LEGAL PRINCIPLE: CIVIL PROCEDURE — Jurisdiction — Burden of Proof — Issue Joined on Residence — Onus on Plaintiff
PRINCIPLE STATEMENT
Where issue is joined on the defendant's residence, the onus is on the plaintiff to satisfy the court by evidence on that issue; shifting the burden to the defendant is a grave error.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Okafor v. Ezenwa (2002) NLC-601996(SC) at pp. 10–11; Paras E–B.
"I think, with profound respect to the learned Justice of the court below, he seemed to have completely lost sight of the fact that issue having been joined on where the appellant resides, the onus was on the respondent to satisfy the court by evidence on that issue. What the learned Justice rested on was that since there was no evidence to suggest that the appellant did not reside in Awka, then he resided there; or that it was for the counsel for the appellant to ask the respondent in cross-examination as to where the appellant resided and that this not having been done, the appellant failed to show he did not reside in Awka. In whatever way this is viewed, the learned Justice shifted the burden of proof of that issue to the appellant. He was certainly in grave error."
EXPLANATION / SCOPE
The plaintiff bears the burden of proving residence for jurisdictional purposes. The court cannot assume residence from the absence of contrary evidence. Shifting the burden to the defendant is a grave error. The principle applies to all jurisdictional facts. The defendant need not prove non-residence. The plaintiff must adduce positive evidence. The court cannot rely on the defendant’s failure to cross-examine. The rule is based on the general principle that he who asserts must prove. The appellate court will reverse if the burden is misallocated. The error may lead to a miscarriage of justice. The court must correctly identify the party bearing the burden.
