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LEGAL BURDEN VS EVIDENTIAL BURDEN

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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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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 a case whether by preponderance of evidence or beyond reasonable doubt; and (b) the burden of proof in the sense of introducing evidence. As regards the first meaning attached to the term, “burden of proof”, this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which later the pleader can frequently vary at will. A negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. While the burden in the first sense is always stable, the burden of proof in the second sense may shift consistently more as one scale of evidence or the other preponderates. In this sense, the onus probandi rests upon the parties who would fail if no evidence at all or no more evidence is gone into upon the party asserting the affirmative or the party against whom the tribunal at the time the question arises would give judgment if no further evidence were adduced. The test as to who is to begin is determined by asking how judgment would be entered on the pleadings if no evidence at all were given on either side. The party against whom judgment would in that event be given is entitled to begin.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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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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BURDEN OF PROOF IN CIVIL CASES

It is to be noted that in civil cases, the proper question for the Court to determine in order to effectually and completely determine the case between the parties is: Whether the Plaintiff has proved his case upon preponderance of evidence as required by law? This question is in line with our law, that the onus is on the Plaintiff to prove his case by preponderance of evidence and the burden of proof does not shift. There is a plethora of judicial authorities on this. Let me quote extensively what the Court said in Odum v. Chibueze (2016) All FWLR (Pt. 848) 714 at 742 743 to wit: “Now, one of the most firmly established principle of legal adjudication is that in a civil suit, the person who asserts a fact has the primary burden of proving the assertion. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, (2005) All FWLR (Pt. 246) 1231; Olaleye v. Trustees of ECWA (2011) All FWLR (Pt. 565) 297, (2011) 2 NWLR (Pt. 1230) 1; Imonikhe v. Unity Bank – Plc. (2011) All FWLR (Pt. 586) 423; (2011) NWLR (Pt. 1262) 624. In other words, the onus of proof of an issue rests upon the party whether claimant or Defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleading place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. The true meaning of the rule is that where a given allegation whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him Elemo v. Omolade (1968) NMLR 359; Fashanu v. Adekoya (1974) 6 SC 83; Atane v. Amu (1974) 10 SC 237; Kate Enterprises Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt. 5) 116 and Ogboru v. Uduaghan (2011) All FWLR (Pt. 577) 650, (2011) 2 NWLR (Pt. 1232) 538.”

— I.E. Ekwo J. Mbah v. NYSC, Ibrahim Muhammad (FHC/ABJ/CS/611/2023, 10-NOV-2023)

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

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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BURDEN OF PROOF ALWAYS ON THE PROSECUTION; BURDEN FOR INSANITY ON THE ACCUSED

The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused.

— A. Sanusi, JSC. Bassey v State (2019) – SC.900/2016

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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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