Introduction to Burden of Proof in Civil Cases in Nigeria.

Civil Cases are initiated in Court usually by the Plaintiff, seeking the reliefs as may be contained on the face of his originating processes.

The Plaintiff is not entitled to the reliefs sought in Court by the mere facts that he has filed his suit in Court. The law requires the Plaintiff to establish that he is truly entitled to the reliefs sought in the suit.

To achieve this result, the Plaintiff must Proof his case before the court and must succeed on the strength of his own evidence. See the case of Akande v Adisa(2012) 15 NWLR(Pt. 1324) P. 538

What is burden of Proof?

Burden of Proof is the task of establishing before the court the claims of a party. This task is accomplished by party through cogent and compelling evidence.

Section 1 of the Evidence Act 2011

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant, and of no others”

Facts are proved in Civil cases by direct evidence (oral evidence) or Documentary evidence.

Who has the burden of Proof in Civil Cases?

The general Principle of law is that “he who assert must prove”.

The Principle of “he who assert must Prove” was coined from the old latin maxim incumbit probatio qui dicit non qui negat which was developed from the old Roman jurisprudence.

This Principle means that the burden of proving a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. See Omisore v Aregbesola(2015) 15 NWLR (Pt. 1482) P.217

Section 131(1) of the Evidence Act 2011 concretized this principle and States:

“Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts  shall prove that those facts exist”

(2) When a person is bound to prove the existence of any fact, it is said that the burden of Proof lies on that person.

Section 132 of the Evidence Act 2011 States that burden of proof lies on who would fail if no evidence at all were given on either side.

Once the burden is discharged, the burden of disproving those facts falls on the party Who would lose if no further Evidence is adduced. See Section 133(2) of the Evidence Act 2011.

Types of Burden of proof

There are two types of Burden of Proof in law:

• Legal Burden of Proof
• Evidential Burden of Proof.

The legal Burden of Proof is the burden of Proof imposed on a party by law. This type of Burden requires a party to Proof certain ingredients of his claim. It is also known as the general burden of proof.

Under the Evidence Act 2011, where the legal burden of proof is not discharged, the case of the party fails. This is why the burden of proof rests on the party would fail if no evidence was given. See Amodu v Amodu(1990) 5 NWLR(Pt.150) P.356

But evidential burden is the burden placed on a party by law of evidence. The law of evidence, to the extent that he who alleges the existence of a facts is under the duty to prove that such fact actually exist.

Evidential burden of proof is centered on the pleadings of parties and it rests on a party who assert the affirmative of the issue. See Amadi v Amadi(2017) 7 NWLR(Pt.1563) SC.

In Civil Proceedings, Does the Burden Shift?

The legal burden of Proof does not shift. It is always on the claimant or Plaintiff to Proof his claim before the court. In doing so, the Plaintiff will only success on the strength of his case and not in the weakness of the defence. Akande v Adisa(2012) 15 NWLR(Pt. 1324) P. 538

On the contract, the evidential burden changes. The burden of proving the existence of facts shifts to he “Who alleges”. Once it has been proved, the burden shifts to adverse party to disprove those facts.

The burden of proof is not static as it is in criminal cases. It shifts depending on the state of the pleadings.In the State of pleadings, there may be instances where the plaintiff would be required to prove the facts as contained in the pleadings.

Where the plaintiff discharges this Burden, the Defendant is required by law to call evidence to rebutt the facts proved. See also Adegoke v Adibi(1992) 5 NWLR (Pt. 242) 410

Standard of Proof in Civil cases

The Standard of Proof required in Civil Proceedings is Proof on the balance of probability or preponderance of evidence.  See Section 134 of the Evidence Act supra. See also Iseogbekun v Adelakun(2013) 2 NWLR P.141(SC)

However, there are moments in Civil Proceedings where the standard of Proof changes. In the following instances:

• Allegation of crime in civil proceeding, must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011. See also Otukpo v John(2012) 7 NWLR. (Pt.1299) P.357
• In the case of special damages, it must be strictly proved as to be entitled to the judgement of Court. See MTN Nig Comms.Ltd v A.C.F.S Ltd(2016)1 NWLR(PT.1493) P.343

In situation where there is a Counter claim.

In a situation where there is a Counter claim, the Counter claimant has the same burden of proving his Counter claim on the same preponderance of evidence as the Plaintiff has in his claim.

In a counter claim, the legal burden of proof lies on the counter-claimant, to proof his counter claims on the balance of probability. But the evidential burden rest on either the counter claimant or the Defendant to the counter claim.

Where the suit is not defended, does the Standard of proof required changes?

Where a suit is undefended, the burden of Proof remains unaffected. It is the same degree of probability that is required and the plaintiff or counter claimant must succeed on the strength of his case and not on the weakness of defence.

Where the Plaintiff has discharged the burden of proof as required by law what happens?

The Defendant has the option to open his defence, or to rest his case on that of the plaintiff.

The Defendant can open his defence by calling witnesses to give evidence in his favour. The quantum of evidence required from Defendant’s witnesses must be such as is sufficient to rebutt the evidence of the plaintiff.

Contrary to entering a defence, the Defendant can rest his case on that of the Plaintiff.

Where a Defendant rest his case on that of the Plaintiff, it means that:

• The claimant Plaintiff has not made out any case for the Defendant to response to; of
• The Defendant admits the facts of the case as States by the Plaintiff or
• The Defendant has a complete defence in answer to the Plaintiff’s case. See De Oil & Gas Ltd v S.N.G. Ltd(2021) 11 NWLR(Pt.1786) P. 91

In that event, the Defendant elects not to lead any evidence of  his own, confident that regardless of the evidence of the evidence led by the Plaintiff, such evidence has not proved the case of the Plaintiff as to be entitled to the judgement of Court. See also Mezu v C.C.B(Nig) Plc(2013) 3 NWLR (Pt. 1340)188

However, a Defendant who elect to rest his case on that of the Defendant, must be warned of the implication. The implication is that the evidence adduced by the Plaintiff remains unchallenged and Court seised of the matter can act on it. See De Oil & Gas Ltd v S.N.G. Ltd(2021) 11 NWLR(Pt.1786) P. 91