13 Nov 2007 |
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The law of evidence is the basic kernel that underpins the administration of the civil and criminal laws of any common law country when it comes to fair and balanced resolution of disputes presented before the courts. Nigerian superior courts operate within the parameters of settled common law rules of evidence received from the British as a consequence of colonialism, and then adopted and saved by local legislation and judicial precedents as part of the laws of Nigeria after independence. Nuances may be present but are tangential and infinitesimal. The only marked departure from the common law precepts can be found in our Customary and Sharia court systems where strict adherence to common law rules of evidence is not mandated as the norm. Customary courts are free to look to local customs and traditions and Sharia courts are known to have their own unique rules of evidence for determining cases properly lying before them. Conversely, our High Courts of original jurisdiction, including the Election Tribunals are bound to strict application of the federal rules of evidence, mostly codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. And whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to find error and reverse or remand. This is why controversy is now trailing the recent ruling of Abia Governorship Election Tribunal admitting into evidence a video claimed to depict Governor Theodore Orji under pain of some traditional ritual at the Okija Shrine. For a tribunal with a fine reputation for issuing sound interlocutory orders thus far, admitting the video is troubling because there is nothing in our current rules of evidence that can justify the ruling, even by some stretch. First, the video and what it purports to depict is not probative of any of the core material issues before the tribunal, and that is: Whether Chief Theodore Orji was duly or lawfully elected and returned as Governor of Abia State, or whether he was qualified to run (if at all this can be said to still be at issue in view of Supreme Court rulings on point). Probative evidence is one that is capable of aiding the fact finder (or the tribunal) in determining a factual question or reaching a reasonable conclusion as to where the truth lies between two opposite propositions. So, with regard to the said video, wherein lies its impact or probative value on determining whether Chief Orji was duly elected and returned? Or what does this video have to do with the material issue presented by the petitioner that the governorship election was rigged? And it cannot in any way be probative of whether Chief Orji was disqualified based on his disputed indictment because that issue is at once precluded by clear Supreme Court precedents in other related cases that held Chief Orji qualified to contest for office despite his spat with the EFCC. Or more to the point, does the video prove that Chief Orji belongs to a secret society, of which Okija Shrine is hardly one by any definition. Further, even when such evidence can be said to have some probative value, it can still be inadmissible if the prejudicial effects outweigh the probative value. It has been demonstrated in the preceding paragraph that the video had absolutely no probative value to the material fact at issue before the tribunal. But assuming that it does in some way, the video is sadly rich in prejudicial effects because being associated with the much maligned Okija Shrine is worse than a smear campaign. It results in many prejudices or bad blood against the person. It impugns Chief Orji’s community reputation as an upstanding Christian and leader of his state, casts him in a bad light before Nigerians as a pathetic blood-drenched ritualist, and most importantly, can ignite the odium of the tribunal against his person, and therefore may be seen as capable of coloring the tribunal’s legal and factual conclusions. And all of these have no scintilla of connection with proving the proposition that Chief Orji either rigged the election or was not lawfully declared and returned, or that he was not qualified to run. And if the intention is to portray him as disqualified ipso facto by pointing to his connection to ritualism, then it must fail because there is no law that prohibits Nigerians from participating in rituals, including even those that involve animal (but not human) sacrifices or some symbolic sprinkling of animal blood. Rituals are commonplace amongst many customs in this country and have even formed part of the religious or denominational practices of many good and decent Nigerians. Think anointing oil and other exotic rituals performed in far-flung forests in pitch darkness, all with ethereal incantations, dancing, warts and all. Thus, this video has no useful evidentiary value likely to pass the strict muster of appellate review. Secondly, no evidence is admissible if it is not relevant – in the broad sense that such evidence must have some connection or some reasonable nexus to the fact at issue. Again, the issue before the tribunal is not whether Chief Orji’s alleged initiation or some ritual dance before a shrine enabled him to rig the election and become governor, or somehow led to some temporary loss of reason that confused INEC to declare and return him as elected. Or does anything in the video show Chief Orji in some physical manifestation as an election rigger or with his fingers in the cookie jar? No, because the relevant issue before the tribunal that will have the most bearing on the outcome of the petition is, again: Whether Chief Orji was duly elected and returned in accordance with the Constitution and the Electoral Act. Therefore, in so far as our rules of evidence are concerned, admission of a ritual video to prove election malpractice or even some