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WHEN THE BURDEN OF PROOF WILL LIE ON DEFENDANT – WHEN DEFENDANT BECOMES THE ASSERTER OF FACTS

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My noble lords, nobody is disputing or denying the operation of the general principle of proof in civil matters by casting the burden of proof on the plaintiff where the averments contained in the statement of claim were traversed by the defendant. In such a situation, the defendant will have to wait for the plaintiff to lead evidence in proof of his averments. This is understandable. It is also elementary. It accords with common sense as he who invokes the aid of the law should be the first to prove his case. But, where the situation presents a little difficulty is in a statement of defence where the defendant introduces a new issue which transforms his line of defence by transforming him now into an asserter of a fact which requires evidence to be led first in order to discharge the burden now cast on him and in order not to allow the suit to stagnate. By way of example: A sues for money due on a bond. The execution of the bond is admitted, but says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B, although a defendant. It was who introduced fraud. It was his duty to prove it in order to succeed. It is only by settling the issue of fraud, firstly, in one way or the other that a meaningful progress can be made by the court of trial towards the completion of the entire trial.

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

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PLAINTIFF HAS ONUS TO PROVE LEGAL CAPACITY WHERE CHALLENGED

I think the learned Justice, with respect, was in error when he said that “the onus is on a plaintiff to aver its legal capacity.” I think the correct statement of the law is that where the legal capacity of the plaintiff is challenged by the defendant, the onus is on the former to prove his legal capacity. I believe it is this error that led their Lordships astray. This burden to prove a matter can only be discharged by leading evidence, oral or documentary, in proof of same. The plaintiff was not given the opportunity to do so in this case, before her action was struck out. I think both courts below are wrong in the course taken by them.

— Ogundare, JSC. Bank of Baroda v. Iyalabani (2002) – SC.59/1998

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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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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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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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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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BURDEN OF PROOF WHERE PARTY ALLEGES THE NEGATIVE

DASHE & ORS V DURVEN & ORS (2019) LPELR-48887 where my learned brother Ugo, JCA held: “While it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff’s case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: “Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms’ negative and affirmative’ are after all, relative, and not absolute.” ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola’s Law & Practice of Evidence in Nigeria, and Muraina & Ors v. Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence offact lies is on the party against whom judgment would be given if no evidence were produced on either side.”

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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