BURDEN OF PROOF

1. The term burden of proof is regarded as having two meanings. It may

mean the burden of proof as a matter of law and the state of pleadings.
This is usually referred to as the legal burden of proof or the
burden of establishing a case. This burden of proof is fixed at the
beginning of trial (civil or criminal) and does not shift. The second
meaning of the burden of proof is the burden to prove a particular fact. It
is otherwise called evidential burden which shifts between the
parties to a case. See NNANYELUGO C. ODUKWE v. MRS. ETHEL
N. OGUNBIYI (1998) LPELR-2239(SC). The Evidence Act 2011 has
made elaborate provisions for the general burden of proof, burden of
proof of particular facts, the standard of proof in civil and criminal
cases, in civil cases involving allegations of crime, evidence
relating to facts especially within the knowledge of persons, and
with regard to specific transactions. The provisions are section 131
- 144 of the Evidence Act, 201. Thus, the burden of proof is used to
describe the duty placed on a party to establish a case or particular fact
in a case.
2. It is instructive to note that in civil cases, the burden of proof depends on
the state of pleadings. It is does not operate in a vacuum because as
Oputa JSC (as he then was and of blessed memory) puts it, in
ONOBRUCHERE V ESEGINE (1986) 1 NWLR (Pt.19) 799, in this way;
“the proposition that all the cases cited above and others of their kind
establish is the fundamental proposition that in a claim of declaration of
title, the onus lies on the Claimant who is usually the Plaintiff. The
principle is not at all new. It is the over-riding principle in all civil cases.
The proposition is thus quite clear and straightforward. What is not so
clear is when, in any given case, can it be said that the plaintiff has
discharged that onus on him? An onus of proof does not exist in
vacuo. The onus or burden of proof is merely an onus to prove or
establish an issue. There cannot be any burden of proof where
there are no issues in dispute between the parties. For example, if
the plaintiff’s claim is admitted, that will be the end of the story.
Similarly, if a particular averment of the plaintiff is admitted, there will no
longer be an onus to prove what has been admitted by the opposite
party. Therefore, to discover where the onus lies in any given case, the

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 court has to look critically at the pleadings. Where for instance the
plaintiff pleads possession of the land in dispute as his root of title
and the defendant admits that possession but adds that the land
was given to the plaintiff on pledge, then the onus shifts onto the
defendant to prove that the plaintiff is not the owner of the land, his
possession of which has been admitted. Once the defendant
admits the plaintiff’s possession of the land in dispute in his
Statement of Defence, then and there, the plaintiff has on the
pleadings discharged the onus of proof cast on him and section
145 of the Evidence Act, Cap. 62 of 1958 will impose a burden on
the defendant to prove the negative namely that the plaintiff is not
in the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1
All NLR 32 at p. 35. In such a case, it is the defendant who will begin
and if at the close of his case he fails to prove that the plaintiff is
not the owner, the plaintiff’s claim succeeds without even the
plaintiff giving any further evidence”. (Section 145 of the Evidence
Act, referred to above is now section 143 of the Evidence Act,
2011).
3. In the above case, the Plaintiffs pleaded in their paragraph 6 that the
land in dispute is the exclusive property of the Omovwodo family by right
of first settlement but that Emunotor pledged a portion of it verged yellow
to Idiarhevwe. In Customary law, the pledger retains the radical title. It is
not extinguished by the pledge. The pledger has the right of redemption,
and it does not matter for how long the land had been pledged: the
plaintiffs thus alleged in paragraphs 5, 6 and 7 of their Statement of
Claim that their ancestor was the original founder and owner of the
land in dispute and that they are still owners thereof
notwithstanding the pledge. What was the defendants’ pleading?
By paragraph 6 of the Statement of Defence, the defendants
averred: “6. In further answer to paragraph 5 of the Statement of
Claim, defendants aver that the land in dispute was never pledged
to the defendants’ ancestors, but it was an outright customary sale
to her by members of the 2nd plaintiffs’ family (Omovwodo family).”
The court held that definitely the Omovwodo family cannot sell the land
in dispute to the defendants’ ancestors unless they had the radical title.
It is therefore common ground that radical title once resided in the
plaintiffs. The plaintiffs say they (the Omovwodo family) pledged the land

