THE TAKING OF WITNESS EVIDENCE THROUGH VIDEO CONFERENCING UNDER NIGERIAN LAW

INTRODUCTION

Technological developments in the field of information and communication technology (ICT) have brought a turning point in the history of human civilization. It has brought about numerous changes and innovations in all fields of human activity. It has resulted in enhanced efficiency, productivity and quality of output in every walk of life. There is an immediate need for exposing the judiciary to the numerous benefits of utilising ICT in judicial administration, to enable the Judiciary fulfil its constitutional role of justice delivery to all without fear, favour or discrimination.

VIDEO CONFERENCING

According to Riley A. Williams in “Videoconferencing: Not a Foreign Language to International Courts”:

“Videoconferencing is the holding of a conference among people at remote locations by means of transmitted audio and video signals. Through these conferences, individuals meet one another in a real-time virtual manner as if they were in the same room without the hassle and expense of traveling.  While slight limitations remain depending on the quality of the equipment employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.”

Video Conferencing (VC) enables any person who has an interest in court proceedings to be involved in a hearing from a remote location. In its simplest form, a witness at a remote location may give his/her evidence via a video link to the court with one screen and one camera in the courtroom.

The technology needed to establish a video link is relatively simple. A screen and a camera with a microphone are required at each location. Any form of screen can be used. Also using the popular video chatting application; Skype, a witness in remote location can testify in a trial. All that may be required at the his end would be an Internet enabled smartphone or laptop computer and in the courtroom an Internet enabled laptop computer and perhaps a projector to project the visuals and a sound system to amplify the audio to the hearing of all in the court room.

VC remains a viable method to obtain testimony as a witness’s presence at trial may be hindered by geographical impediments, fears associated with testifying in person, or even lack of security at the trial site. Through videoconferencing, unavailable witnesses can be transmitted into courtrooms, thus eradicating the limitations on testimonies of encumbered individuals as well as individuals located worldwide.

LEGAL AND POLICY FRAMEWORK FOR USE OF VIDEO CONFERENCING IN TAKING WITNESS TESTIMONY

The primary legal framework for the use of VC in taking witness testimony is section 125 of the Evidence Act, 2011 which provides that all facts, except the contents of documents, may be proved by oral evidence.  Oral evidence simply put is the verbal assertion or written statement on oath of a witness offered as proof of a fact or facts in issue at a trial. Therefore, by the above provision it is submitted that a witness who testifies through video conferencing is doing so orally and that would suffice as there is no requirement in the Evidence Act that a witness must be physically present in court to give evidence provided the court can observe his demeanour while testifying through VC.

Also section 234(3) of the Administration of Criminal Justice Act, 2015 provides that where in any proceedings the court determines it is necessary to protect the identity of the victim or a witness the court may receive evidence by video link.

Although under the National Industrial Court (NIC) Rules, 2017 there is no express provision for use of video conferencing in taking witness testimony, Order 3 of the Rules state that the Court may direct a departure from these Rules where the interest of justice so requires.

Furthermore, Order 6(2)(a) and (b) provides that in any proceeding pending before NIC, the Court may as a specialized Court regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play and in appropriate  circumstances,  depart  from  the  Evidence Act  as provided in section 12 (2) (b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair-play.

Order 6(3) stipulates that in any proceeding before the NIC, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.

By Order 9(1) where a matter arises for which no provisions or adequate provisions are made in NIC Rules, the Court may adopt and apply any procedure as will in its view do substantial justice to any of the parties concerned in the matter. Under this particular provision, even though video conferencing may not have been provided by the rules of the NIC, the Court may nevertheless allow use of video conferencing where doing so may do substantial justice to any of the parties.

Again, Order 9(2) further provides that the NIC Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in Section 12(2)(b) of the National Industrial Court Act, 2006.

In view of the above provisions, it is submitted that a witness in a trial or proceeding at the NIC, may be allowed to offer his testimony through video conferencing in the interest of justice, fairness, equity and fair-play. The NIC in such a circumstance will not be beclouded by technicalities but will only consider whether using video conferencing may do justice to the parties in the case before it.

In 2012, the then Chief Justice of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPO) at the National Judicial Council Complex in Abuja. He stated that that implementing the policy will assist the judiciary to meet the changing needs of the nation’s judicial officers, court employers, key stakeholders and the general public as according to him the policy will provide the needed foundation for the implementation of any Information Technology (IT) project in the judiciary.

Justice Musdapher charged the Nigerian Judiciary to embrace IT as a means of improving access to courts and increase transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expedite the judicial process.

