Has Section 84 of the Evidence Act Finally Buried the Intricacies Surrounding Computer-generated Evidence in Nigeria? By Wisdom C. Onyisi
Our technologically-advanced society of today has given birth to various sources of electronic evidence in virtualy all jurisdictions of the World today. Electronic evidence is increasingly more common. Examples are audio and video recordings, comments in social media, , instant messaging via certified mail, text messages, social media platforms etc.
To be accepted as electronic evidence, this wide variety of sources of digital evidence must have access to the judicial process through some of the legally prescribed means of proof.
For clarity purpose, in this article, answers will be provided for the following questions :
1. what is electronic evidence and
2. how admissible it is in courts in Nigeria?
The definition of electronic evidence and its admissibility for a judge in court.
The emergence and popularization of digital communication (instant messaging, social networks, certified email, etc.) has not only provoked a revolution in the way that we relate to our personal and work life, but also in the legal environment and especially in the field of computer law.
We no longer understand how to relate to each other without technology. Digital media evolves everyday and floods our daily life. Faced with this massive use of electronic instruments, the legal environment is enjoying LegalTech solutions that are redesigning the field as it faces unknown conflicts due to the increase of new electronic evidence.
Now, the first question is, what is electronic evidence?
Electronic Evidence is defined as all information with probative value that is included in an electronic media or is transmitted by said electronic media. Electronic evidence includes data stored in computer systems or devices and information transmitted electronically through communication networks.
Having understood the concept of electronic evidence, the next question is, is electronic or computer-generated evidence admissible in courts in Nigeria?
Before the coming into force of the new Evidence Act of 2011 the Nigeria legal system was plagued with the anathema of dearth of adequate provisions regulating the admissibility of computer or electronically-generated evidence in Nigeria. Before 2011, to say that the old Evidence Act was in frozen state is an understatement. In spite of the giant strides made in information technology, which raised serious legal challenges across the globe, the then Evidence Act did not keep pace with the developments in information technology to fill this big lacuna created. Indeed, the old Evidence Act was in ‘a class of its own’ among the community of laws regulating electronically-generated evidence, the World all over. In this regard, Chukwuemerie A.I in his work entitled “Affidavit Evidence Electronically Generated Materials in Nigerian Courts” (2006)3:3 SCRIPT-ed. P.177, has this to say:
“Statutory law in Nigeria has hardly kept pace with social realities. This is despite the fact that between such realistic and the law there should ordinarily be a mutually beneficial interpenetration. This has ensured that in some important areas of life and business statutory law has remained in yesterday while the society marched on in dynamism”
It is against this background that the 3rd day of June, 2011 will for a long time to come, remain memorable to judges, lawyers and all those who are passionate about the Nigeria Legal System. On this day, the President of the Federal Republic of Nigeria, His Excellency, Dr. Goodluck Jonathan, signed into law, the new Evidence Act, 2011.
The old 1945 Evidence Act was virtually holistically in dire need of review and amendment but the most pressing area was on computer electronically-generated evidence. Business across the world are done largely by computers, whether in companies, banks, public or even private sectors.
Going though the Old Evidence Act, however, computer-generated evidence is not recognized. In fact, the word ‘computer was no where to be found. Yet, litigants sought to tender computer-generated evidence . This regrettable lacuna led to Several intricacies surrounding the admissibility of computer-generated evidence .
This is evidenced in the cases of OGOLO v.IMB; U.B.A Plc v. ABACHA FOUNDATION; YESUFU v. A.C.B; ANYAEGBOSI v. R.T.BRISCOE(NIG) LTD; OWODUNMI v. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST; GANI FAWEHINMI v. NBA(NO.1); FEDERAL REPUBLIC OF NIGERIA v. FEMI FANI KAYODE. to mention but a few. While vast majority of the courts held that computer-generated evidence was admissible, many others took the view that it was not. The position was then was constantly in a dejavu.
In FEDERAL REPUBLIC OF NIGERIA v.FEMI FANI-KAYODE for example, the Defendant was arraigned before the Federal High Court by the EFCC on a 47-count charge of money laundering to which he pleaded not guilty. When trial commenced, the prosecution called an officer of First Inland Bank to give evidence and sought to tender a certified copy of the computer generated statement of account of the Respondent domiciled with the Bank.
Respondent opposed the application on the ground that the computer generated statement of account is inadmissible under Section 97 of the Evidence Act. The learned trial judge upheld the objection and rejected the statement of account. The EFCC appealed.
On appeal, there was only one issue for determination viz: Whether a computer printout of a statement of account is inadmissible under the Nigerian Evidence Act. The Court of Appeal ruled that for the computer-generated statement of account to be admissible, that there must be substantial compliance with the provisions of section 97(1)(h) and (2)(e) of the Evidence Act and that the party tendering such must therefore comply with the following requirements:
(i) tender a certified copy of the account as proof that there is a book from where copies were made;
(ii) that if certified by an official of the bank giving evidence, this presupposes that the official compared the copy with the original before he certified it; and
(iii) that if the books of the bank were produced by the manager or the accountant, this must have been in the custody and control of the bank.
