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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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THE PERSON WHO WOULD LOSE HAS THE GENERAL BURDEN

In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof. See Elemo & Ors. v. Omolade & Ors (1968) NMLR 359. See also section 137(1) of the Evidence Act.

— O. Ogwuegbu, JSC. Uzokwe v. Densy Industries Nig. Ltd. & Anor. (2002) – SC.134/1999

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BURDEN OF PROOF ON HE WHO ALLEGES POSITIVE

The law is elementary that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

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

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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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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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A PLAINTIFF WHO CANNOT DISCHARGE BURDEN OF PROOF MUST LOSE

Para. 28: “This rule, that proof rests on he who asserts the affirmative and not on he who denies, “is an ancient rule founded on consideration of common sense and should not be departed from without strong reasons”, according to Lord Maugham in the case of Constantine Line v. Imperial Smelting Corporation (1942) A.C. 154 at p. 174. In assuming the burden of proof, it means that if at the end of the day the plaintiff has not produced evidence to discharge the burden on him he must lose the decision on the particular issue. However, being a civil matter the burden that the plaintiff assumes is one of a proof by preponderance of probability or sometimes called reasonable probability.”

— Saidykhan v GAMBIA (2010) – ECW/CCJ/JUD/08/10

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GENERALLY IN LAND CASES, THE ONUS OF PROOF LIES ON THE PLAINTIFF

The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties, and to discover where the burden lies in any given case, the court has bounden duty to critically look at the pleadings. The general rule is that, it is the plaintiff who seeks a decree of declaration of title that has the onus of proof: Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Kwamina Kuma v. Kofi Kuma (1936) 5 WACA 4; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295; Anachuma Nwakaf or and Ors Nwankwo Udegbe and Ors (1963) 1 All NLR 107; Nwankwo Udegbe and Ors v. Anachuma Nwokafor and Ors (P.C) (1963) 1 All NLR 417; Mogaji and Ors v. Odofin and Anor (1978) 4 SC 91; Bello v. Eweka (198 1) 1 SC 101 at 117-120. The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter, the defendant proffers his evidence in defence.

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

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