Actori Incumbit Onus Probandi

Balakumar Rajendran

Actori Incumbit Onus Probandi is a legal phrase derived from Latin meaning ‘the burden of proof lies on the plaintiff”. It says that the claimant bears the burden of proof, which has to prove the aspects of their claim. In a civil proceeding, court leads the investigation, but it has to be done by the plaintiff, who is obliged to submit to the court all the proof and evidence he/she has got. Mere filling of a case is not enough for winning a case, but also support It with strong and enough evidences which would convince the jury. In criminal proceedings the burden of proof lies on the prosecutor. The scope and the subject-matter of “burden of proof” could include the issues related to “evidence” as well as “pleadings,” First, necessary provision to that effect are usually incorporated in statutes and rulings of the tribunal .i.e. a person who needs a evidence will first depend upon the statues and the rulings of the courts which relates the subject matter which would envisage a general guideline with regard to pleading or evidence filed by him/her.

The history of this aspect burden of proof goes back into ancient times. In ancient Roman law, this principle of burden of proof expressed itself through different maxims, such as ei qui affirmat non ei qui negat incumbit probation .i.e. this maxim states that the burden of proof is on the person who affirms and not on him who denies and actori incumbit probation .i.e. the claimant caries the burden of proof. “Actori Incumbit Onus Probandi” In Islamic law, as a general rule the burden of proof is on the claimant[1].

Kuthalinga Nadar v D.D.Murugesan Dated 18 October, 2011. In the above mentioned case before the Honorable High Court of Madras, legal maxim “Actori Incumbit Onus Probandi” is used to render judgment. Second appeal is filled by the original plaintiff according to him the suit second item property (7 cents) forms part of the suit first item property. According to the plaintiff, the defendants interfered with the enjoyment of the second suit item (7 cents). The court said that the burden of proof was on the plaintiff to prove that Rama Nadar (Plaintiff’s Vendor’s Vendor) had owned 27 cent of land, So the second appeal was dismissed by the High Court of Madras.

The only one exception to the maxim is when the facts are peculiarly within the other party’s knowledge[2]. But in practice there are many factors which may affect of qualify the application of the general rule.

[1] See, Mojtaba Kazazi.Burden of Poof and Related Issues. Martinus Nijhoff Publishers. Pp 55-56.

[2] CJS, op. cit., supra note 22,pp. 181-182.