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THE APPELLANTS COULD NOT SUBSTANTIATE THE NARCOTICS FINE AGAINST THE 2ND RESPONDENT

Dictum

What matters always in this kind of situation is that there must be proof of such a sentence. A criminal conviction and sentence must be proved by the CTC of the judgment of court delivered or any admissible way of proving same and the said judgment must reflect all the ingredients of a valid judgment to bind the parties concerned. This is unfortunately where the Appellants could not proceed further or substantiate the sentence of fine against the 2nd Respondent. At page 3228 (vol.5) of the record, PW1 and PW12, who gave evidence on the US proceedings did not dispute the fact that the 2nd Respondent was not at any time, charged before any court, caused to make a plea, convicted or sentenced for any offence. Similarly, at page 3464 ( vol.5) of the record, RW2, a US attorney and an associate of the 2nd Respondent, testified that the 2nd Respondent was never convicted or fined for any criminal offence in the United States. In fact, PW1 confirmed that the proceedings in Exhibit PA5 series are civil proceedings, while equally admitting that he never mentioned anything about charge in the proceedings and that he never had one. By virtue of section 135 of the Evidence Act, it is beyond peradventure that the proof of this allegation ought to be beyond reasonable doubt. Section 249 of the Evidence Act clearly prescribes the manner of discharging this proof, by the provision of “certificate purporting to be given under the hand of a police officer” from the US, “containing a copy of the sentence or order and the finger prints of the 2nd Respondent or photographs of the finger prints of the said 2nd Respondent, together with evidence that the finger prints of the person so convicted are those of the 2nd Respondent. See PML (NIG.) LTD. V. F.R.N. (2018) 7 NWLR (PT. 1619) 448 AT 493.

— Uwani Abba Aji JSC. Peter Obi & Anor. v. INEC & Ors. (SC/CV/937/2023, Thursday the 26th day of October 2023)

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BURDEN OF PROOF ON HE WHO WILL FAIL

In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

– Niki Tobi, JSC. Calabar CC v. Ekpo (2008)

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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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WHERE ACCUSED PLEADS GUILTY PROSECUTION BURDEN BECOMES LIGHT

OMOJU v. FRN (2008) LPELR – 2647 (SC), Tobi JSC (of blessed memory), considered the effect of an accused person’s plea of guilt on the burden placed on the prosecution where my noble Lord held thus: “The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an ostrich. It no longer remains the superlative and compelling burden of proof beyond reasonable doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and mens rea or actus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non.”

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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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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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HE WHO ALLEGES MUST PROVE

Para. 61: “It is trite law that he who alleges bears the burden of making out a prima facie case in support of his averments, the court in its consideration reiterated the cardinal principle of law that “he who alleges must prove”. Therefore, where a party asserts 26 a fact, he must produce evidence to substantiate the claim. The Applicant has not been able to establish that he was treated differently from other members in similar situation with him. In the absence of evidence to support a different treatment in similar situations, the Applicant’s claim of violation of equality before the law and freedom from discrimination is hereby dismissed.”

— Boley v Liberia & Ors. (2019) – ECW/CCJ/JUD/24/19

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