BURDEN AND STANDARD OF PROOF

CONTENTS

1.0 Introduction

2.0 Objectives

• Main Content
• Definitions
• Civil Proceedings
• Criminal Proceedings
• Scope
• Evidential Burden or Particular Burden
• Standard of Proof

4.0 Conclusion

5.0 Summary

6.0 Tutor Marked Assignment

7.0 References/Further Readings

INTRODUCTION

The theme of this unit is the burden and standard of proof, both of which jointly enhance the proof of cases in the court. They form the subject matter of Part IX of the Evidence Act and can be found also in several other legislations like the Matrimonial Causes Act, the Magistrates Act, the Criminal Code and Penal Code as well as the Constitution of Federal Republic of Nigeria, 1999. The basic principle is that the party on whom lies the burden of proof must persuade the court, in the best traditions of advocacy of the veracity of the facts in issue. In this discourse therefore, you should be critical about two questions: (1) Who has the burden of proving the fact or facts in issue? (2) What test can be applied to determine whether sufficiently weighty evidence has been adduced to discharge that burden?

 OBJECTIVES

This unit will give the student the maximum understanding of the burden of proving a fact in issue. It will explain the test to be applied in determining the weight of evidence to be adduced. The unit will teach the student to distinguish between legal evidential burden and the different standards of proof.

MAIN CONTENT

• Definition
• Proof

“Proof” is the establishment of a fact by proper legal means to the satisfaction of the court and in this sense includes “disproof”.

A fact is proved when the court is satisfied as to its truth and the evidence by which that result is produced is called “proof”. See Evidence Act, section 121

• Burden

Burden signifies a duty or responsibility

• Burden of Proof

A party’s duty to prove a disputed assertion or charge: This expression connotes the carrying of the risk of non-persuasion in the sense that a party who has the burden stands to lose if his or her evidence fails to convince the judge. The burden of proof is sometimes referred to as onus probandi or loosely as a burden of persuasion. It includes:

• Burden of persuasion
• Burden of production
• Statutory provision

1. The constitution, 1999

It is a constitutional as well as a fundamental human right that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. (Section 36 (5) Evidence Act, 2011.

1. Evidence Act

Part IX of the Evidence Act, 2011 provides for production and effect of evidence, and for burden of proof as follows:

1. Burden of Proof - Section 131
2. On whom burden of Proof lies - Section 132

• Burden of Proof in civil case - Section 133

1. Burden of Proof beyond reasonable doubt -Section 139
2. Burden of Proof as to particular fact - Section 136
3. Burden of proving fact to be proved to make evidence admissible-138
4. Burden of proof in criminal cases - Section 139
5. Proof of facts especially within knowledge - Section 140
6. Exception need not be proved by prosecution -Section 141
7. Some legal writers have used the term “burden of proof” in two senses, namely:

• The burden of proof on the pleadings (i.e. the burden of persuasion, or legal burden (also called persuasive burden).
• The evidential burden of proof (i.e. the provisional burden or a burden of production)

1. Put differently the two senses are:

• Particular duty of him who has the risk of any given proposition on which parties are at issue – who will lose the case if he does not make this proposition out, when all has been said and done
• The duty of going forward in producing evidence whether at the beginning of a case or at any later moment, throughout the trial or discussion

1. Different writers have used different nomenclature to describe the burden of proof: they mean essentially the same thing. For example, the burden of proof as a matter of law and pleadings is similar in content with:

• legal burden or burden of proof simpliciter (Professor Cross)
• legal burden (Lord Dennig)
• persuasive burden (Glanville William) or
• Burden of persuasion (Henry Black)

What is important is to distinguish two categories of burdens:

• Legal burden of Proof
• Evidential burden of Proof

The first category – the legal burden of proof – is an obligation that rests on a party in relation to a particular fact in issue. The burden of such proof rests on only one party. It implies a party’s duty to prove, by weight of evidence, the totality of the truth of some preposition of fact which is vital to the case and which is also in issue. Failure to discharge this burden certainly results in the failure of the whole or some part of the allegation or prosecution’s case.

