STERLING BANK PLC v. SOLA FALOLA
(2014) LCN/6995(CA)
RATIO
BURDEN OF PROOF: DUTY OF A PARTY TO OFFER EVIDENCE TO PROVE OR COUNTER A PARTY’S ASSERTIONS
Now, burden of proof is the duty to offer evidence in proof of a party’s assertions or counter-assertions, and evidence is the means whereby a Court is informed as to the issue of facts as ascertained by the pleading, that is, the testimony – oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. As Oputa JSC, so very aptly put it – “Evidence is nothing but proof legally presented at the trial on an issue”- see Akintola v. Solana (1986) 4 SC 141.
In civil cases, the burden of proof in the sense of establishing the case may initially lie on the Plaintiff but it is not static, the proof or rebuttal of issues, which arise in the course of proceedings, may shift from the Plaintiff to the Defendant and vice versa as the case progresses – see Zubairu v. Mohammed (2009) LPELR-5124(CA) where Oredola, JCA, said – “By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (7) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. – – the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party – – and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly established, the standard of proof in civil cases – – is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof”. Per Amina Adamu Augie, J.C.A.
COMMERCIAL LAW: WHETHER A PARTY HOLDING THE FUNDS OF ANOTHER OUGHT TO PAY COMPENSATION
It is settled that in cases brought on commercial matters, a party holding onto the funds of another for a time, ought to pay compensation for so doing – see N.G.S.C. v. N.P.A. (1990) 1 NWLR (Pt. 129) 741, wherein it was explained – “In certain cases, even failure to claim interest in the writ of summons or statement of claim will not preclude a successful Plaintiff from praying for and being awarded interest after Judgment had been entered for an amount. In the case of A.B. Kemp Ltd. & Ors. v. Tolland (1956) 2 Lloyd’s List law Report 681 – – after Judgment had been pronounced in favour of the Plaintiff with costs, counsel for the Plaintiff then asked for 5% interest as “it is three years since these events occurred” and “bearing in mind the high rates of interest which had been prevailing for some little time now”. The opposing counsel objected saying that “there is no claim for this in the writ. It is certainly not my client’s fault that the action has taken so long to come on”. In awarding interest Devlin, J., had this to say at page 691 –
“I think that where the case has been brought on commercial matters and where in ordinary commercial practice money would, if the facts, which I have now adjudged to exist had been established, have been paid some time ago, it ought to carry interest. – – “.
A judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded, though not on the writ, it is in the nature of a consequential order. In the case of Harbutt’s “Plasticine” Ltd. v. Wyane Tank and Pump Corp. (1970) 1 Q.B. 447 at page 468, Lord Denning, M.R., expressed his views thus – “It seems to me that the basis of an award of interest is that the Defendant has kept the Plaintiff out of his money and the Defendant has had the use of it himself. So, he ought to compensate the plaintiff accordingly”. Per Amina Adamu Augie, J.C.A.
