which I will take anon.
— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008
Para. 68: “It is trite law that when a document is in the custody of the adverse party, the burden of proof of same shifts from the claimant to the custodian of the document. It is common knowledge that information about pension benefits especially the matrix of calculation is domiciled with the employer. The employee, more often than not upon retirement is presented with the total entitlement due same having been calculated by the employer. Thus when the records and the metric of calculation are in the custody of the employer, as in this instant case, the Respondent, the onus lies on them to provide.”
— Boley v Liberia & Ors. (2019) – ECW/CCJ/JUD/24/19
The law is also trite that the three methods of evidential proof as held by the Supreme Court Per, Ogunbiyi, J.S.C in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit: a. Direct evidence of witnesses; b. Circumstantial evidence; and c. By reliance on a confessional statement of an accused person voluntarily made.
– Adamu Jauro, JSC. Enabeli v. State (2021)
It is settled law that where the party offers no evidence in defence of the case of the plaintiff, the burden placed on the plaintiff is minimal, since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case. – Onnoghen JSC. Chami v. UBA (2010)
There is no doubt that in civil matters, the onus of proof shifts as the evidence preponderates. I need to say here that a Plaintiff, as the Respondent herein, must succeed on the strength of his own case and not on the weakness of the defence … The rule however changes if the Plaintiff finds in the evidence of the defence facts which strengthen his own case. Where the exception has not happened, the Plaintiff’s case must fail. See Ezekiel Oyinloye v. Babalola Esinkin & Ors. (1999) 5 SCNJ Pg. 278 at 288; Akande v. Adisa & Anor. (2012) 15 NWLR Pt. 1324 Pg. 538 SC; Omoregie v. Aiwerioghene (1994) 1 NWLR Pt. 318 at 488.
— H.M. Ogunwumiju, JCA. First Bank v Oronsaye (2019) – CA/B/335/13
In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof. See Elemo & Ors. v. Omolade & Ors (1968) NMLR 359. See also section 137(1) of the Evidence Act.
— O. Ogwuegbu, JSC. Uzokwe v. Densy Industries Nig. Ltd. & Anor. (2002) – SC.134/1999
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