LEGAL NUGGETS (Series 109) - ISSUE: BURDEN OF PROOF/ONUS OF PROOF-Burden of Proof on Plaintiff Where a Case is Based on Affidavit Evidence.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

ISSUE: BURDEN OF PROOF/ONUS OF PROOF-Burden of proof on plaintiff where a case is based on affidavit evidence.

I must say, that in a case fought on affidavit evidence, the facts in the affidavit must have properly been put before the Court.
In other words, an unfettered burden lies on the applicant's affidavit to stand or fall on its merit.
See BELLO V. A-G, LAGOS STATE (2007) 2 NWLR (Pt. 1017)155; A-G, ONDO STATE V. A-G, EKITI STATE (2001) 17 NWLR (Pt. 743) 706 SC; EJEFOR V. OKEKE (2000) 7NWLR (Pt. 665) 363.
Indeed, in such a case as in the instant one fought on affidavit evidence an applicant as plaintiff, in order to obtain judgment must prove by affidavit the reliefs sought in the statement of claim, otherwise the action will fail.
For example, it is not enough for a plaintiff who seeks a constitutional remedy or a remedy under the constitution by merely parading before the Court the constitutional provisions.
He must prove, by affidavit that he deserves the remedy sought. The Court can only give the applicant plaintiff judgment if the facts deposed to in the affidavit vindicate the remedy sought.
A mere agglomeration of facts as in the instance case which do not vindicate or justify the remedy sought will not give rise to a judgment in favour of the applicant plaintiff.

Similarly, the affidavit evidence which would strengthen the facts or stories averred in the pleadings should be cogent and substantial to create in the mind of the Court a relief that the applicant plaintiff has established the assertion contended by a party.
See A-G, ANAMBRA STATE V. AG, FED. (2005) 9 NWLR (Pt. 931) 572 SC." Per OWOADE, JCA.(Pp. 26-27,Paras.B-F).

Post a Comment