Shifting
of Burden of Proof
It is pertinent to observe on the outset that it is
the person who bears the legal burden that bears the evidential burden, and after he has
adduced enough evidence, the burden shifts to the defendant who may likely lose
if no evidence to rebut is adduced. In Babafunke
Johnson & Anor v Akinola Maja & Ors (1951) 13 WACA 290, the
plaintiffs who were the executors of a Will asked the court to declare in
solemn form for the Will and 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 attacking the Will to prove affirmatively, the charge
made against the Will. This case illustrates the concept of shifting of burden
of proof.
Section
137(1) and (2) of
the old Evidence Act, now section
133(1) and (2) of the Evidence Act,
2011 is also instructive in this regard. By that section:
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 a 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.
Therefore, once evidential burden is discharged by
the establishment of a prima facie case; the burden then shifts to the other
party to disprove the facts adduced by the former party, failing which the case
may go against him. The section also applies in Criminal cases and is further
strengthened by section 135(3) of the
Evidence Act, 2011 which states that if the prosecution proves the
commission of a crime beyond reasonable doubt, the burden of proving reasonable
doubt is shifted on to the defendant.
©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.
©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.