BURDEN OF PROOF AND THE NATURE OF LOCUS STANDI

Burden of proof, or onus probandi, refers to the obligation on a party to establish the facts necessary to support their case. In Nigeria, it is primarily governed by the Evidence Act, 2011. The doctrine has two aspects:

Legal burden: The obligation to prove the case as a whole; and 

Evidential burden: The obligation to adduce sufficient evidence on a particular fact to make it an issue.

Burden of proof, as per the Evidence Act, says he who asserts must prove, and in everyday life this means that if you make an allegation, online, in interviews, or even on social media, the burden is on you to provide evidence, not on others to disprove it, this is why responsible speech matter.

With respect to the principle of burden of proof and the nature of locus standi, I shall go on an adventure of the recent case of Ukegbu v. N.B.C. (2025) 2 NWLR (PT. 1976) 283, where the Honourable Justices of the Supreme Court made fundamental pronouncements.

But before that, let’s have a look at the fact of the case, which goes as follows:

On 30th March 2004, the 1st respondent held a press briefing during which it announced some directives in the Nigerian Broadcasting Code that a terrestrial broadcasting station should not relay foreign news content directly from a foreign station, but could relay excerpts of foreign news for a limited duration; and that unverifiable claims in religious broadcast should not be presented in a manner to mislead the public.

Aggrieved by those directives, the appellant instituted an action against the respondent and three other parties as co-respondents for the enforcement of his fundamental rights pursuant to sections 38 and 39 of the 1999 Constitution (as amended). He alleged that his fundamental rights were violated by the 1st respondent’s directives. However, the appellant did not own a broadcasting station. He did not establish that his interest would immediately be adversely affected by the broadcasting code. He also failed to show any justiciable interest over and above that of the general public in bringing the application.

In response, the respondents filed a memorandum of conditional appearance and a notice of preliminary objection. They challenged the jurisdiction of the trial court over the suit as constituted on the grounds inter alia that:

(a) the appellant lacked the requisite locus standi to maintain the action; 

(b) the subject matter of the suit as constituted was justiciable and therefore robbed the court of jurisdiction; and 

(c) the reliefs sought against the 2nd and 3rd respondents did not fall within the jurisdiction of the trial court.

In its ruling on the preliminary objection, the trial court held that it was unconscionable for any court to shut the door against any applicant who went to court and obtained leave to enforce his fundamental right. The trial court further held that it would give the appellant the opportunity to ventilate his grievance as he alleged that his right under section 38 of the 1999 Constitution (as amended) had been violated by the respondents. Therefore, the trial court overruled the preliminary objection and proceeded to hear the substantive application.

At the conclusion of the hearing of the substantive application, the court delivered its judgment. It held the appellant did not establish that his interest was above that of the public as the respondent did not ban the relay of foreign news content, but specified that such news content should not be relayed directly. The trial court held that the ban on direct relay of foreign news by the Nigerian Broadcasting Code was justifiable, was in the national interest, and was in accordance with the provisions of Section 39 of the 1999 Constitution (as amended). Consequently, the trial court dismissed the appellant’s application on the grounds that the appellant lacked locus standi and that his application lacked merit.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal, but he subsequently discontinued his appeal against the 2nd – 4th respondents.

The Court of Appeal noted in its judgment that the affidavit in support of the appellant’s application was not deposed to by the appellant himself; and that the deponent did not depose to the appellant’s inability to depose to the affidavit or disclose the appellant’s whereabouts. The Court of Appeal found the circumstances odd and found the appellant was unserious about the application. In the end, the Court of Appeal upheld the decision of the trial court and dismissed the appeal.

Still dissatisfied, the appellant appealed to the Supreme Court where he argued, among other grounds, that the Court of Appeal suo motu raised and determined the issue that he did not personally depose to the affidavit in support of his application for fundamental right enforcement. On its part, The respondent countered that the source of the issues distilled by the appellant in his further amended appellant’s brief was not indicated in the appellant’s brief of argument, and that the omission was fatal to the appeal.

Pursuant to the Evidence Act, 2011 (As Amended), particularly section 131(1), whoever desires any court to give judgment as to any legal right dependent on facts which he asserts, must prove those facts exist. It is worthy of mention that, in civil cases, the standard of proof is on the balance of probability or preponderance of evidence. While in criminal cases, the standard of proof is proof beyond reasonable doubt, of which the prosecution bears the burden of proof.

To this effect, in the instant case, the Apex Court reinforced that:

“The burden and standard of proof in fundamental rights action is neither an esoteric concept nor sui generis, but it is similar to that which is obtainable under the civil procedure; that is, proof upon preponderance of evidence or balance of probability.”

The doctrine is rooted in Section 6(6)(b) of the 1999 Constitution, which vests judicial powers in courts only for determination of any question as to the civil rights and obligations of that person.

On the nature of locus standi, it was held by the Supreme Court that:

“The fundamental aspect or feature of locus standi is that it focuses on the party seeking to get his complaint laid before the court.”

Both doctrines are gatekeeping devices. Locus standi filters who enters the courtroom, preventing floodgates and meddlesome litigation. While burden of proof regulates how the dispute is resolved once inside, ensuring decisions rest on evidence, not speculation.

In conclusion, both burden of proof and locus standi operate as twin pillars of procedural justice. The Evidence Act and Constitution place the risk of non-persuasion on the party who asserts. The trajectory reflects a system trying to be both accessible and orderly: open enough to vindicate rights, disciplined enough to demand proof. For law students and legal practitioners, mastering both is not optional, it is the price of audience before Nigerian courts.

About the Author: Naima Usman is a member of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via +2348139117486.