Conversely the second category – evidential burden of proof denotes an obligation on a party to adduce sufficient evidence on a particular fact so as to warrant a finding on that fact in favour of the party under the obligation. A failure to discharge this burden does not lead to the certainty of failure of entire or part of the case. That risk, however, is present; the immediate effect of a successful discharge of the burden is to shift the evidential burden to the opponent.

In both categories, the standard of proof is different.

In ELEMO AND OTHERS v OMOLADE AND OTHERS (1968) the Supreme Court explained that the burden of proof has two common meanings:

1. The burden of proof as a matter of law and pleadings; This burden is one of establishing a case whether by preponderance of evidence or beyond reasonable doubt, and
2. The Evidence Act, Sections 131-132.

As a general rule of evidence, the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When the party adduces evidence, which is sufficient to raise a presumption that he or she asserts the truth, his or her allegation is presumed to be true unless the opponent adduces evidence to rebut the presumption

All facts in issue are to be established by the party who, in law, has the burden of proving those facts. In essence, the claimant (Plaintiff) in a civil case must prove the facts of his claim in order to establish his or her claim if the defendant does not admit them expressly or by implication. In the same way the prosecution, in a criminal case, must prove his facts in  order to secure a conviction.

In practical terms: suppose there is a suit where a party claims a right, alleges a breach and claims damages or where a prisoner at the dock is charged with a crime; The parties are in court; The case is called. Both parties and witnesses keep mute. No one gives evidence; the question you should now answer is what should be the court’s verdict? Which party wins or loses; By reason of the constitutional provision and presumption of innocence the defendant or the accused wins, the claimant (Plaintiff) or the prosecution loses. If no evidence is given, the party who stands to lose has the right to begin. He bears the light burden, the burden of persuasion or burden of proof.

• Scope of Proof

The burden of proof refers to the party’s duty to prove, by weight of evidence the totality of the truth or some proportion of fact, which is vital to the case and which is also in issue.

Thus in a tort of malicious prosecution, the substantive law demands that the claimant/Plaintiff must not only allege but also prove the following:

• An unsuccessful prosecution instigated by the defendant
• Absence of reasonable and probable cause
• Damage

 If Kodjo is charged with receiving stolen property, the prosecution bears the burden of proving his guilt by showing that:

1. The accused had the stolen article in his possession
2. At the time of receiving it, he knew the article was stolen
3. Kodjo had been convicted of an offence involving fraud or dishonesty within the five years preceding the date of the offence charged (and seven days’ notice in writing has been given to him)
4. Other property stolen within twelve months preceding the date of the offence charged was found in the accused’s possession

If the complainant/Plaintiff or the prosecutions in these two cases default in proving any of the elements as prescribed in the substantive law, the totality of the case or claim crumbles. See Evidence Act, Sections 132 and 135

In some cases however, the burden is shared; such that one party bears the burden of proof on some issues and another party on others. Examples of such cases are:

• Action for negligence
• Criminal trials where the accused acted under[ provocation: (Mancini v DPP (1942), [self defence: R v Lobell (1957); [duress: R v Gill (1963), or [a state of automatism: Bratty v A-G for Northern Ireland (1996)

Strictly speaking the type of burden in these cases is evidential burden, not burden of proof. The failure of a party to discharge this burden of proof may not lead to the loss of the entire case. See Evidence Act, Section 132.

If the accused succeeds at discharging the burden, the prosecution must, in the discharge of his legal burden negative it. This burden of proof denotes the duty placed on the prosecution not only to prove the elements of the offence charged but also to disprove the defences. However, the standard of proof required in each case is different. A legal burden must be discharged beyond all reasonable doubt whereas evidential burden is discharged upon a reasonable satisfaction or upon a balance of probabilities.

The statute, sometimes, imposes a burden of proving certain facts on the accused. See for example: Custom and Exercise Management Act, section 166(2) (b). But the constitutionality of this provision is being questioned. See the Constitution, 1999 section 36(5).

