Bielbiel v. Daramani and Another [2012] GHASC 13 (8 February 2012)

Material Facts:

The plaintiff alleged that the 1 ^st defendant had not renounced his British citizenship when he contested to be a member of parliament. The court invited the first defendant to produce evidence to disprove the plaintiff’s allegations. The first defendant resisted this offer.

Essence of the Case:

The Supreme Court of Ghana, speaking through Date-Bah JSC, explained the rationale behind inviting the defendant to produce evidence.

Per his lordship, under the common law, there are two kinds of burden of proof. There is the “legal burden of proof” and the “evidential burden of proof," which are captured in the Evidence Act 1975 (NRCD 323) as “the burden of persuasion” and the “burden of producing evidence." His lordship explained the reason for this distinction as follows:

The distinction between the two burdens of proof is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to begin leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily, the burden of persuasion lies on the same party [who] bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant. The cumulation on the defendant of the evidential burden on the issues to be tried in a case can result in the right to open the case shifting to the defendant. For instance, where the burden of producing evidence on every issue in a case lies on the defendant, he or she will have the right to open the case, even if the burden of persuasion remains on the plaintiff.

Thus, by virtue of NRCD 323 distinguishing between the burden of producing evidence and the burden of persuasion, a party other than the one that makes an allegation may be given the burden of producing evidence, although the party that alleges is still the party that must establish in the mind of the tribunal of fact the requisite degree of belief concerning a fact. The reason this may happen is purely for efficient case management purposes and is also a privilege being given to the party against whom certain allegations are made, not an obligation. The first defendant was therefore right to reject the offer made by the court to him to start producing evidence to disprove the plaintiff’s allegations.

Comment:

It is reasonable to invite the first defendant to produce evidence to refute the plaintiff's claims. If he had simply presented his certificate of renunciation, the case could have been quickly resolved in his favour.