Akintayo Iwiladereviews the standard of proof in criminal allegations and argues that the doctrine of proof beyond reasonable doubt ought not to be applicable to civil proceedings such as election petitionsAttempting to rationalise the phenomenon of crime is often a difficult exercise. Where an attempt is limited to the literal identification of what conduct constitutes crime, the choice appears simple because a reference to the letters of enabling laws easily resolves the identification quest. Explained further, where there are Laws, be they written or unwritten and however dubious the law givers authority is, identifying what constitutes a crime merely requires a simple recourse to the wordings of the available law(s) and whatever is labeled crime is quite easily known. Drawing an instance from modern practice, a Section or paragraph of a written law may clearly describe and stipulate that a certain conduct amounts to crime so that, for our purposes, to identify the crime, an offending conduct needs merely be measured against the standards prescribed by such Section or paragraph and the definitional question of whether or not such conduct amounts to crime becomes summarily determined.The heavy nature of the consequences of crime, - conviction resulting in the possible loss of liberties, properties or life (depending on the gravity of the crime committed) - caused criminal jurisprudence to evolve strict standards for proving allegations of crime. It is elementary yet fundamental that every criminal allegation must be proved beyond all reasonable doubt to lead to conviction.This much is at the heart of many cultures developed theories of criminal justice but the forced colonial invasion of English Jurisprudence caused the English Common Law interpretation of an otherwise uniform human reasoning to appear like it was England-made. But the same English criminal jurisprudence (whatever the colonial contradictions) has soundly theorised on the justifications for the strict requirement of proving allegations of crime beyond reasonable doubt.English Jurist, William Blackstone, was recorded to have postulated that better that ten guilty persons escape than that one innocent suffer. Theorists like Maimonides (12th century), Sir John Fortescue (13th century), Benjamin Franklin (18th century) and many others, also reflected similar views in their writings. Lord Sankey of the English House of Lords however summed up the postulations in his famous Golden Thread speech that: Throughout the web of the English Criminal Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt.If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner,..the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge and where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained Woolmington v DPP (1935) AC 462.Clearly, the singular rationale for the requirement of proving criminal allegations beyond reasonable doubt is grounded in the social justice imperative of averting the tragedies of making innocent people suffer for crimes they did not commit. The rule is made for nothing other than ensuring that only guilty persons are convicted. Thus, the state prefers to risk allowing ten guilty persons escape justice than to condemn/convict one innocent person.Nigerias formalised jurisprudence, understandably (and justifiably too), has followed in the tradition espoused by Englands Common Law theorists. Section 138(1) of the former Evidence Act explicitly codified the proof beyond reasonable doubt doctrine when it provided that If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. This appears to be the statutory foundation upon which Nigerian case laws, on the extent of the applicability of the proof beyond reasonable doubt principle, evolved over the years. This foundation has been strengthened by a similar provision codified into Section 135 (1) of the new Evidence Act of 2011 where it was similarly provided that; If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt (this new provision is in parri materia with Section 138 of the former Evidence Act). Consequently, there have been several hundreds, even thousands, of cases where the rule has been repeatedly stated that the standard of proof in criminal proceedings must be proof beyond reasonable doubt. Since we do not disagree with the underlying principle necessitating the strict application of the doctrine in criminal trials, we see no point rehashing the cases here.Conversely, in civil proceedings, the standard of proof is that of preponderance of evidence upon the balance of probabilities. The adjudicator is required to place the admissible evidence of the contending sides on an imaginary scale and give judgment in favour of the side on whom the scale weighs positively heavier (A.R Mogaji & Ors v. R. Odofin (1978) 4 S.C. 91, Francis Odiete v. Omamujehwe Okorie (1973) 1 NMLR 175, Olujinle v. Idiagbo (1988) 2 NWLR (pt. 75) 238, Daodu v. NNPC (1998) SCNJ 95 at 106, etc). But where there is an allegation of crime in civil proceedings, it must be proved beyond reasonable doubt (Benson Ikoku v. Enoch Oli( 1962) All N.L.R 194 at 199-200, Godwin Nwankwere v. Joseph Adewunmi (1966) 1 All N.L.R. 129, Maune v. Abdu (2001) 4 NWLR (pt. 702) 95, Agwasim v. Ejivumerwerhaye (2001) 9 NWLR (pt. 718) 395, etc).While the logic of its continued application to criminal proceedings remain near faultless, even if sometimes occasioning unintended injustice, the extension of the same stringent standard of proof to criminal allegations made in civil proceedings (and shockingly, even Election Petitions) suggests a gross jurisprudential misconception of the origination and core essence of the proof beyond reasonable doubt principle. Like it was argued earlier, the strict rule was developed to ensure only guilty persons are convicted therefore; it is the end goal of a proceeding that should ordinarily determine the standard of proof.The strict rule ought only to apply where the end goal of a proceeding seeks conviction of a citizen and not where the end goal is a pursuit of compensatory damages, injunctive/restorative reliefs, declarations etc; such as are often sought in civil and election petition proceedings respectively. Sound logic is diminished when a Plaintiff, Claimant or Petitioner is required (just to obtain compensatory damages, injunctive/restorative reliefs, declarations etc), to demonstrate the wholesome prosecutorial powers of the state to arrest, gather, investigate and