EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF – Burden of proof on a claimant claiming ownership of land by gift; effect of failure to discharge same


“…As His Lordship pointed out in the leading judgment, the appellants claimed exclusive ownership of the land in dispute by a gift. They failed to adduce any evidence whatsoever to justify that claim. I entirely agree with His Lordship. The simple truth is that it was the said appellants who affirmed, positively, that there was such a gift. They, thus, had the burden, both on the pleadings and on the evidence, to prove their assertion, Imana v Robinson [1974] 6 SC 83; Elemo and Ors v Omolade and Ors (1968) NMLR 359, 361; Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116; Onyenge and Ors v Ebere 18 NSCQR (pt II) 789 at 802; Vulcan Gases Ltd. v GESELLSCHAFT FUR Ind. (2001) 9 NWLR (pt. 719) 610 at 667; Phipson on Evidence, (11th Edition), Paragraph 92; Page 40: “Burden of proof on the pleadings.” This, they failed to do. In other words, whether or not there was such a gift, (as alleged), became a fact in issue, Barje v Gunduma [2001] 13 NWLR (pt 731) 673, 688; Ehimare and Anor v Emhonyon [1985] 1 NWLR (pt 2) 177, 183; Olufosoye v Olorunfemi [1989] 1 NWLR (pt 95) 26 that had to be proved if the averment was to be accepted as proved, J. H, Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (Third Edition) (Boston: Little, Brown and Company, 1940) 3; R. Cross, The Law of Evidence (London: Butterworths, 1979) 1. Unfortunately, it would appear that the appellants underrated the nature of the burden they bore, in this regard, of marshalling evidence to substantiate their assertion, Olaniyan and Ors v Oyewole and Ors [2011] 14 NWLR (pt 1268) 421. The consequence is that, that claim of gift failed in the absence of any credible evidence to sustain it, Imana v Robinson (supra); Elemo and Ors v Omolade and Ors (supra); Atane v Amu (supra); Fashanu v Adekoya (supra); Kate Enterprises Ltd v Daewoo Nig Ltd (supra); Onyenge and Ors v Ebere (supra); Vulcan Gases Ltd. v GESELLSCHAFT FUR Ind.(supra).” Per NWEZE, J.S.C. in EKWEOZOR & ORS v. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (LCER-2020-39155-SC) at p. 61 – p. 63

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