Issues, Conditions And The Way Forward. By O. G. Ogbom, Esq. – TheNigerialawyer

The issue of electronic and computer-generated evidence is
probably beyond what we can envision from the extant provisions of
the Evidence Act. Nevertheless, this article seeks to address the
issues, conditions and the way for electronic and
computer-generated evidence.

The Black’s Law Dictionary, 8th edition, on page 595, defines
“evidence” as something, including testimony, documents and
tangible objects that tends to prove or disprove the existence of
an alleged fact.

In Awuse Vs Odili, (2005) 16 NWLR (PT 952) PG 416, the court
attempted to define evidence, when it stated that it is:

“Any species of proof, or probable matter legally presented at
the trial of an issue by the act of the parties and through the
medium of witness, records, documents, exhibits, concrete objects,
etc for the purpose of inducing belief in the minds of the court or
jury as to their contention”.

Again, section 258 of the Act, defines the word “document” in
relation to electronic and computer-generated evidence to include
computer print outs, compact disk, electronic messages, videotapes,
soundtrack or other device in which sounds or other data (not being
visual images) are embodied so as to be capable (with or without
the aid of other equipment) of being produced from it; and any
film. Negative, tape or other devices in which one or more visual
images are embodied so as to be capable (with or without the aid of
some other equipment) of being reproduced from it and any device by
means of which information is recorded, stored or retrievable
including computer output.

The definition Section of the Evidence Act, defines
“document to include the following:
(a) Books, maps plans, graphs, drawings, photographs and also
includes any matter
expressed or described upon any substance by means of letters,
figures or marks, or by
more than one of these means, intended to be used or which may be
used for the
purpose of recording that matter.
(b) Any disk, tape soundtrack or other devices in which sounds or
other data (not being
visual images) are embodied so as to be capable (with or without)
of being reproduced
from it, and
(c) Any film, negative, tape or other devices in which one or more
visual images are
embodied so as to be capable (with or without the aid of some other
equipment) of
being reproduced from it; and
(d) Any device by means of which information is recorded, stored or
retrievable including
computer output.

The amendment of the Evidence Act in June 2011, was intended to
provide for the use of electronic evidence in court proceedings.
Prior to the said amendment, the admissibility of electronic
evidence in court proceedings had been controversial due to the
absence of specific provisions in the previous act.

By Section 84(1) of the Evidence Act, the admissibility of
computer-generated documents is subject to the fulfillment of
certain conditions.

84 (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 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.

It must be noted that for a computer-generated document to be
admissible in evidence, evidence as to the functionality of the
computer must first be given.

This issue was discussed at length by the Supreme Court in the
case of Kubor V. Dickson. The appellants, in this case, presented
petition before the Governorship Election Tribunal, Holden at
Yenagoa, Bayelsa state, against the respondents. The appellant’s
case was that the 1 respondent was not qualified to contest the
election into the office of Governor of Bayelsa State which was
held on 11 February, 2012 because prior to and up to the date of
the election there was a pending litigation in court over the
question of who was the candidate of the 2 respondent for the
election. In reaction to the pleaded facts in the petition, the 3
respondent filed a reply in which it pleaded,
inter alia, that on the 1 day of January, 2012, the Federal High
Court, Abuja ordered the 3 respondent to restore the name of the 1
respondent as the 2 respondent’s (PDP) candidate for the
Governorship election of Bayelsa State, which order was complied
with by the 3 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 “L” satisfied any of the above-stated
conditions”

The Supreme Court went ahead to consider the type of secondary
evidence of public document that is admissible in respect of
computer-generated document, and stated as follows:

“The only admissible secondary evidence of a public document is
a certified true copy of same. In the instant case, exhibit “D”
which was an internet print out of the public newspaper was by
nature secondary evidence of the original by reason of the
provisions of Section 85 and 87(a) of the Evidence Act 2011. On the
authority of Sections 90(1) (c) and 102(b) of the Evidence Act, it
is only the certified true copy of the document as secondary
evidence and non-other that was admissible. Therefore the absence
of certification rendered exhibit “D” a worthless document and
inadmissible. Similarly, exhibit “L” which was a computer/internet
generated documents allegedly printed by the appellants from the
website of the 3 respondent was by Section 102(ii) of the Evidence
Act, classified as a public document and only a certified true copy
of same was admissible in law”.

It is also important to note that mere satisfaction of the
conditions stipulated in Section 84 of the Evidence Act, does
not
automatically entitle the document to be ascribed weight by the
court but, the hurdle posed by Section 34 (1) (b) of the Act must
be passed. The said provision requires the following to be
considered, in the determination of whether or not weight should be
ascribed to a document produced by a computer:

(a) The question of whether or not the information which the
statement contained, reproduced or is derived from, was supplied to
it, contemporaneously with the occurrence or existence of the facts
dealt with in that information; and
(b) The question of whether or not any person concerned with the
supply of information to that computer or any equipment by means of
which the document containing the statement was produced it; had
any incentive to conceal or misrepresent the fact.

Failure to comply with these conditions would result in the
evidence being expunged.

In interpreting provisions similar to section 84 of the
Evidence, the defunct House of Lords, Per Lord Griffiths, had this
to say in R v. Shepherd [1993] 1 All ER 225,
231, paragraphs A-C, [HL]:

“Documents produced by computers are an increasingly common
feature of all businesses and more and more people are becoming
familiar with uses and operation. Computers vary immensely in their
complexity and in the operations they perform. The nature of the
evidence to discharge the burden of showing that there has been
no improper use of the computer and it was operating
properly will inevitably vary from case to case. The evidence
must be tailored to suit the needs of the case. I suspect that it
will very rarely be necessary to call an expert and that in
the vast majority of cases it will be possible to discharge the
burden by calling a witness who is familiar with the operation of
the computer in the sense of knowing what the computer is required
to do and who can say that it is doing it properly”.

Conversely, Section 84 of the Act states two methods
of proof, which is either by oral evidence under Section
84(1) and(2) or by a certificate under Section
84(4). In either case, the conditions stipulated in Section
84(2) must be satisfied. However, this is subject to the power
of the Judge to require oral evidence in addition to the
certificate. As Lord Griffith explained in the said case of R v.
Shepherd:

“Proof that the computer is reliable can be provided in two
ways: either by calling oral evidence or by tendering a written
certificate subject to the power of the Judge to require oral
evidence. It is understandable that if a certificate is to have
relied upon it should show on its face that it is signed by a
person who from his job description can confidently be expected to
be in a person to give reliable evidence about the operation of the
computer. This enables the defendant to decide whether to accept at
its face value or to ask the Judge to require oral evidence which
can be challenged in cross-examination”.

The law appears settled in DICKSON V. SYLVA (Supra), that when
the maker of computer-generated evidence seeks to tender it in
evidence, that failure to file a certificate of
compliance/identification is not fatal. All that the witness is
required to do will be to deposed to the functionality of the
computer or device as contained in S.84 (2) of the Evidence Act,
2011, in his witness deposition.

I completely agree with some writers that the conditions spelled
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.

There is no doubt that there is a basic defect, in the absence
of a requirement for verifying the accuracy of the input or data.
Section 84 appears to be cumbersome for its unnecessary complex
conditions for admissibility of computer output especially where
such are produced by the use of more than one computer.

O.G. Ogbom, Esq., LL.B,(Hons) BL, LL.M., is a
Port Harcourt based legal practitioner.[email protected]^[1]