Standard of Proof

 Standard of Proof

Standard of proof is the legal requirement of the extent of the excess between the parties’ evidence. Standard of proof is the extent by which the weight or quality of evidence adduced by a party exceeds that of the opponent in order for the former to discharge the burden of proof placed on him. For example, if the plaintiff is alleging negligence, the standard of proof is the quantum of his evidence in excess to that of the defendant. This excess is the standard of proof which must out-weigh that of the other party on the part of the person on whom the onus of proof lies.

This naturally raises the question as to the extent by which the weight or quality of evidence adduced by him must exceed that of the opponent in order for him to discharge that obligation. In other words, what standard or quantum of proof can qualify the party for a favourable verdict or success in litigation? Yet still, what is the standard of quantum of proof required of a party who has the burden of proof?

There are broadly speaking two different standards, one for civil the other for criminal cases. The criminal standard of proof applies to criminal trials as such as well as to the proof of allegation of crime as an issue in a civil case. Also, in the exceptional cases where the burden of proof of an issue lies on the accused, the standard required of him for the discharge of that burden is the civil one. Unless the requisite standard stipulated for each particular type of case is attained, the burden remains undischarged. The various cases have to be considered now.

2.                 Standard of Proof in Civil Cases

The standard of proof required in civil cases is that the party on whom the burden of proof on the pleadings lies must establish a preponderance of evidence or balance of probabilities in his favour. This means that he has to persuade the court that his version of the facts is more probable than that of his opponent. His case must be such that, the court, after weighing the evidence of both parties, must find a preponderance of evidence in his favour.

In Mogaji & Ors., v Odofin & Ors., (1978) 4 SC 91, the Supreme Court indicated how the decision as where the balance of probabilities lies can be reached as follows: the judge should first of all put the totality of the testimony adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but the quality or the probative value of the testimony of those witnesses. In determining which is heavier, the judge will naturally have regard to whether the evidence is admissible, relevant, credible, conclusive and more probable than that given by the other party. He should not consider the evidence adduced by one of the parties and make finding of fact in it before considering the evidence adduced by the other party.

Proof by preponderance of evidence, therefore, simply means that the evidence adduced by the plaintiff should be put on a side of an imaginary scale and the evidence adduced by the defendant put on the other side of that scale and weighed together to see which side preponderates. The degree of preponderance of evidence may be less where a civil case is uncontested.

There are indeed within the standard of proof in civil cases degrees of probability. The more serious an allegation is, the higher will be the required degree of proof, although, it will not reach ‘the criminal standard’. Thus, a civil court when considering a matter of fraud will require a high degree of probability than that which it would require when asking if negligence is established. The gravity of the issue is part of the circumstances which the court must take into consideration in reaching its decision on the question whether or not the standard of proof has been attained.

In the civil case where special damages are claimed, such damages must be ‘strictly proof’. The term ‘strict proof’ does not however mean ‘unusual proof’. It means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which are exactly known or accurately measured before trial.

This implies that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which made such calculations possible. Strict proof of special damages means no more than proof as would readily render itself to qualification or assessment.

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