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 to the defendants but still retained their radical title. The defendants say
it was an outright sale which extinguished the radical title.
4. The Defendants having thus admitted that at one time the radical title
was in the plaintiffs, the onus is on them (the defendants) to prove that
that radical title had been extinguished by the alleged sale pleaded by
them. The apex court was of the view that the Defendant having
admitted that title to the disputed land once resided in the Plaintiff, under
the presumption of continuance under section 148(b) of the repealed
Evidence Act, now section 167(b) of the Evidence Act, 2011, the
Plaintiffs who are successors to the original founder of the land, are still
the owners and that the issue in the case is whether Emunotor sold the
entire land verged pink in Ex. A to Idiarhevwe. When it is accepted by
both sides and found as a fact by the court that the plaintiffs’ ancestor
was the “original founder” of the land in dispute, the presumption will be
that the plaintiffs as his successors in title continued to be owners of the
land in dispute until the contrary is proved. Section 148 (b) of the
Evidence Act, Cap. 62 of 1958 refers. If section 145 of the Evidence
Act of 1958 will compel a defendant who admits that the plaintiff is in
possession of the land in dispute to establish that such plaintiff is not the
owner, a fortiori, a finding by a court that the plaintiffs descended from
the “original founder” of the land in dispute coupled with the defendants
averment of sale to them by the plaintiffs will definitely shift the burden of
proof on the defendants to show that the original owners had
extinguished their title. To hold otherwise will be to “overlook the
established rule that once it is proved” (here it was admitted by the
defendants and found by the trial court) that the original ownership
of property is in a party the burden of proving that that party has
been divested of the ownership rests upon the other party per
Coker, JSC in Bello Isiba & Ors. v. J. T Hanson & Anor. 1967) 1 All NLR
8.
5. "I disagree with the Respondents when they submitted that the
evidential burden on the Appellants was not discharged, they discharged
it and rather, it was the Respondents who failed to shift back the
evidential burden. The relationship between burden of proof and
evidential burden was explained in the case of NDUUL V. WAYO &
ORS (2018) LPELR-45151(SC) thus: "The first question to consider in
resolving this issue is: on whom does the burden of proof lie Section 133

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(1) and (2) of the Evidence Act 2011 provides: 133 (1) In civil cases, the
burden of first proving the existence or non-existence of a fact lies on the
party against whom the judgment of the Court would be given if no
evidence were produced on either side, regard being had to
presumptions that may arise on the pleadings. (2) If the party referred to
in Subsection (1) of this Section adduces evidence which ought
reasonably to satisfy the Court that the fact to be proved is established,
the burden lies on the party against whom judgment would be given if no
more evidence were adduced and so on successively until all the issues
in the pleadings have been dealt with. The meaning of "burden of proof"
was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt.
561) 339 @ 353 D - H, as follows: "...the phrase "burden of proof in civil
cases has two distinct and frequently confused meanings. This
comprises, firstly, of the burden of proof as a matter of law and the
pleadings, usually referred to as the legal burden or the burden of
establishing a case and, secondly, the burden of proof in the sense of
adducing evidence, usually described as the evidential burden. While the
burden of proof in the first sense is always stable, the burden of proof in
the second sense may shift constantly, according as one scale of
evidence or the other preponderates. As Aniagolu, JSC explained the
issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135
at 145, "In civil cases, while the burden of proof in the sense of
establishing the case, initially lies on the plaintiff ..., the proof or rebuttal
of issues which arise in the course of proceedings may shift from the
plaintiff to the defendant and vice versa as the case progresses." Thus,
the general rule is that he who asserts must prove. The burden is
therefore on the plaintiff to first adduce prima facie evidence in support
of his case. Where a prima facie case is made out, the burden shifts to
the defence to adduce counter evidence to sustain their defence. Where
an allegation is made, positively or negatively and it forms an
essential part of a party's case, the proof of such allegation rests
on him. See also: Plateau State of Nig. & Anor. Vs A.G. Federation
& Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D - F; Imana Vs
Robinson (1979) 3 - 4 SC (Reprint) 1. However, the evidential burden of
proving particular facts may shift throughout the proceedings. See:
Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo
(2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra)." Per

