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DOCUMENT BEING ALLEGED MUST BE PROVED

Dictum

While oral agreement has the legal capacity to re-order or change the contents of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. See sections 135, 136 and 139 of the Evidence Act.

– Tobi JSC. Odutola v. Papersack (2007)

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THE TWO FACETS OF BURDEN OF PROOF

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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IMPORTANT POINTS ON BURDEN OF PROOF

In the case of Lewis & Peat (N.R.I.) Ltd. v Akhimien (1976) 10 NSCC 360 at 365. They are: (1) “Where there is no issue the question of burden of proof does not arise. (2) On the burden of proof on the pleadings: the rule is that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmative of the issue in Joseph Constantine Steamship Line v. Imperial Smelting Corporation (1942) AC 154 at 174. (3) On the burden of adducing evidence: Used in this sense the burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all or no more evidence, as the case may be, were given, on either side. In other words, it again rests before evidence is taken by the court of trial on the party who asserts the affirmative of the issue …”

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WHEN PLAINTIFF’S BURDEN IS MINIMAL

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)

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HOW COURT ARRIVES IN DETERMINING PREPONDERANCE OF EVIDENCE

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

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FACTS SHOULD NOT BE IMPORTED TO A DOCUMENT

In the construction of the contents of a document a court is bound to look at the words used therein and not import facts not stated in the document except where reference is made to another document. – Nwodo, JCA. OLAM v. Intercontinental Bank (2009)

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THE PERSON WHO WOULD LOSE HAS THE GENERAL BURDEN

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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