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GENERALLY IN LAND CASES, THE ONUS OF PROOF LIES ON THE PLAINTIFF

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The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties, and to discover where the burden lies in any given case, the court has bounden duty to critically look at the pleadings. The general rule is that, it is the plaintiff who seeks a decree of declaration of title that has the onus of proof: Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Kwamina Kuma v. Kofi Kuma (1936) 5 WACA 4; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295; Anachuma Nwakaf or and Ors Nwankwo Udegbe and Ors (1963) 1 All NLR 107; Nwankwo Udegbe and Ors v. Anachuma Nwokafor and Ors (P.C) (1963) 1 All NLR 417; Mogaji and Ors v. Odofin and Anor (1978) 4 SC 91; Bello v. Eweka (198 1) 1 SC 101 at 117-120. The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter, the defendant proffers his evidence in defence.

— M. Peter-Odili JSC. Nnaemeka Okoye & Ors. v. Ogugua Nwankwo (SC. 234/2004, 27 Jun 2014)

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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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FACTS IN DEFENSE CASE MAY STRENGTHEN CLAIMANT’S CASE, AND MAY BE RELIEF UPON

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

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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 a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case, the second one is called evidential burden Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 122, (2005) All FWLR (Pt. 248) 1667; Ogule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) 234 … While the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly accordingly, as one scale of evidence or the other preponderates.

— M. Peter-Odili JSC. Nnaemeka Okoye & Ors. v. Ogugua Nwankwo (SC. 234/2004, 27 Jun 2014)

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BURDEN OF PROOF LIES ON THE PROSECUTION AND IT NEVER SHIFTS

In Alonge v. I.G.P. (1959) 4 FSC 203 at 204; (1959) SCNLR 516, Ademola, CJF stressing the burden of proof on the prosecution in a criminal case observed: “Now, the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it and this is the law as laid down in section 137 of the Evidence Ordinance. Cap. 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal”

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BURDEN OF PROOF LIES ON THE PLAINTIFF

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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APPELLANT MUST SUCCEED ON ITS OWN BRIEF – WHERE RESPONDENT FILED NO BRIEF

An issue may then be raised as to whether the non-filing of the Respondent’s Brief of Argument will make the Appellants appeal to succeed. All the some, the non-filing of the Brief of Argument in respect of this appeal by the Respondent to the issues ventilated by the Appellant in his Brief of Argument does not mean that it is a work-over for the Appellant. The Appellant still has to justify the appeal against the judgment or decision of the Learned trial Judge based on the strength of his case as borne and by the Records of appeal in this matter. The failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his own case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant must succeed or fall on his own Brief.

– P.O. Elechi, JCA. Emori v. Egwu (2016) – CA/C/259/2013

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