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THREE METHODS OF EVIDENTIAL PROOF

Dictum

The law is also trite that the three methods of evidential proof as held by the Supreme Court Per, Ogunbiyi, J.S.C in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit: a. Direct evidence of witnesses; b. Circumstantial evidence; and c. By reliance on a confessional statement of an accused person voluntarily made.

– Adamu Jauro, JSC. Enabeli v. State (2021)

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CIVIL CASES ARE DECIDED ON THE PREPONDERANCE OF EVIDENCE

The level of proof needed in the circumstances of this case is as per the required standard of proof in civil case, it is a cardinal principle of law that civil cases are decided on the preponderance of evidence and balance of probabilities. See the cases of Emeka v. Chuba- Ikpeazu and Ors., (2017) 15 NWLR (Pt. 1583) 345, A.B.C. (Transport Company) Ltd. v. Miss Bimmi Omotoye (2019) LPELR-47829 (SC).

— S.J. Adah, JCA. Luck Guard v. Adariku (2022) – CA/A/1061/2020

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BURDEN OF PROOF IN A CIVIL CASE – EVIDENTIAL BURDEN

Section 137 of the Evidence Act, 2004 provides for the burden of proof in civil cases. The burden of first proving the existence of a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which might reasonably satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. Where there are conflicting presumptions, the case is the same as if there were evidence. By section 137, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burdens change places almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on successively until all the issues in the pleadings have been dealt with. Section 139 of the Evidence Act provides for the proof of a particular fact. By the section, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other. In considering the amount of evidence necessary to shift the burden of proof, regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties, respectively. (See Abdul-Raham v Commissioner of Police (1971) NMLR 87; Arase v Arase (1981) 5 SC 33; Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 NWLR (Part 49) 212 and Fadlattah v Arewa Textile Ltd (1997) 8 NWLR (Part 518) 546).

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

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HOW COURT ARRIVES IN DETERMINING PREPONDERANCE OF EVIDENCE

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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PLAINTIFF MUST RELY ON HIS OWN STRENGTH, NOT WEAKNESS OF THE DEFENCE

It is settled that in a claim for declaratory reliefs, the plaintiff must prove his entitlement thereto, by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence. Indeed, a declaratory relief will not be granted on the basis of an admission by the adverse party. See MOHAMMED V WAMMAKO (2018)7 NWLR (pt 1619) 573 at 591 – 592. — M.L. Shuaibu, JCA. Ekpo v GTB (2018) – CA/C/324/2013

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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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CIVIL SUIT IS DECIDED ON THE BALANCE OF PROBABILITIES

Now, civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts and the onus of adducing further evidence is on the person who will fail if such evidence is not adduced. See Osuji v Eke [2009] 16 NWLR (Pt 1166) 81.

— O.A. Obaseki-Osaghea, J. Akinsete v Westerngeco (2014) – NICN/LA/516/2012

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