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 KEKERE-EKUN, J.S.C See also the case of ODOM & ORS V. PDP
& ORS (2015) LPELR-24351(SC); OKOYE & ORS V.
NWANKWO (2014) LPELR-23172(SC) and ONI V. OJOGBOGBO
& ORS (2015) LPELR-41741(CA)." Per NIMPAR, J.C.A (Pp. 45-
48 paras. F) LIKE IGBA & ORS v. IKYO ANGBANDE & ORS (2021)
LPELR-53295(CA)
6. It is instructive to note two crucial provisions of the Evidence Act, 2011
as they affect the burden of proof especially in land litigations. They are
sections 35 and 143 of the Evidence Act, 2011. The former provides
that acts of possession and enjoyment of land may be evidence of
ownership or of a right of occupancy not only of the particular piece or
quantity of land with reference to which such acts are done, but also of
other land so situated or connected with it by locality or similarity that
what is true as to the one piece of land is likely to be true of the other
piece of land. And the latter provides that when the question is whether
any person is owner of anything of which he is shown to be at
possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner.
7. In the old case of SANDY V. HOTOGUA (1952) 14 WACA 18 @ P. 20,
the West African Court of Appeal held that the trial Judge proceeded on
the wrong assumption, that in an action for false imprisonment where the
defence was that the imprisonment was lawful, that it was still for the
plaintiff to prove that his imprisonment had been unlawful. The Court
(WACA) held in that case that the burden was upon the defendant to
justify the imprisonment. In other words, the onus of proof is not always
on the plaintiff. It could be on the defendant depending on the state of
the pleadings. In Joe Sandy’s case supra, WACA held - that the onus
was on the defendant who admitted the imprisonment of the
plaintiff, to prove that it was lawful.
8. This proposition that what is admitted or deemed to have been admitted
by the rules of pleadings, is established, is supported by statute and a
plethora of judicial decisions. In TAIWO.V. ADEGBORO (2011) ALL
FWLR (PART 584) P 52 PP 67 PARAS E-F, it was held that by the
provision of section 75 of the Evidence Act, 2004, now section 123
Evidence Act, 2011, judicial admissions are conclusive and that where
a party agrees to a fact in issue, it is no longer necessary to prove that
fact. In fact, after an admission, no further dispute on the fact admitted

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 should be entertained by the court. This is the strongest proof of the fact
in issue. Indeed section 123 of the Evidence Act, 2011, provided that no
fact need be proved in any civil proceedings which the parties to
the proceeds or their agents are to admit at the hearing or which,
before the hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force the time they are
deemed to have admitted by their pleading.
9. In ACHILIHU .V. ANYATONWU (2013) ALL FWLR (PART 696) P. 483
P 508, PARA F, P 509 PARA F, the apex court in considering section
75 of the Evidence Act, now repealed, which provision is the same as
section 123 of the Evidence Act, 2011 held as per Mary Peter-Odili
(JSC) that: “by the provisions of section 75, Evidence Act the other party
cannot be taken unawares as to what the issues in controversy are to
enable that adverse party to be prepared and present their side. This is
to assist the court weigh the balance, adjudicate and reach a decision
one way or the other. In the light of the position of pleadings, the
pleadings which must be specifically denied. Therefore, there is no
room for a Defendant to be hedgy and evasive in his answers to the
facts averred by the Plaintiff. It is so that once pleading has been
specifically put forward, the other party who failed to meet those
facts directly either by admitting them or deny them that is with
specificity then he be taken to have admitted it. When an allegation
of a material nature is taken as admitted, there would be no need
for further evidence in proof thereof”.
10. It must be noted that in claims for declaratory reliefs, the courts have
consistently refused to enter judgment for the Claimant merely on the
Defendant’s express or implied admission. In that circumstance, the
Claimant must succeed on the strength of his case, not on the weakness
of the case of the Defendants. According to Mohammed JSC in
AYANRU V MANDILAS LTD (2007) 7 M.J.S.C 163 PP 174 B-D “a claim
for relief of declaration, whether of title to land or not, is not established
by an admission of the Defendant because the Plaintiff must satisfy the
court by cogent and credible evidence called by him to prove that as a
Plaintiff, he is entitled to the declaratory relief”.
11. It would however seem that the foregoing principle may not apply if the
admission whether expressly or impliedly is made in a front-loading
regime. This point is illustrated by the case of GE INT’L OPERATIONS

