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This is a learned treatise that will come in two parts. This is part one and it will deal with the ruling resolving the claim of membership of a secret society against Governor Orji.

The second part will deal with the portion of the judgment that also resolved Ugochukwu’s assertions of non-resignation against Orji and Akomas. Both parts will be glanced off the pertinent provisions of the Nigerian Constitution and the Electoral Act and then interspersed with some thorough analysis of the Nigerian (or common law) rules of evidence germane to all the material facts at issue.

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 they are wont to be tangential and infinitesimal.

The only marked departure from the common law precepts can be found only in our Customary and Sharia court systems where strict adherence to the common law (or federal) rules of evidence is not mandated as the norm. On the other hand, our high courts of original jurisdiction, including the election tribunals are bound to some strict application of the federal (common law) rules of evidence, which for the most part, have been codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. It follows, therefore, that whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to easily find error or abuse of discretion and reverse or remand. This is why some outrage is now trailing the recent ruling of Abia Governorship Election Tribunal nullifying the election of TA Orji and declaring Ugochukwu the duly elected governor.

For a tribunal charged under law to interpret our electoral statute and the constitution (and weigh the scales of hard evidence), voiding an election based on the reasons it adduced is troubling because there is hardly anything in our current substantive and adjectival laws that can justify the ruling, even by some stretch. Add the tribunal’s clear and quantum breach of our settled rules of evidence and you have a judgment most likely to be struck down on appellate review. Reversal becomes ever so likely and may even turn summary when you consider the flurry of critical treatise and outrage issuing from Nigerian and foreign jurists of world acclaim.

Thus, as regards the evidence-in-chief (the video) introduced and admitted to prove Orji’s membership in a secret society, our law of evidence was variously violated both in its spirit and black letters because it strictly requires that no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is at once both self-authenticating and non-hearsay – meaning that such evidence is generally viewed as hearsay unless robust evidence is led by the proponent showing why it should be recognized as one of the few exceptions to the hearsay rule.

In other words, what is depicted in the video or photograph only tells half of the story, with the rest of the story to be supplied only by the person who made it. And considering the possible abuse of the scientific techniques of superimposition and the high motive for subornation of perjury in cases bordering on high contests for public office, the need for foundation and authentication becomes ever greater.

The claim by another person (the shrine secretary) that one Dr. Duru shot the video was inadmissible hearsay because the proponent (Ugochukwu) never produced Dr. Duru in court to either admit or deny the statement and to render foundational testimony. At evidence law, it was Ugochukwu’s duty (not Orji’s) to produce the alleged maker of the video. In that case, the tribunal should have assumed that the identity of maker of the video remained unknown and un-established, and then allow the rest of the evidentiary process to proceed on that premise.

So, who really shot the video, when it was shot and for what purpose were central to determining credibility and admissibility but the tribunal failed to fully pursue that inquiry. Thus, as introduced through sources that can be imputed with the high proclivity for tampering, embellishment, mischief and ill motive, the tribunal should have fully and strictly held Ugochukwu to the burden of producing hard foundational and confrontational testimony, instead of shifting the burden of disprove or contradiction to TA Orji. To be sure, proper foundation strictly requires the purveyor of such highly prejudicial 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, in-court production and technical inspection of the recording device used in producing the video; and most importantly, that the video depicted TA Orji being initiated into secret cult membership that took effect before the election, and not after.

The testimony from the witness claiming to be the secretary of Okija shrine constitutes mere corroborative testimony – meaning that until the video is properly admitted as competent evidence, any testimony proffered as corroborative must fail simply because corroboration can never carry a greater weight than the piece of evidence it is seeking to corroborate. Simply put, it is unknown to law to say that you can corroborate hearsay.

The point about the date of production of the video is ever so important and dispositive because it is implied in the Nigerian Constitution that before one is damned by his membership of a secret cult or society, there must be hard proof that his membership occurred and was subsisting before he ran and won the very election at issue. Our laws do not yet have statutory bar to running for public office based on an ex post facto membership of a secret cult or relating back to void an election won by someone who became a member of a secret cult after winning the election at issue.

