Burden Of Proof In Civil Cases

In the Supreme Court of Nigeria

Holden at Abuja

On Monday, the 23rd day of October, 2023

Before Their Lordships

John Inyang Okoro

Helen Moronkeji Ogunwumiju

Adamu Jauro

Tijjani Abubakar

Emmanuel Akomaye Agim

SC/CV/892/2023

Between

SENATOR SMART ADEYEMI                                         APPELLANT

And

1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

3. AHMED USMAN ODODO RESPONDENTS

(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

The Appellant, along with other members of the 1st Respondent, including the 3rd Respondent, contested in the 1st Respondent’s primary election for the nomination of a candidate for the Kogi State Gubernatorial election slated for 11th November, 2023. At the primary election that held on 14th April, 2023, the 3rd Respondent was said to have polled the highest number of valid votes, and having been ratified by the Special Congress, he was returned as the winner of the primary election and the 1st Respondent’s candidate for the Kogi State gubernatorial election.

Dissatisfied, the Appellant approached the Federal High Court by way of an originating summons, seeking inter alia, a declaration that the 3rd Respondent was not validly nominated as the 1st Respondent’s candidate for the 2023 Gubernatorial election in Kogi State. The complaint of the Appellant was that the 1st Respondent failed to conduct direct primary elections in all the 239 wards of the 21 Local Government Areas of Kogi State due to the interference of Governor Yahaya Bello, whom he alleged used the instrumentality of the Council Chairmen to write fictitious scores on the result sheets in favour of the 3rd Respondent. The trial Judge in a judgement delivered on 12th July, 2023, dismissed the Appellant’s suit. Dissatisfied, the Appellant appealed to the Court of Appeal. The Court of Appeal affirmed the judgement of the trial court, and dismissed the appeal. Further dissatisfied, the Appellant lodged an appeal at the Supreme Court.

Issue for Determination 

The Supreme Court considered the following issue, in its determination of the appeal:-

Whether the courts below were right in their concurrent findings of fact to the effect that, the Appellant as the Claimant before the trial court failed to discharge the onus of establishing that the primary election that produced the 3rd Respondent was not substantially conducted in accordance with the Electoral Act, 2022.

Arguments

On the 1st issue, Counsel for the Appellant argued that since the case of the Appellant is that the primary election did not hold, calling on the Appellant to prove that the primary election was not conducted is like placing on him a burden he cannot discharge. Relying on ODOM v PDP (2015) 6 NWLR Pt. 1456, 527 at 560-562, Counsel argued that there is a difference between legal burden of proof and evidential burden of proof, and that the evidential burden shifts depending on the averments and evidence led. He further urged that, in view of the Appellant’s claim that primary elections did not hold in all the wards, in order to disprove this, the burden was on the 1st and 3rd Respondent to produce the election materials with which the primary election was conducted, or at least, the results from all the wards and the various ward registers.

On the allegation by the Appellant that the 1st Respondent wrote fictitious scores in favour of the 3rd Respondent on the result sheets, Counsel submitted that since the Appellant’s case is that the primary election did not take place in any of the 239 wards consequent upon which he deposed that there were no results to be collated, his obligation to prove his allegation of forgery in paragraphs 8, 25 and 26 of the affidavit to his Originating Summons can only arise after the Respondents had been able to come up with results from the 239 wards

Counsel for the 1st Respondent, on the other hand, argued that the contention of the Counsel for the Appellant that the burden of proving that the primary election held is on the Respondents and that there is no corresponding duty on the Appellant to prove that the primary election did not hold is untenable, in view of the declaratory nature of the reliefs sought by the Appellants. He submitted that even if the Respondents did not file any defence, the Appellant was still required by law to establish his case by cogent and convincing evidence to be entitled to the grant of the declarative reliefs sought. Counsel argued further that the Appellant’s allegations of forgery in certain paragraphs of the Appellant’s affidavit are criminal in nature, and must be proved beyond reasonable doubt. He emphasised that the averments in the affidavit of the Appellant, cannot be sufficient proof of the allegations of crime made by the Appellant

On their part, respective Counsel for the 2nd and 3rd Respondent argued that the documentary evidence of the 2nd Respondent in form of the 2nd Respondent’s Monitoring Report, and the result of the primary election duly signed by the 1st Respondent’s agent on the 1st Respondent’s letterhead, raises a presumption that the primary election held and therefore, shifts the burden on the Appellant to prove that the election was invalid as he claimed.

Court’s Judgement And Rationale

The Apex Court held that the party that has the primary legal burden to prove the existence or non-existence of any facts, is on the one who desires a court to give judgement as to any legal right or liability dependent on the existence or non-existence of facts which he asserts. Thus, generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue. The burden rests on the party whether Plaintiff or Defendant, who substantially asserts the affirmative of an issue. The Court held further that Section 133(1) of the Evidence Act specifically provides that whether the Appellant is making an affirmative assertion i.e., the existence of a fact or a negative assertion i.e., the non-existence of a fact, the burden of first proving either of the two, lies on the party against whom the whole judgement would be given if no evidence is led on either side. The Court referred to EGHAREVBA v OSAGIE (2009) 18 NWLR (Pt. 1173) at 299.

Relying on CHIEF ARCHIBONG v CHIEF ITONG ITA (2004) 1 SCNJ; (2004) 4 NWLR Pt. 858 Pg. 590 at 619, the Apex Court held that where the burden of proof of the non-existence or existence of a fact is in issue, regard must be had to presumptions arising from the pleadings. The Court held that by Section 168 of the Evidence Act, 2011, there is a presumption of regularity in respect of judicial or official acts; in essence, formal requisites for validity of all judicial or official acts are presumed to have been complied with until the contrary is proved. The Court also referred to its decision in SHITTA-BEY v A-G FEDERATION (1978) 7 SCNJ 264 Pg. 287, that apart from the presumption of regularity, there is the presumption that where there is no evidence to the contrary, things are presumed to have been rightly and properly done. The Court also held that where allegations of crime are made in an election matter, the standard of proof is even high, as election matters are not exempt from the law that says that an allegation of crime in any proceedings must be proved beyond reasonable doubt.

On the whole, the Court held that in the instant case, the Appellant made certain assertions regarding the conduct of the 1st Respondent’s primary election, and by the provisions of the law, he ought to adduce evidence to support these assertions. However, claimed that since there was no primary election, he did not have any result to tender, when he could have tendered other affidavit evidence from his agents in the wards all over Kogi State to substantiate his claim. The Court found that, on the other hand, the Respondents produced evidence which proved the fact that the primary election was indeed, conducted with the 2nd Respondent tendering before the trial court the primary election results and reports on the conduct of the primary election in the various local governments duly signed by its electoral officers. It follows therefore that, in the peculiar circumstances of this case being a pre-election matter, there is a presumption of regularity of the results released by INEC which were pleaded, but which the Appellant failed to rebut.

The Court also held that, the Appellant who also made allegations of forgery against the Respondents, failed to support his allegations with compelling and conclusive evidence proving the commission of the crime by the Respondents beyond reasonable doubt.  

Appeal Dismissed.

Representation

Musibau Adetunbi, SAN with others for the Appellant.

Abdulwahab Mohammed, SAN with others for the 1st Respondent.

Chief A. A. Adeniyi, SAN with others for the 2nd Respondent.

M.Y. Abdullahi, SAN with others for the 3rd Respondent.