If that was the case of the plaintiff, namely, that Kwatia (admittedly an employee of their company), had been induced by Giles Hunt to do what is attributed to him, then, the burden shifted upon the plaintiffs to prove that assertion they made. It was the only course open to them if they wanted to question the genuineness of exhibit 21, which on the face of it, appears to be in order. Surprisingly enough, however, not only did they fail to call Kwatia or any other person who could testify to what was alleged, but that issue was even not pleaded by the plaintiffs. It follows, therefore, that the plaintiffs rather failed to discharge the heavy burden of establishing that the attestation clause did not truly represent what it contains.
Under and by virtue of this clause there was no onus upon the respondents to establish that there was no burglary, as Mr. Benjamin for the appellant contended. It is my view that the onus was, rather, on the appellant to show that there was a genuine burglary by reason of which 383 bags of cocoa were stolen, and that such burglary was beyond his control. This he failed to do to the satisfaction of the respondents, who were therefore justified in not crediting the appellant’s account with the value of such goods and the commission. I have already indicated that payment of a commission is for a “faithful discharge” of the covenants of the service agreement by the appellant, whereas the evidence shows anything but a “faithful discharge” on the appellant’s part. He therefore cannot succeed on the counter-claim.
The trite position of the law on the burden of proof which has also been stated in several authorities is that “a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts, can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”.
Thirdly, once it is accepted that prices were agreed, the burden of establishing what the agreed prices were, and that the invoices departed from them, lay on the appellant, as the party asserting it (Sections 11, 14 and 17 of NRCD 323). The appellant produced no schedule of agreed prices, no statement of account, and no reliable evidence of the figures it says should have governed. A bare assertion of a different price, unsupported by such proof, does not discharge the burden of persuasion: MAJOLAGBE VS. LARBI & ORS [1959] GLR 190.
It is not enough to know that the appellant did the act which caused the death of the deceased. The prosecution must show that the prisoner intended that his act would likely cause or contribute to cause the death of the deceased. No one, therefore, would be convicted of murder without proof of that intent.
Combining all the relevant provisions on producing evidence particularly in criminal trials as set out supra, it is plainly obvious that unless the particular enactment under which a person is charged makes the offence a strict liability offence, the prosecution always carries the burden to place sufficient evidence before the trial court before an accused may be invited to prove the positive.
The trial judge must deal with the question of burden of proof and make it quite clear to the jury that it is for the prosecution to establish the guilt of the prisoner, and if such guilt is not established the prisoner must, as of right, be found not guilty.
Duty of a civil defendant to lead evidence on the issues he wants decided
The effect of sections 11(1) and 14 and sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of statutory provisions, literally relying on the common law principle that a defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant
Effect of a failed defence on the prosecution's onus
We would point out here, that the failure of the defence did not relieve the prosecution of the onus which lay upon them in view of the appellant’s plea of not guilty, to prove his guilt beyond reasonable doubt. We would add that while a strong defence of alibi weakens a strong prosecution case, the failure of an alibi, however hopelessly, cannot strengthen a weak prosecution case. The case of the prosecution therefore has to stand upon its own strength, or fall by its own weight.
It is a misdirection to leave the impression on the minds of the jury that because the evidence for the prosecution established a prima facie case, the burden of proof is shifted to the defendant
The question of marriage vel non is a question of law, which must be determined upon the facts before the court. Moreover, a person on whom the onus lies to establish certain facts need not lead further evidence of the facts necessary to prove his case if his opponent admits those facts, whether in his pleadings, or in evidence given in-chief or in cross-examination. In such a case the party must be deemed to have discharged the onus.
Evidence peculiarly within the knowledge of the opposing party
However, it was not his fault that he did not possess the records with which to prove his claim definitively. At all material times, it was only the respondents who could have control of the information that the appellant would require to satisfy the evidentiary burden. It was the 1st and 3rd respondents who had custody of those records, as well as the means to make or delete those records. It was thus for good reason that the appellant sought the second order from the High Court for the respondents to be ordered to produce the records of numbers registered under his identity card. Therefore, no one but the 1st and 3rd respondents could produce those records and the blame for same could not be put at the door of the appellant.
In short the learned judge concentrated his attention on irrelevant matters to discredit the appellant as if there was an onus upon him to prove his innocence. All it was necessary for the appellant to show was a reasonable probability that the prosecutrix consented to the carnal knowledge he had of her. The evidence taken as a whole, both for the prosecution and the defence, establish a very strong probability that there was such consent. The appellant was therefore wrongly convicted, and a miscarriage of justice has been occasioned thereby.
Proof of an averment by more than repetition on oath
In the case of Feroe Atlantic v. Attorney General [2006] 1 GMLR 1, this court held that: “Proof in law is the establishment of fact by proper means. Where a party makes an averment capable of proof in some positive way, e.g., by producing documents, … he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”.
It ought to be borne in mind that the Respondent did not have to prove its case beyond reasonable doubt. The trial Court’s duty was to ascertain whether on the preponderance of the evidence offered at the trial, the Respondent's case was more probable than the case of the Appellant having regard to the totality of the evidence on record.
An allegation of fraud in a Civil Suit must be proved beyond reasonable doubt (Section 13(1) of NRCD 323; must be distinctly pleaded, and must be established by facts and not by inference.
To impute a crime to a person is quite serious and therefore proof of that imputation should not be lightly established. It should carry a high degree of proof to portray the seriousness of the imputation.” This restatement of the law thus called for 1defendant not only to lead evidence to prove these serious allegations, but to also meet the standard of “proof beyond reasonable doubt”. However, the 1defendant did neither. Adopting a strategy of attacking the evidence of the plaintiff by cross-examination only, was inadequate to discharge the twin burdens of producing evidence; and persuading a tribunal of fact beyond reasonable doubt.
The evidence given by the Plaintiff was a positive one which was in no way rebutted just by the questions posed to her under cross examination. A positive rebuttal will find expression in evidence given by either the 2 defendant or an eye witness to the contrary. As it is, no such evidence was called by the defendant. The Plaintiff’s evidence that she was knocked down by the 2 Defendant on the pavement whiles the 2 defendant was speeding, therefore, stood unchallenged. The defendants are, therefore, deemed to admit the evidence adduced by the Plaintiff.