Therefore, absent a date-stamp or other admissible proof of when the membership became effective (other than the oral testimony of the said shrine ‘secretary’), it could as well be assumed at law and evidence that if the video is in truth that of TA Orji being initiated into the membership of Okija ‘secret’ cult, it then follows that his membership, most assumedly occurring after he won the election, cannot stand in law to meet the implicit constitutional requirement of pre-election secret cult membership. In such a case, the evidence embodied in the video, if true, can only be held as a possible statutory bar to Chief Orji’s probable re-election bid in 2011, and not before; or better still, as grounds for preferring articles of impeachment against him at the pleasure of the House of Assembly.

Again, it constitutes error for the tribunal to rely on the solitary, uncorroborated testimony of the ‘secretary’ of Okija shrine in resolving a claim that bore all the infirmities of a terrible hearsay and upon which the popular will of super majorities of Abia voters was to be voided.

If it is that easy, then it might as well become a field day for politicians in Nigeria to just go somewhere and suborn testimony from some fringe fellow parading himself as ‘secretary’ of some shrine and use that to overturn the election of a rival and even one who won with a wide margin like Governor Orji. Thus, in my opinion and that of my American colleagues familiar with Nigerian rules of evidence and the rampant use of modern techniques of technology to create ‘believable’ hoaxes, that video reeked of multiple layers of hearsay (think: the widely discredited videos of UFO and the Abominable Snowman shot in the plains of Alaska and Wyoming).

At common law in operation in Nigeria, Britain and the United States, hearsay evidence is roughly defined as a prior statement or any proposition being presented in court as evidence by a person other than the ‘utterer’ or maker 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 be cross-examined on the statement.

Therefore, 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 (the shrine ‘secretary’) cannot be different from the person claimed to have made it (Dr. Duru) unless the maker was in court to be confronted and cross-examined to determine veracity, credibility and chain of custody; except in the rare event that the maker is dead.

There is nothing in the record of proceedings leading up to the admission of the video that can suggest that the tribunal subjected the video to even the most liberal (or even lay) tests of hearsay before ruling to admit it into the record and then finally using it the way it did to set aside the overwhelming popular will of the people of Abia State.

However, in all fairness to Chief Ugochukwu (considering that the video constitutes his evidence-in-chief), if the tribunal determined the origins of the video in his favour in some ways other than through testimony from Dr. Duru and that the locale depicted in the video is that of Okija shrine with TA Orji under pains of some ritualistic initiation into the ranks of its membership, then it may no longer be hearsay and may thus become admissible to prove that TA Orji was present at the Okija shrine at some time before or after the election.

But before Governor Orji can be said to be finally damned by his presence at the shrine, three further questions must be resolved, and they are: One – whether his presence at the shrine was for purposes other than initiation into its membership; Two- if, infact, his presence at the shrine was for the purpose of initiation into its membership, can the shrine be said to meet the constitutional definition of a secret society or cult; and Three – did Chief Orji become a member before he ran for governor? At this point, the tribunal should then analyze the nature and practices of the Okija shrine against the constitutional definition of what constitutes a secret society and proceed to making a clear finding in favour of one of the two opposite propositions.

If the tribunal finally determines that Okija shrine met the constitutional definition of a secret society or cult, then it must reach a clear finding grounded in hard evidence in the record that Chief Orji became a member before he ran and won the election, and not after he became governor.

But as we have seen from the contents of its judgment, the tribunal did none of these. If it did, it would have elicited the later admission made by the shrine ‘secretary’ that the video was shot during TA Orji’s ‘initiation’ after he became governor, and not before. The full content of the interview is on Page 23 of Tell Magazine issue of April 14, 2008 edition. So, given that the shrine ‘secretary’ was a hostile witness against TA Orji, this post-trial statement of his squarely constitutes admission of a party-opponent and thus admissible in the Appeal Court to impeach his prior testimony of pre-election initiation, if not as solid proof that Orji’s membership (if true) most probably occurred after he became governor, and thus cannot meet the basic element required by the constitution before the issue can be raised as a possible bar.

I will be surprised if Orji’s lawyers failed to make contents of that Tell Magazine interview a vital part of their appellate brief. Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because, as presented, it clearly constitutes hearsay; and if it does not, then it is manifestly insufficient to irrefutably prove pre-election membership in a shrine which can hardly be said to meet the strict definition of a secret cult under the laws of the Federation of Nigeria.
•Aloy Ejimakor is of Law Group, Washington DC. alloylaw@yahoo.com

• Watch out for Part 2 tomorrow