When A WhatsApp Conversation Printout Can Be Tendered Like That Of A Short Message Service (SMS)

By C.C.Udemba

Basic digital technological skill has made it easy for lawyers
to obtain the hardcopy of a WhatsApp conversation but most often
they attempt to tender it in evidence in the same manner as an SMS
and that is where they encounter the difficulty of getting it
admitted. A printed copy of an SMS and that of WhatsApp
conversation are computer-generated evidence but they are distinct
when sought to be tendered in evidence in our Nigerian judicial
proceedings. Their distinctness is rooted in their digital
programming.

While SMS is controlled by Global System for Mobile
Communication (GSM), WhatsApp being an e-mail/social media
application is controlled by internet network. Internet network
makes use of mobile data/Wi-Fi but GSM does not. Whereas an SMS can
only be done using one digital device (phone “or” personal computer
with MODEM) at a time, WhatsApp can be operated using many digital
devices (phones “and” personal computer) at the same time.

Therefore the question, whether the printout of a WhatsApp
conversation is tendered just as that of an SMS?

Evidentially, the electronic conversation must be relevant, the
content in the printout of the conversation pleaded and the
printout frontloaded together with its certificate of
authenticity,

In OROGUN & ANOR v. FIDELITY BANK (2018) LPELR
46601, the evidence in issue is an SMS. The
respondent denied/disputed the information in the printout of the
purported SMS conversation. It was held that it is fundamental that
the printout should be tendered alongside with the operating
digital device – the GSM phone used in the communication.

Joseph S. Ikyegh J.C.A opined therein
that the essence of the GSM operating device following the printout
is to render “Proper Records” which cannot be seen
on the face of an SMS printout.

The learned Jurist went further to lay down what constitutes
proper records, to wit:

1. Evidence of conversation (date, time of the message & whether
   the message was received by the other party)
2. Identification of the sender/receiver of such message.

The above requirement is not at variance with the combined
reading of ss.94, 125 and 126 of Evidence Act,
2011. 

The printout of a WhatsApp conversation by its default tech
configuration/programming comes with “Proper
Records” which also satisfied the within cited sections of
the Evidence Act. Therefore, the requirement for the operating
device to be tendered alongside the printout of an electronic
conversation is unnecessary with regards to tendering the printout
of a WhatsApp conversation. Thus, the Court should disregard it and
admit the document.

See, OROGUN & ANOR v. FIDELITY BANK (2018) LPELR
46601, Joseph S. Ikyegh J.C.A at pg.44

Also in BRILA ENERGY LTD v. FEDERAL REPUBLIC OF
NIGERIA (2018) LPELR-45651 C.A, it was held that the
only requirement for admitting the printout of an e-mail – an
internet network system is the fulfillment of s.84 of
the Evidence Act, 2011

From the ongoing, it is clear that where counsel pleaded the
content of the WhatsApp conversation in issue but failed to
frontload its printout, for Counsel to succeed, he must tender the
operating digital device (as a document as defined by
s.258 of the Evidence Act, 2011. and in
fulfillment of the requirement of “Proper
Records”) at the time the witness-the maker gives oral
evidence of it in the witness box.

Same is applicable where Counsel made the proper pleadings and
frontloading but due to system malfunction/error the printout of
the WhatsApp conversation does not have on it the “Proper
Records”.

Again, if by reason of advancement in technology, SMS printouts
starts having “Proper Records”, there will be no
need tendering it along with the operating digital device (the GSM
phone or Personal device with the MODEM).

Written By C.C.Udemba (Associate: Ukpai Ukair0
& Associates), C.C.Udemba.Attorney@Gmail.Com:
08187780666

NOTE: This is personal research as at 12/05/2021 and
it contains the personal observations of the
researcher. 

By C.C.Udemba

Basic digital technological skill has made it easy for lawyers
to obtain the hardcopy of a WhatsApp conversation but most often
they attempt to tender it in evidence in the same manner as an SMS
and that is where they encounter the difficulty of getting it
admitted. A printed copy of an SMS and that of WhatsApp
conversation are computer-generated evidence but they are distinct
when sought to be tendered in evidence in our Nigerian judicial
proceedings. Their distinctness is rooted in their digital
programming.

While SMS is controlled by Global System for Mobile
Communication (GSM), WhatsApp being an e-mail/social media
application is controlled by internet network. Internet network
makes use of mobile data/Wi-Fi but GSM does not. Whereas an SMS can
only be done using one digital device (phone “or” personal computer
with MODEM) at a time, WhatsApp can be operated using many digital
devices (phones “and” personal computer) at the same time.

Therefore the question, whether the printout of a WhatsApp
conversation is tendered just as that of an SMS?

Evidentially, the electronic conversation must be relevant, the
content in the printout of the conversation pleaded and the
printout frontloaded together with its certificate of
authenticity,

In OROGUN & ANOR v. FIDELITY BANK (2018) LPELR
46601, the evidence in issue is an SMS. The
respondent denied/disputed the information in the printout of the
purported SMS conversation. It was held that it is fundamental that
the printout should be tendered alongside with the operating
digital device – the GSM phone used in the communication.

Joseph S. Ikyegh J.C.A opined therein
that the essence of the GSM operating device following the printout
is to render “Proper Records” which cannot be seen
on the face of an SMS printout.

The learned Jurist went further to lay down what constitutes
proper records, to wit:

1. Evidence of conversation (date, time of the message & whether
   the message was received by the other party)
2. Identification of the sender/receiver of such message.

The above requirement is not at variance with the combined
reading of ss.94, 125 and 126 of Evidence Act,
2011. 

The printout of a WhatsApp conversation by its default tech
configuration/programming comes with “Proper
Records” which also satisfied the within cited sections of
the Evidence Act. Therefore, the requirement for the operating
device to be tendered alongside the printout of an electronic
conversation is unnecessary with regards to tendering the printout
of a WhatsApp conversation. Thus, the Court should disregard it and
admit the document.

See, OROGUN & ANOR v. FIDELITY BANK (2018) LPELR
46601, Joseph S. Ikyegh J.C.A at pg.44

Also in BRILA ENERGY LTD v. FEDERAL REPUBLIC OF
NIGERIA (2018) LPELR-45651 C.A, it was held that the
only requirement for admitting the printout of an e-mail – an
internet network system is the fulfillment of s.84 of
the Evidence Act, 2011

From the ongoing, it is clear that where counsel pleaded the
content of the WhatsApp conversation in issue but failed to
frontload its printout, for Counsel to succeed, he must tender the
operating digital device (as a document as defined by
s.258 of the Evidence Act, 2011. and in
fulfillment of the requirement of “Proper
Records”) at the time the witness-the maker gives oral
evidence of it in the witness box.

Same is applicable where Counsel made the proper pleadings and
frontloading but due to system malfunction/error the printout of
the WhatsApp conversation does not have on it the “Proper
Records”.

Again, if by reason of advancement in technology, SMS printouts
starts having “Proper Records”, there will be no
need tendering it along with the operating digital device (the GSM
phone or Personal device with the MODEM).

Written By C.C.Udemba (Associate: Ukpai Ukair0
& Associates), C.C.Udemba.Attorney@Gmail.Com:
08187780666

NOTE: This is personal research as at 12/05/2021 and
it contains the personal observations of the
researcher.