Addo Dankwa Akufo Addo & 2 Others v. John Dramani Mahama
& 2 Others42.
[128] Senior counsel Mr. Ahmednassir emphasized that the party, in this
case, the petitioners, seeking the nullification of the presidential election,
bears the burden of proving that not only was there non-compliance with
the election law but also that the non-compliance affected the results of the
election. In buttressing this line of argument, senior counsel cited Section
83 of the Elections Act, the decision of this Court in the 2013 Raila
Odinga case, the decision of the Supreme Court of Uganda in Amama
Mbabazi v. Yoweri Kaguta Museveni & 2 Others43, (Amama
Mbabazi case) majority decision of the Supreme Court of Canada in
Opitz v. Wrzesnewskyj 44 and the Supreme Court of Nigeria in
Abubakar v. Yar’adua45.
[129] The common law concept of burden of proof (onus probandi) is a
question of law which can be described as the duty which lies on one or the
other of the parties either to establish a case or to establish the facts upon a
particular issue. 46 Black’s Law Dictionary 47 defines the concept as “[a]
party’s duty to prove a disputed assertion or charge….[and] includes both
the burden of persuasion and the burden of production.” With that
definition, the next issue is: who has the burden of proof?
Nana Addo Dankwa Akufo Addo & 2 others v. John Dramani Mahama & 2 others WRIT No. J 1/6/2013.
Amama Mbabazi v. Yoweri Kaguta Museveni & 2 others Presidential Petition No. 01/2016; (2016)
UGSE 3.
44 Opitz v. Wrzesnewskyj 2012 SCC 55; [2012] 3 SCR 76.
45 Abubakar v. Yar’adua [2009] ALL FWLR (PT. 457)1 SC.
46 Auburn J, ‘Burden of Proof’ in Malik H (ed), Phipson on Evidence, 17th (ed) Sweet and Maxwell,
London, 2010, Pg 149–151.
47 Black’s Law Dictionary, 8th ed. (Bryan A. Garner) (St. Paul, MN: West Publishing Co., 2004), p.209.
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