“I am in no doubt that this argument of appellants about negative and positive assertions is misconceived, for while it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff’s case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: “Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms ‘negative and affirmative’ are after all, relative, and not absolute.” ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola’s Law & Practice of Evidence in Nigeria, and Muraina & Ors v. ?Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence of fact lies is on the party against whom judgment would be given if no evidence were produced on either side. It is appellants who as plaintiffs sought declarations from the Court and wanted judgment on the basis of their claims and assertion of Respondents’ alleged non-compliance with tradition and customs of installation of 3rd Respondent as Ponzhi Nagane. If no evidence was produced by either side, it is their case that would have been dismissed for lack of proof. What is more, under Nigerian Law custom is an issue of fact the burden of proof of which is on the person alleging its existence. See Section 16 of the Evidence Act 2010 and Onibudo v. Akibu (1982) 9 S.C. 29 @ 44, 46, 47. Appellants being the ones who founded their action on existence of tradition and custom that was according to them not observed by Respondents in the installation of 3rd respondent, they had the onus to prove it. I assume it is because they were also aware of that fact hence they entered the witness box first, instead of insisting that Respondents first do so. After all the law is settled that it is the party who bears the burden of proof on the pleadings, regardless of whether he is plaintiff or defendant, that first adduces evidence,: see Okoye v. Nwankwo (2014) ALL FWLR (PT 756) 471 @ 595 – 500, (2014) LPELR-23172 (SC); Onobruchere v. Esegine (1986) 1 NWLR (PT 19) 799. Having failed woefully to prove their said custom let alone how it was breached by Respondents, they cannot now turn around now to say that the burden of proof was on respondents.”
Per UGO ,JCA (Pp. 14-17, para. E-E)
Last modified: October 15, 2023
