EVIDENCE OF PROOF

Burden of proof is the party’s legal obligation to prove a disputed assertion or

charge in a civil or criminal trial. Thus, the burden of establishing facts upon which
legal right and liability depends. Pursuant to Section 131 Evidence Act, 2011, is on
the person who asserts the fact. This section provides that:

(1) Whoever desire any court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts shall prove that
these facts exists.

Accordingly, when a person is bound to prove the existence of any fact it is said
that the burden of proof lies on that person. Further to the above, Section 132
Evidence Act stipulates that the burden of proof in a suit or proceeding rests on
that person who will fail if no evidence at all were given on either side. This is a
form of affirmation or denial test because the burden rests on the person who
affirms a proposition rather than on the person who denies it.

It must be noted that burden of proof has two distinct and frequently confusing
meanings, viz: It means the burden of proof as a matter of law and pleadings, the
burden as it has been called of establishing a case whether by preponderance of
evidence or beyond reasonable doubt and the burden of proof in the sense of
introducing evidence. See Elemo & Ors v. Omolade & Ors (1968) 1 NWLR 359 @
361. Whereas, the burden of proof in the first instance is always static, the
burden of proof in the second instance may shift constantly more as the scale of
evidence or the other preponderates.

Burden of Proof and Standard of Proof in Criminal Cases

In criminal cases, the prosecution has the obligation to prove beyond reasonable
doubt the guilt of the accused or defendant as prescribed by Section 36(5) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended) on the basis of
which an accused is presumed innocent until proved guilty.

Further to this, Section 135(1) of the Evidence Act, 2011 stipulates an allegation of
crime even in a civil proceeding must be proved beyond reasonable doubt. See
Udosen v. The State (2007) 4 NWLR (pt. 1023) 125, Idi v. State (2017) LPELR –

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42587. Consequently, Section 138(2) Evidence Act and Section 36(5) aforesaid
have placed the burden of proof squarely on the prosecution in criminal cases to
prove its case beyond reasonable doubt and a general duty to rebut the
presumption of innocence constitutionally guaranteed to the accused or
defendant. This obligation imposed by law does not shift. See Nweze v. The State
(2017) LPELR – 42344 (SC).

Thus, the law is trite that in criminal proceedings the burden of proving the guilt
of the accused or defendant is always on the prosecution to prove the guilt of the
accused beyond reasonable doubt. Failure to do so, will automatically lead to the
discharge of the accused or defendant. See Galadima v. The State (2017) LPELR –
41909 (SC). It must be noted that the law is explicit to the effect that this proof
which it expects to be beyond reasonable doubt does not mean proof beyond any
iota or shadow of doubt. Consequently, where on the conclusion of trial and upon
the totality of evidence given, the court is left with no doubt that, the offence was
committed by the accused then that burden is discharged. Bello v. The State
(2007) 10 NWLR (pt. 1043) 564.

In essence, the burden of proving that any person has been guilty of a crime or
wrongly act is on the person who asserts it, whether the commission of such act is
or is not directly in issue in the action. See Section 135, Evidence Act.

Meaning of Proof Beyond Reasonable Doubt

The connotation beyond reasonable doubt in evidence means fully satisfied,

entirely convinced. In criminal cases, the guilt of the accused must be established
beyond reasonable doubt which means that the facts proven must by virtue of
their probative value, establish guilt. Reasonable doubt which will justify acquittal
is doubt based on reason and arising from evident or absence of evidence. It is
doubt that a reasonable person might entertain and it is not fanciful doubt, is not
imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man
to hesitate before acting in matter of importance to him. Ani v. State (2009) 16
NWLR (pt. 1168) 443.

Consequently, the law is quite explicit that this proof which it expects to be
beyond reasonable doubt does not mean proof beyond any iota or shadow of
doubt. Yet, the burden of such proof which lies solely on the prosecution never

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shifts. If at the end of trial, on the entire evidence adduced, the court is lift with
no doubt that the offence was committed by the accused, then that burden is
discharged. See Bello v. The State (2007) 10 NWLR (pt. 1043) 564. However, it is
apposite to state here that, the evidential burden of casting reasonable doubt on
the prosecution’s case is on the defence. See Kekong v. The State (2017) LPELR –
423 43 (SC). Therefore, to prove an offence beyond reasonable doubt the
prosecution must establish the material ingredients of the allegation by adducing
credible evidence in support of the charge. See Idi v. State (2018) 4 NWLR (pt.
1610) 359.

Burden of Proof in Civil Cases

The general rule in civil cases is that the burden of proof rests upon the party who
substantially asserts the affirmative before the evidence is gone into. Therefore,
the burden of proof lies on the person who would fail assuming no evidence had
been adduced on either side. Thus, in Aminu v. Hassan (2014) 5 NWLR (pt. 1400)
281 @ pp. 316-317, paras. A-B & G-B, the Supreme Court held that what the
appellants put forward in proof of their assertion of putting, the respondent into
possession under a customary tenancy was not established by them and
therefore remained a mere assertion. See Sections 131 and 135, Evidence Act,
2011.

