The Evidence Act, 2011 and particularly Section 84 of the Act
has emplaced a new legal order as it touches on computer generated
documents that come before courts for evidential purposes, but the
funny twist is that in the midst of this new legal order, there
seems to be a legal chaos. Steve Martin, an American Writer once
said “chaos in the midst of chaos isn’t funny, but chaos in the
midst of order is”. The chaos metaphor here fully represents
the scenario that jerks to life whenever a grey area pops up on a
legal issue. The title of this piece therefore is a portrayal of
the grey area that has birthed chaos in the midst of the new legal
order emplaced by Section 84 of the Evidence Act, 2011 and this is
funny.
To dispel any notion that this piece may be some hypothetical
scenario, permit me to briefly relate how the grey area depicted by
the title of this piece came about in the first place. Sometime
last year (2018) during the trial of a land matter wherein I am
Counsel for Claimant, the Claimant’s witness a surveyor was in the
witness box. After the Litigation Survey Plan prepared by the
surveyor was admitted in evidence without objection, his
evidence-in-chief was closed. The Defendants’ counsel then swung on
with his cross-examination and one of the questions that stood out
went along this line; you produced this Survey Plan using a
computer, and the witness indeed rightly answered
“yes”. No further question was asked on this computer
issue in follow up, apparently consigning the rest to the final
address stage thereof. While I spontaneously exchanged mutual gazes
of astonishment with other colleagues in court at the subtle
invitation of Section 84 into the legal fray here, my immediate
reflexive legal conclusion was that SECTION 84 HAS NO PLACE
HERE. Not to worry as I have a response in place if and when
the Defendants’ Counsel comes full circle on his subtle invitation
of Section 84 (in respect of which I need not say more here for
understandable reasons), this piece which is public interest
driven, is principally about some further exploration of a yet to
be fully explored tiny territory in a relatively new and evolving
frontier in our jurisprudence – ELECTRONIC EVIDENCE.
Section 84(1) provides thus; In any proceedings, 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.
Subsections (2), (3) and (4) are familiar and not relevant here,
but the relevant subsection (5) provides thus; 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 activities carried on by any
individual or body, information is supplied with a view to its
being stored or processed for the purposes 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.
By Section 84(1) and (5)(a)-(c), a document prepared by its
maker e.g. a surveyor (survey plan), architect (building plan),
medical practitioner (medical report), quantity surveyor (valuation
report), student (project/thesis), etc using a computer, is
simpliciter a computer generated document in the context
of Section 84, when such a document is sought to be given in
evidence, where we follow the ordinary or literal interpretation of
Section 84.
On when information is deemed to be supplied to a computer and
then deemed to be produced by a computer, the Supreme Court in
DICKSON V. SYLVA (2017) 8NWLR (Pt.1567) 167
reiterated the provisions of Section 84(5)(a)-(c) at page 202
paragraphs B-E before proceeding to unequivocally enjoin at page
255 paragraphs B-C that “the provisions of Section 84 of the
Evidence Act is complete and should be given its ordinary meaning
of interpretation of what the law is”. It must be crucially
noted that Subsection (5)(a)-(c) sufficiently throws light on how
and when a document can be said to be one produced by a computer.
Though it is Section 84(1) that makes the far-reaching principal
stipulation about a “document produced by a computer” the ancillary
stipulations in Subsection (5)(a)-(c) are what provide the
definitive clarity on how and when a document can become one
“produced by a computer” in the context of Section 84(1). Literally
applying the purport of Subsection (5)(a)-(c) to our surveyor
example here, even though a surveyor supplied directly or (with
or without human intervention) by means of any appropriate
equipment information to a computer in the course of
activities carried on by him with a view to its being
stored or processed for the purposes of those activities, and
it was produced by it directly or (with or without human
intervention) by means of any appropriate equipment, such a
document shall be taken to have been produced by a computer for the
purposes of Section 84.
As an aside, the Supreme Court in OMISORE V.
AREGBESOLA (2015) 15NWLR (Pt.1482) 205 in interpreting
Section 84 has posited that it is not only internet generated
documents that are caught up by the admissibility requirements of
Section 84. That is, the reference to documents produced by
computers in Section 84 is not limited to internet generated
documents only, but extends to every other document produced by a
computer.
