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THE PARTY WHO AFFIRMS THE POSITIVE TESTIFIES FIRST

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In civil cases, proof is based on balance of probabilities and it rests on the party who asserts the affirmative, in this case the appellant and he failed to discharge the burden on him. Daodu v. N.N.PC. (1998) 2 NWLR (Pt. 538) 355 at 365 (SC); Lewis and Peat (N. R.I) Ltd v. Akhimien (1976) 7 SC 157 at 169; Mogaji v. Odofin (1978) 4 SC 91; Elias v. Omobare (1982) 5 SC 25. The point has to be made that it is not in all instances where the usual or the norm must play out. This is because, certain peculiar features might be present which will change the course of events like who takes the first shot at the evidence. The courts and counsel should move away from discussing technical matters when the substantial matter in a case is the issue: Buhari v. A Obasanjo (2005) All FWLR (Pt. 258) 1604, (2005) 13 NWLR (Pt. 941) 1 at 297; per Pats-Acholonu JSC; Broad Bank Nigeria Limited v. Alhaji S. Olayiwola and Sons Limited (2005)All FWLR (Pt.251) 236, (2005) 3 NWLR (Pt. 912) 434.

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

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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)

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HE WHO ASSERTS FORGERY MUST PROVE IT

The burden of proving the allegation of falsification and forgery is on the person asserting it, and must be proved beyond reasonable doubt.

– Tijjani Abubakar JSC. APC v. Obaseki (2021)

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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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HE WHO ALLEGES MUST PROVE

✓ Para. 25: In Petrostar (Nigeria) Limited V. Blackberry Nigeria Limited & 1 or (2011) CCJELR, the Court in its consideration reiterated the cardinal principle of law that “he who alleges must prove”.

✓ Para. 27: In Front for Liberation of the State Of Cabinda V. Republic Of Angola 5th November 2013, ACHPR, 328/06, 54TH Ordinary Session, where the Plaintiffs brought the application on behalf of the People of Cabinda on alleged violations of Articles 19, 20, 21, 22 and 24 of the African Charter, by infringing on their rights to natural resources, authorizing exploitation activities that did not favor the development of the people of Cabinda and allowing companies to operate in manners that are harmful to the environment and human health. The Commission held that the complainant failed to adduce evidence to support that the people of Cabinda were treated unequally in comparison to other people in Angola in violation of Article 19 of the Charter.

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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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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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