Burden of proof civil law

Introduction to Burden of proof civil law

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 exists.

In a long line of cases, our courts have given judicial expression to the above principles. In Ojukwu V. Obasanjo, the Court of Appeal, held inter alia that:

In a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts.

In Songhai Limited v. United Bank for Africa, it was held that “the basic principle governing the incidence of burden of proof is that he who asserts must prove. This is only a rule for deciding on whom the obligation of going further if he wishes to win, rests”.

Also in Wilson Esi V. CNP/BEP International & anor, the Court of Appeal re-iterated the law as follows:
“The burden of proof is always on the party whose case will be adversely affected if the particular facts in issue are not proved.

From the foregoing provisions supported by judicial authorities, it becomes apparent that the burden of proof in civil cases is, generally always but not invariably, on the plaintiff. This is so because it is usually the plaintiff who will demand the enforcement of a right to which he claims to be entitled; and if no evidence is adduced in proof thereof, he is the party who will fail.

See the case of Nwaga V. registered Trustees Recreation Club, that “the onus is on the plaintiff to adduce credible evidence to prove his case before it becomes necessary for the defendant to call evidence to rebut the plaintiff’s assertions. Weakness in the defendant’s case does not prove the plaintiff’s case.

In Sokoto Furniture Factory Ltd v. Societe Generale Bank (Nig) Ltd, the Court of Appeal, Kaduna Division, held inter alia that: the onus of proof is on the plaintiff being the party who will lose if no further evidence is tendered in court. It is, therefore, alien to our adversary system and quite inconceivable for the defendant to prove his case before evidence is taken from the plaintiff unless, where, from the pleading, the general burden is on the defendant.

On the above principles, “where a plaintiff sues for breach of a simple contract, he must allege and prove the existence of an agreement with the defendant, consideration, performance of his own obligation under the contract, default by the defendant in relation to his undertaking and damage”. In other words, the plaintiff who alleges a breach of contract must prove it before he will be entitled to recover damages for the breach. Burden of proof civil law

Evidential Burden of Proof civil law

Evidential burden of proof is the burden of adducing evidence to prove or disprove a particular fact. It essentially has to do with the duty on either side of introducing evidence in a particular matter, be it civil or criminal. This burden rests on he who substantially asserts the affirmative before evidence is gone into. After evidence is gone into, the burden of proof rests on him who would lose if no further evidence is called”.

Usually the general burden and evidential burden of proof rest on the same party; the plaintiff; in civil cases; and the prosecution; in criminal cases. But while the legal burden remains static and does not shift, evidential burden on the other hand, preponderates. In Olaiya v. Olaiya, the court quoted with approval, the meaning and operation of evidential burden of proof as follows:

“On the burden of adducing evidence: used in this sense, the burden of proof may shift depending on how the scale of evidence preponderates to how 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”.

An illustration is considered helpful. In a suit between two persons, the evidential burden of proof will be on the claimant, that is, the plaintiff to prove the case presented before the court. All he needs to do in this regard is to establish a prima facie case against the defendant. It should be remembered that a party must succeed on the strength of his case and not on the weakness of the defendant’s case. In fact, a defendant need not defend the suit against him.

However, once the plaintiff has established a prima facie case, the evidential burden of proof shifts to the defendant to adduce contrary evidence to challenge or disprove the case set up by the plaintiff against him. As noted by nwadialo, by the necessity to adduce this contrary evidence, the evidential burden of proof is shifted to the opponent. The case of Babafunke Johnson & Anor v. Akinola Naja & Ors is also quite illustrative here.

In that case, the plaintiff who were executors of a will asked the court to declare in solemn form for the will and the codicils of the testator. This was challenged by the widow of the deceased on the ground that it was not properly executed.

It was held that in a case of this nature, the burden was on the plaintiff to show prima facie that the will is in order; but that thereafter, the burden is cast upon those who attack the will to prove affirmatively, the charge made against the will is in order; but that thereafter, the burden is cast upon those who attack the will to prove affirmatively, the charge made against the will.

The provisions of sections 131, 132 and 133 of the Evidence Act, earlier discussed, provided the basis for the determination of evidence burden of proof. However, the provisions of sections 132 and 133 are of particular relevance. Section 133 for instance provides that:

  1. 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.
  2. If such party adduces evidence which ought reasonably to satisfy a jury 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.

The above principle, therefore, requires a party, whether in civil or in criminal case, who substantially and affirmatively alleges, to prove that which he is alleging. To discharge the evidential burden, in either of the proceedings, all that the party, needs to do is to establish a prima facie case.
If a prime facie case is established, the burden to disprove reverts to the other party failing which the case may go against him.

For instance in a criminal trial, the prosecution on whom both the legal and evidential burden of proof lie, being the party alleging, is required to adduce prima facie evidence of the offence alleged. He is to establish the ingredients constituting the offence.

Where this is done, the accused on whom the evidential burden now shifts, is to adduce such evidence which will provide material which may give rise to some reasonable doubt in the mind of the courts as to his guilt. If he discharges this evidential burden, the prosecution’s case is bound to fail. If however he fails to lead any evidence in rebuttal, he runs the risk of conviction.

It is considered necessary to note that the shifting of evidential burden of proof from one party to another does not mean that the parties take alternate turns in unlimited or unrestricted successions proving and disproving issues.

Rather, what obtains in practice is for each party to lead credible evidence, sufficient enough; to prove facts and issues which he asserts, and possibly discredit the case of the opponent.

The end of Burden of proof civil law

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