NIGERIA ARMY VS FALMATA DUNOMA & ANOR

“In a matter decided on affidavit evidence the depositions stand or take the place of oral evidence per Bolaji-Yusuf in Nwosu Uche vs. INEC (2019) LPELR-48396. It is therefore, obvious that affidavit is evidence needed to prove this case. See Kraus Thompson Organization vs. NIPSS (2004) LPELR-1714. It is also settled law that an affidavit evidence constitutes evidence and depositions therein not challenged, is deemed admitted. See the cases of Ajomale vs. Yaduat No.2 (1991) 5 NWLR (Pt.191) page 226; Magnusson vs. Koikoi (1993) 12 SCNJ page 114; Henry Stephens Engineering Ltd. vs. S.A. Yakubu Nig. Ltd. (2004) LPELR-1714.

“The burden of proof in civil cases rests squarely on the prosecution. It only shifts when a substantial part of it has been proved. It has been said that the burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which party claims exist. It is this burden of proof that oscillates from one party to the other while the first type of burden of proof is called legal burden or the burden of establishing a case. The second one is called evidential burden. See Federal Mortgage Finance Ltd. vs. Ekpo (2004) 2 NWLR (Pt.856) page 100; Ogule Ankpa Agatu Co-operative Group Farming Society vs. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) page 234; Okoye vs. Nwankwo (2014) LPELR-23172 per Peter-Odili, JSC.

“In National Insurance Commission vs. Aminu (2011) LPELR-19751, per Bada, JCA: “Under the rule of practice on filing and exchange of affidavit evidence, a party upon being served with a Counter-Affidavit containing a denial of the party’s allegation ought to file a further affidavit to counter the denial of his allegation. The effect of a failure to counter the averments in the counter-affidavit is that the facts averred or deposed to therein prevail and are to be relied upon by the Court. This is in accord with the principle that in civil cases, which are decided on preponderance of evidence, the burden of proof lies on the party or person who would fail if no evidence is adduced as provided under Section 137 of the Evidence Act Cap.112 LFN.”

“In Lawson-Jack vs. SPDC (Nig.) Ltd. (2002) LPELR-1767, Ogundare, JSC held:- “Paragraphs of affidavit not denied nor controverted are deemed admitted. See Alagbe vs. Abimbola (1978) 2 SC page 39; Agbaje vs. Ibru S.F. Ltd. (1972) 5 SC page 50; Henry Stephens Engineering Ltd. vs. Yakubu Nig. Ltd. (2009) LPELR-1363; Ajomale vs. Yaduat (No.2) (1991) 5 SCNJ page 178; Magnusson vs. Koikoi (1993) 12 SCNJ page 114.”

“The burden of proof in civil cases lies on the plaintiff. See Sections 131,132, 133 (1) of the Evidence Act 2011. And until that burden is discharged, no burden shifts to the defendant. See Otanma V. Youdubagha (2006) PELR – 2821 (sc), P.15 Paras D-E. (2006) 2 NWLR (P.964) 337; Oduola and Ors V. Coker and Ors (1981) PELR – 2254 (sc), PP. 38-39, paras G-A.

“Where a plaintiff fails to prove his case, it does not lie in his mouth to pick holes in the respondent’s case because the law requires him to succeed on the strength of his case, and not to rely on the weakness in the defendant’s case. See Obele and Ors V. Medunoye and Ors (2018) LPELR-44170 (CA), PP.8 – 9, PARAS F-A.