Who bears the burden of proof? An interesting conundrum…

The Evidence Act says very simply, a person who asserts a fact bears the burden of proving it. That is of course a very general principle and makes logical sense. If you say there are aliens and I say there is none, then obviously you have to bear the burden of proof since I cannot possibly prove that something does not exist.

Alliance Bank recently got into this situation where they were suing on a simple guarantee. The guarantor alleged that his signature in the guarantee was a forgery. In Alliance Bank Malaysia Bhd v Sail Yalang, the query arose as to who would bear the burden of proof in such a situation?

Would the Bank, wanting to assert its rights, be required to bear the burden of proof to show that the signature was positively the guarantor’s? Or would the guarantor who is asserting forgery be required to bear the burden of proof to show the forgery?

In that particular case, there was a witness who came forward to testify positively that the signature belonged to the guarantor. The Court did not buy it! Instead, the Court concluded that the Bank has failed to show the signature to be positively the guarantor’s.

That is a strange position to take. As long as there is a witness, who would usually be an officer of the Bank or an advocate and solicitor, testifying positively to the signature of a person, surely the burden is discharged in so far as the Bank is concerned.

The Bank cannot prove that the signature is NOT a forgery, because one cannot prove the existence of

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