Section 131 of the Evidence Act states that any person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts shall assert and prove that those facts exist U. I. C. Ltd Vs T. A. Hammond Nigeria Ltd (1998) NWLR (Pt 565) 340, Okoye Vs Nwankwo (2003) FWLR (Pt 156) 992, Chevron (Nig) Ltd Vs Omoregha (2015) 16 NWLR (Pt 1485) 336.
— H.A.O. Abiru, JCA. P.W. Ltd. v. Mansel Motors (2017) – CA/J/240/2016
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The phrase burden of proof in civil cases has two distinct meanings which are; firstly, there is the pleadings, it is the legal burden of proof or the burden of establishing a case. Then secondly, there is the burden of proof in the sense of adducing of evidence, which is described as the evidential burden. The burden of proof in the first sense is always stable, but the burden of proof in the second sense, oscillates and constantly shifts like a chameleon changing its colour, according to how the evidence preponderates on the scale of justice. See the cases of ODUKWE VS OGUNBIYI (1998) LPELR- 2239 PAGE 1 AT 17; (1998) 8 NWLR (PT. 561) 339, ADIGHIJE VS NWAOGU (2010) 12 NWLR (PT. 1209) 119 AT 463 AND OKOYE VS NWANKWO (2014) LPELR-23172 PAGE 1 AT 21; (2014) 15 NWLR (PT. 1429) 93. It is settled law, that in civil cases, the legal burden of proof in the sense of establishing a case lies on the claimant/Petitioner as in this petition, being the person who would fail if no evidence was adduced at all. However, this is not invariably so, as there are circumstances in our adjectival law, when the burden of proof shifts to the defendant. /Respondent as in this petition. See the cases of OSAWARU VS EZEIRUKA (1978) 6-7 SC 135 AT 145, NWAVU VS OKOYE (2008) LPELR-2116 PAGE 1 AT 31, (2008) 18 NWLR (PT. 1118) 29 AND EZEMBA VS IBENEME (2004) LPELR-1205 PAGE 1 AT 20-21. AGAGU & ORS V MIMIKO 2009 LPELR 21149 (CA); BOLAJI & ANOR V INEC & ANOR 2019 LPELR 49447 (CA); SEN JULIUS ALIUCH & 1 OR V CHIEF MARTIN N. ELECHI 7 2 ORS 2012 LPELR -7823 SC PG 43 PARAS B-E.
— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)
In the case of Lewis & Peat (N.R.I.) Ltd. v Akhimien (1976) 10 NSCC 360 at 365. They are: (1) “Where there is no issue the question of burden of proof does not arise. (2) On the burden of proof on the pleadings: the rule is that the burden of proof rests on the party whether plaintiff or defendant who substantially asserts the affirmative of the issue in Joseph Constantine Steamship Line v. Imperial Smelting Corporation (1942) AC 154 at 174. (3) On the burden of adducing evidence: Used in this sense the burden of proof may shift depending on how the scale of evidence preponderates. Subject to 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 …”
Section 137 of the Evidence Act, 2004 provides for the burden of proof in civil cases. The burden of first proving the existence of a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which might reasonably satisfy a court 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. Where there are conflicting presumptions, the case is the same as if there were evidence. By section 137, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burdens change places almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on successively until all the issues in the pleadings have been dealt with. Section 139 of the Evidence Act provides for the proof of a particular fact. By the section, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other. In considering the amount of evidence necessary to shift the burden of proof, regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties, respectively. (See Abdul-Raham v Commissioner of Police (1971) NMLR 87; Arase v Arase (1981) 5 SC 33; Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 NWLR (Part 49) 212 and Fadlattah v Arewa Textile Ltd (1997) 8 NWLR (Part 518) 546).
— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008
The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused.
— A. Sanusi, JSC. Bassey v State (2019) – SC.900/2016
In determining either the preponderance of evidence or the balance of probabilities in the evidence, the court is involved in some weighing by resorting to the imaginary scale of justice in its evaluation exercise. Accordingly, proof by preponderance of evidence simply means that the evidence adduced by the plaintiff,(in our context the petitioner or appellant) should be put on one side of the imaginary scale mentioned in Mogaji v Odofin (1978) 3 SC 91 and the evidence adduced by the defendant (in our context, all the respondents) put on the other side of that scale and weighed together to see which side preponderates. In arriving at the preponderance of evidence, the Court of Appeal in its capacity as a court (tribunal) of first instance need not search for an exact mathematics figure in the imaginary “weighing machine” because there is in fact and in law no such machine and therefore no figures, talk less of mathematical exactness. On the contrary, the Court of Appeal, in its capacity as a court (tribunal) of first instance, should rely on its judicial and judicious mind to arrive at when the imaginary scale preponderates; and that is the standard, though oscillatory and at times nervous. I will be guided by the above principles on burden and standard of proof when considering Issues 2 and 4 of the appellant’s Brief which I will take anon.
— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008
The law recognises three ways of proving criminal offences namely:- (a) Through confessional statement of the accused person; or (b) By direct eye witness account of the commission of the offence charged, or (c) through circumstantial evidence. See Akpan v State (2009) 39 WRN 27; (2008)14 NWLR (pt.1106)72; Bassey v State (2012) 12 NWLR (pt.1314)209; Haruna v AG Fed (2012)9 NWLR (pt.1306)419.
— A. Sanusi, JSC. Bassey v State (2019) – SC.900/2016
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