LAW OF EVIDENCE ( law 406)

BURDEN AND STANDARD OF PROOF

By Dr Muinat Mustapha

INTRODUCTION

The Burden of Proof is the task of establishing before the court the claims of a party. This task is
accomplished by the party through cogent and compelling evidence. The bottom line of this principle
is that the party on whom lies the burden of proof must persuade the court with cogent and
compelling evidence of the authenticity of the facts in issue. Though, the burden and standard of
proof are Siamese twins which are so connected and relevant to civil and criminal proceedings, yet,
the extent of the evidential burden required in both circumstances (civil and criminal proceedings)
varies.

CONCEPTUAL DEFINITION

Black’s Law Dictionary associates the word burden with a duty, a responsibility or an onus. In the
case of Enemchukwu v Okoye (2017) 6 NWLR (Pt. 1560) 37 at 60 [F], the Court defined proof to
mean the process by which the existence or non-existence of facts is established to the satisfaction
of the court. Invariably, the concept of “burden of proof” implies the obligation of a party asserting
or claiming to convince the court with a preponderance of evidence that a particular fact exists.

BURDEN OF PROOF

By Sections 131 (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 fact exist”

131(2) states, “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.

The locus classicus on the burden of proof is the case of Woolmington V DPP. In that case, the
appellant, Reginald Woolmington, was convicted of the wilful murder of his wife and sentenced to
death. He appealed on the ground that the judge had misdirected the jury by stating that he was
presumed guilty unless he could prove his innocence. The appeal was dismissed. The case discusses
the burden of proof in criminal cases and the role of the prosecution and the defense.

Facts of the case

Reginald Woolmington was convicted of the wilful murder of his wife and sentenced to death. He
appealed on the ground that the judge had misdirected the jury by stating that he was presumed
guilty unless he could prove his innocence. The appeal was dismissed. Woolmington claimed that he
took a gun to his wife to frighten her into returning to him, but the gun went off accidentally and
killed her.

Issues for determination

• Does the burden of proof in a criminal case lie with the prosecution or the defendant?
• Is the defendant ever required to prove their innocence?

Analysis:

• The trial judge in the case instructed the jury that he was presumed guilty unless he could
prove his innocence, which the Court of Criminal Appeal found to be a misdirection.

• The burden of proof in a criminal case lies with the prosecution, who must prove the guilt of
the defendant beyond a reasonable doubt.

• The defendant is not required to prove their innocence, but must raise a doubt as to their
guilt in order to be acquitted.

• The case discusses the history of the burden of proof in criminal cases and the development
of the law on murder and manslaughter.

Conclusion:

The appeal was dismissed and Woolmington's conviction was upheld. The Court of Criminal
Appeal found that the judge's instruction to the jury was a misdirection. The case clarifies the
burden of proof in criminal cases and the role of the prosecution and the defence.

Judgment:

• The Court of Criminal Appeal dismissed Woolmington's appeal.

• The Court clarified that the burden of proof in a criminal case lies with the prosecution, and
that the defendant is not required to prove their innocence.

• The Court discussed the history of the burden of proof in criminal cases and the
development of the law on murder and manslaughter.

• The Court orders that the appeal should be allowed and the conviction quashed.

It should be noted that the burden of proof has two limbs namely:

1) The legal burden of proof and

(2)The evidential burden of proof

LEGAL BURDEN OF PROOF: This is also known as the general burden of proof. It lies on the person
who is asserting a position and this must be proved before a court of law or tribunal for judgment to
be given in his favour. This general burden it said to be static as such it does not shift.

EVIDENTIAL BURDEN: This burden rests on both parties to the suit. It is not static like legal burden,
rather it shifts or alternates between the parties in the

the evidential burden will now shift to the defendant to lead evidence to establish his defence. The
evidence being led by the defendant amount to

evidential burden and any further evidence that may be adduced by the plaintiff in rebuttal will also
amount to evidential burden of proof.

The burden of proof can be assessed from two sides ; determining the party responsible for
shouldering the burden and the evidence that the burden-bearer must present to substantiate their
claim. This evidence in some cases must be sufficient to prove the fact or issue while in others all
that is required is for it to be enough to justify a finding on that fact or issue in favour of the party on
whom the burden lies. It all depends on the nature of the proceeding i.e. criminal or civil. See the
case of Ankpegher vs. State (2018) LPELR-43906 (SC), the apex court where per Kekere-Ekun, JSC at
pages 24-25 held:

“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout
the trial and does not shift. In other words, there is no burden on the accused person to prove his
innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond
reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act,
2011

However, when a person is obligated to prove the existence of any fact the burden of proof lies on
that person as in section 135(2) of the Evidence Act. “The point must be made however that while
the burden to prove the guilt of the Defendant does not shift, there are instances in a criminal case
when the burden of proof shifts. This is when the Defendant asserts a fact in a criminal matter, the
burden is on him to prove that fact. This is because the law is trite and it is that whoever alleges a
fact is under obligation in law to prove the fact he alleges. See; Ex- Captain Charles C. Ekeagwu vs.
The Nigerian Army & Anor NSCQR Vol. 42 2010 pg. 1238”

On the other hand, the burden of proof in civil proceedings is quite different from criminal
proceedings. In civil proceedings, the party making a claim or defense must provide enough evidence
to convince the court that their version of events is more probable to be accurate than the opposing
party's version. See Agala v Egwere [2010] ALL FWLR (IPT. 532) 1609 SC.

