Person Not in Control of Computer that Produced Document Should be Exempted from the Certificate Requirement Under Section 84(4) of the Evidence Act, 2011 By Alaware Preye Isaac, Esq.
The requirement of certificate of authentication under Section 84(4) of the Evidence Act, 2011 when giving in evidence a computer generated document is one we are already familiar with. It would also be recalled some relief induced excitement trailed the wake of the Court of Appeal decision in BRILA ENERGY LTD. V. F.R.N. (2018) LPELR-43926 (CA) wherein it was held that oral evidence is acceptable as an alternative to a certificate of authentication. Rest assured that this discourse is not about a revisit to the no longer new BRILA ENERGY principle on Section 84(4). This short discourse essentially dwells on the critical interrogation of the malleability and functionality of the provision of Subsection (4) of Section 84 by some practical situations the subsection was enacted to regulate and the implication thereof on the ends of justice.
The unfortunate situation of legal doom or helplessness of having evidence shut out, that confronts a person who seeks to give in evidence a computer generated document but is not in control of computer that produced document, and as such unable to provide the certificate of authentication under Section 84(4), must concern every discerning legal mind. It is only better imagined how you have in your hands a very credible computer generated document that is central to coasting your case to victory but the court would not admit it for want of a certificate of authentication, and you cannot provide the said certificate because you are not in control of the computer that produced the document. I am sure some cases may have been won and lost on the basis of computer generated documents that were legitimately disallowed by the court for want of a certificate of authentication which could not be adduced because the computer that produced the disallowed document was not in control of the proponent of the document. This is indeed an unfair practical reality foisted by Section 84(4).
The call for a person who seeks to give in evidence a computer generated document but is not in control of computer that produced document to be exempted from the certificate requirement under Section 84(4) has already been made. The learned Jurist, Hon. Justice Alaba Omolaye Ajileye thankfully, made this call in His Lordship’s book ELECTRONIC EVIDENCE (Revised Edition) 2019, at page 262 thus;
“The point had earlier been made in the previous chapter that the scope of the applicability of section 84(4) should be limited to a proponent whose computer device produced the electronic document. In other words, production of a certificate as an essential element of process of authentication should be made mandatory where a proponent is in control of the device that produced the document. It is therefore, suggested that the law should not be too strict on a party whose computer did not produce the electronic document and it becomes impossible for him to produce same. This should be treated as an exception to section 84(4) in the interest of justice. This is because, it will amount to a denial of justice if an authentic document is kept out of the consideration of the court by reason of the fact that a certificate is not produced by a party who cannot possibly secure its production. In this technological age, nothing more unjust can be conceived.”
Hon. Justice Ajileye’s foregoing position derived fundamentally from a practical situation that confronted His Lordship in court. The malleability and functionality of Section 84(4) was put to serious test in the case of OHAMUO CHRISTIAN V. UNITED BANK FOR AFRICA (UBA) (Suit No. HC/KK/007CV/14) that was heard by His Lordship as Judge of Kotonkarfe High Court, Kogi State in which judgment was entered in 2016. The situation is succinctly recounted in ELECTRONIC EVIDENCE (Supra) at page 260 thus”
“…the claimant, a bank customer, asserted that he had liquidated his indebtedness to the defendant, a commercial bank, yet, the bank continued to make deductions from his salaries. He tendered his statement of account generated from the computer of the bank but the bank refused or failed to issue a certificate of authentication under section 84(4) of the Evidence Act, 2011.”
Alive to the responsibility of his station to dispense justice judiciously, His Lordship was minded that a strict application of Section 84(4) would result in the claimant being denied justice. Thus during trial in 2016, the bank objected to the admissibility of the claimant’s statement of account for the claimant’s failure to satisfy the requirements of Section 84(4), His Lordship preoccupied with the justice of the case proceeded to ingeniously articulate an exception under Section 84(4) to the effect that where the proponent of the computer generated document is not in control of the computer device that produced the document, he should be exempted from complying with the certificate requirement. His Lordship in a well considered Ruling on the 29th July, 2016 ingeniously articulated this exception and on its basis proceeded to accordingly admit the claimant’s statement of account in that case.
The necessity to universally embrace this exception under Section 84(4) in our jurisdiction as articulated in 2016 by Hon. Justice Ajileye stares us right in the face in this our modern society where digitization and information technology has become an integral part of our daily lives. Apart from the OHAMUO CHRISTIAN V. UNITED BANK FOR AFRICA (UBA) (Supra) statement of account example, there are other practical examples as well. For instance, whenever you step into modern supermarkets, grocery stores, fast foods outlets, etc, most of them at the payment points issue customers with computer generated Receipt Slips. In the event of litigation by a customer with any of them, you sure know they would not be generous enough to provide the customer with the certificate of authentication required under Section 84(4) to enable the customer give in evidence a Receipt Slip being a computer generated document. You can as well relate same to the situation with some modern hospitals that have done away with the traditional paper folders and now attend to patients using computerized folders. You can also relate this to the boarding pass of flights which are also computer generated.
Though the celebrated BRILA ENERGY decision may have enunciated that oral evidence is acceptable as an alternative to a certificate, this should not be misunderstood to mean the principle can come in handy for a person not in control of computer that produced the document, to enable the person adduce oral evidence. The Court of Appeal, per Sankey, J.C.A. in the BRILA ENERGY case postulated the law at page 63 thus;
“Where such certificate (of authentication) is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert.” Underling emphasis mine.
Going further on how the oral evidence alternative was met, the Court of Appeal at page 64 stated that;
“The condition was satisfied by the testimony of PW17 on oath when he explained the process of how he scanned the emails forwarding the report to him from Saybolt Concremat Brazil, printed them in colour and sent them to EFCC.”
