EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF  – Burden of proof in civil cases; Types of burden of proof in civil cases and whether same shifts


“To untie the puzzle, it needs reiteration that the burden of proof in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. In resolving the first question, the primary onus of proof in a civil case such as the present one lies on the plaintiff who happens to be the now respondent. I rely on the following cases: – KWAMINA KUMA v KOFI KUM (1934) WACA 178 AT p. 179; – KODILINYE v MBENEFO ODU (1935) 2 WACA 336 AT P. 337; – AYITEY COBBLAH v TETTEY GBEKE (1947) 12 WACA 294 AT P. 295; – ANACHUNA NWOKAFOR AND ORS. v NWANKWO UDEGBE AND ORS. (1963) 1 ALL N.L.R. 107. – NWANKWO UDEGBE AND ORS. V ANACHUMA NWOKAFOR AND ORS. (P.C.) (1963) N.L .R.P. 417 AT P. 418. – MOGAJI & ORS. v ODOFIN & ANOR. (1978) 4 SC 91; BELLO v EWEKA (1981) 1 SC 101 AT 117 – 120. It needs be said that the onus of proof does not exist in vacuo. The onus or burden of proof is the legal duty or obligation to prove or establish facts in relation to an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, there will generally be no onus on the plaintiff to go into, in proof of his claim. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party, therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings.” Per PETER-ODILI, J.S.C. in EKWEOZOR & ORS v. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (LCER-2020-39155-SC) at p. 39 – p. 40

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