Elder Okon Aaron Udoro & Ors V. The Governor, Akwa Ibom State & Ors (2008)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
In this appeal against the Ruling of High Court of Akwa Ibom State, sitting at Etinan and presided over by Umoekoyo E. Essang J., delivered on 20/6/2005 in a Motion on Notice No. HET/MISC. 34/2003, the Appellants in their Brief of Argument filed on 23/1/07 but deemed as properly filed on 15/5/07 had distilled three issues for determination of this Court. They are:
“1. Whether the Court below was right in holding that “photograph” which comes under the definition of “Document” in section 2(1) of the Evidence Act does not include a video cassette or tape?
2. Whether the court below was right in declining exhibit “B” being played in proof or disproof of conflicting affidavit evidence when same was very relevant to the issues of fact before it?
3. Whether the court below was right in failing to look at an exhibit before it duly exhibited to the supporting affidavit and properly filed and served on the parties?
The 1st to 3rd respondents on their part adopted the issues raised by the 4th – 6th Respondents in their Brief Argument for determination, which read thus:
“1. Whether the court below was right in holding that video cassette is not one of those things listed thereat as document, i.e. video cassette is not a “document” as defined under section 2 (1) of the Evidence Act, Cap. 112 LFN 1990? In other words, whether a video cassette can be said to be “document” as defined under the aforesaid Act?
2. Whether the court below was right in declining exhibit B being played as a means of reconciling the differing depositions of the parties in their affidavits on an allegation in a matter fought basically on affidavit evidence of the parties?
3. Whether Exhibit B was proper before the court below?
4. Whether the Court below was right in refusing to look at or discountenancing the said Exhibit B though allegedly exhibited, filed and served on the parties?
5. Whether Exhibit B is at all relevant to or in this matter?
Before I proceed it is necessary to observe that issues 4 and 5 framed by the 4th – 6th Respondent were subsumed by their 1st, 2nd and 3rd issues, and that their 1st – 3rd issues are the same in con as the ones presented by the Appellant. In that regard, I shall consider the issues as were distilled by the Appellants.
In relation to the Appellants’ issue No 1, their Learned Counsel, Dr. Aquaowo Essien, argued that by ‘ejusdem generis’ rule of construction, the word “Photograph” stated in section 2(1) of the Evidence Act ought to be construed to include video cassette: He contended that both photograph and video cassette or tape or film, show actual images or pictures of the same kind. He submitted that by the ejusden generis rule, video cassette is admissible as a document coming under the same category with photograph. He referred to the English cases of Asbury Railway Carriage Iron Co. v. Riche (1878) LRHL 653. Attorney General V. Secombe (1911) 2 KB 688 and Powell V. Kempton Park Racecourse Co. (1899) A.C 143 to support his contention.
On issues Nos. 2 and 3, learned Counsel cited the cases of Atanda v. Olarenwaju (1989) 4 NWLR Part 89 p. 394 at 397. Anamco V. First Maine Trust Bank (2001) 1 NWLR Part 640 and section 6 of the Evidence Act and argued that Exhibit B, i.e., the video cassette, was very relevant to resolving the conflict in the affidavit evidence of the parties before it on how the 6th Respondent flouted the orders of the court.
He further cited the authorities of Kuruma V. The Queen (1955) A.C 127 at 203. Milia V. The State (1985) 3 NWLR Part 11 p. 190 at 192 ratio 5. The State V. Gwonto & Ors 1983 1 S.C. N.L.R 142 at 160 and Falobi V. Falobi (1976) NMLR p.169 and submitted that justice can only be done if the substance of the matter is examined as reliance on technicalities leads to injustice. He submitted that declining the playing of Exhibit “B” amounts to reliance on technicality than in doing substantial justice. He argued that the court should have allowed Exhibit B to be played as it provided the best evidence possible and the kind of proof which under any possible circumstances affords the greatest certainty of the acts of disobedience to court orders committed by the contemnor. He said that failure to allow Exhibit B to be played robbed the court of the best evidence available and smacks of the court’s condonation of the breach of its own orders in Exhibit A. He then urged the court to allow the appeal and set aside the ruling.
