By Akintayo Iwilade

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.

To therefore argue, that the concept of severance of pleadings has cured whatever injustice the proof beyond reasonable doubt doctrine introduced into Election Petitions, would be another fatal misconception.

As 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 into proceedings seeking different outcomes such as 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 (and the personages actually responsible), beyond reasonable doubt, is tantamount to making the Law operate in denial of the limitations imposed, on lawful private entities, against the possession and deployment of the sophisticated infrastructure needed for arrests, investigation, confiscation, legitimate violence e.t.c; in quests to unravel the thorough details of so-called crimes.

This is a domain exclusive to the State and it is such 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 of persons responsible. The private entity can hardly access the infrastructure of that exclusivity without daunting fetters. Therefore, the Law ought not to be mischievously blind to these contradictions?

Private entities, lacking the exclusive prosecutorial 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 accordingly stop the treacherous assumptions of an equality of strength between the State and its subjects. Such treacherous assumptions are amplified through the incongruous 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 the private entities competing for claims within it. More beffuddling is that it is obvious that the outcomes sought, when private entities compete for claims, are often fundamentally parallel and different from what the State seeks when it conducts a criminal trial against its subject(s).

Given the dire need for true democracy in Nigeria, it is difficult to contemplate how Election Petitions often get bugged by such statutory incoherence and illogicality. It is however hoped that the Legislature, and thereafter; my Lords at the Supreme Court, may 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.

At the very least, it is humbly proposed that another standard of proof be creatively invented to deal with criminal allegations made in civil proceedings, especially Election Petitions. Or crimes could be delineated and varying standards of proof made applicable, to varying degrees of criminal allegations, according to the gravity of whatever is alleged.

But 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 statutory and 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 competing 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, a Law impeding jurisprudential growth, etc.

Moving forward, the Legislature may consider enacting another phrase, such as ‘highly probable’, to become statutorily sufficient to determine the proof or otherwise of so-called criminal allegations made in election petitions.

•Akintayo Iwilade- Lagos-based Legal Practitioner