Burden
of Proof in Civil Cases
Burden of proof in civil cases is primarily
determined by substantive law. This is because the facts constituting the
essential allegations to be made by the party demanding the enforcement of a
legal right or discharge of a legal liability are stipulated by the relevant
branch of substantive law.
According to the Evidence Act, section 136 of the Evidence Act Cap E. 14, thereof, now section 132 of the Evidence Act, 2011, the burden of proof in a suit or proceedings
lies on that person who would fail if no evidence at all were given on either
side. This means that the person who would lose the case if on completion of
pleadings and no evidence is led has the general burden of proof. Certainly, if
no evidence, whatsoever, is adduced in the case, it is the plaintiff who will
lose it as none of his material allegations can be proved in such
circumstances.
Accordingly, in civil cases, the ultimate burden of
establishing a case is as disclosed on the pleadings. Burden of proof in civil
cases may be and is often modified by the pleadings
which have then the effect of altering the burden and imposing it on the
defendant. Therefore, to discover where the onus lies in a given case, the
court has to look critically at the pleadings. Where an assertion is admitted
by the opponent, there is no issue between the parties and accordingly the
question of onus of proof does not arise.
Pleadings are therefore important determinants of
the incident of burden of proof in civil cases. Where the defendant traverses
the allegations made in the statement of claim, the plaintiff bears the burden
of proving the whole of his case. The pleadings show what the facts in issue
are and who asserts them. The burden lies on the party who asserts in substance
the affirmative of an issue.
The application of burden of proof in civil cases is
illustrated by the case of Ededem
Archibong v Ntoe Asim Ita (1954) 14 WACA 520, where the appellant
tribe claimed against the other two tribes of the town exclusive ownership of
an island of about four square miles and called witnesses who gave traditional
evidence of user of isolated places. It was held that the burden of proof of
ownership of the island was on the appellant and that the burden could not be discharged
by evidence of use of a portion of it which might raise a probability but not a
presumption of ownership of the whole.
The West African Court of Appeal opined that “the onus
is on the plaintiff throughout to prove the title which he seeks to have
confirmed. That onus never shifts. It is not sufficient for the plaintiff in
such an action to show possession and argue that the defendant has proved no
better title”.
In Odesanya v
Ewedemi (1962) 1 All NLR 320, the evidence on behalf of the plaintiff as to
the identity of the property the declaration of title to which he had sued the
defendant for was conflicting. His witness gave divergent and inconsistent
evidence of the boundaries of the land. The High Court, after hearing the
evidence adduced by both parties, dismissed the claim on the ground that the
plaintiff had failed to discharge the onus cast on him of showing the correct
dimensions and location of the land. Upholding this decision on appeal, the
Federal Supreme Court held that in a claim for declaration of title to land,
the onus is on the plaintiff to prove title to a defined area to which a
declaration can be attached.
The foregoing is based on the underlying general
rule on burden of proof which is to the effect that he who asserts must prove.
Thus, if it is the plaintiff who alleges the existence of certain facts then it
is his duty to prove. Again, persuasive burden remains constantly on the person
on whom the burden lies.©Onyekachi Duru Esq and www.legalemperors.com, 2016. (All Rights Reserved) Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Onyekachi Duru Esq and www.legalemperors.com with appropriate and specific direction to the original content.