• Civil Proceedings

The burden of proof operates in both civil and criminal proceedings, but it operates differently and each has its own rules. In either case, the burden of proof  largely  determines the right to begin also, that is to say that the burden of proof rests on:

• the Plaintiff or claimant
• the Claimant/Plaintiff who has the right to begin the proceeding
• the party that seeks to obtain judgment on the pleadings on which his or her legal rights and the other party’s liability depend
• “The party other than the party that would be successful if no evidence at all were given” see Evidence Act, section

Pleadings are important; they determine the incidence of burden of proof in civil cases. It affords parties to state their case, support their claims, admit or deny each other’s allegations.

Where parties deny the allegations, the burden is on the plaintiff. If the defendant admits the main allegation, no issues are joined in the dispute, the burden of proof is displaced and the court merely considers the quantum of damages. Even at that, where there are special circumstances which may affect the damage, the Plaintiff still has to prove (HADLEY v BAXENDALE (1854).

If the defendant admits to the main issues but sets up fresh facts by way of avoidance, he must prove those facts and sometimes this may constitute the whole of the general burden. The effect of a Traverse of allegations made in the statement of claim is to cast upon the Plaintiff the burden of proving the allegation denied (M V K LTD v LAMIDI APENA (1969).

Issues are often distributed in a civil proceeding. This arises often in a case, where parties admit some allegation, and deny others. In the circumstance, the general burden of proof lies on the plaintiff while the burden of proving each individual allegation is on the party making it.

In a civil proceeding, the burden of proof is discharged when the party carrying the burden has proved every material fact on which he or she bases his or her claim with the exception of those which require no proof (e.g. presumptions).

The doctrine of res ipsa loquitur (“the thing speaks for itself”) also relieves the party of the burden of proving all material facts. This applies in circumstances where it may be impossible to prove the facts because they are not known. But upon proof of the happening of a particular event, it can with truth be said that the thing speaks for itself” MOORE v R; FOX AND SONS LTD (1956).

Lord Maughan enunciated the rule in CONSTANTINE LINE v IMPERIAL SMELTING CORPORATION (1942) where the Learned Law Lord said.

The burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule which applies is Ei qui affirmat non ei qui negat incumbit probation. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reason.

This basic principle represents the law in Nigeria.

See also OSAWARU v EZEIRUKA (1978) 6-7 SC 135. Where the court said that the burden of proof is on the Plaintiff (Complainant) to prove his claim and not on the defendant to prove otherwise.

In R v Eka (1945) the West African Court of Appeal said:

It is fundamental that in a criminal trial, the onus is upon the prosecution to prove the elements which make up the offence charged. If it fails to prove any of them, the accused is entitled to an acquittal and if in spite of that he is convicted, he is entitled to have the conviction quashed on appeal.

Bairamnian SPJ (as he then was) confirmed this in Kannami v Bauchi NA (1951), saying:

“It is not the duty of the accused to prove his innocence; it is the duty of the prosecution to prove his guilt”

See also IBEZIAKO v COP (1963) 1 ALL NLR 61

Read the following:

• The Constitution, 1999, Section 36(5)
• The Criminal Procedure Code (CPC) section 156-7, 160-161, 170, 172, 187- 188

SELF ASSESSMENT EXAMINATION

It appears that the “golden thread of the Nigerian Criminal Justice, that it is for the prosecution to prove its case and not for the accused to prove his innocence, has been completely broken by the CPC, particularly in section 156 and 157”. Comment critically.

Exception to the golden thread

If you read WOOLMINGTON v DPP (1935) AC 462 which you must, you would have observed that Viscount Sankey highlighted certain exceptions to the rule in Woolmington v DPP. You need to note these exceptions in particular.