Going by a literal interpretation of Section 84(1) and
(5)(a)-(c) which the Supreme Court has enjoined in DICKSON
V. SYLVA (Supra) coupled with the self same
court’s above position that not only internet generated documents
are computer generated documents, it is crystal clear that a
document prepared by its maker merely using a computer is a
computer generated document in the context of Section 84.
Here then comes the chaos. If a document prepared by its maker
using a computer is a computer generated document, where then is
the place of Section 83 of the Evidence Act, 2011 which
specifically relates to the giving in evidence of a document
prepared by its maker. The main part of Section 83(1) stipulates
thus; In a proceeding where direct oral evidence of a fact
would be admissible, any statement made by a person in a document
which seems to establish that fact shall on production of the
original, be admissible as evidence of that fact if the following
conditions are satisfied.
Although, the maker of a statement in a document is given a very
broad definition in Section 83(4), the category of the maker this
piece is mainly minded about is the maker that “signed or
initialed” the document he made.
With the benefit of the relevant part of Section 83(1) in view,
the germane query is; having made e.g. a surveyor available to
court armed with an original copy of a survey plan prepared by him,
does a party adducing the survey plan in evidence, in addition to
satisfying the requirements of Section 83 also need to satisfy the
requirements of Section 84 because the surveyor used a computer to
produce the survey plan he made?
Dwelling further on interpretation, the Court of Appeal in
BRILA ENERGY LTD. V. F.R.N. (2018) LPELR-43926
(CA) at page 21 embraced the legal maxim enumeratio unius est
exclusio alterius (the specification of one thing is an
exclusion of the other) and came to the holding that “when it
comes to computer generated documents, the provision of Section 83
has been excluded”. The implication thereof is that a
statement prepared by its maker in a document sought to be given in
evidence remains governed by Section 83, but the moment the
document containing the statement prepared by its maker was
produced using a computer, Section 83 is excluded and Section 84
activated. The worrying reality is that most documents containing
statements are prepared using a computer. Thus, it is now down to a
battle as it were between Section 83 and Section 84.
Still sticking to the literal interpretation of Section 84 that
a document prepared by its maker using a computer is a computer
generated document in the context of Section 84, it must be
understood that this then throws the door wide open to the
non-maker of a document to conveniently tender same thereby
obviating the invaluable opportunity of having the maker of the
document cross-examined. This is because, as per the principle in
BRILA ENERGY LTD. V. F.R.N. (Supra),
Section 84 excludes the applicability of Section 83 on the
necessity of bringing the maker of a computer generated document to
court. This means a claimant who is not a surveyor can under
Section 84 give in evidence a litigation survey plan because it is
a computer generated document, once the conditions in Section 84(2)
and (4) are satisfied.
The schism between Section 83 and Section 84 caught the learned
attention of Hon. Justice L. A. Okunnu of the High Court of Lagos
State. During the Bench-Bar Symposium on Electronic Evidence
organized by the trailblazing Lagos based Chinua Asuzu’s The
Write House, held at the Sheraton Hotel, Ikeja on the
29th June, 2018, Hon. Justice Okunnu was one of the
resource persons. In her paper entitled ELECTRONIC EVIDENCE:
JUDICIAL APPLICATION, APPROACH AND INTERPRETATION, His Lordship
specifically addressing the issue of Section 83 and Section 84
clarified as follows;
“My position, again, is that when the computer is
being used as a typewriter, then the computer is not the maker of
the document. It was under the control of a human maker. That maker
would have to be called to tender the document and give a
first-hand account in the manner laid down by section 83 as the
statement in issue was actually made by him or her. But when the
computer itself produced the document, it is section 84 that
applies as the statement in the document was made by the computer.
I stand to be corrected”.
Interestingly, it was the decision of Okunnu, J. in Charge No.
ID/196C/12 that constituted the subject of the appeal in
BRILA ENERGY LTD. V. F.R.N. (Supra). The
Court of Appeal in BRILA ENERGY LTD. V. F.R.N.
(Supra) upheld the entirety of the decision of Okunnu, J.
Permit me to further add that Okunnu, J. in the dazzling trial
court decision interpretatively excluded the applicability of
Section 83 when it comes to computer generated documents relying on
the legal maxim enumeratio unius est exclusio alterius,
which legal viewpoint was duly affirmed by the Court of Appeal.