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 (NIG) LTD V Q OIL (2016) All FWLR, part (PT 838) P 842 PP 864-865
PARAS C-C, one of the issues was on the Lower Court’s reliance on the
respondent witness statement on oath to grant declarative reliefs. The
Apex Court held that evidence in support of a claim for declaration can
be oral or documentary and that the River State High Court Civil
Procedure Rule provide for the filing of witness statement and that a
witness statement is in the nature of affidavit evidence and that the
requirement that a Plaintiff must by credible evidence satisfy the court
that he is entitled to the declaratory relief he claims is satisfied by the
witness statement made on oath pursuant to the 2006 rules of the Rivers
State High Court. In fact, in the foregoing case, the Supreme Court
emphatically held that pre-2006 decided cases on the issue of adoption
of witness statement are inapplicable because of the requirement for
witness statement on oath. With regard to criminal cases, there is no
burden of proof, where a party confesses the commission of the offence
with which he is charged. In the recent case of ADEKOYA v STATE
(2014) LPELR-22933, the Court of Appeal per Tsamiya JCA held; thus,
...it is the accepted law that, after a plea of guilty by an accused
person in non-capital offences, the court is at liberty to formally
proceed to convict upon such plea without calling upon the
prosecution to prove the commission of the offence by discharging
the burden of proof cast upon it by law. This is because, a
satisfactory plea of guilty will have the effect of satisfying the
required burden and standard of proof on the prosecution.
12. We have already made the point that the phrase burden of proof has two
meanings, and they are: the burden of proof based on the law and
the pleadings and the burden of proof of a particular fact. Section
132 of the Evidence Act, 2011 provides that 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. This provision relates to the Plaintiff in a civil
case or the Complainant, the State in a criminal case, who wants
judgment entered against the person that has been brought to court.
Consequently, according to section 131 of the Evidence Act, 2011,
whoever desires any court to given judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must
prove that those facts exist. When a party is bound to prove the

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 existence of any fact, it is said that the burden of proof lies on that
person.
13. In NWAVU V OKOYE (2008) 18 NWLR (PT 1118) P29 SC, it was held
that “the person, who normally claims the existence of a thing which by
the operation of law he claims to be his is usually called the Plaintiff or
Claimant. The person against whom the claim is made and who normally
denies it, is called the Defendant or Respondent. It is the burden of
establishing the facts and contentions which will support a party’s case.
If, at the end of trial, he has failed to establish that to the appropriate
standard, he will lose. The incidence of this burden is usually from
the pleadings, it usually being incumbent upon the Plaintiff to
prove what he contends as the golden rule is that the onus of proof
is on the Plaintiff. Thus, the burden rest upon the party desiring the
court to take action. He must satisfy the court or tribunal that the
conditions which entitle him to an award have been satisfied. In respect
of a particular allegation, the burden lies upon the party for whom the
substantiation of that particular allegation is an essential of his case.
There may by separate burdens in a case with separate issues. For
instance, in a negligence action the burden of proof of duty, breach of
duty and damage is upon the Plaintiff and of contributory negligence
upon the Defendant. In an action for trespass to land, where the
Plaintiff’s title is proved or admitted, the burden is on the Defendant to
prove right to possession consistent with that title”.
14. BURDEN OF PROOF IN CIVIL CASES: By section 133 of the Evidence
Act 2011, in civil cases, the burden of first proving existence of a fact lies
on the party against whom judgment of the court would be given if no
evidence were produced on other side, regard being had to any
presumption that may arise on the pleadings. Let us now consider
some examples of how the pleadings have determined the burden of
proof: (a) Where the Claimant claims ownership of land, and the
Defendant admits that the Claimant is in possession, but that title resides
in another person, the burden of proof lies on the Defendant. In this
regard, please note sections 35 and 143 of the Evidence Act, 2011.
In SALAMI V LAWAL (2008) ALL FWLR (PART 438) P 200 it was held
that section 146 of the Evidence Act 1990 (repealed) (now section 143
of the Evidence Act, 2011) compels a defendant who admits that the
plaintiff is in possession of the land in dispute to establish that the

