1. Order of Proceeding

What is a burden of proof?

A burden of proof means the obligation to provide the evidence necessary to establish a disputed fact or a degree of belief in the mind of the court. Two concepts are involved under the burden of proof: burden of persuasion and burden of going forward with the evidence. The burden of persuasion is the ultimate burden of convincing the court of an issue, and it does not shift during the trial. The burden of going forward with the evidence is on the plaintiff at the start of the trial. But this burden may shift to the defendant if the defendant admits the allegations of the statement of claim and has raised what we have called affirmative defenses.


According to Art. 258[1] of the Civil Procedure Code:

On the day fixed for the hearing of the suit, the plaintiff shall be entitled to begin unless the defendant admits the fact alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant shall be entitled to begin.


This reflects the general rule that the party who has the burden of proof has the right to begin. The plaintiff has the burden of proving that he has a cause of action, and the defendant has the burden of proof on the question of whether he has a valid defence.


Whenever the plaintiff has the burden of proof on one of the issues in the case, he has the right to begin. If for example, there is an issue as to the existence of the contract and an issue as to the existence of force majeure, the plaintiff has the right to begin, since he has the burden of proof on one of the issues in the case. However, if the defendant admitted the existence of a contract, his nonperformance and the damages claimed, but contended that his nonperformance was excused by force majeure, he would have the right to begin, since he has the burden of proof on the only issue in the case.


Discuss what preponderance of the evidence is?


If, in a suit for breach of contract, the plaintiff fails to make out a case showing that there was a contract, there is no reason to proceed further: the burden is on the plaintiff to show that there was a contract, not on the defendant to show that there was not a contract.

with regard to statement and production of evidence, Art. 259 of the Civil Procedure Code stipulate that:

  1. The party entitled to begin shall state his case, produce his evidence in support of the issues which he is bound to prove.
  2. The other party shall then state his case and produce his evidence and may address the court generally on the whole case.
  3. The party beginning the reply generally on the whole case.

At this juncture, it is worthy to note that the order of proceeding or burden of proof and shift of the burden of proof is based on the substantive law. It is clearly provided under Art. 2001 of the Civil Code that:

The party who demands the performance of an obligation shall prove its existence, and the party who alleges that an Obligation is void, has been varied or is extinguished shall prove the facts causing such nullity, Variation or extinction.


According to Art. 260 of the Civil Procedure Code:

  • Where there are several issues, the burden of proving some of which lies in the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party.
  • When evidence is reserved, the party beginning may produce such evidence after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning but the latter party shall then be entitled to reply: generally on the whole case.


Now, let us see when the plaintiff uses his option not to reserve evidence according to Art.260 (1).


Plaintiff sued the defendant to recover damage for non-performance of the contract. Defendant denied that there is a valid contract or alternatively that if a valid contract is found to exist, he has performed it or alternatively that if he is found not to have performed the contract, he was prevented by force majeure, and if force majeure is not found to exist and plaintiff has suffered no damages.


What are the issues?

We could have several issues in this case. Some of them are:

  1. Is there a valid contract?
  2. If there is a valid contract, does the defendant perform its duties or not?
  3. If he has not performed the contract, was he really prevented by force majeure?
  4. If there was no force majeure, has the plaintiff incurred damages or not?


So, under this scenario, the plaintiff has the right to begin and has the burden of proving the essential elements of the suit, that is, the existence of the contract. To this effect, Art. 260(1) of the Civil Procedure Code gives the plaintiff the opportunity to produce all his evidence on all the four issues without waiting for the defendant to produce evidence on the issues he has the burden of proof, or reserve it by way of answer to the evidence produced by the other party.


In the first option, the plaintiff would not only be confined to prove the existence of the contract but he will also produce all his evidence that would prove that defendant has not performed it, that defendant was not prevented by force majeure and that plaintiff has incurred damage. Then the defendant will follow and will produce all his evidence on all the issues and will address the court. Lastly, the plaintiff will reply on the whole case.


In the second option, if the plaintiff has reserved his evidence, the following procedure is employed. The plaintiff produces his evidence on the issues as to which he has the burden of proof. Assuming that the evidence is sufficient, the defendant must produce his rebuttal evidence and the evidence on the issues as to which he has the burden of proof. If the defendant has introduced sufficient evidence on the issues as to which he has the burden of proof, the plaintiff must produce his evidence on those issues. Then the defendant replies especially on the evidence produced by the plaintiff and the plaintiff replies on the whole case.

To recapitulate, the above point it is clear to the plaintiff’s advantage to reserve evidence on the issues as to which the defendant has the burden of proof. If the defendant does not produce sufficient evidence to justify a finding in his favor on those issues, the plaintiff will not have to introduce any rebuttal evidence. Moreover, if the plaintiff has no reserved evidence, he will have to introduce his evidence on those issues without knowing precisely what evidence the defendant will introduce. He will be rebutting evidence before that evidence has been presented. However, depending on the nature of the issues and the evidence, it may be more convenient for the plaintiff to introduce his evidence on all the issues at one time, for example, he may seek to prove all the issues by the same witness, and he may introduce his evidence on all the issues at one time.