even confiscate required proof beyond reasonable doubt evidence when such Plaintiff, Claimant or Petitioner hardly ever possesses the supportive privileges and investigative infrastructure available, often exclusively, to the State. Where the purpose being sought is not the Defendants conviction but compensatory damages, injunctive/restorative reliefs, declarations and so on, it betrays uneven and illogical justice to impose the onerous proof beyond reasonable doubt evidential burden on such proceedings when different outcomes, other than the conviction sought in criminal proceedings, are what is being sought.From the decisions in Torti v. Ukpabi (1984) 1 SCNLR 214 to Nwobodo v Onoh (1984) 1 SC 1, Omoboriowo v. Ajasin (1984) 1 SC 1, Abdullahi v Elayo (1993) 1 NWLR (pt. 268), Awuse v. Odili (2004) ALL FWLR (Pt. 212) 1611, Opia v. Ibru (1992)3 NWLR (Pt. 231) 658; (1992)1 LRECN 516; Prof. Ayua v. Adasu (1992)3 NWLR (Pt.231) 658; (1992)1 LRECN 516; Prof. Ayua v. Adasu (1992)3 NWLR (Pt.231) 598; (1992)2 LRECN 599, Ofodile v. Chinwuba (1993)1 NWLR (Pt.268) 151 p.154; (1992)2 LRECN 213; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 708; (1992)1 LRECN 516; Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) 471 pp.475-476; (1998)2 LRECN 11; Agomo v. Iroakazi (1998)10 NWLR (Pt.568)173 p.176; (1992)2 LRECN 244; Oyegun v. Igbinedion (1992)2 NWLR (Pt.26)747; (1992)2 LRECN 1, Adeola v. Owoade (1999) 1 LRECN.@ page 455458, Wali v Bafarawa (2004) 16 NWLR (pt. 898) 1 at 39, INEC v Abubakar (2009) 8 NWLR (pt. 1143) 259 at 295 Gambari v Saraki (2009) All FWLR (pt. 469) 445 at 474, Micheal v Yuosuo (2004) 15 NWLR (pt. 895) 90 at 105 to the recent cases involving Buhari v Obasanjo (2005) 13 NWLR (pt. 941) pg 1 at 182, Agagu v Mimiko (2009) All FWLR (pt. 462) 1122 at 1167-1168, Aregbesola v Oyinlola and several others, the Supreme Court, the Court of Appeal and all lower tribunals have left no one in doubt of the state of the law on the standard of proof required to judicially verify criminal allegations made in Election Petitions throughout Nigeria.The standard is and remains that criminal allegations made in Election Petitions must be proved beyond reasonable doubt and where an election petition is founded solely on such criminal allegations and there happens to be a wanting in the required standard of proof- the petition cannot succeed. That is the state of the Law today and remains firmly so and continually enforceable except or until set aside by the Supreme Court or an Act of Parliament. That being the State of the Law notwithstanding- I vehemently disagree and posit that there is no logical jurisprudential foundation to support or justify the continued application and imposition of such onerous evidential burden in election petitions. I make a case for a reversal of the Law as it stands today and argue for a jurisprudential rethinking as in the succeeding paragraphs below.First, election petitions are a unique branch of civil disputes that strive to determine whether the sovereign will of the people prevailed or was subverted in an electoral process. election petitions can thus be said to represent one of the innumerable pillars through which democracy is sought to be strengthened. The central focus of an election petition is not the criminal conviction of so-called electoral offenders but the broader determination of whether the declared outcome of an electoral contest was wholly reflective of the majoritys votes or otherwise. Arguably therefore, election petitions are one of the platforms through which the judiciary gets besieged to curtail the abuse of democracy by determining how far or less the popular will is reflected in electoral outcomes and doing substantial justice thereof- (substantial justice underlined).Now, an Election Petition proceeding is not a criminal trial neither is the Petitioner a prosecutor. The Respondent is also not an accused standing criminal trial. As such, the evidential inconvenience of a criminal trial ought never to have found its way into election petition proceedings no matter the nature of the allegations forming the claims. We have argued that the purport of the proof beyond reasonable doubt principle is to ensure that conviction is never effected against an innocent citizen. We also argued that it is the outcome a proceeding seeks that should determine the requisite standard of proof. If the outcome sought is a conviction, the standard of proof should be proof beyond reasonable doubt but where the outcome sought is compensatory damages, injunctive/restorative reliefs or declarations (as sought in Election Petitions), the standard of proof ought to be on the balance of probabilities upon preponderance of evidence or some more imaginative standards.Taking the argument further, what does proving an allegation beyond reasonable doubt entail' First, a crime must be proved to have been committed and secondly, it is very important to establish that the accused was feloniously culpable in the said crime committed, in a manner that points to no other culpable direction than the accused persons. What logically ought to follow the outlined proof beyond reasonable doubt preconditions is a conviction. Where the proof is not to be followed by a conviction, the requirement of proof beyond reasonable doubt becomes illogical and is without any rationally sound or even identifiable jurisprudential roots.Let us suppose that a crime like murder was alleged in an election petition and the same is proved beyond reasonable doubt, what will be the result' Can the Election Tribunal order a conviction/committal' Obviously No! Even if the Tribunal recommends some indicted persons for trial, will such recommendation abridge the indicted persons right to presumption of innocence (notwithstanding that the Election Tribunal has already deemed them liable) if they eventually face criminal prosecution' No!Do the fundamental components, like Summons- drafting of charges; preferring of information; plea taking and mandatory recording of plea; bail issues; mandatory presence of accused person throughout trial; acquittal; conviction; allocutus; sentencing among others, which distinguish criminal trials from civil ones, ever find place in Election Petitions which are uncontrovertibly civil in the procedural rules and final outcomes sought' No!Iwilade is a Lagos-based legal practitioner(e-mail:iwilord@yahoo.co.uk)To be continued
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