REVISITING THE STANDARD OF PROOF IN CIVIL MATTERS WHERE CRIME IS ALLEGED BUT NOT CHARGED

Abstract

Since the judgments of the Supreme Court in Nwobodo v Onoh and Ajasin v Omoboriowo in 1983, the issue of standard of proof in a civil matter, especially election petition, of any allegation of facts which constitute crime has been one of the biggest stumbling blocks that a petitioner or even claimant in other civil matters has to confront and overcome to succeed. Should it be the standard required when a person is a defendant of a charge or information (accused person) or the standard in civil cases, that is, on the balance of probability? Section 135(3) of the Evidence Act, 2011 has intervened in this matter to make the standard that of balance of probability. Unfortunately, the Courts, in a trend prevalent in election cases in particular, have refused to follow the provisions of the Act but are stuck to precedents. This article reviewed the provisions of the Constitution and the Evidence Act vis-à-vis the fixation of the Courts with precedents. While supporting that standard of proof must remain beyond reasonable doubt where the defendant is charged with a criminal offence, in view of the presumption of innocence, this article argued that such a standard is not supposed to apply to a case where the allegation of the crime is tangential and the respondent or defendant is not accused under criminal procedure with the possibility of being sentenced. This is more so as the election court, in the case of election petition, has no criminal jurisdiction.