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Evidence Act 2011 (the “Act”) prescribes procedural rules of using video clips that include audiovisuals and films as evidence in any proceedings under the Nigerian law.

The Act proactively defines documents to include video clips and any other recorded videos (“video clips”) as well as other similar technologies that may be later invented.

The rules of evidence include admissibility, burden of proof, standard of proof, relevance, and weight that a court may attach to any piece of evidence. Different rules of evidence apply in criminal proceedings and civil or commercial disputes.

Certain rules of court or enabling legislation may relax rules of evidence. A prime example of a court where rules of evidence are relaxed, at the instance of the weaker party (claimant), is the National Industrial Court of Nigeria’s ((NICN) enabling legislation that include NICN Rules.

Here, we take for granted that an attorney or counsel enjoy sufficient skills on all other aspects of rules of evidence as we limit our commentary to admissibility of video clips under the Act.

In the recent case of GEORGESTONE v. NYA (2022) LPELR-57250, the court of appeal considered the conditions that a party who seeks to rely on video clips as evidence in any proceedings must fulfill under the Act.

The facts in GEORGESTONE v. NYA (supra) are somewhat interesting. Princess Okang Frances Georgestone, through her attorney, sued Benedicta Anthony Usang Nya and the estate of late Anthony Edem Usang Nya (the “Estate”), asking the Rivers State High Court to prevent the Estate from selling the property that Georgestone occupied, for a proper account of rents collected and from further interference in the said property.

The Estate successfully denied Goergestone’s claims and, also (counter-)claimed against Georgestone for N10 million. Georgestone who lost all her claims at the high court, then appealed to the Court of Appeal.

The Court of Appeal acknowledged that s.258 of the Act defined document to include any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and any device by means of which information is recorded stored or retrieved including computer output.

The Court found in GEORGESTONE v. NYA (supra) that video clips doubtlessly fall within an electronically generated document. So, it requires authentication before it can be admitted in evidence.

Indeed, in GEORGESTONE v. NYA (supra), parties rightly agreed that video clip is a document within the meaning of s.258 of the Act that is required to be certified to ensure its integrity.

Relying on DICKSON V. SYLVA (2017) 8 NWLR (part 1567) where the Supreme Court held that s.84 of the Act on the requirement for certification, enshrined 2 clear methods of certification, either by oral evidence (s.84 (1)) or by a certificate (s.84 (2)).

In either case, the conditions stipulated in s.84 (2) must be satisfied. That is:

  • Video clips were produced by a device regularly in use
  • In the ordinary course of any activities
  • Production devices operated properly or, if not, that in any respect in which they were not operating properly or were out of operation, in-operation or malfunction was not enough to affect production or the accuracy of the video clip

Analogically, litigation is generally likened to hunting an African wild rabbit. The skillsets of hunters of wild African rabbits are valuable assets of any litigation.

African wild rabbits are successfully hunted as a group (team or community). Group members must possess keen abilities to man its many exit holes, with right tools and positioning. The lead group member or its immediate assistant must possess the required skillset to dig its burrows in order to trace its many warrens or tunnels.

This must include a clear-headedness to determine any of the warrens or tunnels to ignore or continue digging (sense of direction and priorities plus staying powers) – these African rabbits have the ability to quickly block a tunnel against unwanted predators that include man or snakes.

Law firms and not sole practitionership are best positioned to enjoy this type of skillsets.  Law firms like African wild rabbit’s hunters must operate as a community driven by attention to details and continual training.

Indeed, a counsel that fails to fulfill the requirements of s.84(2) of the Act, will enable the other party or counsel to trample the video clips, no matter how cogent and relevant it may be, under the thin-layered foot of technical justice.

This, pitiably, enables justice to be cornered by procedural requirements.

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