BURDEN OF PROOF
The
burden of proof, sometimes called onus of proof, may be described as the
obligation which a witness bears to convince the Court or tribunal about the
truth or existence or falsehood or non-existence of a fact that is called into
question before the court.
This in civil cases, is the establishing of a case either by preponderance of
evidence or the burden of producing evidence whether at the beginning of the
case or at any other period throughout the trial. It is mostly used in the
sense of introducing evidence.
The basic principle underlying
burden of proof is that he who asserts an allegation whether affirmatively or
not must in order to succeed, prove same and not he who denies the allegation.
This is available under sections 135 to
137 of the Evidence Act.
Section 135:
(1) “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 those facts exist.”
(2) “When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that
person.”
Section 136:
“The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given
on either side.”
Section 137:
(1) “In civil cases the burden of first
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 more evidence were produced on
either side, regard being had to any presumption that may arise on the
pleadings.”
(2) “If such party adduces evidence which
ought reasonably to satisfy a jury that the fact sought to be proved is
established, the burden lies on the party against whom 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.”
(3) “Where there are conflicting presumptions,
the case is the same as if there were conflicting evidence.”
By the above sections, it means
that the burden of proof is not static. It moves from one party to the other.
Section 137(1) places the first burden on the party against whom the court will
give judgment if no evidence is adduced on either side while subsection (2)
moves it to the adverse party.
BURDEN
OF PROOF IN CRIMINAL CASES
The Prosecution bears
the general burden of proof to the end of the trial in Criminal cases. There is no occasion when that burden shifts.
This is fortified by the presumption of innocence of the accused person until
the contrary is proved as provided for in Section
36 of the 1999 Constitution. Since
the guilt of the accused person cannot be ascertained until the end of the
trial, the general burden does not shift to him in any way.
To this end, it has
now been commonly accepted that the exceptions to the general rule on the
shifting of the general burden of proof in criminal cases both under the
Evidence Act and in case law take effect only in relation to the evidential
burden. Those exceptions deal with the burden of proving particular facts.
THE
BURDEN OF PROVING EXEMPTIONS/ EXCEPTIONS OR QUALIFICATION
This provision is
under section 143 of the Evidence Act.
Where a statute creates an exception/exemption or qualification to a general
penal provision, the onus is on the accused person to prove that the charge
against him lacks merit. This is because his case belongs in the category of
those persons excepted or exempted from punishment under the statute creating
the offence. For example, if a person who is covered by diplomatic immunity is
charged to court, he bears the burden to prove that he is in the category of
those persons conferred with immunity from legal process under the Diplomatic
Immunities Act; and not the responsibility of the Prosecution to establish this
fact. That is, the prosecution need not prove this exception. In I.G.P
v. Anozie (1954) 21 NLR 29, the appellant was charged in the Magistrate
Court under section 143(2) of the Criminal Code for possessing seditious
publication without lawful excuse. The trial Magistrate held that the
Prosecution failed to establish lawful excuse and discharged the accused
person. But on appeal, it was held that under section 143(2) of the Evidence
Act, it was the accused who had the onus of proving lawful excuse.
BURDEN
OF PROVING INTOXICATION OR INSANITY
This provision is
under section 141(3)(c) of the Evidence
Act. The burden of proving intoxication or insanity is on the accused
person who alleges it as a defence to criminal responsibility. In respect of
insanity, there is presumption of sanity in favour of every person who comes to
Court but if an accused person alleges insanity in order to excuse his criminal
responsibility, then the onus of proving insanity lies on him.
In the same light,
every person is presumed to be healthy and normal; normal in the sense that he
has fed himself moderately but where he alleges intoxication as an excuse for
criminal responsibility, it is right for him to prove that he took so much
alcohol that overpowered his normal sense of reasoning leading him to commit
the criminal misconduct – Onakoya v.
R. (1959) 4 FSC 150.
BURDEN
OF PROVING FACTS PECULIARLY WITHIN THE KNOWLEDGE OF THE ACCUSED PERSON
This provision is
under section 142 of the Evidence Act.
In the case of Christoper Otti v. IGP
(1959) NRNLR 1, the accused person was charged with the offence of
carrying on business as a moneylender without licence. It was held that he must
be convicted unless he can show that he has a licence under the Moneylenders
Act as this is a fact peculiarly within his knowledge. It is not the
responsibility of the Prosecution to prove this fact.
But in Joseph v. IGP (1957) NRNLR 170, the
accused person was convicted of taking part in a public procession without
Police permit contrary to Section 38(9) of the Police Ordinance (now Act). The
Prosecution argued that the onus is on the accused person to show permit. The
trial court agreed with the Prosecution and convicted the accused person but on
appeal, the High Court of the Northern Region set aside the conviction and held
that the onus is on the Prosecution because they were the licensing authority.
So this fact cannot reasonably be a fact peculiarly within the knowledge of the
accused person.
BURDEN
OF PROVING ALIBI
Where the accused
person sets up the defence of alibi, the general rule is that he bears
the burden of proof. But if he raised that defence in the course of
investigation, the prosecution bears the burden of investigating the
truth. Where the prosecution fails to
investigate the defence of alibi, the accused person bears no burden of proving
it at all. The Court is entitled to acquit him because a shadow of doubt has
been cast on the case and whenever there is doubt in a criminal trial, that
doubt must be resolved in favour of the accused person – Gachi and Anor v. State (1965) NMLR 333.