• Criminal Proceeding

First read the Evidence Act Section 132-141

In Criminal matters, the prosecution bears the burden of proof. This burden is clearly stated in the case of WOOLMINGTON v DPP (1935) AC 462, where Viscount Sankey said:

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the defence that the prisoner killed the deceased with a malicious intention, the prosecution has not made out his case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.

Also see the following cases:

• Mancini v DPP (1942) on the defence of provocation
• R v Hodges (1962) on defence of accident
• Chan Ray v R (1955) on defence of self defence
• v Budd (1962) on defence of automatism

The burden of proof placed on the prosecution includes the burden of negativing the defences raised.

Also See Evidence Act Section 135, 139 and 140 which have relieved the prosecution of the burden of proof in certain cases.

Once you as a party, begin your case, you must call in all your evidence. You are not entitled to call prima facie evidence, hear your opponent’s evidence and then call further evidence to confirm your prima facie evidence. However, in the following circumstance, you may call rebuttal evidence in order to nullify or qualify your opponents’ evidence, but not to confirm your own case:

• As the party who begins a case, you may call witnesses to say that they would not believe certain of the opponents witnesses on oath and to contradict the answers of the opponents’ witnesses during cross-examination as to credit
• You may call evidence, with leave of the judge, in answer to that adduced by the opponent in support of an issue, the proof of which lay on the latter
• When you are taken by surprise e.g. as the result of an inadequate cross- examination.

If the defence raises alibi, which the prosecution could not have anticipated or could not foresee, the judge has a discretion to allow the prosecutor’s evidence in reply.

• Scope of Burden of Proof

The general burden rests on the prosecution or complainant. Lord Denning describes it as a “legal burden” (61 LQR 379) and failure to discharge this burden inevitably leads to failure of the whole or some of its limits. This burden never shifts.

The substantive law prescribes the facts which are vital to the allegation of crime and which are also in issue. It also determines which particular burden shall form the essential part of the general burden.

For example, the substantive law requires that in a charge of murder (Criminal Code Section 316-319) or (culpable Homicide punishable with death, Penal Code sec 211) the prosecution must allege the following:

• That the death of a human being has actually occurred
• That such death was caused by the act or omission of the accused
• That the act or omission was done with the intention of causing death or grievous bodily harm
• That the accused knew that death would be the probable consequence of his act, (see Michael v the state (2008), compare), Ochemaje v the state (2008) compare Kada v the State (2008).
  • The evidential Burden of Proof or Particular Burden

Sometimes, the statute may relieve the prosecution or complainant of the burden to adduce sufficient evidence on a particular fact. What has shifted is evidential burden of proof which Lord Denning has described as “a provisional burden”. When discharged, the evidential burden shifts again to the opposite party.

For example, it is open to the defence to plead diminished responsibility or insanity. As you already know, it is a presumption that every man or woman is sane. Accordingly, the defence must not only allege the insanity or diminished responsibility but also must prove it. (M’ Nghten’s case, (1843).

The prosecution is not required to prove negative averments. (Section 141 Evidence Act, 2011)

• The Rule in R v TURNER (1944) KB 463

If the accused is charged with possessing a firearm “without lawful excuse”, it is for defence and not the prosecution to prove ‘lawful excuse’ this is what is referred to as the Rule in R. v Turner (1956) read up the full-Report on the case.

• Licensing Cases

Where the law makes a general proscription of an act and then provides for an exception in favour of those who obtain licences to perform the act, it is prima facie an offence to do that act. To convict the offender, the prosecution only needs to prove that the accused did the act. It is not for him to prove that at the time of the act, the accused had no licence. The burden of proving that he or she had a licence is on the accused. (JOHN v HUMPHREYS, 1955); AND A.G. EASTERN NIGERIA v ASIALA (1964).

It is the same rule in driving licence cases or selling controlled essential commodities without licence. Thus when the statute makes it an offence for any person to do something unless that person is qualified, authorised, or licenced, all the prosecutor or complainant (plaintiff) needs to do is to adduce evidence in support of the proscribed act only. Neither of them is under any burden of adducing evidence to show that the accused had no prescribed qualification, authorization or licence.

