SUMAILA BIELBIEL v. ADAMU DARAMANI, THE ATTORNEY GENERAL

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 offerby 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 re