After reviewing the facts of the Fani-Kayode case, the Appellate Court held that there had been substantial compliance with section 97(2)(e) of the Act being that the official of First Inland Bank who sought to tender the statement of account was: –
a. the branch manager of the branch between March 2006 and May 2007 where the accounts of the respondent were domiciled;
b. testified on oath that the computer generated statement of account was a document from the custody of the bank; and
c it was certified and a true representation of the statement of the account kept by the bank.
Again, we closely observed how the presidential candidate of Nigerian major opposition party (People’s Democratic Party), in the February 23, 2019 Presidential Election, Alhaji Atiku Abubakar challenged the return of President Mohammadu Buhari at the Presidential Election Petition Tribunal on the ground, inter alia that the result announced by the Independent National Electoral Commission (INEC) did not correspond with that which is contained in the INEC website. Now, looking back before 2011 the question will be, if not for the intervention of the provision containing the admissibility of electronically-generated evidence under the new Evidence Act, 2011, how would Atiku Abubakar as well as other litigants have availed themselves of the ease and gains of tendering electronically-generated evidence in Nigerian Courts? Obviously mindful of shifting global trends towards a digital society, Order 9 Rule 5 of the High Court of Lagos State Civil Procedure Rules of 2019 as well Order 7 Rule 5(e) of the High Court of the Federal Capital Territory Civil Procedure Rules of 2018 has provided for electronic emails qua substituted means of service of court processes.
Although the Evidence Act, 2011 took ages to come, it is gratifying that it has finally come.
The Evidence Act clearly and expressly made electronically-generated evidence admissible under Section 84.
Section 84 of the Evidence Act provides as follows:
“84. (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question
(2) the conditions referred to in subsection (1) of this section are –
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the period the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities;
(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether –
(a) by a combination of computers operating over that period, (b) by different computers operating in succession over that period
(c) by combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers all the computers used for that purpose during that period shall be treated as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate –
(a) Identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.
(i) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) for the purpose of this section-
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) where in the course of any activities carried out by any individual or body, information is supplied with a view to its being stored or processed for the purpose of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”
NOW, THE QUESTION IS, WHAT IS THE CRUX OF SECTION 84 OF THE EVIDENCE ACT, 2011?
The courts have not had course to give judicial blessings to Section 84 EVIDENCE ACT, 2011 apart from the few cases of KUBOUR v DICKSON; AKEREDOLU v. MIMIKO; OGBORU v UDUAGHAN and a few others. In determining the admissibility of electronic evidence in KUBOUR v DICKSON, the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Section 84(2) are satisfied.
Stated more simply, the four conditions for admissibility of computer-generated evidence under Section 84(2) are that:
1. the statement sought to be tendered was produced by the computer during a period when it was in regular use;
2. During that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
3. the computer was operating properly during that period of regular use; and
4. the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
Further, Section 84(4) requires that the party which seeks to tender a computer-generated statement or document shall file a certificate stating the items under the sub-section above.
Like every other documentary evidence, computer generated evidence may be proved either by primary or secondary evidence. It is also classified into private and public document. When any computer generated evidence is sought to be tendered, the law requires the tendering of the primary evidence of it except where secondary evidence is permissible; for instance a copy of public document that is computer generated must be certified to make it admissible. This issue was discussed at length by the Supreme Court in the case of KUBOUR V. DICKSON. The appellants in this case presented petition before the Governorship Election Tribunal, Holden at Yenagoa, against the respondents. The appellant’s case was that the 1st respondent was not qualified to contest for the election into the office of Governor of Bayelsa State which was held on 11th February, 2012 because prior to and up to the date of the election there was a pending litigation nd in court over the question of who was the candidate of the 2nd respondent for the election. In reaction to the pleaded facts in the petition, the 3rd respondent filed a reply in which it pleaded, inter alia, that on the 1st day of January, 2012, the Federal High Court, Abuja ordered the 3rd respondent to restore the name of the 1st respondent as the 2nd respondent’s (PDP) candidate for the Governorship election of Bayelsa State, which order was complied with by the 3rd respondent (INEC). The order of the Federal High Court was admitted as exhibit “N”. The tribunal in dismissing the petition for lacking in merit rejected exhibits “D” and “L” which were internet print outs of punch newspaper and list of candidates posted on INEC’s website respectively tendered from the bar and admitted in evidence. The appellant’s appeal to the Court of Appeal was dismissed and on further appeal to the Supreme Court, the appeal was unanimously dismissed. On the admissibility of computer generated document or document downloaded from the internet the Supreme Court pointed out that the governing provision is section 84 of the Evidence Act, 2011; and the conditions listed under that Section must be satisfied before the document would be admitted in evidence. Reacting to the conditions stipulated under Section 84 of the Evidence Act, 2011 the Supreme Court stated emphatically that:
“A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the above conditions. In the instant case, there was no evidence on record to show that the appellants in tendering exhibits “D” and 70 “L” satisfied any of the above condition.
