Burden of Proof
Introduction:
This note will discuss the meaning of burden of proof, its significance, and its categories.
Meaning of Burden of Proof:
The Evidence Act, 1975 (NRCD 323) does not provide a definition of the burden of proof.
According to Keane and Mckeown [1], this phrase is self-explanatory and simply means “the obligation to prove.”
Opoku-Agyemang [2], in discussing the meaning and nature of the burden of proof, stated that:
In a litigation when a person is bound to prove the existence or otherwise of any fact, it is then said that the burden lies on him. It is thus the obligation which lies on a party to establish facts which go in his favour.
Finally, per the Black’s Law Dictionary, 9 th ed. , the burden of proof is “a party's duty to prove a disputed assertion or charge.”
Significance of the Burden of Proof:
According to Opoku-Agyemang [2], there are three main occasions where the burden of proof is significant. These are:
Although the learned author did not back his submissions with legal authority, a review of the case law on the burden of proof reveals its stated significance.
On the first significance of the burden of proof, the case of Thompson v. Total Ghana Ltd. Civil Appeal No. J4/3/2010 is authority. In that case, Total Ghana Ltd wrote to the plaintiff-respondent suspending him as its Retail Network Development Manager on the allegation that he was implicated in a police investigation. In a suit for wrongful suspension, their lordships held that Total Ghana Ltd. had the burden of proving the allegations on which the suspension was based. No evidence was produced by Total Ghana Ltd., and this caused them to lose the case. This loss was substantively determined by the failure of Total Ghana Ltd. to fulfil its obligations to produce evidence to prove its allegations.
On the second significance of the burden of proof, that on helping to determine who has the duty to begin adducing evidence, the case of Duah v. Yorkwa [1993-94] 1 GLR 217 is authority. In that case, the Court of Appeal, in discussing the burden of proof under Part II of NRCD 323, stated that the burden of proof includes the burden of producing evidence, which, in the opinion of their lordships, “cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.”
Categories of the Burden of Proof:
The term 'burden of proof' serves as an umbrella for two distinct obligations under NRCD 323. These are:
These two kinds or categories of burden of proof were recognised by the Supreme Court of Ghana in the cases of Duah v. Yorkwa (supra) and Bielbiel v. Daramani and Another [2012] GHASC 13 (8 February 2012) . In Duah v. Yorkwa (supra), for instance, the court noted that:
Part II of NRCD 323 which deals with the burden of proof covers on the one hand, the burden of persuasion under sections 10, 14 and 15 of NRCD 323 and on the other hand, the burden of producing evidence under sections 11, 12, and 13 of NRCD 323…
In the more recent case of Bielbiel v. Daramani and Another (supra) , Date-Bah JSC stated that:
There are two kinds of burden of proof recognized by the common law and which are preserved in Ghanaian law by the Evidence Act 1975 (NRCD 323). In the common law, some cases and text writers have made the distinction between the “legal burden of proof” and the “evidential burden of proof." This distinction is mirrored in the Evidence Act 1975 by the distinction between “the burden of persuasion” and the “burden of producing evidence.”
These two burdens are now explained.
1. The Burden of Producing Evidence, or Evidential Burden:
A. Synonyms of the Burden of Producing Evidence:
The burden of producing evidence is also known as:
B. Meaning of the Burden of Producing Evidence:
In Section 11(1) of NRCD 323, the burden of producing evidence is defined as follows:
For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
In the case of Duah v. Yorkwa (supra), the court, in interpreting the burden of producing evidence under Sections 11, 12, and 13 of NRCD 323 , said that
The burden of producing evidence “means the duty or obligation lying on a litigant to lead evidence.” In other words, these latter actions cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.
Per Keane and Mckeown [1], the burden of producing evidence, or the evidential burden as they call it, is
The obligation on a party to adduce sufficient evidence of a fact to justify a finding on that fact in favour of the party so obliged. In other words, it obliges a party to adduce sufficient evidence for the issue to go before the tribunal of fact. It is confusing and misleading, therefore, to call the evidential burden a burden of proof; it can be discharged by the production of evidence that falls short of proof.
…
The burden is discharged when there is sufficient evidence to justify, as a possibility, a favourable finding by the tribunal of fact.
According to Opoku-Agyemang [2], this burden is:
the obligation of a party to show sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, with due consideration of the standard of proof required. This burden simply requires production of sufficient evidence so that the court would be justified to find that the fact is proved.
Finally, the Black’s Law Dictionary, 9 th ed., defined this burden as “a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict.”
2. The Burden of Persuasion:
A. Synonyms of the Burden of Persuasion:
The burden of persuasion is also known as:
B. Meaning of the Burden of Persuasion:
Per Section 10(1) of NRCD 323, the burden of persuasion means “the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.”
In the case of Duah v. Yorkwa (supra), Brobbey JA, in characterising the burden of persuasion, stated that:
Considering the wording of Section 10(1) of NRCD 323 in the light of the Commentary on the Evidence Decree at pp 14-16, I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact.
Finally, in the Black’s Law Dictionary, 9 th ed., the burden of persuasion was defined as:
A party's duty to convince the fact-finder to view the facts in a way that favors that party.• In civil cases, the plaintiff's burden is usu. "by a preponderance of the evidence," while in criminal cases the prosecution's burden is «beyond a reasonable doubt.
Conclusion:
This note discussed the meaning of the burden of proof, its significance, and its categories. In terms of the meaning, the note defined the burden of proof as a party's duty to prove a disputed assertion or charge and the obligation to prove. This obligation is significant because it helps to decide who should lose if no evidence is presented and who should start producing evidence. Finally, we discussed the two categories of burden of proof: burden of producing evidence and burden of persuasion. In subsequent notes, we will discuss the burden of proof in civil and criminal cases.
Speed
1x