LEGAL PRINCIPLE: CIVIL PROCEDURE – Pleadings – Burden of Proof – Party Asserting Affirmative Must Prove
PRINCIPLE STATEMENT
The burden of proof in civil cases rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him. See Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation (1942) A.C. 154 at 174; Imana v. Robinson (1979) 3-4 S.C. 1.
RATIO DECIDENDI (SOURCE)
Per Uthman Mohammed, JSC, in Jack & Ors v. Whyte & Ors (2001) NLC-1661995(SC) at p. 11; Paras A–B.
"The burden of proof in civil cases rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him. See Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation (1942) A.C. 154 at 174; Imana v. Robinson (1979) 3-4 S.C. 1."
EXPLANATION / SCOPE
The burden of proof rests on the party asserting the affirmative of the issue—whether plaintiff or defendant. The burden is fixed at the beginning by the pleadings as a question of law and never shifts. If after all evidence the party with the burden has not discharged it, judgment must be against them. The rule is ancient and founded on good sense. This statement of the burden being “never shifting” refers to the legal burden, not the evidential burden. The evidential burden may shift, but the legal burden remains constant. The party asserting a fact must prove it. The principle prevents confusion about who must prove what. The burden is determined by the pleadings, not by who calls evidence first.
