The Burden and Standard of Proof in Evidence

The Burden and Standard of Proof

The term burden of proof is a trite tool used in legal proceedings to determine the viability of a claim. In ordinary parlance, burden means task or duty while proof on the other hand means establishment of fact by evidence. However, in relation to law, it is a legal requirement to offer evidence in prove of a party assertion or counter assertion.

According to the Blacks Law dictionary, burden of proof means necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. This concept burden of proof has further been defined in a judicial term which was codified into two forms in the case of Muriana Elemo v. Fasanic.

First, it is defined as General burden which is the burden or obligation to establish a case. It lies on the party to convince the court either by preponderance of evidence or proof beyond reasonable doubt. This burden is fixed on the same party throughout the entire trial.

Second meaning is called Evidential burden. It is the burden to adduce evidence which rest on a party or issue relevant to his case. It is not stable or fixed. It shifts from one party to another throughout the proceedings.

It is often associated with the Latin Maxim "semper necessitas probandi incumbit ei qui agit," meaning, the necessity of proof always lies with the person who lays charges.

Burden of proof can be seen in both civil and criminal cases. In civil cases the parties involved must establish their case by preponderance of evidence while in criminal cases the burden lies on the prosecution and never shifts.

There are exceptions to the rule of burden in criminal cases which are; burden of proof of intoxication or insanity which lies on the accused. Where the burden of proof of fact is specifically both within the knowledge of the accused and the prosecution it Should be the prosecution to discharge or disapprove it. the burden of proof of fact especially within the exclusive knowledge of the accused is on him or him to discharge.

The concept of burden and standard of proof 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 of the veracity of the facts in issue. This means two questions are answerd:

  • Who has the burden of proving the fact or facts in issue? 
  • What test can determine whether sufficiently weighty evidence exists to discharge that burden?   

“Proof” is the satisfying establishment of a fact to 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”. Evidence Act, S121. On the other hand, Burden signifies a duty or responsibility. Burden of Proof is thus a party’s duty to prove a disputed assertion or charge. 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  

The constitution, 1999 provides a constitutional and fundamental human right that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. (S36 (5) Also, Part IX of the Evidence Act provides for production and effect of evidence, and for burden of proof as follows: 
I. Burden of Proof - Section 131
II. On whom burden of Proof lies - Section 132
III. Burden of Proof in civil case - Section 133
IV. Burden of Proof beyond reasonable doubt -Section 139
V. Burden of Proof as to particular fact - Section 136
VI. Burden of proving fact to be proved to make evidence admissible-138
VII. Burden of proof in criminal cases - Section 139
VIII. Proof of facts especially within knowledge - Section 140  
IX. Exception need not be proved by prosecution -Section 141  
c) Some legal writers have used the term “burden of proof” in two senses, namely:
1) The burden of proof on the pleadings (i.e. the burden of persuasion, or legal burden (also called persuasive burden).  
2) The evidential burden of proof (i.e. the provisional burden or a burden of production)  
d) Put differently the two senses are:
1) 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.
2) 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.  
e) 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)

Read: The Operative Parts of a Deed

What is important is to distinguish the two categories of burdens as we shall see below:

1. Legal 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.

2. Evidential Burden of Proof

The Evidential burden of proof is 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 Ors v Omolade and Ors (1968), the Supreme Court explained that the burden of proof has two common meanings:
  • The burden of proof as a matter of law and pleadings - This establishes a case whether by preponderance of evidence or beyond reasonable doubt, and 
  • 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. Lord Denning describes it as a “legal burden” (61 LQR 379). For example, if Z 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. Z 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 Z'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 - Evidence Act, S132 & 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 provcation or duress: R v Gill (1963)

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. S132, Evidence Act. 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.

Civil Proceedings

In  civil proceedings, the  burden  of  proof  largely determines the right to begin. It rests on: 

  • 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.

Pleadings are important as they determine the incidence of burden of proof in civil cases. It allows parties to state their case, support their claims, admit or deny allegations. Where parties deny the allegations, the burden is on the plaintiff. If the defendant admits the main allegation, the burden of proof is displaced and the court merely considers the quantum of damages. In cases where special circumstances may affect the damage, the Plaintiff still has to prove. Issues are often distributed in a civil proceeding. This arises where parties admit some allegation, and deny others. In this case, the general burden of proof lies on the plaintiff while the burden of proving each individual allegation is on the party making it.

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 facts speak for itself”) also relieves the party of the burden of proving all material facts. 

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.

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

Criminal Proceeding (Evidence Act Section 132-141)

Here, the prosecution bears the burden of proof. This burden is clearly stated in Woolmington v. DPP (1935) AC 462, where Viscount Sankey said: 
“Throughout the web of the English criminal law one golden thread is always 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...” 

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

The Evidence Act in S135, 139 and 140 relieved the prosecution of the burden of proof in certain cases. Also, all evidence must be called at the beginning of the case. No party is entitled to the opponent’s evidence and then call further evidence to confirm prima facie evidence. However, a party may call rebuttal evidence in order to nullify or qualify your opponents’ evidence, but not to confirm its own case - for instance, 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. 

Read: Everything You Should Know about the Defence of Alibi

Common cases where the burden of proof strongly hits include licensing cases, cases of receiving Stolen Property and the defence of Alibi. Where a defence of alibi is raised, the burden of proof 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

Shifting the burden is different from the 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 - Evidence Act, Section 134 and 135

The standard of proof is a matter of weight of evidence. It varies in civil and criminal cases. In Civil actions (excluding matrimonial cases), the general rule 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”. At the end of the case, one can say the Plaintiff (Complainant’s) case is more likely to be true than untrue. Lord Denning’s caveat in Hornal v Neuberger Products Ltd (1956) says that: “The more serious an allegation, the higher the degree of probability that is required”.  This means 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 - Mogaji v. Odofin (1978)

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

In the Matrimonial Causes Act, where it 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,” 
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”. 

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.  


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?   

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