stretch of disqualification to contest is not relevant and therefore must fail. Thirdly, no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is self-authenticating. Proper foundation strictly requires the purveyor or the person proffering such evidence to prove the identity of who made the video, when it was made, whether the video is a copy or original, the purpose for which the video was made, and even in-court production and technical inspection of the recording device used in producing the video. In between these proofs, the tribunal must take expert testimony to determine whether the video has been tampered with, the chain of custody of the video since it was made, and whether the producer or maker of the video is an amateur or a professional. And since the video purports Okija Shrine as the location depicted therein, the tribunal is supposed to take oral and other testimony including a tour of the shrine proper to determine whether the video is in truth a depiction of the locale of the shrine, not some other contrived or identical locale. It is only after all these that proper foundation or authentication can be said to have been made as can sustain admissibility of the video as part of the record evidence capable of any direct consequence on the tribunal’s final legal and factual conclusions. Fourthly, under the ‘rule of the poisonous tree’ or the ‘exclusionary rule’, no evidence is admissible if such evidence was obtained in violation of law. The laws of Nigeria, including our organic law- the Constitution prohibit violation or invasion of anybody’s privacy, which includes making a recording of a citizen without his consent, especially in his private moments. Therefore, if in truth it was Chief Orji that was on that video, then the video is inadmissible or excludable because it depicts Chief Orji in a private ceremony of some sort and which he has the constitutional right to keep from the public domain. To be sure, Chief Orji could not be said to have freely consented to the recording or to its public airing. And if one may ask: Is every aspect of the rituals or other traditional ceremonies performed at the Okija Shrine illegal? There is nothing in the laws of Federation of Nigeria that has expressly outlawed Okija Shrine even after the unsavory discovery made at that shrine a few years ago. Therefore, even when an argument can be advanced that parleying with Okija Shrine may be bizarre and immoral, there is yet to be a clear law disqualifying one from running for public office simply because he paraded before a shrine with a vaunted mystic efficacy. And modern Nigerian judicial practice is averse to the notion of looking to the paranormal in the administration of our justice system. Lastly, our rules of evidence clearly prohibit admission of hearsay evidence. In its present form, that video reeks of multiple layers of hearsay. Hearsay evidence is roughly defined as a prior statement or any proposition being presented in court by a person other than the ‘utterer’ for the purpose of proving the truth of the matter asserted in the statement or proposition. In lay terms, hearsay arises when someone else seeks to repeat what another person said without the person that made the statement being in court to deny, admit or confront the statement. As a matter of evidence law, a video is a statement of fact or a proposition that seeks to prove a material fact at issue. So, the person seeking to introduce the video cannot be different from the person who made it unless the maker is in court to be cross-examined to determine veracity or credibility. Thus, absent direct and confrontational testimony elicited from the landlords of Okija Shrine, it is pure hearsay to introduce a video that is asserted to have been cast at the exact geographical location of the shrine. There is nothing in the record of proceedings leading up to admission of the video that can suggest that the tribunal subjected the video to even the most liberal tests of hearsay before ruling to admit it into the record. The tribunal should have taken testimony from those who claimed to have made the video to determine whether in fact it is true that they were the ones that made it. And testimony should have been also taken from the high priests or other accredited custodians of Okija Shrine to determine whether in fact they can confirm or deny that the video was made at the shrine. Simply put, a common law court cannot admit the assertion made by someone else other than you showing a video of your house without testimony from you confirming that it is your house that is in truth depicted in the video, unless the imagery is self-authenticated by some landmark, address or other insignia so open and notorious that no opposite conclusion can reasonably be drawn. The most popular exception to the hearsay rule is ‘dying declaration’ or ‘dead man’s declaration’, where the person who would have confirmed or denied the matter asserted is either dead or made the statement in apprehension of imminent death. The custodians of Okija Shrine familiar with the unique terrain of that shrine are still alive and thus should have been summoned to confirm or deny the assertion at issue that the shrine depicted in the video is in truth Okija Shrine and not some other native rain forest that evokes similar mystique and awe like Okija Shrine. Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because it is not probative or relevant; and it is unacceptably prejudicial, is obtained in violation of law and constitutes hearsay. For these reasons, it is expected that upon further reconsideration, the tribunal will move to strike the video from the record. Aloy Ejimakor is of Law Group International, Washington, DC. Ikechi Anya personally observed the proceedings.
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