Unlike in criminal proceedings where the defendant is presumed innocent, the burden of proof shifts
between the claimant and the defendant in civil proceedings; albeit, starting with the claimant who
asserts. Hence, In Kate Enterprises Ltd v. Daewoo Nigeria Ltd (1985) 7 SC 1, the Supreme Court held
that once the Plaintiff had discharged his burden of proof and the Defendant failed to lead evidence
in support of material points in his case, the only reasonable and legitimate inference is that the
Plaintiff's version is more probable. In furtherance, the Supreme Court Adegoke v. Adibi(1992) 5
NWLR (pt 242) 410, the Supreme Court stated that not only will there be instances in which on the
state of pleadings, the burden of proof lies on the Defendant, but also, as the case progresses, it may
become the duty of the Defendant to call evidence in proof or rebuttal of some particular point
which may arise in the case

Generally, the burden of proof in criminal proceedings does not shift. In the case of Kassim v State,
the apex court held per Galinje, JSC that the law is trite on who the burden of proof in a criminal
case resides. Act The Constitution and the Evidence Act have placed the burden of proof in criminal
cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general
duty to rebut the presumption of innocence constitutionally guaranteed to the accused person.

There are cases where the accused raises some special defence which are exceptions to the above
rule. These exceptions are: -

(a) Defence of Autre fois convict (I was tried before and was convicted) or Aure fois acquit (I was
tried before and I was acquitted.) See section 36

(a) of the 1999 Constitution

(b) Defence of insanity and intoxication: - By virtue of section 139 (3) (c) the onus of proving insanity
and intoxication lies on the accused person
who raises either of them - see Kure Vs. State (1988) 1 NWLR pt 71 pg 404.

(c) Exemption, exception or qualification: - Under section 139 and 141 of the Evidence Act any
person who raises the defence of exemption,

qualification or exception has the burden of proving it - see In Johnson v. COP (1960) NMLR 118.

(d) Defence of Alibi - Where the accused raise the defence of Alibi, the police has a duty to
investigate the alibi, but the defence must be raised

timeously and the accused has the onus of proving the alibi.

(e) Proof of facts within the special knowledge of the accused: - By virtue of section 140 of the
Evidence Act, when any fact is especially within

the knowledge of any person, the burden of proving that fact is upon that person.

STANDARD OF PROOF

The standard of proof is the degree to which a party must prove its case to succeed.It could also be
described as the extent to which a claim must be justified. The more serious a case is, the higher the
standard of proof will be. The standard of proof is a matter of weight of evidence. It varies as
between civil and criminal cases .

Under the law, two separate standards of proof are recognized- proof beyond reasonable doubt and
proof based on the balance of probabilities. The former is the standard adopted while dealing with
criminal cases while the latter is the standard in use in case of civil suits. In the case of Ikare
Community Bank Nig Ltd v Adamu Wagon (2005) All FWLR (Part 265) 1089; Buhari v Obasanjo (2005)
7 SCNJ 21; Adimora v Ajufo(1988) 3 NWLR (Part 8) 1 at 13; West African Breweries Ltd v Savannah
Ventures Ltd (2002) FWLR (Part 112) 53 at 74; Okonkwo v Cooperative and Commerce Bank (Nig)
Plc. (2003) FWLR (Part 154) 457 at 518. However, the standard of proof in criminal proceedings is
“prove beyond reasonable doubt”. This principle is premised on the constitutional provision of
section 35(6) of the Nigerian Constitution.

On the standard of proof, sections 134 and 135 are sacrosanct. Both sections provide as follows;

“The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”

“(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding
civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to
section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not
directly in issue in the action.

(3) In election matters, whether the commission of a crime is in issue or not, proof shall be on the
preponderance of the evidence or balance of probabilities.”

The above provision clearly enumerates the extent and degree of proof required in civil, criminal,
election, or sui generis matters. Beyond an iota of doubt, section 139 of the Evidence Act further
provides as follows;
“(1) Where a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any exception or exemption from, or qualification to, the operation of the
law creating the offence with which he is charged is upon such person.”

“(2) The burden of proof placed by this Part upon a defendant charged with a criminal offence shall
be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether
on cross-examination or otherwise, that such circumstances in fact exist.”

CONCLUSION

From the foregoing, it is understandable that the principles of burden and standard of proof is
largely govern by laws. It is also clear that burden and standard of proof are not susceptible to varies
depending on the nature of proceedings and the peculiarity of each case. Though, the law places
heavy burden on the prosecution to establish the guilt of a defendant in criminal matters, yet, there
are circumstances wherein the Defendant assume the garment to establish peculiar claims in same
criminal proceedings. In the same vein, the Standard of proof in criminal matters as established in
the aforementioned is prove beyond reasonable doubt.

On the other hand, 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”. It is noteworthy to state that the Evidence Act (Ss.134-135) serve to improve the
integrity and reliability of the court proceedings by providing clear compass for the admissibility and
evaluation of evidence. By establishing standards for determining the existence or non-existence of
foundational facts, the Act empowers courts to assess the reliability, authenticity, and relevance of
evidence presented by parties.

While the law on the burden of proof in criminal cases has evolved over time, it is clear that the
prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. The
defendant is not required to prove their innocence, but must raise a doubt as to their guilt in order
to be acquitted. This case clarifies the role of the prosecution and the defense in criminal cases and
upholds the principle of the presumption of innocence.