|
Evidence - Burden of proof –
Legal burden of proof -
Evidential burden of proof -
Adduction of evidence -
Renunciation of citizenship –
Whether or not he had renounced
British citizenship - Whether on
the dates of the election in
2008 and his subsequent swearing
into office as a Member of
Parliament, the first defendant
was still the holder of a
British passport.
HEADNOTES
On the facts
of the present case, this Court
indicated to counsel that it was
inclined to invite the first
defendant to begin the process
of adduction of evidence, since
it would appear that the burden
of producing evidence on the
issue of whether he had
renounced
British citizenship was on
him, while, on the affidavit
evidence, the fact that the
first defendant had been issued
with a British passport was
admitted. The issue in
contention is whether on the
dates of the election in 2008
and his subsequent swearing into
office as a Member of
Parliament,
HELD
The
conception of the responsibility
to begin the adduction of
evidence at a trial as a right
or privilege and not as a burden
for the reasons stated above, we
unanimously invite the plaintiff
to open his case.
STATUTES
REFERRED TO IN JUDGMENT
Evidence
Act 1975 (NRCD 323).
CASES
REFERRED TO IN JUDGMENT
Mercer v
Whall (1845) 114 ER 1318.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
PLAINTIFF APPEARS IN PERSON
YONI KULENDI
WITH HIM EGBERT FAIBILLE JNR.
AND DENIS ADJEI DWUMOH FOR
THE 1ST DEFENDANT
SYLVESTER WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE 2ND
DEFENDANT.
R U L I N G
____________________________________________________________________________________
DR. DATE-BAH
JSC:
There are two
kinds of
burden of proof recognized
by the common law and which are
preserved in Ghanaian law by the
Evidence
Act 1975 (NRCD 323). In the
common law, some cases and text
writers have made the
distinction between the “legal
burden of proof” and the
“evidential burden of proof”.
This distinction is mirrored in
the Evidence Act 1975 by the
distinction between “the burden
of persuasion” and the “burden
of producing evidence”. The
burden of persuasion is defined
in section 10(1) as: “the
obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the court.” The burden of
producing evidence is defined in
section 11(1) as: “the
obligation of a party to
introduce sufficient evidence to
avoid a ruling on the issue
against that party”.
The
distinction between the two
burdens of proof is important
because the incidence of the
burden of producing evidence can
lead to a defendant acquiring
the right to begin leading
evidence in a trial, even though
the burden of persuasion remains
on the plaintiff. Ordinarily,
the burden of persuasion lies on
the same party as bears the
burden of producing evidence.
However, depending upon the
pleadings or what facts are
admitted, the evidential burden
can move on to a defendant. The
cumulation on the defendant of
the evidential burden on the
issues to be tried in a case can
result in the right to open the
case shifting to the defendant.
For instance, where the burden
of producing evidence on every
issue in a case lies on the
defendant, he or she will have
the right to open the case, even
if the burden of persuasion
remains on the plaintiff.
On the facts
of the present case, this Court
indicated to counsel that it was
inclined to invite the first
defendant to begin the process
of adduction of evidence, since
it would appear that the burden
of producing evidence on the
issue of whether he had
renounced British citizenship
was on him, while, on the
affidavit evidence, the fact
that the first defendant had
been issued with a British
passport was admitted. The
issue in contention is
whether on
the dates of the election in
2008 and his subsequent swearing
into office as a Member of
Parliament, the first defendant
was still the holder of a
British passport.
The offer by this Court of the
right to begin oral testimony to
the first defendant was meant to
be without prejudice to the
burden of persuasion remaining
on the plaintiff with regard to
the facts necessary for the
plaintiff to succeed in his
suit. The Court, however, gave
counsel for the parties and the
plaintiff in person the
opportunity to address it on
this issue before a firm order
would be made by the Court.
Counsel for
the first defendant has
strenuously resisted the offer
to begin the
adduction
of evidence. In our view, it
is not necessary to examine the
minutiae of counsel’s objection
since what is being extended to
the first defendant is a right
or, as we referred to it in
court earlier, a “privilege”,
and not an obligation;
accordingly, if he is opposed to
it, it should be withdrawn. The
motivation behind the Court’s
offer to the first defendant to
open his case first was one of
efficient case management.
However, if the first defendant
is this strongly opposed to
opening the oral hearing, he
should not be compelled to.
Whilst the first defendant is
not obliged to open the oral
hearing, his election not to
open the case does not derogate
from the incidence of the burden
of producing evidence on any
particular issue. It would not
have been necessary to discuss
this early the incidence of the
burden of proof on the parties.
Accordingly, with the withdrawal
of the offer to the first
defendant to begin, any
discussion of the incidence of
the burden of proof is not to be
regarded as the final word on
that issue.
The
conception of the responsibility
to begin the adduction of
evidence at a trial as a right
or privilege and not as a burden
is affirmed by the judgment
of Lord Denman CJ in
Mercer v
Whall (1845) 114 ER 1318.
For the
reasons stated above, we
unanimously invite the plaintiff
to open his case.
(SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. ADINYIRA
(MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU
(MS.)
JUSTICE OF THE SUPREME COURT
(SGD) J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
PLAINTIFF
APPEARS IN PERSON
YONI KULENDI
WITH HIM EGBERT FAIBILLE JNR.
AND DENIS ADJEI DWUMOH FOR
THE 1ST DEFENDANT
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE 2ND
DEFENDANT.
|
