BURDEN OF PROOF IN ELECTION PETITIONS

“Care must be taken not to sacrifice justice at the alter of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on merit” -Per Kayode Eso JSC in the case of Chinwendu Vs. Mbamali (1980) It is settled law that he who asserts must prove. It is also trite that the burden of proof in criminal matters lies with the prosecution and does not shift, save for few exceptions; and the standard of proof is beyond reasonable doubt. Any lingering doubt, no matter how slight, is usually resolved in favor of the accused. In civil matters, the burden of proof lies with the party that brings the claim, and proof is on the preponderance of evidence or on the balance of probabilities. However, where I intend to join issues, with due respect, is the rule that in civil matters, where a criminal activity is alleged, the plaintiff is required to prove his case (that a crime was committed) beyond reasonable doubt. That was the principle in the case of Nwobodo vs. C.C. Onoh (1984) All NLR. This issue is very relevant in Election Petitions, where in most cases; the applicant lost the election and he alleges that his opponent ‘stole’ the election through voter fraud, voter suppression or super-imposing election figures. Basically, election rigging no matter the method is criminal. That being the case, when the applicant claims that such criminal activities were involved, which swung the election in favor of his opponent, the rule mandates the applicant to prove his case beyond reasonable doubt and not on the balance of probabilities. This is a heavy burden on the applicant. In criminal matters, it is the state’s duty to prove the case against the accused beyond reasonable doubt to be able to win conviction. The state has the resources to make that happen. The state would use the agent of the state like police detectives, forensic experts, and handwriting and fingerprint experts as the case may be, to prove the case against the accused. Though the state has unlimited resources to put away the criminal if it could prove its case beyond reasonable doubt, the state in some cases falls short, and the criminal gets away with crime even as heinous as murder. So if the state could not prove the guilt of the accused despite its unlimited resources, why does the law expect a private individual in an election case (or any other civil case for that matter) to prove his case beyond reasonable doubt in order for the court to nullify an election that was rigged? Granted, most politicians are rich and could easily enlist the services of high priced attorneys, in most cases, hire Senior Advocates of Nigeria (SAN) to champion the cause of nullifying an election. However, to place the standard of proof beyond reasonable doubt is unfair, unfortunate and subsequently unacceptable in a civilized society. Placing that heavy burden of the applicant will perpetuate rigging and give the impression that it is ok to rig an election and get away with it since the aggrieved party cannot easily nullify an election due to the heavy burden of proof. Election is a civil matter, even if there are some elements of criminal activity involved. The said criminal activity involves the winner’s supporters who are over-zealous to see that their candidate is successful. The said winner of the election is not on a criminal trial. So, if he is not on a criminal trial, why does the applicant need to prove his opponent’s guilty of election fraud? The applicant is not the state whose duty it is to prove guilt of an accused. We have to separate criminal trials from civil matters. If election cases are criminal trials, then the applicant should be the complainant and the state should be the prosecutor and the alleged fraudulent party in the election should be the accused. But this is not the case here. A little illustration will do here. The O.J. Simpson’s case which is in pari materia with the issue at hand is very instructive. Mr. Simpson was accused of the multiple murders of his ex-wife, Nicole Brown Simpson, and her boyfriend, Ronald Goldman. He hired a first class defense attorney, Johnny Cochran, for his defense. The state was unable to prove him guilty beyond reasonable doubt and he was acquitted. However, the deceased family instituted a wrongful death action in a civil court. It was the same set of evidence that failed short in criminal trial that was used by the deceased family to find OJ Simpson liable in the wrongful death of the victims. The plaintiff’s onus of proof was on the balance of probabilities. They would not have been able to prove it beyond reasonable doubt had the law required them to do so. Though the civil court found him liable in the wrongful deaths; it could only order him to pay damages for the wrongful deaths. So in an election case, it would also be a travesty for the Election Tribunal to nullify an election due to rigging and then order that the alleged beneficiary of the rigging be thrown into jail! That would be the case if we follow that line of reasoning that somehow, because a crime was alleged to have been committed which enabled a candidate to win an election, that single act would automatically place the candidate in the dock even when he was not even aware of how the election was rigged. The candidate against whom an election petition was brought is not on trial. Having said that, to push the standard of proof beyond reasonable doubt on the petitioner is not only a wild geese chase, but it would perpetuate election fraud. In a dissenting opinion of Andrew Otutu Obaseki JSC in Jim Nwobodo Vs C. C. Onoh (supra), the eminent jurist put it more succinctly: "The commission of a crime by a party to this proceeding is not directly in issue and the petitioner is not required in law to discharge the burden of proving the crime of offence of falsification against any party to the proceeding. The standard of proof required of the petitioner on these proceedings to succeed is that of balance of probabilities, this being a civil matter." Obaseki was not alone in his dissenting opinion as he was joined by his learned brothers, Justices Kayode Eso and Augustine Nnamani. The successful election petitioners were able to jump that hurdle due to the fact that the rigging they railed against were so monumental that it attracted public outrage and condemnation coupled with the fact that they had the fire in their bellies and the patience to see their cases through despite every odd. In the cases between Peter Obi and Chris Ngige both from Anambra State and that of Adams Oshiomhole and Professor Oserheimen Osunbor both of Edo State, the rigging was outrageous that the masses felt robbed of victory. The successful applicants Peter Obi and his counterpart from Edo state were able to methodically prosecute their case in spite of the heavy burdens placed on them. It is almost guaranteed that had there been a close election, both candidates would not have been able to prove their cases. There are many good candidates whole elections were stolen but had neither the resources not the stoical resolve of Obi and Oshiomhole. Again, as I said, it would have been wrong for the court to convict O.J. Simpson for wrongful death, it could only declare him liable in their deaths but that was all. It would have been as preposterous and a travesty of justice for the civil court to send O.J. to prison as it would also be a dangerous precedent for the court to send Ngige or Prof. Osunbor to jail for electoral malpractices. In fact it would have amounted to a judicial anarchy for a civil court to even declare the defendant, O.J. Simpson, guilty of murder when the criminal court could not do so due to the fact that the prosecution could not prove its case beyond every shadow of doubt. But if we follow the argument that a plaintiff in a civil matter such as election petition should prove electoral fraud beyond reasonable doubt, it then follows that if he is able to discharge that heavy burden, the respondent should be thrown into jail. It is my humble submission that the Supreme Court should overrule itself on this principle of law. The decision in Nwobodo’s case was reached per incuriam (in error) and to my mind, it was more politically motivated than was a sound principle of law. A criminal matters should not be confused with a civil matter. To burden a party in a civil matter with proof beyond reasonable doubt is like asking him to prove proof. In my place, if a native doctor objects to procuring a certain medicine, he would ask his client to procure an intestine of a certain tiny insect called 'danda'. So if the tiny insect is not visible to the naked eyes, how then would the client be able to fish out its intestine? It is also like asking a cockerel to produce eggs. It is a voyage of impossibility. That is exactly what the Supreme Court in Nwobodo's case was asking litigants to do. The Mohammed Uwais Election Reform Committee should also take note of this elephant in the room. *Chukwudi Nwokoye, an attorney, writes from Maryland, USA, and can be reached at [email protected]

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