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BURDEN TO PROVIDE DOCUMENT IS IN THE PARTY WHO IS IN POSSESSION OF THE DOCUMENT

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Para. 68: “It is trite law that when a document is in the custody of the adverse party, the burden of proof of same shifts from the claimant to the custodian of the document. It is common knowledge that information about pension benefits especially the matrix of calculation is domiciled with the employer. The employee, more often than not upon retirement is presented with the total entitlement due same having been calculated by the employer. Thus when the records and the metric of calculation are in the custody of the employer, as in this instant case, the Respondent, the onus lies on them to provide.”

— Boley v Liberia & Ors. (2019) – ECW/CCJ/JUD/24/19

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THE TWO FACETS OF BURDEN OF PROOF

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)

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BURDEN OF PROOF IN CIVIL CASES

It is to be noted that in civil cases, the proper question for the Court to determine in order to effectually and completely determine the case between the parties is: Whether the Plaintiff has proved his case upon preponderance of evidence as required by law? This question is in line with our law, that the onus is on the Plaintiff to prove his case by preponderance of evidence and the burden of proof does not shift. There is a plethora of judicial authorities on this. Let me quote extensively what the Court said in Odum v. Chibueze (2016) All FWLR (Pt. 848) 714 at 742 743 to wit: “Now, one of the most firmly established principle of legal adjudication is that in a civil suit, the person who asserts a fact has the primary burden of proving the assertion. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, (2005) All FWLR (Pt. 246) 1231; Olaleye v. Trustees of ECWA (2011) All FWLR (Pt. 565) 297, (2011) 2 NWLR (Pt. 1230) 1; Imonikhe v. Unity Bank – Plc. (2011) All FWLR (Pt. 586) 423; (2011) NWLR (Pt. 1262) 624. In other words, the onus of proof of an issue rests upon the party whether claimant or Defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleading place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. The true meaning of the rule is that where a given allegation whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him Elemo v. Omolade (1968) NMLR 359; Fashanu v. Adekoya (1974) 6 SC 83; Atane v. Amu (1974) 10 SC 237; Kate Enterprises Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt. 5) 116 and Ogboru v. Uduaghan (2011) All FWLR (Pt. 577) 650, (2011) 2 NWLR (Pt. 1232) 538.”

— I.E. Ekwo J. Mbah v. NYSC, Ibrahim Muhammad (FHC/ABJ/CS/611/2023, 10-NOV-2023)

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WHERE ACCUSED PLEADS GUILTY PROSECUTION BURDEN BECOMES LIGHT

OMOJU v. FRN (2008) LPELR – 2647 (SC), Tobi JSC (of blessed memory), considered the effect of an accused person’s plea of guilt on the burden placed on the prosecution where my noble Lord held thus: “The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution...

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PROOF OF DELIVERY OF DOCUMENT

Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 142. “Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.”

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THE PERSON WHO WOULD LOSE HAS THE GENERAL BURDEN

In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof. See Elemo & Ors. v. Omolade & Ors (1968) NMLR 359. See also...

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FACT UNDISPUTED NEED NO FURTHER PROOF

It is trite that facts not disputed are taken as established and therefore need no further proof. The court can legitimately act on such undisputed fact. – Eko JSC. Chemiron v. Stabilini (2018) Was this dictum helpful? Yes 0 No 0...

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BURDEN TO PROVIDE DOCUMENT IS IN THE PARTY WHO IS IN POSSESSION OF THE DOCUMENT

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THE TWO FACETS OF BURDEN OF PROOF

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BURDEN OF PROOF IN CIVIL CASES

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WHERE ACCUSED PLEADS GUILTY PROSECUTION BURDEN BECOMES LIGHT

PROOF OF DELIVERY OF DOCUMENT

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THE PERSON WHO WOULD LOSE HAS THE GENERAL BURDEN

FACT UNDISPUTED NEED NO FURTHER PROOF

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