In addressing this grey area whether computer generated
documents in the context of Section 84 include a document prepared
by its maker using a computer, the learned position of Okunnu, J.
is a good starting point. To be definitive, Okunnu, J.’s position
is that when the computer is being used as a typewriter, then
the computer is not the maker of the document. It was under the
control of a human maker. I am in absolute agreement with
Okunnu, J.’s learned conclusion which is to the effect that when a
document prepared by its maker using a computer is sought to be
given in evidence, it should not be seen as a computer generated
document in the context of Section 84, but that Section 83 should
rather apply. This is exactly my humble position as well.
While I unreservedly agree with Okunnu, J.’s learned position, I
most humbly beg to differ on the premises from which His Lordship’s
conclusion was derived. As robust as His Lordship’s “typewrite
model” on the interpretation of Section 84 is, my humble point of
divergence is that the far-reaching effects of Section 84(5)(a)-(c)
may not have been considered. Subsection (5)(a)-(c) provide the
requisite insight on how and when a document becomes one produced
by a computer, and had this subsection been considered in His
Lordship’s paper already referred to above, a rethink may have been
had on My Lord’s well-intentioned typewriter model. The purport of
Subsection (5)(a)-(c) is that even though the computer is being
used as a typewriter i.e. it was supplied with information by a
human and was under the control and use of a human maker, it does
not matter. In other words, according to Subsection (5)(a)-(c), a
document is produced by a computer even though it was supplied with
information by a human before the computer produced it and this is
regardless of whether it was with or without human intervention or
control.
The Apex Court’s enjoinment in DICKSON V. SYLVA
(Supra), that a literal interpretation be given to Section
84 on computer generated documents with all sense of humility has a
defeatist effect of throwing wide open the door for the non-maker
of a document to conveniently tender same for the singular reason
that the document was prepared using a computer. The latitude
already accorded by Section 84 for non-makers of computer generated
documents to tender same would be further widened to documents that
traditionally should have been tendered by their makers. The
adverse implication therefore is the obviation of the invaluable
opportunity of having the maker of the document “vouch for the
integrity (and, therefore probative value) of the document he made
by him coming to court and facing the real test of integrity – the
test of cross-examination”. (Per Okunnu, J. in His Lordship’s
Judgment in Charge No. ID/196C/12 as reproduced in His
Lordship’s paper, supra)
It is against this backdrop I believe that our courts would
consider the issue of whether a document prepared by its maker
merely using a computer is a computer generated document in the
context of Section 84, from a dynamic and proactive perspective by
appropriately invoking the golden and/or mischief rules of
interpretation to the rescue of Section 83. There is no doubt that
a literal interpretation of Section 84 with respect to the issue
under review would lead to absurdity, it is equally important to
see it from the purposive approach on the original essence of
Section 84 in relation to the mischief it was enacted to remedy.
And the mischief aimed at by Section 84 is to ensure that
statements derived or generated from the ever complex world of
information technology are what they claim to be and their
authenticity certificated, which concerns far transcend the mere
use of a computer for the preparation of a document by its
maker.
Although I am in accord with the principle in BRILA
ENERGY LTD. V. F.R.N. (Supra), that Section 84
excludes the applicability of Section 83 when it comes to computer
generated documents, an alternative approach (which alternative I
do not subscribe to) could be the setting aside of this principle
paving the way for Section 83 and Section 84 working together. This
would then require the maker of a document who prepared it using a
computer in addition to Section 83 to also satisfy the stipulations
of Section 84. My reluctance to subscribe to this alternative is on
the ground that the simple or mere use of a computer to prepare a
document by its maker did not ab initio raise the concerns
that necessitated the introduction of Section 84. The concerns that
necessitated the introduction of Section 84 relate mainly with the
more complex use of computers or electronic devices in the ever
complex world of information technology.
nota bene;
The book ELECTRONIC EVIDENCE (Revised Edition) 2019, authored by
Hon. Justice Alaba Omolaye Ajileye of the Kogi State High Court is
a seminal work on electronic evidence in our jurisdiction. This
more comprehensive work of 697 pages on electronic evidence is the
latest from Hon. Justice Ajileye who has devoted about a decade of
valuable time to the microscopic examination of the subject of
electronic evidence – a relatively new and evolving frontier in our
jurisprudence. As a cognoscente on electronic evidence in our
jurisdiction, His Lordship is for its public interest and riveting
nature respectfully invited to learnedly weigh in on whether a
computer generated document in the context of Section 84 should
include a document prepared by its maker merely using a
computer.
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.
He can be reached via; [email protected][1]
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