Significance: Court of Appeal allowed appeal on the basis that the respondent failed to discharge its burden of proof by running its ‘minimal case’ and adducing insufficient evidence to prove that it had paid its debts.
Comment: It’s important for litigants to be clear about who bears the legal burden of proving which material facts. This would be based on the pleadings, which are therefore important legal documents that must be properly drafted. Evident from this case, even Supreme Court judges can differ in their construction of pleadings to determine such fundamental concepts as burden of proof. Such analyses must be done early in the litigation so that the appropriate and effective litigation strategy can be adopted. Running risky strategies like no case to answer or a “minimal case” approach must be well supported by robust legal analysis and research.
The Appellant sued the Respondent to recover money on three partially unpaid invoices. The Respondent’s defence is that it had already paid the sum claimed in full. The Respondent furnished bank statements recording that it had made certain payments to the Appellant. The evidence was however sketchy and it was unclear on the evidence whether the payments recorded in the bank statements related to the invoice sums. The Appellant argued that the payments were for other debts. The Court had to decide the appeal on the basis of whether the respective parties’ burdens of proof had been fulfilled.
The Court clarified the concept of burden of proof. First, there is the legal burden of proof, which is properly speaking, a burden of proof, for it describes the obligation to persuade the trier of fact that, in view of the evidence, the fact in dispute exists. The determination of where the burden lies in a civil suit is the state of the parties’ pleadings. He who asserts must prove – this is a rule which is consistent with the general principle underlying ss 103 and 105 of the Evidence Act (Cap 97, 1997 Rev Ed). Once it is established who bears the legal burden of proof, it will remain fixed on the party who bears it throughout the course of the trial, never shifting regardless of the evidence that is led: .
Second, the evidential burden of proof refers to “the need of the party to adduce evidence to discharge his legal burden (or the need of the opposing party to adduce evidence to prevent the proving party from discharging his legal burden). unlike the legal burden of proof, the evidential burden can shift from one party to the other depending on the evidence which is adduced at trial by either side. Therefore, it has been said that the evidential burden is not so much a burden of proof as it is “a tactical initiative which must be taken by a party if he is to succeed”: .
On the facts, the Court found that the legal burden of proof was on the Respondent. The Appellant claimed on a fixed debt based on the invoices. The Respondent’s defence was that it had paid in full. It was therefore the Respondent’s legal burden to prove that it had indeed paid in full: -. It is after all a well-established principle in the case law that, in an action for a debt that is defended on the basis that payment has been made, the onus of proving such payment lies on the defendant: .
The Court found that the judge below had erred in construing the pleadings such that the Appellant was deemed to be the party with the positive averment in its Reply: . The Court held that it was the Respondent who had first made a positive case that its payments were for the debts claimed: .
The law is also clear that where there are several distinct debts owing by a debtor to a creditor, it is the debtor who has, in the first place, the right to appropriate a payment to any debt so as to discharge it at the time of payment: . It was therefore on the Respondent to prove that it had intended the payments to be for the specific purpose of discharging the debts in question.
At the trial below, the Respondent ran a risky strategy of advancing only a “minimal case”. The Court found this was insufficient to discharge its legal burden of proof on a balance of probabilities: -.