The JITPO has not only endorsed the use of Video Conferencing, but has clearly laid down guidelines for its application to the Nigerian Courts. It provides as follows:

“The use of video-conferencing technology is greatly encouraged in the Judiciary. Video-conferencing can be used to connect people in different physical locations especially for critical meetings and discussions. Video conferencing systems can also be used to enable testifying witnesses appear in court without having to travel to the courtroom. Expert witnesses, prisoners, and various other witnesses can provide the same testimonies from remote locations. From the prison, prisoners will see and hear everything that takes place in the courtroom and will be able to answer questions posed to them by the judges and lawyers…Videoconferencing in the court system offers significant cost savings and improved security by reducing the need for high-security prisoner transport. The entire courtroom experience will be made shorter, safer and more cost-effective.”

In ESSO WEST AFRICA INC. v.  T. OYEGBOLA (1969) NMLR 198, the Supreme Court pronounced that: “The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer”.

The Court of Appeal, relied on the concept of judicial notice in admitting a computerized document in OGOLO v. IMB (NIG) LTD. (1995) 9 NWLR (Pt 419) 324. The court held that it had become a notorious fact that commercial and banking operations in Nigeria had changed in keeping with the computer age such that the court could take judicial notice of them under section 74 of the old Evidence Act.

In OKEREKE v. UMAHI & ORS (2016) LPELR-40035(SC) NWEZE, J.S.C. at P. 36, Paras. A-B, held on the definition of "CARD READER": thus:

"According to Wikipedia, the Free Encyclopaedia, the INEC card reader is  a  portable  electronic  voter  authentication  device.  Designed, specifically,  for  the  accreditation  process  for  the  authentication  of eligible voters before voting, the machine was configured to read only the PVCS of a particular polling unit and can only work on Election Day, Wikipedia,  the  Free  Encyclopaedia,  (last  accessed  on  January  30, 2016)".

Furthermore, in MRS.BETTY DAREGO v. A. G. LEVENTIS (NIGERIA) LTD & 3 ORS, LER[2015]CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:

“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the Latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

In the above cases, it can be seen that the court used a dictionary available on the web: dictionary.com and Wikipedia.com to define the word "preponderate" and “card reader” respectively. Before now the justices would have most likely resorted to the traditional lawyers’ dictionary; the Black’s Law Dictionary, but in this instance they did not. It is therefore good to note that our Lordships are utilizing the web to research and cite same as sources of information in their judgments. This is a welcome development. It means that our courts are not oblivious of technological advancements or ICT and how they can be used to aid the administration of justice.

It is therefore not surprising that the JITPO enjoins the judiciary not to “turn a blind eye to the mysteries of the computer” which necessarily includes the use of video conferencing for taking witness testimony, but to embrace ICT as means of improving access to courts, increasing transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expediting the judicial process. The use of video conferencing no doubts contributes to the expediting of the judicial process by saving costs and delays as witnesses can testify from any location without necessarily being physically present in the court room.

In view of the foregoing, it is submitted that a court of law in Nigeria is allowed to make use of video conferencing for taking witness testimony where the interest of justice would be served. The courts are not to rely on technicalities or the lack of a specific provision for video conferencing in our substantive or procedural laws to reject the use of video conferencing.

EXAMPLES FROM FOREIGN JURISDICTIONS

UNITED STATES

In the United States certain district courts are allowed to use videoconferencing for prisoner civil-rights-pretrial proceedings. The US Courts of Appeals for the Second, Tenth and District of Columbia, Circuits use videoconferencing for oral arguments.

In MARYLAND v. CRAIG 497 US 836 (1990) the US Supreme Court accepted child witness testimony via one-way video. In HARRELL v. STATE, 709 So. 2d 1364 (Fla. 1988), the Florida Supreme Court sustained a robbery conviction based largely on the two-way video testimony of complainants testifying from Argentina. Rule 3.190(J) of the Florida Rules of Criminal Procedure provides the circumstances under which and procedure by which a party can take a deposition to perpetuate testimony for those witnesses that are unavailable. Thus, in all future criminal cases where one of the parties makes a motion to present testimony via videoconferencing, it is incumbent upon the party bringing the motion to:

(a)             verify or support by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing; and

(b)            establish that the witness’s testimony is material and necessary to prevent a failure of justice.

If all the above requirements are met the court is allowed to make use of videoconferencing to take witness testimony.

UNITED KINGDOM

In the UK, the Access to Justice Act, 1999 allows VC to be used for civil hearings, e.g. case management conferences, ancillary relief hearings, overseas or remote witnesses or in any civil cases in which the court directs the use of video and the parties involved consent to its use.

Furthermore in the UK, Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.

Section 51 was piloted in 5 Crown Court centres and was restricted to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 extended live links to all witnesses in all cases for all criminal offences in all courts and came into force on 26 April 2010. The witness does not have to be a special 'category' of witness (for instance vulnerable or intimidated as defined by the Youth Justice and Criminal Evidence Act 1999 [YJCEA]).

