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HOW COURT ARRIVES IN DETERMINING PREPONDERANCE OF EVIDENCE

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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

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ACTIO POPULARIS – HE WHO CHALLENGES MUST PROOF

Para. 25: “Therefore, where a party asserts a fact, he must produce evidence to substantiate the claim. It is not sufficient simply to challenge a law or State policy or practice in the abstract (actio popularis) without demonstrating how the alleged victim is individually affected. The complaint must be sufficiently substantiated. See Aumeeruddy-Cziffra and Others v. Mauritius (Communication No. R.9/35) 9 April 1981 decided in the African Commission on Human and People’s Rights.”

— Osaghae v Nigeria (2017) – ECW/CCJ/JUD/03/17

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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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PROOF OF DELIVERY OF DOCUMENT

Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 142. “Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.”

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WHERE THE SCALES ARE EVENLY WEIGHTED, BURDEN IS NOT DISCHARGED

It is also the established law that in a declaration of title, the burden or proof on the plaintiff is not discharged even where the scales are evenly weighted between the parties. See Odiete and Ors. v. Okotie and Ors. (1975) 1 NMLR 178 applied in Saka Owoade and Anor. v. John Abodunrin Onitola and Ors. (1988) 2 NWLR (Pt. 77) 413.

— Dike & Ors. V. Francis Okoloedo & Ors. (SC.116/1993, 15 Jul 1999)

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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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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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