How To Avoid Certificate Of Compliance For Electronic Evidence

DAILY LAW TIPS (Tip 310) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)

HOW TO AVOID CERTIFICATE OF COMPLIANCE FOR ELECTRONIC
EVIDENCE

With the enactment of the Evidence Act, 2011, it is now easy to
tender and use documents produced by computer in courts across
Nigeria. The condition for such use is enshrined in section 84 of
the Evidence Act and is a certificate of compliance showing that
such document was authentically generated from a reliable computer
in the ordinary cause of activities. The Supreme Court in DICKSON
V. SYLVA (2017) 8 NWLR (PT 1567) 167, has held that such
certificate can be written or oral, if written, it is still subject
to the powers of court to demand for an oral evidence. Also, the
Supreme Court held in our, per Onnoghen, JSC as he then was, that
where there is no certificate of compliance, a document produced by
computer will not be admissible.

Generally, Computer is defined in section 258 of the Evidence
Act to include any device for storing and processing information.
Hence, Computer and device are used interchangeably, here. Note
that, both primary and secondary documents, that are documents
produced by computer must also fulfill the conditions of section 84
of the Evidence Act aside any other condition ordinarily expected
for such.

Below are questions and reasons for such questions, needed to
lay proper foundation for oral certification of document produced
by computer in any court in Nigeria.

1.
Question:
Please tell this honourable court what document is referred to as
“xxxxxxxxxxxx” [insert title of document] in your witness statement
on oath?

Reason:
Pursuant to section 84(4)(a) of Evidence Act, a document produced
by computer should be identified. Such document should be mentioned
giving its title and unique name. Like, bank statement of Mr. Musa
Ibeh between 2nd April to 23 May, 2019.

2.
Question:
How was the document produced?

Reason:
Pursuant to section 84(4)(a) of Evidence Act, there should be a
description of the manner a document produced by a computer was
produced. This may include explaining and mentioning; typing,
scanning, saving, emailing, downloading and sending
procedures/steps/stages. See, ROWAYE JUBRIL v. FEDERAL REPUBLIC OF
NIGERIA (2018) LPELR-43993(CA)

3. Question:
What device was used in producing the document?

Reason:
Pursuant to section 84(4)(b) of Evidence Act, there should is need
for provision of particulars/details of the computer like Name,
Type, Model, Year and unique title (if any). Note that by section
84(3) of the Evidence Act, where sets, groups or combination of
computers were used whether concurrently or simultaneously, they
all will be regarded as constituting a single computer. Hence, in
such situation one need not mention all the computers employed in
producing a document.

4. Question:
How regular was the device used during the period the document was
produced?

Reason:
Pursuant to sections 84(2)(a) and 84(4)(c) of Evidence Act, there
is need to establish that the computer was regularly used to
store/process information by any person/persons for regular
activities whether the activities are private or for profit
making.

5. Question:
What was the device mainly and regularly used for?

Reason:
Pursuant to sections 84(2)(b) and 84(4)(c) of Evidence Act, there
is need to establish that the computer was regularly supplied
information like the type on the document produced by computer
sought to be tendered.

6. Question:
What was the condition of the device before the production of the
document?

Reason:
Pursuant to sections 84(2)(c) and 84(4)(c) of Evidence Act, the
device was operating properly during the concerned period and that
even if it was out of operation or part of it was not operating
properly, that such never affected the document produced by
computer or its content.

7. Question:
Where was the information on document produced by computer gotten
from?

Reason:
Pursuant to sections 84(2)(d) and 84(4)(c) of Evidence Act, there
is need to establish that the information in the document produced
by computer sought to be tendered was derived from the information
supplied to the device in the ordinary and regular course of
activities.

8. Question:
What is your relationship with the device?

Reason:
Pursuant to section 84(4)(c) of Evidence Act, there is need to
establish that the person providing a certification for document
produced by computer and the computer used for such production, is
a person of responsible position with regards to the operation of
the device or the management the relevant activities. Such a person
must not be a computer expert; he may even be a manager of a
department/company that owns the concerned device and as such
familiar with the computer.

My authorities are sections 84 and 259 of the Evidence Act,
2011. Also the Supreme Court Judgments in the cases of DICKSON V.
SYLVA (2017) 8 NWLR (PT 1567) 167 and KUBOR V. DICKSON (2012)
LPELR-9817(SC).

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