  1. Production of Evidence by the Parties

The primary responsibility for the examination of witnesses rests with the parties, though as we will see, the court is also given broad power with respect to the examination of witnesses.

What is the manner of examining witnesses?

 With what manner witnesses are examined?

According to Art. 261 of the Civil Procedure Code, there are three stages to an examination of witnesses. These are:

  1. The examination-in-chief;
  2. The cross-examination;
  3. The re-examination

So much so that, the three stages of examination of witnesses are expected to be employed at different times, in different ways, and for different purposes.

What is the purpose of these three stages?

The plaintiff and the defendant ordinarily call the witnesses, and as to the witness, he calls the party is the proponent. This means if a plaintiff has called three witnesses to prove his case, he is the proponent and defendant is the opponent. In this regard, the proponent tries to bring out the evidence that will support his version of the case and that evidence only, and the opponent then tries to destroy the testimony of the witness, and the proponent tries to rehabilitate that testimony.


The rationale behind is that, as a result of the process, everything the witness knows about the case will be brought to the attention of the court, and the court will be in a better position to determine whether or not the witness is telling the truth than if he merely testifies in a narrative manner.


Thus, during the examination-in-chief, the proponent tries to develop the testimony of the witness in the light most favorable to him; during-cross-examination, the opponent tries to discredit that testimony; and during re-examination, the proponent tries to minimize the effect of cross-examination.


In the production of evidence, the manner of giving evidence is clearly provided under Art. 261 of the Civil Procedure Code. According to this Article, the witness first and foremost takes the oath in the form provided in the Third Schedule to the code and proceeds to answer the questions propounded by the proponent or his advocate.

Following this, Art. 263 of the Civil Procedure Code stipulate the form of questions as follows: 

  1. Questions put in examination-in-chief shall only relate to facts relevant to the issues to be decided and only to such facts of which the witness has direct or indirect knowledge.
  2. No leading question shall be put to a witness without the permission of the court.
  3. Question put in cross-examination shall tend to show to the court what is erroneous, doubtful or untrue in the answers given in examination-in-chief. Leading questions may be put in cross-examination.
  4. No question shall be put in re-examination except for the purpose of clarifying matters, which have been raised in cross-examination.


What are the legal requirements of examination-in-chief?


How do we differentiate leading questions from other forms of questions?

The purpose of the rule forbidding leading questions on examination-in-chief [and by implication in re-examination] is to prevent a witness who is quick to adopt the suggestion of the examiner from saying something that he would not say otherwise. The testimony must be that of the witness and not the examiner; the examiner cannot put words in the mouth of the witness, so to speak. In other words, this is managed to limit the proponent in his examination of the witness and ensure that the testimony is genuine of the witness. As what constitutes to a leading question, there is no hard and fast rule. But, generally, it could be determined by the form of the question and the tone in which it is asked-it is only where the question itself suggests the answer which the examiner wishes to receive that it is considered to be leading. In this regard, the most common example of a leading question is one where the examiner concludes with a positive suggestion such as “didn’t you?” or “weren’t you?”.


According to Art.263 [2] of the Civil Procedure Code, the court may at any time permit the asking of leading questions. In line with this Article, there are three situations where the court could do so. These are:

  1. When the witness is being examined as to what are called introductory matters. The evidence of each witness shall start with his name, age, occupation, and address, and to save time, the examiner can simply start “your name is……, isn’t it?” Obviously, this is not objectionable, since the substance of the witness’s testimony is not involved.
  2. The second situation is where the witness cannot remember some or all of the matters as to which the testimony is sought.
  3. The third situation is to assist child witnesses who have difficulty in testifying.


In addition to every effort made to show that the witness has omitted facts or is not relating the facts correctly; there are methods of impeaching credibility. Some of these methods are: showing

  1. That the witness is biased in favor of the proponent or against the opponent,
  2. That he has made prior statements inconsistent with his testimony in court,
  3. That he has a poor reputation for telling the truth,
  4. That he has been convicted of certain criminal offenses reflecting on his trustworthiness.


When we come back to documentary evidence, there are no express provisions of the Civil Procedure Code governing the introduction of the documents into evidence. However, according to Art.138 of the Civil Procedure Code:

The court at any stage of the suit rejects any document, which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.


In this regard, the court might rule on the admissibility of the documents at the first hearing or could wait until the trial. Furthermore, at this juncture, on the basis of Art.142 of the Civil Procedure Code, it has the duty to exclude an inadmissible document even if no objection is made, and where a document has been admitted to incorporate it as part of the record.