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Required proof for criminal allegations in election petition (4)

By Akintayo Iwilade

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 etc, which distinguish criminal trials from civil ones, ever find place in Election Petitions which are uncontrovertibly civil in their procedural rules and final outcomes sought? No!

Answering these posers in the negative make it tortuous to locate any logical jurisprudential rationale for imposing a burden of proof required in criminal trials, with unique fundamental components, on so-called criminal allegations in Election Petitions and other civil dispute scenarios.

It is arguable that the Courts may have created the concept of ‘severance of pleadings’, under civil proceedings, to mitigate the injustice that often result from the narrow insistence on the onerous proof beyond reasonable doubt standard for so-called criminal allegations made in civil disputes.

The concept stipulates that the judex must attempt to separate the pleadings with criminal imputations from those without; and thereafter do justice to both- using the two different statutory proof standards respectively. In Arab Bank Ltd v. Ross (1952) 2 Q.B. 216 at p. 229, Lord Denning attempted a simplification of 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 AB’s”.

Following the Omoboriowo v. Ajasin (supra) authority, the Court of Appeal 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 emphasized 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”.

On the severance concept, the key point is simply that pleadings are to be ‘severed’ into two places- the ones with criminal imputations on the one hand and the ones 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 fatal legislative 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 them will inevitably fail. Severance seems useful only where there are other pleadings devoid of criminal imputations and which have the suit’s main justiciable claims attached to them.


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