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 plaintiff is not the owner of the land. The burden of proof rests on the
party alleging the existence of a company or that the company is
registered in law, and therefore a legal person: G & T INVESTMENT
LTD V WIT AND BUSCH (2011) ALL FWLR (PART 576) P 517. A party
alleging exclusive ownership of land, which he admits was previously
owned by a family or community has the duty to prove how the
communal ownership extinguished, and how he acquired exclusive
ownership: ISHOLA V FOLORUNSO (2010) 13 NWLR (PT 1210) P 167.
Where in an action for false imprisonment or unlawful detention, the
burden of proof rest on the Claimant, but where the Defendant admits
the arrest and alleges that the arrest was lawful, the burden of proving
lawful of arrest is on the Defendant: SANDY V HOTOGUA & ANOR.
(1952) 14 WACA 18 AT P. 20. OCEANIC SECURITIES INT’L LTD VS.
BALOGUN (2012) ALL FWLR (PT643)1880 PP 1907 PARA B-C.
15. SHIFTING BURDEN OF PROOF - Section 133(2) of the Evidence Act,
2011 provides that if a party referred to above adduces evidence which
ought reasonably to satisfy the court that the fact sought to be proved is
established, the burden lie on the party against whom judgment would
be given if no more evidence were adduced, and so on successively,
until all the issues in the pleadings have dealt with. Unlike, section
133(1) of the Evidence Act, 2011, this subsection deals with evidential
burden and its swings like a pendulum during trial. When the burden of
proof is discharged by the party on whom the burden rest, the burden
shifts to the adverse party to adduce evidence to the contrary or to rebut
whatever presumption that may have arisen, and this goes on until all
the issues are resolved. In OKOYE & ORS V. NWANKWO (2014)
LPELR-23172(SC), it was held that "Black, describes it "shifting the
burden of proof", which he defines as:- "Transferring it (i.e. burden
of proof) from one party to the other, or from one side of the case
to the other, when he upon whom it rested originally has made out
a PRIMA FACIE case or defence by evidence, of such a character
that it then becomes competent upon the other to rebut it by
contradictory or defensive evidence." (see: H. C. Black's Law
Dictionary, 5th ed. P. 1234)."
16. STANDARD OF PROOF IN CIVIL CASES: Section 134 of the Evidence
Act, 2011 provides that the burden of proof shall be discharged on the
balance of probabilities in all civil cases. Explaining this principle in

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 MOGAJI AND ORS .V. ODOFIN AND ORS (1978) 4 SC 91 at 93-95,
the Supreme Court per Fatayi-Williams J.S.C. (as he then was) gave the
following guidelines: “In short, before a judge whom evidence is
adduced by the parties before him in a civil case come to a
decision as to which evidence he accepts and which evidence he
rejects, he should first of all put the totality of the testimony
adduced by both parties on that imaginary scale: he will put the
evidence adduced by the plaintiff on one side of the scale and that
by the defendant on the other side of the scale and weigh them
together. He will then see which is heavier, not by the number of
witnesses called by each party, but the quality or the probative
value of the testimony of those witnesses. This is what is meant
when it is said that a civil case is decided on the balance of
probabilities.” It is now very axiomatic that proof of issues in a civil
case is on a balance of probabilities. Where there is nothing to put on
the one side of the imaginary scale of justice, minimum evidence on the
other side satisfies the requirement of proof even where strict proof such
as proof of special damages is the matter.
17. However, by section 135(1) of the Evidence Act, if the commission of a
crime by a party to any proceedings, whether civil or criminal is directly
in issue in any proceedings, it must be proved beyond reasonable doubt.
In A.S.E.S. A. V. EKWENEM (2010) ALL FWLR (PART) P 838 PP 856-
857, a civil case, allegations of wanton destruction of property and
stealing were made against the agents of the Appellant and the question
before the apex court was whether the allegations were criminal in
nature to require proof beyond reasonable doubt. In determining the
foregoing question, the apex court took the position that the entire
pleadings of the parties to determine the Plaintiff’s case, the relief
sought vis-a-vis the jurisdiction of the court and the defence in
order to see whether commission of crime is the foundation of the
case. Paragraph of pleadings cannot be relied upon in isolation for this
purpose. The court in considering the pleadings found that the dispute
between the parties was premised on the wrong of trespass to the petrol
filling station in possession of the Respondent where wanton destruction
of property was occasioned and a sum of money was removed from the
station and that although money allegedly stolen was claimed, the
money claim is only incidental to the claim for trespass and destruction

