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Shifting of Burden of Proof


  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.

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