"Live link" is defined in section 56(2) and will usually mean a closed circuit television link, but could apply to any secure technology with the same effect such as video conferencing facilities or the internet.

The benefits of the effective use of section 51 live links include a reduction in waiting times for professional and expert witnesses and reducing delay in the listing of some cases.

A court may only authorise the use of a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of a live link - for example, a witness may be able to give evidence from a court in a different part of the United Kingdom rather than have to travel to the trial court (subsection (4)[a]).

Section 51(6) sets out the matters that the court must consider when deciding whether to authorise the use of a live link (subsection (6)). These are: 

(i)the availability of the witness; 

(ii) the need for the witness to attend in person;

(iii) the importance of the witness's evidence to the proceedings; 

(iv) the views of the witness; 

(v) the suitability of the facilities at the place where the witness would give evidence through a live link; 

(vi) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.

Section 52 provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so.

Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.

CANADA

In the Canadian case of CHANDRA v. CBC, 2015 ONSC 5385 (CanLII), a few days before the commencement of trial, the defendants requested that five of their witnesses four of which lived in the UK and one in the United States, be permitted to testify via video-conference at the trial. The plaintiffs opposed the request but the court overruled them and noted that Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If the parties both do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a telephone or video conference on such terms as are just.

The court further noted that the factors to be considered in exercising this discretion are set out in Rule 1.08(5) and are as follows:

(a) The general principle that evidence and argument should be presented orally in open court;

(b) The importance of the evidence to the determination of the issues in the case;

(c) The effect of the telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;

(d) The importance in the circumstances of the case of observing the demeanour of a witness;

(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) Any other relevant matter.

The court also held that:

"While the general principle that trial evidence should ordinarily be presented orally is clearly and unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in light of the culture shift advocated by the Supreme Court of Canada, to take a 21st century view of the use of video conferencing (and similar technologies)....The use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable "live" as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time…a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing."

SOUTH AFRICA

In South Africa section 158 of the Criminal Procedure Act 1977 (Act No. 51 of 1977, as Amended up to Criminal Law (Forensic Procedures) Amendment Act, 2010), provides that criminal proceedings take place in the presence of the accused. An exception is provided for in section 158(2)(a) namely:

“(2)(a) A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.

(b) A court may make a similar order on the application of an accused or a witness.

(3) A court may make an order contemplated in subsection (2) only if facilities therefore are readily available or obtainable and if it appears to the court that to do so would –

(a) prevent unreasonable delay;

(b) save costs;

(c) be convenient;

(d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or

(e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.

(4) The court may, in order to ensure a fair and just trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary: Provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.

(5) The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.”

INDIA

In the India the courts are allowed to make use of videoconferencing facilities to receive  evidence  and  submissions  from  witnesses  or  persons  involved  in  court proceedings  in  circumstances  where  it  would  be  expensive,  inconvenient  or  otherwise  not desirable  for  a  person to  attend  a  court  in  person.  An  over-riding factor  is  that  the  use  of  video-conferencing  in  any  particular  case  must  be consistent  with  furthering  the  interests  of  justice  and  should  cause  minimal disadvantage to the parties. However, it is for the Court to decide whether evidence should be recorded by video-conferencing.

According to the VideoConferencing Guidelines Issued by the High Court of Delhi:

“Wherever  possible,  proceedings  by  way  of  video  conference  shall  be conducted  at  Judicial  proceedings  and the  same  courtesies  and  protocols  will  be observed.  All, relevant statutory provisions applicable to judicial proceedings including the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872 shall apply to the recording of evidence by video conference. Video conferencing facilities  can be used in all  matters  including remands, bail  applications  and  in  civil  and  criminal  trials  where  a  witness  is  located intrastate,  interstate,  or  overseas.  However, these guidelines will not apply to proceedings under section 164 of Criminal Procedure Code.

The guidelines further provides that: “a court may either suo moto or on application of a party or a witness, direct by a reasoned order that any person shall appear bef9re it or give evidence or make  submissions to the Court through video conference.”

CONCLUSION

ICTs play a key role in managing case load, publishing information for court users, managing knowledge within the court, supporting the preparation and conduct of litigation and presenting evidence and preparing and publishing judgments.

It is proposed that the various rules of courts of the various courts in Nigeria and the criminal procedure laws of the various states should be amended to specifically provide for videoconferencing and the use of technology in assisting remote witness testimony. Doing so would provide a uniform set of guidelines or rules to be adopted by the courts in making use of video conferencing whenever the need arises.

POSER

Section 212 provides that on the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses. 

So assuming two witnesses are to testify from a remote location through VC, how can the court determine that the other witness is not hiding out of view of the video camera and watching and listening to the other witness as he testifies? By section 212 above, a witness in a case except where is a party to the case, is not allowed to be in court while a witness is testifying.