ON WHOM BURDEN OF PROOF LIES:    BURDEN OF PROOF IN CIVIL CASES:  SHIFTING OF BURDEN OF PROOF

OPENING NOTE:
“INCUMBIT PROBATIO QUI DICIT, NON QUI NEGAT” — The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue, and not upon the party who denies it.

Part III (Production and Effect of Evidence), Chapter IX (The Burden of Proof), Articles 117 to 129 of Q.S.O., 1984 provide the law on burden of proof.

MEANING OF BURDEN OF PROOF:
The burden of proof refers to the obligation to prove facts in issue in a legal proceeding. It determines who must prove what, and to what degree of certainty.

ON WHOM BURDEN OF PROOF LIES:

1. ON THE PERSON WHO SUBSTANTIALLY ASSERTS THE AFFIRMATIVE OF THE ISSUE (ARTICLE 117(1))
   Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
   Illustration:
   A desires the Court to punish B for a crime which A alleges B has committed.
   → A must prove that B has committed the crime.

2. ON THE PERSON WHO IS BOUND TO PROVE THE EXISTENCE OF FACTS (ARTICLE 117(2))
   When a person is bound to prove the existence of any fact, the burden of proof lies on that person.
   Illustration:
   A desires a Court to give judgment that he is entitled to land in B’s possession based on facts which B denies.
   → A must prove those facts.

3. ON THE PERSON WHO WOULD FAIL IF NO EVIDENCE WERE GIVEN (ARTICLE 118)
   The burden of proof lies on the person who would fail if no evidence at all were presented.
   Illustrations:
   (a) A sues B for land which B possesses, claiming inheritance via will. If no evidence is presented, B retains possession.
   → Burden is on A.

(b) A sues B on a bond. B admits the bond but claims fraud. If no evidence is given, A would win.
→ Burden is on B.

1. ON THE PERSON WHO WISHES THE COURT TO BELIEVE THE EXISTENCE OF A FACT (ARTICLE 119)
   The burden of proof for any particular fact lies on the person who wants the court to believe it, unless the law says otherwise.
   Illustrations:
   (a) A prosecutes B for theft and claims B confessed. A must prove the confession.
   (b) B wants the Court to believe he was elsewhere at the time. B must prove the alibi.

BURDEN OF PROOF IN CIVIL CASES:
The golden rule: each party must prove the necessary elements of their claim or defense.

However, courts may apply a rule of thumb in difficult cases, requiring proof of a positive proposition over a negative one.

“Burden of proof in civil matters never remains constant.” — [2009 CLD 1313]

In civil cases, the burden lies:
a) On the person asserting the claim
b) On the plaintiff, when the claim is central to the case
c) On the defendant, if he asserts an affirmative defense

BURDEN OF PROOF IN CRIMINAL CASES:
Generally, the burden of proof lies on the prosecution from start to finish.
However, exceptions exist under the Q.S.O. 1984:

1. BURDEN OF PROOF AS TO PARTICULAR FACT (ARTICLE 119)
   As earlier stated, the person asserting the fact must prove it.
   Illustrations:

• A must prove B admitted theft.

• B must prove his alibi.

1. BURDEN OF PROVING THAT ACCUSED’S CASE COMES WITHIN EXCEPTIONS (ARTICLE 121)
   The burden lies on the accused to prove circumstances that bring the case under general or special exceptions (e.g., insanity, grave provocation).
   Illustrations:

• A claims insanity → burden is on A.

• A claims grave and sudden provocation → burden is on A.

• A is charged under Section 325 PPC; claims his case falls under Section 335 → burden is on A.

1. BURDEN OF PROVING FACT ESPECIALLY WITHIN KNOWLEDGE (ARTICLE 122)
   If a fact is within a person’s special knowledge, they must prove it.
   Illustrations:

• A person claims a different intent than what is apparent → must prove it.

• A charged with railway travel without a ticket → must prove he had a ticket.

SHIFTING OF BURDEN OF PROOF:
The burden initially lies on the party who would fail without evidence.
However, once a party produces prima facie evidence, the burden may shift to the other party.

• Jones: “The question as to onus of proof is only a rule for deciding on whom the obligation rests of going further if he wishes to win.”

• Stephen: “As the proceedings go on, the burden of proof may be shifted from the party on whom it rested at first by proving facts which raise a presumption in his favor.”

CONCLUDING REMARKS:
The concept of burden of proof plays a pivotal role in both civil and criminal litigation. While the general rule in civil cases is that each party must prove what they assert, the courts may allow flexibility depending on the nature of facts. In criminal cases, the prosecution always bears the primary burden, except where the law places specific facts or defenses within the knowledge or control of the accused, shifting the burden accordingly.

Understanding when, how, and why the burden shifts is essential to the successful presentation or defense of any legal claim.