It should, however, be
noted that the Prosecution can only investigate an alibi that is raised in the
course of investigation and before the hearing commences. Where the accused
person raises it for the first time in the Witness Box, he cannot turn round
and say the Police should have investigated it, the failure of which he should
have been discharged because at that stage, it is not practicable for the
Police to investigate such a defence.
SPECIAL
PLEA OF DOUBLE JEOPARDY
This can be seen in any of the two ways below –
1.
Autrefois convict
2.
Autrefois acquit.
AUTREFOIS CONVICT
Literally, autrefois
convict means “formerly convicted”. Where the accused person alleges that
he has been acquitted for a past offence, the onus is on him to so prove that
he has been charged, convicted and acquitted in respect of such offence.
AUTREFOIS ACQUIT
Autrefois acquit means “formerly acquitted”. This is a special plea
in bar to a criminal prosecution that the prisoner has already been tried for
the same offence before a court of competent jurisdiction and has been
acquitted.
THE
STANDARD OF PROOF
This deals with the
quantum of proof. In other words, it is the province of standard of proof to
find an answer to the question: how much evidence must a party adduce in order
to discharge the burden of proof placed on him.
The answer to this question depends on whether the proceedings are
criminal or civil.
STANDARD
OF PROOF IN CRIMINAL CASES
This provision is
under section 138 of the Evidence Act.
Section 138(1) of the Evidence Act provides that the standard of proof in
Criminal cases must be proved beyond reasonable doubt. In other words, since the prosecution bears
the burden of proof and in order for it to discharge that burden, it must
adduce evidence to establish the ingredients of the offence charged beyond
reasonable doubt.
But proof beyond
reasonable doubt does not mean proof beyond all manner of doubt. Rather, it means the irreducible minimum of
proof required in order to convince every reasonable man that the accused
person is guilty of the offence charged.
There may be some
doubt but such doubt should be so immaterial that it cannot be borne out of the
facts before the court – Akelezi v.
State (1993) 2 SCNJ 19.
Where there is material
or reasonable doubt, that doubt must be resolved in favour of the accused
person – Bakare v. The State (1987) 1
NWLR (PT. 52) 579.
In order for the
Prosecution to avoid reasonable doubt, it need not call all the witnesses in
this world. One witness, or one piece of documentary evidence, or one piece of
real evidence is sufficient to establish proof beyond reasonable doubt – Akelezi v. The State (supra).
The Prosecution bears
the burden of proof and maintains the same standard even if the accused person
where to keep quiet. It should be noted, however, that in preparing its case,
the Prosecution must take into account possible defences open to the accused
person and direct its energy towards preventing the accused person from relying
on any of such defences.
However, in
exceptional situations, where the law places an obligation on the accused person
to prove particular fact, all that the Prosecution is required to do in order
to achieve the prescribed standard is to lead evidence to show that the crime
was committed and that the accused person could have committed the crime. If
the accused person fails to discharge his own onus of proof of a particular
fact which may exculpate him, then the prosecution’s case would immediately
transit from one of a prima facie case to that of proof beyond
reasonable doubt.
For example, in the
case of intoxication, if the onus were that of the Prosecution then it must
call evidence to show that the accused person consumed some intoxicating
beverage; it must show the place and circumstance where this was consumed and
the space of time from the moment of consumption to the time the offence was
committed. It must do all this in order to avoid reasonable doubt.
But by virtue
of section 141(3) of the Evidence Act,
it is the accused person who bears the burden to prove the defence of
intoxication. The principle in The State
v. Akingbamiwa (1967) NMLR 355, is that the accused person is only
required to lead evidence to show that he consumed some intoxicating beverage
which most probably overawed
his mind and mental faculty at the time the offence was committed.
ADMISSIBILITY OF EVIDENCE
A piece of evidence is admissible if
it is relevant but inadmissible if it is irrelevant. Thus, it is only evidence
of relevant facts that are admissible in evidence.
In Agunbiade v. Sasegbon (1968) NMLR
223 at 226 per Coker, JSC, the Supreme Court stated thus:
“Admissible evidence under the Evidence Act is
evidence which is relevant and should be borne in mind that what is not
relevant is not admissible”.
Section
6 of the Evidence Act provides that –
“Evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in issue and of such
other facts as are hereinafter declared to be relevant, and of no others:
Provided that –
a. the court may exclude evidence of facts which though relevant or deemed to be relevant
to issue, appears to it to be too remote to be material in all the
circumstances of the case;
b. this section shall not enable any person to
give evidence of a fact which he is disentitled to prove by any provision of
the law for the time being in force”.
The above section establishes both the
inclusionary and exclusionary rules of evidence. By inclusionary, it means (i)
facts in issue, and (ii) facts relevant to the facts in issue. Whilst, by
exclusionary, it means that the court may not admit fact if the same is
considered by the court too remote to be material.
Section
3 of the Evidence Act provides
that one fact is said to be relevant to another when one is connected with the
other in any of the ways referred to in the provisions of the Act relating to
the relevancy of fact.
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