Akintayo Iwilade reviews 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 petitionsAnswering all these posers and other endless consequential ones in the negative makes it more intellectually tortuous to locate any logical rationale for imposing a burden of proof required in criminal trials, with unique fundamental components, on Election Tribunal scenarios.Election petition proceedings are obviously stripped and bereft of the fundamental components/requirements of a criminal trial and the eventual outcomes of both are clearly distinct as are their procedures.We can speculate that an earlier variant of this critiques concern about the loopholes for injustice, quite unintentionally created by the needless strict requirement, for proving criminal allegations, made in civil or election petitions proceedings, beyond reasonable doubt, may have prompted the Courts evolvement of the concept of severance of pleadings in civil proceedings. The concept stipulates the severance of pleadings with criminal imputations from those without. We turn again to England where, in Arab Bank Ltd v. Ross (1952) 2 Q.B. 216 at p. 229, Lord Denning opined that Under the rules of pleadings, as I have always understood therein, a pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and rely simply on the more limited ones. The legendary Master of Rolls went further, in the same case, to simplify the position when he humored that Even with ordinary common sense, if I happen to find my lost coat with AB, and on a claim for the recovery thereof, I alleged that AB stole the Coat, the fact that I could not prove AB to be the thief does not deny me the recovery of my coat once I establish the coat to be mine and not ABs.My Lords, Kayode Esho and Bello JSC (as they then were) shared Dennings insight in their respective views in the much celebrated Omoboriowo v Ajasin case (Supra). Bello JSC held at page 116 that However, if the averment alleging crimes against the second Respondent were excised from the petition, there still remained in the body of the petition sufficient averments without putting directly in issue the commission of a crime by a party to sustain the petition, I think it is essential for better appreciation of the issue to set out the averments relevant to the areas in dispute in the petition stripped of its allegations of crime. Following the Omoboriowo v Ajasin (supra) authority, my Lord, Salami PCA, held in Aregbesola v Oyinlola (full judgment as reported in The Nation newspaper of Friday, December 3, 2010, at pg. A7) that The interpretation of the foregoing authority presupposes that application of section 137(1) of the Evidence Act to a civil case depends on the contents of the pleadings of each case. In other words, if the averments alleging the commission of a crime are severable and if following such act of severance, the petitioners pleadings still contains sufficient averments which suffices and discloses a cause of action devoid of criminal imputation against any of the parties to the proceedings, then the burden of proof laying on the petitioner is not of a criminal nature beyond reasonable doubt but that which requires proof on preponderance of evidence. The principle of severance in cases of this nature is of great significance and has been emphasised by their Lordships as seen in the case of Omoboriowo v Ajasin (supra). In other words, the determining factor is whether the allegations if severed and put into two separate compartments can be sustained as an entity. If the answer is positive, then proof of one is not dependent on the other but side by side. The crucial determinant factor certainly is dependent on the pleadings of the parties.A rather ingenious circumvention of the injustice that may have resulted from insisting on the proof beyond reasonable doubt standard for criminal allegations in election petitions was done by the Court of Appeal in Eruotar v Ughmiakpor (1999) 9 NWLR (pt. 619) 460.In the said case, the lower tribunal had held that the allegations complaining of irregularities were bordering on crime and thus must be proved beyond reasonable doubt but the Court of Appeal overruled the lower Court. The Court of Appeal instead held that, In election cases there is the increasing trend of lawyers, and even Election Tribunals regarding allegations of some wrong doing as an allegation of criminality for the purpose of its standard of proof being raised to that beyond reasonable doubt. In my consideration, that does not represent the correct legal position where the allegation is simply that of wrong doing, its proof will be on preponderance of evidenceThere are several other cases on severance of pleadings which need no excess recitations here. The key point to note is that the underlying principle requires that pleadings be severed into two broad placesthe ones with criminal imputation on the one hand and the others without, on the other.The ones with criminal imputations will require the proof beyond reasonable doubt standard to succeed while the ones without will be resolved on the balance of probabilities upon preponderance of evidence.If upon severance, a civil claim still rests solely upon the pleadings containing criminal imputations, the standard will be proof beyond reasonable doubt failing which, the claim also fails. While highly commendable, the concept of severance failed to cure the illogicality and jurisprudential misconception which necessitated the retrogressive importation of the proof beyond reasonable doubt doctrine into civil proceedings in the first place.The concept of severance still retains the requirement of proving criminal allegations in civil proceedings beyond reasonable doubt because the severed pleadings with criminal imputations must still be proved beyond reasonable doubt else the claims founded on same inevitably fail. Severance is only useful where there are other pleadings devoid of criminal imputations and which have meaningful claims attached to them.To therefore argue that the concept of severance of pleadings has cured whatever injustice the proof beyond reasonable doubt doctrine introduced into election petitions will be another fatal jurisprudential misconception.As it has been 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'We pointed the complex nature of criminal law developments and the difficulty to be encountered in any attempt to rationalise 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 Nations 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 EvidenceAct 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 doctrines 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. Iwilade is a Lagos-based legal practitioner(e-mail:iwilord@yahoo.co.uk)
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