As Collins Obioma Chijioke argued in his work on the subject matter, the conditions spelt out in section 34(1) (b) of the Act ought to have been the only condition for admissibility of electronic and computer generated evidence. Section 84 requirements are not just cumbersome but unnecessary surplus sage to Section 34(1) (b); which aptly captures the essence or grounds for scrutinizing electronic and computer generated evidence. The conditions contained in Section 84 of the Evidence Act, 2011 also raises the question whether, the type of evidence required to enable admissibility of electronic and computer generated evidence is expert evidence or a non-expert evidence, merely to satisfy all righteousness. If the evidence required by that provision is not meant to be probed then it is devoid of any seriousness. If for instance a person occupying a reasonable position in relation to the operation of the device, does not possess any technical knowledge of the device, would he be taken as a witness of truth if he merely signs a certificate authenticating the device from which the output sought to be admitted is produced? It is therefore submitted that for any credible evidence to be given concerning the operation and condition of a device, such evidence has to come from an expert witness. Granted that some litigants may not afford the cost of hiring expert witnesses, the way out is for the judiciary to employ independent computer experts whose services would be easily accessible as those of the bailiffs of the registry. The alternative to this, is training of more police forensic experts who will come to court to testify or examine electronic and computer generated documents, upon being subpoenaed
Conclusively, as as earlier observed, the coming into force of the new Evidence Act, 2011 was seen as evolutionary and rode on a widespread eureka reception. Nonetheless, as W.M. IKPEN in his article entitled ” Has Section 84 of the Evidence Act Brought to an end the Conundrum of Computer-generated Evidence” noted in this regard that it is difficult to gainsay the fact that the provisions have been largely inadequate. The provisions has tended to mainly toe the line of the circumstances in decided cases in which the Courts have admitted electronically generated evidence while shutting their eyes to the expanding g frontiers of digital technology. For clarity purposes, the provisions stand tall in being fashioned towards recognizing computer printout of various forms which were notorious issues highlighted in decided cades preceding the enactment of the Act, where the admissibility of electronically-generated evidence was in issue. In so doing, the A t has shut its eyes against other evolving computer- related technologies prompting Dr. Mamn Lawn to decry the situation in his book “Admissibility of Computer Printout under the Nigerian Law of Evidence” by stating inter alia;
“The provision tilts more towards computer-related evidence in the form of documents produced by a computer… It does not cover other computer related evidence such as where the computer or a mobile phone is produced as documentary evidence before the Court. In other words, what the new Act has done is to concentrate on computer-generated evidence rather than computer-related evidence”
The intricacies of authenticating computer-related evidence as come to the fore. While the authentication of analog computer-generated evidence might constitute little or no cause of worry, the Same cannot be said of he authentication of digital evidence. This challenge is resistant from the failure of the Act to fully recognize the ubiquitous nature of digital technology. In this regard it is suggested that evidence of current standards, procedures, and practices with regard to the integrity of the document may be admissible to establish the integrity or authenticity thereof.
There is no doubt that the admissibility in evidence of electronic and computer generated evidence is yet to be fully mastered in Nigeria. Reliance must also be placed on persuasive decisions from other jurisdictions; to make our law grow.
Furthermore, the Act did not attempt an express clarification of computer-generated evidence. This it did by treating a number of documents produced by a uniform process through a computer as primary evidence. Each of the documents is primary evidence of the contents of the remaining original. On the other hand however, thereis no provision dealing with a situation where what is produced from the computer is not a number of documents but a single document. This issue can be resolved, it is most humbly suggested, merely by admitting the document regardless of whether it was produced as a sole document (common original) or a number if documents by any of the means and in the manner prescribed by the Act. But the defect still remains if the document is interpreted to mean the computer itself since by the Act; the definition of the document is wide enough to accommodate computer. This is the argument of Dr. Mamman Lawan. It is submitted, however, that this view of the learned author is unassailable and cannot be faulted in this regard.
In line with views of. M. W. Ikpen, it is also submitted that the various defects afflicting the extant Evidence Act particularly as they relate to the provisions of admissibility of computer-generated evidence attest overwhelmingly, with all due respect, to the perfunctory disposition of our law-makers towards their constitutionally bound duty of law-making. The efforts made to introduce these novel provisions are commendable but the efforts do not command any air of legislative diligence and circumspection. This article therefore associates the amedment of the present Evidence Act to address the issues highlighted in this article and to bring the provisions in to line with modern trends.
Wisdom C. Onyisi is a graduate of Ambrose Alli University, Ekpoma, Edo State, a prolific writer and researcher and an aspirant to the Bar.
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