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 of property. It held that the main claim of the Plaintiff being civil,
section 138(1) of the repealed Evidence Act, 2004, which is 135(1)
of the Evidence Act, 2011, is inapplicable.
18. BURDEN OF PROOF IN CRIMINAL CASES: Section 135(2) of the
Evidence Act is clearly specific that the burden of proving that any
person has been guilty of a crime or wrongful act is, subject to section
139 of the Act, on the person who asserts it, whether the commission of
such act is or is not directly in issue in the action. Section 36(5) of the
Constitution of the Federal Republic of Nigeria 1999, as amended
provides that every person who is charged with a criminal offense shall
be presumed to be innocent until he is proved guilty. In OGUNTOLA V
STATE (2007) 12 NWLR (PT 1049) P 617, it was held that in criminal
proceedings, the burden of proof is on the prosecution who must
establish the guilt of the accused person beyond all reasonable doubt to
secure an enduring conviction. If, as in the instant case, the prosecution
fails to prove beyond doubt the link of the Appellant to the crime, he
allegedly committed, on conviction by the trial court, the appellate court
would interfere to set him free. Some vital witnesses for the state
deposed to the fact that the Appellant was very known to them. Yet,
there is no proof that these very witnesses had reported to the
Police at the earlier opportunity, that it was the Appellant that led
the armed gang that robbed them on the fateful day. How the
Appellant was arrested and identified as one of the armed robbers
from the evidence before the trial court remains unresolved.”
19. The requirement of proof beyond reasonable doubt is not amenable to
easy definition. Indeed, it is not defined in the Evidence Act, 2011 or any
other statute to guide the court. This lacuna is filled by judicial decisions.
In JOSEPH V STATE (2011) ALL FWLR (PART 599) P 1008, it was
held that proof beyond reasonable doubt means, the prosecution
establishing the guilt of the accused person with compelling and
conclusive evidence. It means a degree of compulsion which is
consistent with high degree of probability. It is not achieved by the
prosecution calling several witnesses to testify. The court is only
interest in the testimony of a quality witness, so long as the charge
is not one that needs corroboration.
20. On the meaning of proof beyond reasonable doubt, Mary Peter Odili in
TOBI V. STATE (2019) LPELR-46537(SC) stated the following: “Again,

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 to be said is that the deceased died in the hospital not at the place
of attack which fact the appellant seems to hold against the
prosecution to contend that the standard of proof was not met. This
posture seems to suggest that the proof is not made out so long as
no eyewitness to the last breath of the deceased testified to that
effect. Accepting such a position would be aligning to a standard
beyond which the law has not provided, that is a requirement of
proof beyond any shadow of doubt. Such an expectation is not
what the law has scripted, and the law asks for proof beyond
reasonable doubt as the law has not made provision for fanciful
possibilities over what is humanly possible so as not to deflect the
course of justice. Stated differently, where the evidence is so
strong against a man as to leave only a remote possibility in his
favour which can be dismissed with the sentence, "of course it is
possible not in the least probable", the case is proved beyond
reasonable doubt and anything below that will not suffice.”
21. It must be noted that even where in a civil case, the legal burden may
rest on a party or the burden of proving the guilt of an accused person
may rest on the State, the burden of proving particular facts still rest on
the party asserting it. In this connection section 136 of the Evidence
Act, 2011 provides that the burden of proof as to any particular fact
lies on that person who wishes the court to believe in its existence
unless it is provided by any law that the proof of that fact shall lie
on any particular person. In AKIBU V. STATE (2019) LPELR-
47630(SC), Bage J.S.C stated thus “the duty of the prosecution in
any criminal matter is to prove the charges against an accused
person beyond reasonable doubt. This is a settled position of the
law. The onus of proving the guilt of any person accused of the
commission of a crime lies on the prosecution and that the burden
never shifts but must be discharged by credible evidence to ensure
that all necessary and vital ingredients of the charge or charges are
satisfactorily proved. By virtue of S.135(1) of the Evidence Act
2011, the offence must be strictly proved by cogent and convincing
evidence that leaves no iota of doubt or skepticism in the minds of
the parties and members of the public, and I dare say this Court.
The section provides: "135. Standard of proof where commission
of crime is in issue; and burden where guilt of crime etc. asserted.

