Basically, we will be looking at the burden of proof in Criminal and Civil cases in Nigeria, when the burden will shift to the other party in a case and the relevant provisions of our Evidence Act that provides for the burden of proof. Trust me; this article will contains the basic information on the burden of proof in Nigeria and how you can become a better evidence lawyer your jurisdiction.
In every legal system there are technical rules concerning the method by which certain facts should be proved. There are some facts of which no proof need be given since they assumed to be within the judicial knowledge of the court in Nigerian Law. However, this class is limited to facts so notorious that to require proof would be merely a waste of time. But of facts not within this facts, evidence must be given in general, the burden of proof lying on him who asserts as part of his plea the affirmative of any issue.
Certain facts are so notorious in themselves or are stated in so authentic a manner in well known and accessible publications, that they require no proof. The court, if it does not know them, can inform itself upon them without formally taking evidence. These facts are said to be judicially noticed. Other facts except the content of documents may be proved by oral evidence, which must, in all cases be direct, that is, it must consist of a declaration by the witness that he perceived by his own senses the fact to which he testifies.
In legal proceedings the general rule is that he who asserts must prove: this proposition, as was stated above, is sometimes more technically expressed by saying that the burden of proof tests upon the party who substantially asserts the affirmative of the issue. The burden of proof in any particular case depends on the circumstances in which the claim arises.
In general, the rule which applies is Ei qui affirmat non eiqui negat incumbut probatio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. This rule is adopted principally because it is but just that that he who involves the aid of the law should be the first to prove his case; and partly because a negative is more difficult to establish than an affirmative. In civil action, however, the burden of proof may be varied by agreement of the parties.
The adjectives employed to bring out the sense in which the term "burden of proof" is normally used are legion. Wigmore for example, wrote on the burden of convincing at the end of the trial and the burden of making out a prima facie case. Phipson wrote of a burden of proof is pleading and the burden of adducing evidence.
Burden of proof in criminal cases in Nigeria
In criminal cases, the incidence of burden of proof on the prosecution will never shift. That is the fundamental principle and cannot be whittle down although the burden of providing certain facts, for example insanity, alibi and so on, may initially lie on the accused, the general burden will never shift.According to Phipson Law on Evidence page 521, "the persuasive burden in criminal cases is upon the prosecution of proving a defendant's guit beyond reasonable doubt before he is convicted. Consequently, the burden of proving beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case, the judge has a doubt, the defendant is entitled to be acquitted.
In the case of R v Brown (1984) 79 Cr. App. 1951 where the prosecution alleged more than one factual basis for conviction, the question arises whether each juror (or the necessary majority of jurors) must satisfy on the same factual basis. The defendant was charged on counts of fraudulent including the investment of money, each count containing particulars of a number of different statements relied on as inducements.
The court of appeal quashed the conviction, because the judge told the jury that it did not matter that some of the jury were satisfied about one statement, while others were satisfied about another. It was stated that each ingredient of an offence must be proved to the satisfaction of each of each and every member of the jury and the obligation of prosecution to prove is case must depend upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence.
The principle in criminal cases that he who asserts must prove, as it is prosecution that asserts the fact in issue, the burden lies upon the prosecution to prove them. This general principle has been accepted by the House of Lords as an ancient rule founded on consideration of good sense and the court advised that it should not be departed from without good reason.
In Nigeria, the Evidence Act provides in section 136 that:
"the burden of proof in a suit or proceeding lies on that person who would fail it no evidence at all were given to other side"
From the above, it is clear that if no evidence is given on another side it is the prosecution who asserts that will lose the case. Again 138 (2) of the evidence act also provides that:
"The burden of proving that any person has been guilty of a crime or wrongful act is subject to the provision of 141, on the person who asserts it, whether the commission of such act is not directly in issue in the action".
More importantly, the Constitution of the Federal Republic of Nigeria presumes the innocent of the accused until the contrary is proved. It provides that the prosecution has the legal burden of proving the guilt of the accused and not for the accused to prove his innocence.
Burden of prove in civil cases
In civil cases the evidential burden may be satisfied by any specie of evidence sufficient to raise a prima facie case. If no evidence is called by the party who will fail if no evidence is adduced on either side he loses the case then the evidential onus fails on the other party in respect of those issues which, from pleading he has to prove in order to floor his opponent's claim.Therefore, whether the legal and evidential burden is proven is upon one party usually the plaintiff, the discharging of the evidential burden by him shifts on to the defendant the burden introducing evidence which, if believed, will defeat the claim of the other party.
The evidential burden of prove shifts and this shifting aspect of the evidential burden can be illustrated with the case of Babatunde Johnson and Another v Maja and others (1951) 13 WACA 290, the plaintiff were the executors of a will and they asked the court to declare in solemn form for the will and condicil of the testator.
The widow inpuged the will on the ground that it was properly executed. It was held that in cases of this nature, the burden was on the plaintiff to show prima facie that the will is in order and thereafter the burden is cast upon those who attack the will to prove affirmatively the charges made against the will. Thus, alternating order will continue to proceed successfully until all the issues in the pleading have been dealt with.
This principle of the factual burden on the two parties is lucidly set out in section 137 of the Evidence Act which provides as follows:
"In civil cases, the burden of first providing the existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced no either side, regard being had to any presumption that may arise in the pleadings."
This section places the burden of introducing evidence on the person who would fail if after the pleading no evidence were called on either side. In essence, this subsection clearly indicates who set the ball rolling, while subsection 2 of that section, indicates how the game will be played.
It states that if the party upon whom subsection (1) caste the initial burden discharge the burden, the burden lies on the party whom judgment would be given if no evidence were adduced and so on successively.
Accordingly, section 137 (2) indicates that the individual burden unlike legal burden of proof shifts. The Supreme Court of Nigeria in Nigeria Service Limited v Alhahi Afolabi, said that in the arena of proof in a civil case, the onus of proof does not remain static but shifts from side to side. The correct position of the law is that the onus of adducing further evidence is on the person who would fail if such evidence were not produced.
Therefore, with regard to section 137 (1) it places the initial burden of introducing evidence on the person who would fail if after the pleading, evidence were called on either side. By way of conclusion I must state that, in the law of evidence, a plaintiff cannot win his case except he adduces sufficient evidence to prove his case. It is the evidence adduced by the plaintiff that shifts the burden to the defendant to disprove the plaintiff's case.
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Edeh Samuel Chukwuemeka Ch,MC is a law student of the University of Nigeria, Nsukka. He is an ardent blogger and the owner of BScholarly.
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