Burden Of Proof: Whose Burden?

A legal burden is an obligation that remains on a single
party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim.
For example the presumption of innocence, places a legal burden upon the prosecution to prove all elements of the offence (generally beyond a reasonable doubt).
Also the burden of proof (Latin Onus Probandi) is the obligation resting on a party in a trial to produce the evidence that will shift the conclusion away from the default position to ones one position. The burden of proof is often associated with the Latin maxim “simper necessity probandi incumbit ei qui agit” which means “the necessity of proof always lies with the person who lays charges”.
Under Nigerian law, he who asserts in the affirmative and would fail if no evidence is called has the burden under section 136 of the Evidence Act to prove the assertion. In Nanna V. Nanna (2006) 3 N. W. L. R (pt 966) 1, “the burden of proving whether the marriage has broken down irretrievably lies on the appellant” Per ABBA AJI, J.C.A. In divorce proceedings the petitioner must prove one of the facts contained in section 15 (2) (a) – (h) of the matrimonial Causes  Act which provides that:
The court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts-
(a)    That since the marriage the respondent has  willfully and persistently refused to consummate the marriage.
(b)    That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent,
(c)    That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ,
(d)    That the respondent  has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition,
(e)    That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.
(f)    That the parties to the marriage have lived apart for a continuous  period of at least three years immediately preceding the presentation of the petition,
(g)    That the other party to the marriage has for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under the Act,
(h)    That the other party to the marriage has been absent from the petitioner for such time and in such circumstance as to provide reasonable grounds for presuming that he or she is dead.
Where the petitioner fails to prove any of the above stated facts, the petition for the dissolution of the marriage will be dismissed notwithstanding, the fact that the divorce is desired by both parties. See Akinbuwa V. Akinbuwa (1998) 7 NWLR (pt 559)661.
In Nanna V. Nanna (Supra), the burden of proof is on the appellant who is alleging that the respondent has behaved in such a way that he cannot reasonably be expected to live with the respondent. Unless the petitioner satisfies the court,  the court will refuse to hold that the marriage has broken down irretrievably. Two sets of fact call for proof under section 15 (2) (c) of the Act: (1) the sickening and detestable behaviour of the respondent and (2) that the petitioner finds it intolerable to live with the respondent. These two facts which are deduced from section 15 (2) (c) are severable and independent. The petitioners must prove the detestable act or such condemnable conduct that the appellant find intolerable and then proceed to prove that he finds it intolerable to live with the respondent.

Nkechi Bright-Ewere