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 (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.
However, the burden of proving the commission of a crime by the
prosecution has constitutional limitation. Thus, where the burden
shifts or a written law assumes or imposes the duty of proof of a
particular fact on the accused person, the burden is not displaced
by presumption of innocence. Section 36(5) provides that: "Every
person who is charged with a criminal offence shall be presumed to
be innocent until he is proved guilty; Provided that nothing in this
section shall invalidate any law by reason only that the law
imposes upon any such person the burden of proving particular
facts." In this case, the Appellant could not explain the fact that
stolen phones (Exhibit C) belonging to the PW.1 were found on
him. This is one fact that ought to have been proved by the
Appellant since the onus has shifted to him. A prudent person
would have called evidence to clarify or explain the basis or
circumstances under which Exhibit C "miraculously" got to his
`unintended' possession. This was not done. Section 167 (a) of the
Evidence is imperative at this stage. The 'mystery' of these facts is
best dealt with under the provision, which sates thus: "167. Court
may presume existence of certain fact: The Court may presume the
existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human
conduct and public and private business, in their relationship to the
facts of the particular case, and in particular the Court may
presume that - (a) a man who is in possession of stolen goods
soon after the theft is either the thief or has received the goods
knowing them to be stolen, unless he can account for his
possession."
22. BURDEN AND STANDARD OF PROOF REGARDING EXCEPTIONS
TO PENAL STATUTES AND DEFENCES AVAILABLE TO THE
ACCUSED. Where a person is accused of any offence, the burden of
proving the existence of circumstances bring the case within an

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 exception from or defence (insanity, self-defense, intoxication,
provocation, bona fide claim of right, alibi) of the law with which he is
charged, is on the accused person: see section 139(1) of the Evidence
Act, 2011. Again, when a fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. In this regard, it has
been held that the defence of alibi is a fact within the knowledge of the
person making and the duty of proving same is on that person: see UDO
V. STATE (2016) LPELR-40721(SC). See section 140 Evidence Act,
2011. The standard of proof required to establish any fact required
to be proved by an accused is discharged on a balance of
probabilities. Section 137 of the Evidence Act, 2011 provides that
where in any criminal proceedings the burden of proving the existence of
any fact or matter has been placed upon a defendant by virtue of the
provisions of any law, the burden shall be discharged on the balance
of probabilities.
23. BURDEN OF PROOF IN ACTIONS RELATING TO THE VALIDITY OF
WILLS. In DAWODU V. ISIKALU & ORS (2019) LPELR-46435(SC),
upon the review of the submission of learned Counsel together with the
proceeding at the trial Court, statutory provisions and decided cases
cited in arguments, it is noticeably clear that issue No. 1 is the pivot of
the appeal and indeed the threshold of the case at the trial Court. It is for
this reason that I consider, at great length, the argument on the validity
or otherwise of the Will exhibit TD1. By the provisions of Section 1 of
the Wills Law of Lagos State: "It shall be lawful for every person to
bequeath or dispose by his will executed in accordance with the
provisions of this law, all property by which he is entitled to either
in law or equity, or at the time of his death." This means that a
person who desires to make a Will must satisfy the requirements of law
for the Will to be valid, else it will be invalid. The burden, however, for
the proof of validity of a document (will), the genuineness or
authenticity thereof lies on the person propounding it and once this
is satisfied, the burden is cast upon those attacking it: see ITA v.
DADZIE (2000) 4 NWLR pt. 652 page 168. In the instant case, the
respondents have made a claim in respect of their entitlements
pertaining to the property on the ground that it is family property -
the subject matter covered by exhibit TD1. Appellant denied the
entitlement and asserted that there was no such entitlement, as

