Lawyers' Guide
Civil Litigation Preview 49 min read

Evidence & Examination of Witnesses

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Trial Preparation, Evidence & Examination of Witnesses

- Part I - Trial Preparation & Evidence I -

Case Theory

A brief, skeletal analysis of the case (legal and factual) that an advocate intends to make before the court - which, if accepted, will lead to a favourable decision for the client. Theory may be tabulated for:

  1. Cause(s) of action;
  2. Applicable law;
  3. Evidence;
  4. Strength / weakness of the case.

Trial Plan

A blueprint or graphic representation of how an advocate intends to establish his claim or defence in line with the case theory. Style varies.

Elements of Trial Plan

  1. Cause of action;
  2. Applicable law;
  3. Evidence of claimant;
  4. Evidence of defendant;
  5. Strength / weaknesses of both parties;
  6. Remarks.

Rationale for Case Analysis / Theory

  1. Lawyer can choose the most compelling focal point;
  2. Plan how to determine and select evidence;
  3. Know the strength and weaknesses of the case;
  4. Give direction to other lawyers who may handle the case in future.

Ethical Issues

  • Rule 14 RPC - Dedication and devotion;
  • Rule 32 RPC - Candid and fair dealing;
  • Order 34 Lagos Rules - parties to be diligent in prosecution;
  • Personal cost against counsel - Biobarakuma Degieremienyo v PDP (SC 1/2020) - about ₦10m awarded personally against Applicants’ counsel;
  • O53 r14 Lagos / O56 r13 Abuja - permit cost against legal practitioner personally;
  • Form 6 Abuja Rules (Certificate of Pre-Action Counselling, O2 r2(e)&8) - counsel personally liable where matter turns out frivolous.

Burden of Proof

Burden of proof = the duty or responsibility of a party to prove a disputed matter in court. S121 Evidence Act defines “proved”, “disproved” and “not proved”.

Two Types of Burden

TypeMeaningEffect of Failure
1. General / Legal Burden The duty to prove the totality of the truth of facts vital to the case - SS131(1), 132 & 133(1) EA. Lies on Plaintiff/Claimant/Counter-Claimant. Failure of the whole or part of the case
2. Evidential Burden Obligation to adduce sufficient evidence on a particular fact - SS131(2), 133(2), 136 & 140 EA. Shifts during the case. Does not necessarily lead to failure of entire case
  • S131(1) EA: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
  • S132 EA: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
  • S133(1) EA: the burden of first proving lies on the party against whom judgment would be given if no evidence were produced;
  • S133(2) EA: burden shifts successively until all issues in pleadings have been dealt with.

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