From the above statement of the law in BRILA ENERGY, it is only a person who is in control of the computer that can be “familiar with the operation of the computer” and be capable of giving evidence “of its reliability and functionality”. The PW17 in this case who gave the oral evidence in satisfaction of Section 84(4) stated how he personally operated the computer. Therefore, a person who is not in control of computer that produced document and helpless to provide a certificate, cannot take advantage of the oral evidence alternative in satisfaction of the requirement under Section 84(4). The privilege to either adduce a certificate or oral evidence in satisfaction of Section 84(4) resides only in the person who is in control of the computer that produced the document.
The courts’ interpretative responsibility of expounding statutory provisions is a solemn responsibility our courts have not shied away from whenever it becomes exigent. This solemn responsibility was what courts were being reminded of by Aderemi, J.S.C. in the Apex Court decision in A.G. FEDERATION V. ABUBAKAR (2007) 10NWLR (Pt.1041) 1 at pages 171-172 paragraphs F-B. In exhorting judges, His Lordship went thus;
“… a Judge, whenever faced with a new situation which has not been considered before, by his ingenuity regulated by law, must say what the law is on that new situation; after all, law has a very wide tentacle and must find solution to all man-made problems. In so doing, let no Judge regard himself as making law or even changing law. He (the judex) only declares it (law) – he considers the new situation, on principle and then pronounces upon it. To me, that is the practical form of the saying that the law lies in the breast of the Judge.”
The necessity of universally embracing this exception under Section 84(4) in our jurisdiction was given a very worthy credence and validation in 2018 by a decision of the Indian Supreme Court in SHAFHI MOHAMMAD V. THE STATE OF HIMACHAL PRADESH [JT 2018 (2) SC 349]. Permit me to return to this anon.
The Supreme Court in SIFAX (NIG.) LTD. V. MIGFO (NIG.) LTD. (2018) 9NWLR (Pt.1623) 138, restated the longstanding hospitable disposition of our legal system to foreign decisions or authorities which have a nonbinding but persuasive effect on our courts. According to Augie, J.S.C. at page 180 paragraph D; “there is nothing in our laws that says the Nigerian Courts cannot rely upon foreign decisions, which includes foreign textbooks based on such decisions, rather they are useful in the expansion of the frontiers of our jurisprudence”.
Our courts in interpretatively dealing with Section 84 on electronic evidence, which is a relatively new and evolving frontier in our jurisprudence, have a lot to draw from other Common Law jurisdictions. For instance, the Court of Appeal in the BRILA ENERGY case actually relied on the foreign decision of the House of Lords in R. V. SHEPARD (1993) AC 380, when it laid down the new position on Section 84(4) allowing oral evidence as an alternative in lieu of certificate of authentication.
The Indian Supreme Court in SHAFHI MOHAMMAD V. THE STATE OF HIMACHAL PRADESH [JT 2018 (2) SC 349] was confronted with a practical situation where a strict application of the Section 65B(4) of the Indian Evidence Act on electronic evidence would occasion injustice. Section 65B of the Indian Evidence Act on electronic evidence is interestingly similar to our Section 84. Their Section 65B has subsections (1)-(5) just as our Section 84 has subsections (1)-(5). Thus, their Section 65B(4) provides for the certificate requirement in much the same way as our Section 84(4). The Indian Supreme Court while interpreting Section 65B(4) of the Indian Evidence Act which similarly provides for their certificate requirement when adducing electronic evidence, posited thus;
“Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act”.
The above Indian Supreme Court position which was arrived at in the overall interest of justice in no small measure lends credence and validation to the position taken in 2016 by Hon. Justice Ajileye in OHAMUO CHRISTIAN V. UNITED BANK FOR AFRICA (UBA) (Supra). When similarly confronted with the reality that a person not in control of computer that produced document would have difficulty making available a certificate of authentication, the Indian Supreme Court proceeded without hesitation to make an exception for such situations fundamentally in the overall interest of justice.
There is no denying the fact that a universal embrace of this exception under Section 84(4) in our jurisdiction would further the ends of justice. What is not clear is whether or not our lawmakers envisaged this sort of situation, but what is clear from this discourse is that a person who seeks to give in evidence a computer generated document but is not in control of computer that produced the document should be exempted from the certificate requirement under Section 84(4). It is in the overall interest of justice that credible computer generated document need not be shut out because the person in control of the computer that generated the document refuses or neglects to make available to the proponent of the document a certificate of authentication.
As central as authentication of computer generated document is for admissibility purposes, the Court of Appeal in the BRILA ENERGY case has acknowledged that a rigid or straightjacket approach is not the best, implying that there be room for flexibility as the justice of each case demands and this corresponds with the essence of this discourse on the need for a person who seeks to give in evidence a computer generated document but is not in control of computer that produced document to be exempted from the strict application of the certificate requirement under Section 84(4). According to Sankey, J.C.A.;
“There is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case.”
The bottom-line is that Sankey, J.C.A., in the admonition above has made it clear that courts should be liberal when dealing with the application of the provisions of the Evidence Act, 2011 on electronic evidence, particularly Section 84(4) on the authentication of computer generated documents. By the way, I understand the BRILA ENERGY case is on appeal before the Supreme Court. We all patiently await the outcome of the appeal on this all important case on electronic evidence.
Alaware Preye Isaac, Esq. a Legal Analyst and a Private Legal Practitioner is an Associate Counsel in the Law Firm of Timi Ambaiowei & Associates, Yenagoa, Bayelsa State, Nigeria.
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