LEGAL PRINCIPLE: CIVIL PROCEDURE – Demurrer Proceedings – Burden of Proof – On Applicant
PRINCIPLE STATEMENT
The choice of demurrer procedure application to determine the plaintiff's action in limine is that of the defendants and the burden is therefore on them to establish, by way of motion and to the satisfaction of the court, that the plaintiff was lacking in standing to prosecute his claim at that stage of the trial.
RATIO DECIDENDI (SOURCE)
Per Achike, JSC, in Boothia Maritime Inc. & Ors v. Fareast Mercantile Co. Ltd. (2001) NLC-901999(SC) at p. 18; Paras C–E.
"The choice of demurrer procedure application to determine the plaintiff's action in limine is that of the defendants and the burden is therefore on them to establish, by way of motion and to the satisfaction of the court, that the plaintiff was lacking in standing to prosecute his claim at that stage of the trial."
EXPLANATION / SCOPE
In demurrer proceedings, the defendant chooses the procedure and bears the burden of proof. The defendant must establish, by motion and to the court’s satisfaction, that the plaintiff lacks standing to prosecute the claim at that stage. The burden is on the applicant (defendant) because they seek to terminate the action summarily. The court does not presume the claim is defective. The defendant must demonstrate that even if all pleaded facts are true, the statement of claim discloses no cause of action or the plaintiff lacks standing. The burden is not on the plaintiff to prove standing. The defendant must show the claim is legally insufficient on its face.
