Grand Master - , 12:14 am On 10 Oct 2017
WHAT IS A BURDEN OF PROOF?
Burden of proof can be defined the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden.
ON WHOM DOES THE BURDEN LIE?
Generally speaking, the burden of proof lies on the party against whom the decision of the court would be given if no evidence or further evidence is adduced. see SECTION 132 OF THE EA 2011. That is, the party whose case would fail if no futher evidence is tendered.
IN CIVIL PROCEEDINGS
This burden shifts continually in civil proceedings. Basically the burden of proof lies on the party making assertions (i.e claimant, this may be the plaintiff or the defedant where he makes counter claims).
The fundamental principle is "affirmati Non Neganti Incumbit Probatio" that is, he who asserts must prove, see SECTION 131 0F THE EVIDENCE ACT 2011.
Where this party discharges this evidential burden, the burden then shifts to the other party, who is to provide his defence or reply, and if he discharges this evidential burden it may shift back to the claimant. The shifts continues until all the facts in issue have been proved. This is what is known as shift of burden of proof.
IN CRIMINAL PROCEEDINGS
In criminal proceedings however, the fundamental principle is that the burden rest on the prosecution and never shifts. see. SECTION 36(5) OF THE CFRN 1999; Ahmed v The State (1999) > NWLR (part 612) at 673. That is, the burden is on the prosecution to proof the guilt of the accused and to disproof his defences. Since an accused person is presumed innocent until proven guilty, he is therefore not under any legal obligation to prove his innocence.
This is however subject to certain exceptions where the burden may shift to the accused.
1. Where the prosecution has disscharged the evidential burden on it, the burden shifts to the defendant to establish reasonable doubt. s. 135(3) of the EA 2011.
2. Where the accused seeks to establish a defence, an exception or exemption or qualification. s. 139 of the EA 2011.
3. Where the facts are exclusivey within the knowledge of the accused.
WHAT IS EVIDENTIAL BURDEN?
Evidential burden refers to a duty to adduce sufficient evidence as to establish the existence or non existence of a fact in issue.
WHAT IS THE DIFFERENCE BETWEEN BURDEN OF PROOF AND EVIDENTIAL BURDEN?
The major difference between burden of proof and evidential burden is that burden of proof concern itself with on whom the duty to adduce evidence in a suit lies; what this party on whom this duty lies is required to do to discharge the burden is known as evidential burden.
Once the evidential burden is discharged, the burden of proof shift to the other party. Failure to discharge this evidential burden would mean that the party has failed in proving its case.
WHAT IS STANDARD OF PROOF?
Standard of proof refers to the degree of evidence required to establish a case.
IN CIVIL MATTERS
The standard of proof in civil matters is on the proproderence of evidence or the balance of probabilities. see SECTION 134 OF THE EVIDENCE ACT 2011.
That is, the judge would weigh the evidence adduced on both sides and determine which one is weightier.
In doing this, the judge would need to determine whether both parties have satisfied the evidential burden which rests on them. The party in whose favour the proprodence or evidence tilts, succeeds.
In determining this, the court will look at the quality of evidence and not its quantity. That is, the testimony of a single witness may be wieghtier than that of twenty others, if is testimony is more credible and relevant to the fact in issue than that of the others.
IN CRIMINAL MATTERS
The standard of proof in criminal matters is 'beyond reasonable doubt'. see SECTION 135 OF THE EA 2011.
As stated earlier, the burden of proof in criminal matters lies on the prosecution and never shifts. The duty is therefore on the prosecution to prove his case beyond reasonable doubt. Where reasonable doubt exists, it will be resolved in favour of the accused.
The term 'beyond reasonable doubt' does not connote 'beyond every iota of doubt'. Where 'although it is possible but very improbable' to arrive at another conclusion, the prosecution would still be deemed to have discharged its duty of proving its case beyond reasonable doubt. Reasonable doubt connotes that it is not only 'possible but also probable'.
STANDARD OF ESTABLISHING DEFENCE IN CRIMINAL MATTERS
The standard of proof required of the accused in estatblishing is defence in criminal matters is not beyond reasonable doubt but on the proproderence of evidence. That is, his standard for establishing his defence is thesame as the standard in civil matters.
In POPOOLA v. THE STATE (2013) 7 MJSC (pt.2) 191. The Supreme Court considered the defence of insanity.
Ariwoola JSC said:
“The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.”
Then Ngwuta JSC said:
“…..the burden of proof on the accused who relies on a defence of insanity is less than the burden cast on the Prosecution to prove his guilt beyond reasonable doubt. The burden of proof is satisfied on a balance of probability or preponderance of evidence.”
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