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 there was a Will which had bequeathed the said property to her
mother solely and with her mother's death, she was now a sole
beneficiary. It is therefore a case of communal (family) ownership
against personal/individual ownership of property. Respondents
therefore denied the validity of the Will, exhibit TD1, while appellant
said it was valid. It is trite law that for a will or testamentary
intention of a deceased person which ought to be respected, to be
given effect to, there must be absolute compliance with the
requirements of the Wills law. The provisions of the Wills Law, as in all
laws, where they are clear and unambiguous, must be given their
ordinary and literal meaning: See Attorney General of the Federation v.
The Guardian Newspaper (1999) 1 NWLR (part 618) at 187 in the case
aforesaid, IGUH, JSC at page 264 had this to say: "And where the words
used or the provisions of any section of the law are clear and
unambiguous, they must be given their ordinary meaning unless of
course, this would lead to absurdity or be in conflict with other provisions
of the law." Now, exhibit TD1 under consideration fell short of the
mandatory minimum of two (2) required subscribing witnesses as
required by Section 4 (1) of the Wills Law Cap 194 Laws of Lagos State
2003. This short fall of subscribing witnesses was also confirmed by the
testimony of the defendant, now appellant herein, at the trial that the Will
was neither signed by the testator nor executed by the attesting
witnesses (see page 149 of the record - first 3 lines thereof). Based on
the above reasons, I agree completely with the argument of the learned
Counsel for respondents and rely on Section 4 (1) (b) of the Wills Law of
Lagos State and Okelola vs Boyle Supra in coming to the conclusion
that the said Will is invalid for want of due execution.
24. In GODWIN ONYEKWELU OKAFOR v. CECILIA OKAFOR & ORS
(2014) LPELR-23561(CA) it was held that “from the pleadings and the
evidence led, the respondents, in this appeal have the burden to
prove the following: - 1. That the will was duly executed in
accordance with the law 2. That the testator was of sound
disposing mind at the time of execution 3. That the testator knew
and approved the contents of the Will at the time of execution. See
OKELOLA V. BOYLE (supra) AT PAGE 548 where the Supreme
Court stated the burden on propounder of a Will as follows: "Where
there is a dispute as to a Will, those who propound it must clearly

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 show by evidence that prima facie all is in order, that is to say, that
there has been due execution and that the testator had the
necessary mental capacity and was a free agent". See also,
EZENWERE V. EZENWERE (2003) 3 NWLR (Pt 807) 238, 248, R 2”
Per BOLAJI-YUSUFF ,J.C.A (Pp. 33-34 paras. F).
25. On whom lies the burden of proving the validity/due execution of a will, in
MADAM OLUFUNSO OKELOLA v. MISS ADEBISI BOYLE (1998)
LPELR-2439(SC) it was held that "The rule enunciated by Parke, B.,
that in every case the onus lies on the propounders of a will to
satisfy the court that the instrument is "the last will of a free and
capable testator", must, however, be taken, I think, to refer only to
the first stage, so to speak, of the onus; for the onus does not
necessarily remain fixed; it shifts. Where there is a dispute as to a
will, those who propound it must clearly show by evidence that,
prima facie, all is in order; that is to say, that there has been due
execution, and that the testator had the necessary mental capacity,
and was a free agent. Once they have satisfied the court, prima
facie, as to these matters, it seems to me that the burden is then
cast upon those who attack the will, and that they are required to
substantiate by evidence the allegations they have made as to
lack of capacity, undue influence, and so forth. That, it is clear to
me, must be their responsibility and nothing can relieve them of it;
it is not only a rule of common sense but a rule of law, as appears
from numerous authorities." See also (1) Adebajo v. Adebajo
(1973) 1 ALL NLR 361; (1973) ANLR 297; (2) Tyrell v. Painton (1894)
p. 151; (3) Barry v. Butlin 2 MOO 480; 12 E.R 1089 at 1090 where
Parke lay down the rule in these words: "The rules of law according
to which cases of this nature are to be decided, do not admit of any
dispute. So far as they are necessary to the determination of the
present appeal; and they have been acquiesced in on both sides.
These rules are two; the first that the onus probandi lies in every
case upon the party propounding a will; and he must satisfy the
conscience of the court that the instrument so propounded is the
last will of a free and capable Testator. The second is, that if a party
writes or prepares a Will, under which he takes a benefit, that is a
circumstance that ought generally to excite the suspicion of the
court, and calls upon it to be vigilant and jealous in examining the

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evidence in support of the instrument, in favour of which it ought
not to pronounce unless the suspicion is removed, and it is
judicially satisfied that the paper propounded does express the true
will of the deceased. These principles, to the extent that I have
stated, are well established. The former is undisputed. The latter is
laid down by Sir John Nicho ll , in substance, in Paske v. Ollat (2
Phill, 323); Ingram v. Wyatt (1 Hagg. Ecc. Rep. 388); and Billinghurst
v. Vickers (1 Phill, 187); and his stated by that very learned and
experienced Judge to have been handed down to him by his
predecessors, and this tribunal have sanctioned and acted upon it,
in a recent case; that of Baker v. Batt (ante 12 MOO P.C. 1 317)."
Per OGUNDARE ,J.S.C (Pp. 18-19 paras. A)

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