• Receiving Stolen Property

In receiving stolen property and the like, the possession of goods recently stolen calls for an explanation and if none is given, or one is given which is untrue, that entitles the court to convict.

Sometime, statutes may impose on the accused or the defence a duty to prove certain facts. For example, where the accused relies, for his her defence, on any exception, exemption, proviso, excuse or qualification whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification lies on the defence. This is notwithstanding that the information or complaint contains an allegation negating the exception, exemption, proviso, excuse or qualification”: (See Evidence Act S. 16) in these situations:

However, this evidential burden merely mitigates the general burden which still lies on the prosecution. Thus, if the accused does not discharge his  or  her  burden  and  the prosecution also fails to discharge his or her .

• Defence of Alibi

Where a defence of alibi is raised, the burden of proving it lies on the defence. The leave of court is required to adduce evidence in support of an alibi. The defence must also give notice of the particulars of the alibi within a prescribed period.

• Shifting the Burden

Be careful not to confuse “shifting the burden” with “Burden of proving”. “The burden of proof never changes. It remains to the end of the case with the party who has it” at the outset. When the Plaintiff has introduced enough evidence to make out a prima facie case, the defendant, unless he would see the verdict, introduce evidence to controvert or weaken the effect of that which the Plaintiff has introduced – This is the burden of going forward with the evidence, or the “burden of proceeding” as it may be called in order to distinguish it from the “burden of proof”. It is therefore, the burden of proceeding which shifts from one party to another but not the burden of proof”.

• Standard of Proof
• Read the Evidence Act, Section 134 and 135

The standard of proof is a matter of weight of evidence. It varies as between civil and criminal cases.

• Civil actions other than matrimonial cases

The general rule in civil actions (other than matrimonial causes is that a party, who bears the legal burden of proof is entitled to a verdict if his or her evidence establishes in his or her favour, a “balance of probabilities”, or a “preponderance of evidence”. That should be the case, where at the end of the case, one can say the Plaintiff (Complainant’s) case is more likely to be true than untrue.

Note Lord Denning’s caveat in Hornal v Neuberger Products Ltd (1956) that:

“The more serious an allegation, the higher the degree of probability that is required”. This is suggestive that the standard is not absolute.

The preponderance of evidence or balance of probabilities means that the evidence adduced by the Plaintiff/Complainant should be put on one side of an imaginary scale and the evidence adduced by the defendant put on the other side of that scale and weighed  together to see which side preponderates. See MOGAGI v ODOFIN (1978),  ALHAJI BALOGUN v ALHAJI LABIRAN (1988).

• Criminal Proceedings

In a criminal proceeding, the prosecution must prove the totality of his/her case or the Accused’s guilt, “beyond all reasonable doubt”.

There is some contention that the standard should be proportionate to the gravity of crime, that “as the crime is enormous so ought the proof to be clear”.

However, where the fact in issue is to be proved by the defence as in a defence of insanity, the standard is a balance of probability as in a civil case.

The proof “beyond all reasonable doubt” does not mean that the judge must be absolutely certain of the accused’s guilt. A reasonable doubt is that quality and kind of doubts which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or the other.

The term “beyond all reasonable doubt stands out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, (not beyond all shadow of any doubt), that the person accused is guilty of the offence charged.

As Oputa JSC said in Bakare v the State, (1987):

Proof beyond reasonable doubt connotes such proof as precludes every reasonable hypothesis except that which it tends to support. It is a proof to a moral certainty, such that it satisfied the judgement and conscience of a judge as a reasonable man applying his reason to the evidence placed before him that the crime charged has been committed by the accused and so satisfied him as to leave no other reasonable conclusion possible.

• Allegation of Crime in Civil Matters

The position of the law is not quite clear when crime is alleged in a civil proceeding. In Lek v Matthews (1927) and Hornel v Neuberger Products Ltd (1956), the court applied a civil standard.

