Continued from last weekAS we have argued and for the reasons adduced, there is absolutely no basis to require that the standard of proof for conviction-seeking proceedings be introduced for proceedings seeking different outcomes like compensatory damages, injunctive/restorative reliefs, declarations etc; such as are often sought in civil and election petition proceedings respectively. To demand that a private entity prove the commission of a crime beyond reasonable doubt is tantamount to making the Law operate in denial of the limitations imposed on lawful private entities against possessing and deploying the sophisticated infrastructure for arrests, investigation, confiscation, legitimate violence etc in the quest to unravel the thorough details of crime.This is a domain exclusive to the state and it is that exclusivity that makes it easier for the State to unravel and prove the commission of crimes beyond reasonable doubt for the purpose of securing convictions. The private entity can hardly assess the infrastructure of that exclusivity. Why then should the Law be mischievously blind to these contradictions'In concluding, let us recall where we started. We pointed the complex nature of criminal law developments and the difficulty to be encountered in any attempt to rationalize or understand why certain conducts are called crime and others, sometimes more damaging, are not. Crime has been shown to be defined and constantly changed according to the ever-evolving character of the state.The state creates criminal offences to ensure its own survival and thus should singularly continue to bear the evidential burden of proving allegations of same beyond reasonable doubt while private entities, lacking the exclusive infrastructure of the State, should be allowed to pursue their claims within the limits of the feeble powers conceded to them by the State.The Law should stop the treacherous assumption of equal strength for the State and its subjects. Such treacherous assumption is amplified through the insistence that private entities prove crime with the same dexterity expected from the state when it is obvious there is unequal power between the state and private entities and when it is even more obvious that the outcomes sought when private entities compete for claims are radically different from what the state seeks when conducting a criminal trial against its subject.We have exhibited a bias for critiquing the required standard of proof for criminal allegations made in Election Petitions because we are unable to countenance why such peripheral yet fundamental processes that could spell doom for the Nation's democratic quest should get bugged by such jurisprudential incoherence and illogicality. But the arguments canvassed can apply with equal force to all other variants of civil proceedings.Whatever the force of our persuasion, our arguments here, on the propriety or otherwise of requiring criminal allegations made in Election Petitions to be proved beyond reasonable doubt, are by no means closed and can either be improved upon or even watered by superior logic. But pending either, it is most respectfully proposed that my Lords at the Supreme Court should be persuaded to reverse the decades-old trend of requiring proof beyond reasonable doubt to establish allegations of crime made in civil proceedings, especially Election Petitions, at the earliest opportunity.Unfortunately, the new Evidence Act 2011, in Section 135(1) has carried the unproductive baggage into this new age- an age which requires more flexible, progressive rethinking in legislative and judicial enactments and interpretations respectively. But no Law is cast in stone and thus the new Evidence Act of 2011 is itself already in need of another crucial amendment to pave way for new thinking to suit the dynamics of the changing times.At the very least, it is very respectfully proposed that another standard of proof could be invented to deal with criminal allegations made in civil proceedings, including Election Petitions. Or, crimes could be delineated and varying standards of proof be made applicable to varying degrees of criminal allegations according to the gravity of whatever is alleged.Nigeria has many highly imaginative and progressive jurists who can formulate new standards to suit the dynamics of changing times.However, pending whatever new standards that may eventually evolve, the proof beyond reasonable doubt requirement within civil proceedings (especially Election Petitions) must continually be described and derided for what it is- an unfortunate jurisprudential misconception, a clog in the democratic wheel, an antithesis of the doctrine's essence and origination, a clumsy assumption of equality of needs and strengths between the State and private entities within it, a Law operating in denial of practical realities, a Law tempting private entities to illegitimately invade the infrastructural exclusivities of the State, a Law without philosophical depth etc.More ingenious standards of proof must evolve to reverse the decades-old retrogressive requirement of 'proof beyond reasonable doubt' to establish allegations of crime in Election Petitions and other civil proceedings. I propose the phrase 'highly probable'; but wish for a more elaborate intervention from my Lords at the Supreme Court.' Akintayo practises law in Lagos
Click here to read full news..