In the 4th to 6th Respondents’ Brief of Argument, their learned Counsel, Idongesit Umoh Esq., submitted that by the definition of the word “document” under section 2(1) of the Evidence Act. Blacks Law Dictionary, 6th Edition at p. 481. the decisions in Ojukwu V. Obasanjo (2004) ALL FWLR Part 222 p. 1666 at 1683 H.15. Tillmanas V. Kuntsford Ltd (1908) 2 KB 383. Gregory V. Fearn (1953) 1 WLR 974, reported in Osborn’s Concise Law Dictionary 7th Edition p. 128, there is no common bond between the items specifically mention in the aforestated section of the Evidence Act and video cassette or tape. He contended that photograph is not the same as video cassette or video tape. He further submitted that a photograph speaks for itself and is usually a secondary evidence while the negative is the primary evidence but video cassette or tape does not speak for itself, it requires other aids (electrically and electronically) to speak for the Court to understand. Photograph is a stationary image or mark on a paper or object which it appears, whereas video cassette is a movie. In photograph, the tricks of superimposition of images can to some extent, be discovered from the negative (primary source), but in video cassette or tape the Court does not have the eye of an eagle to detect the photo-tricks employed in this era of technology in the course of super imposition of images. He referred to the 6th Respondent’s counter affidavit filed on 8/11/04 at paragraph 6 (v).
He further made reference to the admonition made by Tobi. JSC, in Araka V. Egbue (2003) 17 NWLR (Part 848) 1 at 6 H.2. and submitted that the legislature never intended that video cassettes or tape be included as document, and, that there is no suggestion in the entire provisions of the Evidence Act to suggest directly or indirectly the use of video cassette or tape as a document either as a secondary or primary evidence. He contended that if that was the case, and, where the subsequent consolidation or amendment of the statute made no provision for the inclusion of video cassette or tape as document, the court has no duty to supply the omission. It can only be done by amendment of the Evidence Act. He therefore urged the court to disallow the appeal on this issue and affirm the ruling of the court below.
In arguing issues Nos. 2, 3 and 4 together, Learned Counsel submitted that playing a recorded video cassette is not and cannot be said to be oral evidence in the circumstance. The matter having been fought basically on affidavit evidence makes no room for the playing of a video cassette or tape or use of electronic gadgets or device. He submitted that relevancy is the basis of admissibility of any piece of evidence provided the evidences sought to be considered or brought in is admissible in law. If it is inadmissible as in the case of Exhibit B, it cannot be admitted. He stated that Exhibit B was not relevant to the matter at all, and that it was not proper before the court and as such the court had no business countenancing or considering such offending Exhibit B. He then urged the court to dismiss the appeal with cost and affirm the ruling of the court below.
To properly appreciate the issues raised by the Appellants for determination herein, I think it appropriate to reproduce hereunder the provisions of section 2(1) of the Evidence Act under which the word document was defined. It reads:
“‘Document’ includes books, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.”
It is worthy to note that the Appellants are not really perturbed by the definition of the word “document” as were stated in the Evidence Act. They simply want the court to interpret or elongate the meaning of the word “photograph” to include video cassette.
Needless belabouring this issue, it is clear as crystal that photograph and video cassette are two different forms of recording events. If the law makers had intended to include video tape as a kind of documentary evidence, they would have expressly done so without having to put the court under the strain of analyzing whether photograph could be interpreted to include video cassette or tape. The Oxford Advance Learners Dictionary at p. 868 defined “photograph” thus:
“A picture formed by means of the chemical action of light on film, and then transferred to specially prepared paper”
The same Dictionary at p. 1327 described video cassette thus:
“A film, etc recorded on a video tape. Video is said to be:
“the process of recording, reproducing or broadcasting films on magnetic tape using a special camera and a television, or to record moving pictures on video tape.”
It is clear in the above definitions that photograph and video cassette are two different things, the former is later transferred to specially prepared paper while, the later, is captured on magnetic tape.
It is interesting to note that in countries such as the United Kingdom, where their Civil Evidence Act, Civil Procedure Rules, Criminal Procedure Rules, Criminal Justice Act, 1988 etc, have been amended to make video recording admissible, it was clearly and expressly stated that video is a different aspect of documentary evidence. Their laws which right from time included photograph as a form of documentary evidence were specially amended to include video tape or video cassette as another form of admissible documentary evidence. If the views expressed by learned Counsel for the Appellant were correct in law, the English man, whose mother tongue is English, should not have bothered him about amending his country procedural laws to include video tape or video recorded evidence as a form of admissible documentary evidence.
It is also necessary to point out that since it was not the word “photograph” that s. 2(1) of the Evidence Act defined, it would, therefore, be wrong to invoke the rules of construction to interpret that word. Attempts had been made in the past by the law Reform Commission to amend our Evidence Act to officially include computer print outs, etc, and video tapes as documentary evidence, though they have not been passed into law. So, in the absence of any legislation in Nigeria amending our Evidence Act by incorporating the same therein, it would be wrong for any court to attempt to include video cassette in section 2(1) of the Evidence which was concise and precise as to what it intended to be regarded as document.
