Elder Okon Aaron Udoro & Ors V. The Governor, Akwa Ibom State & Ors (2008)

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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.