Consequently, the burden of proof in civil cases has two distinct meanings,
namely (i) the first is the burden of proof as a matter of law and the pleadings
usually termed legal burden and (ii) is the burden of proof in the sense of
adducing evidence usually described as the evidential burden.

Succinctly, put, the first is the ability of a claimant to establish and prove the
totality or reasonable part of his case before a court of competent jurisdiction
that can deliver judgment that enures in his favour. This remains constant on the
claimant. The other category relates to particular facts or issues which a party
claims exist. It is this burden of proof that oscillates from one party to the other.

Whereas, the first category of burden or the proof is referred to as the legal
burden or the burden of establishing a case, the second category is termed
evidential burden. See Okoye & Ors v. Nwankwo (2014) 15 NWLR (pt. 1429) 93.

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In essence, the burden of proof in civil case is not static, but shifts from one party
to another. Firstly, the burden of proving the existence or non-existence of a fact
lies on the party against whom the judgment of the court would be given if no
evidence were produced on either side, regards being had to any presumption
that may come up from the pleadings. Therefore, if the party adduces evidence
which ought reasonably to satisfy the court that the fact sought to be proved is
established, the burden lies on the party against whom the judgment would be
given if no more evidence were adduced and so on successively until all the issues
in the pleadings have been dealt with. Thus, in Chemiron Int’l Ltd v. Stabilini
Visiononi Ltd (2018) 17 NWLR (pt. 1641) 62 @ p. 79, paras. B-E, the Supreme
Court held that in the instant case, the respondent discharged the burden on it to
prove that it effected the service of the notices while the appellant failed to prove
non-service of the statutory notices or to deny that these persons who allegedly
acknowledged the service of statutory notices were its employees or were not so
employed by the appellant. The appellant did not discharge its burden of proof
when it shifted to it.

Consequently, by virtue of the Section 131, Evidence Act whoever desires any
court to give judgment as to any legal right or liability dependent on the existence
of facts, which he asserts must prove that these facts exists.

While the legal burden of proving the claim rest and remains static on the
claimants; the evidential burden of proving a fact asserted in the affirmative
would rest on the party who so asserts. See Odom & Ors v. The PDP & Ors (2015)
6 NWLR (pt. 1456) 527.

Further to the above, the standard of proof required in a civil proceeding in order
to discharge the burden of proof on the claimant or whoever asserts is on the
preponderance of evidence or the balance of probabilities. See Section 134,
Evidence Act.

Therefore, at the conclusion of civil trial, the court evaluates the evidence
adduced by both the Claimant and Defendant on an imaginary scale to see which
side of the divide preponderates before arriving at the considered judgment. In
arriving at the preponderances of evidence, the judge need not search for an
exact mathematical figure in the “weighing machine” because there is in fact no

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such machine and therefore no figure on basis of which mathematical precision
would be attained.

On the contrary, the judge places reliance on his judicial and judicious mind to
arrive at when the imaginary scale preponderates and that is the standard,
though oscillatory evidential burden. Burden of proof is two folds. The first is the
ability of a plaintiff to establish and prove the entire or reasonable portion of his
case before a court of law that can give judgment in his favour. This is always
constantly on the plaintiff. The other type is related to particular facts or issues
which a partly claims exist. It is this burden of proof that oscillates from one party
to the other. While the first type of burden of proof is called legal burden or the
burden of establishing a case, the second one is called evidential burden. See
Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (pt. 856) 100 @ p. 122;
Okoye & Ors v. Nwankwo (2004) LPELR – 25172 (SC); (2014) 15 NWLR (pt. 1429)
73.

Nature of Burden of Proof

Generally, the burden of establishing facts upon which legal rights and liability
depends, in accordance with Sections 135 and 136, Evidence Act, 2011 is on the
person who asserts the fact(s).

Section 131(1) provides that whoever desires any court to give judgment as to any
legal right which liability is dependent on the existence of facts which he asserts
must prove that these facts exist.

Section 132 provides further that the burden of proof in a suit in a proceeding lies
on that person who will fail if not evidence at all were given on either side.

The term burden of proof, also known as ‘onus of proof’ refers to the legal
obligation on a party to satisfy the fact finders, to a specified standard of proof,
that certain facts are true! The facts for this purpose are the facts or issue, the
facts on which the legal rights and liabilities of the parties to the case depend.
There may be several facts and issues in a given case and the burden of proof of
different issues may be differently allocated amongst the parties.

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For personal injuries caused by negligent driving, the claimant will bear the
burden of proof of the dependent negligence and of the causation of the
claimant’s injuries by the negligent driving of the Defendant alleges contributory
negligence by the claimant, the Defendant which bears the burden of proving it,
while describing the phrase ‘Burden of Proof’. Dennis I. H in ‘The Law of Evidence,
(2nd ed. Sweet & Maxwell, London at p. 369) slated inter alia – Phipson, in his
‘phipson on Evidence, 2005, 6th ed. (Sweet & Maxwell, p. 125) stated that ‘the
phrase ‘burden of proof is used to describe the duty which lies on one or other of
the parties, either to establish a case or to establish the facts upon a particular
issue. In the case of Ettomo v. Omolade (1968) NWLR 359, it was held that
burden of proof has two distinct and frequent confusing meanings. It means i. the
burden of proof as been called