PLAINTIFF MUST RELY ON THE STRENGTH OF HIS CASE AND NOT WEAKNESS OF DEFENDANT’S CASE

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

BURDEN OF PROOF IS TWO-FOLD

OKOYE & ORS v. NWANKWO (2014) LPELR-23172 (SC) wherein Per Peter-Odili, JSC opined thus: “Burden of proof is two-fold. The first is the ability of the 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 of the burden of establishing a case, the second one is called evidential”.

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)

WHAT IS PROOF BEYOND REASONABLE DOUBT

It is trite law that in all criminal trials, the burden of proving the guilt of an accused person rests on the prosecution which has to prove the case beyond reasonable doubt. What does proof beyond reasonable doubt mean It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. In Miller v Minister of Pensions (1947) 2 All ER, 372, it was held that “proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible”, the case is proved beyond reasonable doubt.” — J.I. Okoro, JSC. Chibuike Ofordike V. The State (SC.695/2016, 2019

FOR DECLARATION TO LAND, PARTY CANNOT RELY ON WEAKNESS OF DEFENDANT’S CASE

A plethora of authorities abound that a party in a suit for declaration of title to land cannot depend on the weakness of an opponent’s case to succeed. See Kodilinye v. Odu 1935 2 WACA 336, Akinola v. Olowu 1962 1 SCNLR 352, and Ibeziako v. Nwegbogu 1970 1 NMLR 113.

— A.M. Mukhtar JSC. Ohochukwu V. AG Rivers State & Ors. (SC.207/2004  • 17 February 2012)