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WHEN THE BURDEN OF PROOF WILL LIE ON DEFENDANT – WHEN DEFENDANT BECOMES THE ASSERTER OF FACTS

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My noble lords, nobody is disputing or denying the operation of the general principle of proof in civil matters by casting the burden of proof on the plaintiff where the averments contained in the statement of claim were traversed by the defendant. In such a situation, the defendant will have to wait for the plaintiff to lead evidence in proof of his averments. This is understandable. It is also elementary. It accords with common sense as he who invokes the aid of the law should be the first to prove his case. But, where the situation presents a little difficulty is in a statement of defence where the defendant introduces a new issue which transforms his line of defence by transforming him now into an asserter of a fact which requires evidence to be led first in order to discharge the burden now cast on him and in order not to allow the suit to stagnate. By way of example: A sues for money due on a bond. The execution of the bond is admitted, but says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B, although a defendant. It was who introduced fraud. It was his duty to prove it in order to succeed. It is only by settling the issue of fraud, firstly, in one way or the other that a meaningful progress can be made by the court of trial towards the completion of the entire trial.

— Muhammad JSC. Nnaemeka Okoye & Ors. v. Ogugua Nwankwo (SC. 234/2004, 27 Jun 2014)

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APPELLANT MUST SUCCEED ON ITS OWN BRIEF – WHERE RESPONDENT FILED NO BRIEF

An issue may then be raised as to whether the non-filing of the Respondent’s Brief of Argument will make the Appellants appeal to succeed. All the some, the non-filing of the Brief of Argument in respect of this appeal by the Respondent to the issues ventilated by the Appellant in his Brief of Argument does not mean that it is a work-over for the Appellant. The Appellant still has to justify the appeal against the judgment or decision of the Learned trial Judge based on the strength of his case as borne and by the Records of appeal in this matter. The failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his own case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant must succeed or fall on his own Brief.

– P.O. Elechi, JCA. Emori v. Egwu (2016) – CA/C/259/2013

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WHERE THE SCALES ARE EVENLY WEIGHTED, BURDEN IS NOT DISCHARGED

It is also the established law that in a declaration of title, the burden or proof on the plaintiff is not discharged even where the scales are evenly weighted between the parties. See Odiete and Ors. v. Okotie and Ors. (1975) 1 NMLR 178 applied in Saka Owoade and Anor. v. John Abodunrin Onitola and Ors. (1988) 2 NWLR (Pt. 77) 413.

— Dike & Ors. V. Francis Okoloedo & Ors. (SC.116/1993, 15 Jul 1999)

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HE WHO ASSERTS FORGERY MUST PROVE IT

The burden of proving the allegation of falsification and forgery is on the person asserting it, and must be proved beyond reasonable doubt.

– Tijjani Abubakar JSC. APC v. Obaseki (2021)

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PROVING PAYMENT OF MONEY INTO A BANK ACCOUNT

As proof of payment of money into a bank account, the Supreme Court in Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 held that: “In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere ‘ipse dixit’ of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 SC. 176 (1986) 3 NWLR Pt. 32 Pg. 846. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the Bank has received the payment. A bank teller dully stamped with the official stamp of the Bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged.”

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SECTION 131 EVIDENCE ACT, HE WHO ASSERT MUST PROVE

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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GENERALLY IN LAND CASES, THE ONUS OF PROOF LIES ON THE PLAINTIFF

The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties, and to discover where the burden lies in any given case, the court has bounden duty to critically look at the pleadings. The general rule is that, it is the plaintiff who seeks a decree of declaration of title that has the onus of proof: Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Kwamina Kuma v. Kofi Kuma (1936) 5 WACA 4; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295; Anachuma Nwakaf or and Ors Nwankwo Udegbe and Ors (1963) 1 All NLR 107; Nwankwo Udegbe and Ors v. Anachuma Nwokafor and Ors (P.C) (1963) 1 All NLR 417; Mogaji and Ors v. Odofin and Anor (1978) 4 SC 91; Bello v. Eweka (198 1) 1 SC 101 at 117-120. The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter, the defendant proffers his evidence in defence.

— M. Peter-Odili JSC. Nnaemeka Okoye & Ors. v. Ogugua Nwankwo (SC. 234/2004, 27 Jun 2014)

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