Conversely, a criminal standard was applied in Issaias v Marine Insurance Co Ltd (1923)

The uncertainty of the situation is more complex where the criminal conduct alleged cannot be severed from the civil cause itself to which it is not merely incidental. See OMOBORIOWO V AJASIN (1984) 1 SC NLR 108 AND NWOBODO V ONOH (1984) 1 SC.

By reason of Evidence Act, Section 135, if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the accused to adduce or produce evidence of other facts. Okogbue v COP (1965). Where the  prosecution fails to make at least a prima facie case against the accused at close of his case, the accused is entitled to a discharge without being called upon to enter any defence. The accused has no corresponding duty to establish his innocence: OTEKI V A.G BENDEL STATE (1986) 2 NWLR (PT 24) 652.

• What Proof beyond reasonable doubt is not? A proof beyond reasonable doubt does not:
  • admit of plausible and fanciful possibilities
• Fanciful doubts, imaginary doubts, speculative doubt or facts not borne out by the facts and surrounding circumstances of the case
• Extend to a proof beyond all possible
• Matrimonial Causes

Where the Matrimonial Causes Act requires the court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the court is “reasonably satisfied” of the existence of that ground or fact or as to that other matter. (MCA. S. 82). Cases have shown that the court has not been consistent in interpreting the standard of “reasonable satisfaction,” See examples:

1. Lord Damond applied a standard applicable in a criminal matter – one beyond reasonable doubt
2. In Blyth v Blyth (1966): Lord Denning rejected such a strict standard and applied a standard of proof on a balance of probabilities. (ie. The civil case standard)
3. Bastable v Bastable (1968), the standard applied was not as high as “beyond reasonable doubt” but higher than the civil requirement of proof on “the balance of probabilities.

In other words, proof that may satisfy the court in a civil matter may be insufficient for a matrimonial cause. The more serious the matrimonial offence, the clearer the proof required.

The standard probably lies between “proof beyond reasonable doubt” and a “preponderance of probabilities” – one of “reasonable satisfaction”.

 CONCLUSION

Burden of proof lies on the party that stands to lose in a civil matter. The standard is a balance between probability and improbability. Verdict is upon a preponderance of evidence or preponderance of probability. In matrimonial causes, the standard is one of “reasonable satisfaction”. In a criminal case, the burden is on the prosecution. It does not shift and, unless otherwise directed by statute, the presumption of innocence casts on the prosecution the burden of proving every ingredient of the offence. If at the end of the evidence given by either party the prosecution has not made out the case, the prisoner is entitled to an acquittal.

It has to be remembered that it is an essential principle of law that a criminal act has to be established by the prosecution beyond reasonable doubt.

 SUMMARY

In this unit you learnt the burden and standard of proof. In doing so, we defined the terms used, and the senses in which they have been used. References have been made to the Constitution (1999), the Evidence Act Part IX and several other statutes as well as decided cases. The basic principle and gold thread was discussed. So also were the exceptions. The differences between burden of proof in both civil and criminal proceedings were highlighted. You noted the uncertainty of the standard of proof of allegations of crime in the course of civil proceedings. You also learnt how burdens of proofs are shared or distributed in some cases. You should now be conversant with the Rule in R v Turner and the difference between legal burden, evidential burdens and standards of proofs in criminal and civil proceedings (other than matrimonial causes) and in a matrimonial cause.

TUTOR MARKED ASSIGNMENT

What does it mean to say that a party has an evidential burden and how does this differ from a legal burden in relation to particular issues?

REFERENCES/FURTHER READINGS

1. Nwadialo, F. (1999) Modern Nigerian Law of Evidence 2nd Ed. University of Lagos Press, Lagos. Chapter 12
2. Tobi Niki ‘Burden and Standard of Proof’ in Babalola, Afe: (2001) Law and Practice of Evidence in Nigeria, Intec Printers Ltd, Ibadan, Chapter
3. LFN - The Evidence Act
4. The Constitution,1999
5. The Penal and Criminal Procedure Code.