Also in Black’s Law Dictionary, 6th Edition at p. 489, “document” was defined as:
“An instrument on which is recorded, by means of letters, figures, or marks, the original, official, or legal form of something, which may be evidentially used. In this sense the term “document” applies to writings; to words printed, lithographed, or photographed; maps or plans; to seals, plates, or even stones on which inscriptions are cut or engraved. In the plural, the deeds, agreements, title-papers, letters,’ receipts, and other written instruments used to prove a fact. Within the meaning of the best evidence rule, document is any physical embodiment of information or ideas; e.g. a letter, a contract, a receipt, a book of account, a blue print, or an X-ray plate”.
By the above definition, it is crystal clear that it was never contemplated that document should be interpreted to include video tape, let alone, interpreting photograph in like manner. It is also clear that if the legislature had intended to include video cassette in the class of photograph or document, it would have expressly done so and, it would not have resulted to one now trying to smuggle in through the back door what was never in the contemplation of our Evidence Act as Amended. The ‘ejusdem generic’ rule means that in interpreting the provisions of a statute, general words which follow particular and specific words of the same nature as themselves, take their meaning from those specific words. The rule applies in an appropriate case to confine the scope of general words which follow special words as used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore, the general terms following particular ones apply to such person or thing as ejusdem generic with those understood from the language of the statute to be confined to the particular words. The general words or terms are to be read as comprehending only things of the same kind as that designated in the preceding particular expression unless there is something to show that a wider sense was intended.
Therefore, a court of law is without power to import into the meaning of a word, clause or section of a statute something that it does not say. Indeed it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. See Ojukwu V. Obansajo (2004) 12 NWLR Part 886 p. 167 and Ehuwa V. Ondo State Independent Electoral Commission.
With regard to issues 2 and 3, attention ought to be drawn to the long aged principles of law that a court can only determine an issue on legally admissible evidence. Courts have no discretion to act on evidence made inadmissible by the express provision of a statute even with the consent of the parties. Admissibility of evidence in any judicial proceedings before any court of law established in the Federal Republic of Nigeria is governed by the Evidence Act. A court of law is expected to admit and act only on evidence which is admissible in law. Generally, three main criteria govern the admissibility of a document in evidence namely;
(1) Is it pleaded?
(2) Is it relevant to the inquiry being tried by the Court? And
(3) Is it admissible in law?
See Okonji & 2 Ors V. Njokanma & 2 Ors (1999) 14 NWLR Part 638 p. 250. But whenever inadmissible evidence is tendered, it is the duty of the opposite party to immediately object to its admissibility, where the party fails to object, the Court may, in civil cases, reject such documents and must reject such evidence in criminal cases. See Nigeria Customs Service V. Bazuye (2006) 3 NWLR Part 967, 303.
It is clear that Exhibit B attached to the said affidavit is contrary to the spirit of section 2(1) of the Exhibit Act, and, therefore, cannot stand. The Act has demonstrated in so many words, what it intended the word ‘document’ to include. It was emphatic on the noun ‘photograph’ and, never, by implication, referred to any other electronically obtained evidence.
Therefore, the court cannot afford to interpret photograph which contains a still picture on a paper, to include a video cassette that shows motion or moving picture in a magnetic tape and not on paper.
It must be restated that the item attached as Exhibit B to the Appellants’ affidavit is, for all intents and purposes, not a document as envisaged by section 2(1) of the Evidence Act nor can it be grouped together with photograph.
It is perhaps necessary to state that where a document is attached to an affidavit as an exhibit, its admissibility cannot be objected to until the hearing of the substantive suit. See Daggash V. Bulama (2004) 14 NWLR Part 892 p. 144 and Adejumo V. Governor of Lagos State (1970) ALL NLR p. 187. The Supreme Court in Adejumo’s case held that it is improper to object to a paragraph of an affidavit or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use such document would be put. Objection should be taken when all the facts are put before the Court and not at a preliminary state.
Video cassette has not been classified as a form of documentary evidence in our Evidence Rules and, as such, has not been made admissible by our Evidence Act. Since the Evidence Act did not permit its admissibility, it would have been wrong for the trial court to have allowed it in evidence and had a view of it. Until our procedural laws and Evidence Act are amended, video cassette remains inadmissible.
The appeal is, therefore, unmeritorious and is bound to fail. Accordingly the appeal will be and is hereby dismissed. The ruling of P. E. Essang J. of the Akwa Ibom State High Court is hereby affirmed. There will be no order as to costs.
Other Citations: (2008)LCN/2990(CA)
