- INTRODUCTION
Generally, the issue of electronic evidence is convoluted. In this work, notable judicial authorities will be dissected to show whether section 84 of the Evidence Act requires further legislative intervention or not. There is a gasbag of emerging issues in respect of computer-generated evidence in Nigeria. These issues range from the question of whether the conditions set out in section 84 (2) of the Evidence Act1 can be satisfied through oral evidence or certificate of authentication or both. Apart from this, there is also the issue of whether bank statements of account qualify as computer-generated evidence and whether a computer-generated public document attached to an affidavit requires certification in line with section 104 of the Evidence Act? The above issues will be addressed herein with the aid of decided authorities.
- CAN THE CONDITIONS STIPULATED IN SECTION 84 (2) OF THE EVIDENCE ACT BE ESTABLISHED BY ORAL EVIDENCE?
In R v. Shepherd2, the English Court, coram Lord Griffiths was faced with the question of whether the requirements for the admissibility of electronic evidence can only be established by a certificate. The English Court clearly held that the authenticity or genuineness of an electronic document can be proved either by a certificate or oral evidence. In reaching the above decision, copious reference was made to the provisions of the Police and Criminal Evidence Act 1984 which were squarely on all fours with section 84 of the Evidence Act 2011 (as amended). The Court also went further to hold that the conditions for the admissibility of electronically generated evidence could be satisfied by a certificate or by oral evidence.
Furthermore, in Sylva v. Dickson,3 the Supreme Court of Nigeria quoted with approval the decision of Lord Griffiths on the subject matter and held that the four conditions stipulated under Section 84 (2) of the Evidence Act can be satisfied either by a certificate pursuant to subsection (4) of section 84 or by oral evidence subject to the direction of the Court.
In addition to the above, the case of Sylva v. Dickson4 is also significant because it clarified the issue of whether the gadget to be used to demonstrate the contents of a computer generated evidence in open court must satisfy the conditions stipulated in section 84 (2) & (4) of the Evidence Act. The Supreme Court painstakingly held that where an electronic evidence like a CD disc or memory card has been admitted in evidence having satisfied the conditions stipulated in section 84 of the Evidence Act, the law does not require that the DVD or PowerPoint to be used to demonstrate the contents of such electronic evidence to satisfy the conditions in section 84 (2) & (4) thereof.
Again, in Jubril v. FRN,5 the Court of Appeal was faced with the legal puzzle of whether the reliability and functionality of a computer used in generating a document can be made by oral evidence. It was the contention of appellant's senior counsel that Exhibit P7 was inadmissible on the ground that it was a computer-generated document and the certificate of authentication required by Section 84 (4) of the Evidence Act 2011 was not tendered. The Court of Appeal in resolving the issue held that it is now well established that the requirement of Section 84 (2) and (4) of the said Act can be satisfied by oral evidence of a person familiar with the operation of the computer as to its reliability and functionality.
In arriving at the above decision, the Court of Appeal placed reliance on the cases of R v. Shephard6 and Dickson v. Sylva,7 where the Supreme Court held that 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 direct otherwise.
- ARE BANK STATEMENTS OF ACCOUNT COMPUTER-GENERATED EVIDENCE?
The above has been a vexed issue. This is because there seems to be a conflict between section 84 and section 89 (1) (h) of the Evidence Act regarding whether account statements produced by banks are computer-generated evidence or not.
In Rosehill Ltd v. GTB Plc,8 the issue that rose for the determination of the Court was whether computer-generated statements of account tendered from the bar are admissible in law. The Court of Appeal unanimously held that statements of account are computer-generated evidence and the same must meticulously comply with section 84 of the Evidence Act in order to be admissible.
The Court of Appeal reasoned that there was no conflict between sections 84 and 89 (1) (h) of the Evidence Act because section 84 regulates the admissibility of any document produced electronically.
In U.B.N Plc v. Agbontaen & Anor9, the trial court refused to admit statements of account on the ground that they were computer-generated evidence and the conditions for their admissibility have not been satisfied as required by section 84 of the Evidence Act. The Appellant contended that statements of account are documents which are admissible under Sections 51, 89(1) (h) and 91(1) (e) of the Evidence Act 2011 and not under section 84 thereof. In discountenancing the Appellant's contention, the Court of Appeal held that statements of account are computer-generated evidence and failure to satisfy the conditions set out in section 84 of the Act would render same inadmissible in evidence.
However, in the recent decision of the Court of Appeal in BUA International Ltd v. SAIMA (Nig.) Ltd (2023) LPELR-59533 (CA) it appears that the Court of Appeal has departed from its previous decisions. In BUA International Ltd v. SAIMA (Nig.) Ltd, the Court of Appeal held that bank statements of account are not computer generated evidence that must satisfy the conditions in section 84 (2) of the Evidence Act.
- DOES A COMPUTER-GENERATED PUBLIC DOCUMENT REQUIRE CERTIFICATION FOR THE PURPOSE OF ADMISSIBILITY?
The law is trite that where a public document is produced or generated by computer, certification in sync with section 104 of the Evidence Act is required. The case of Kubor v. Dickson10 is relevant at this juncture. In Kubor v. Dickson supra the Supreme Court held as follows:
However, looking closely at Exhibits "D" and "L", they are clearly public documents and it is settled law that the only admissible secondary evidence of public documents is a certified true copy of same. Exhibits "D" and "L" not being certified true copies of the Punch Newspaper and the list of candidates which 3rd respondent is mandated to keep in the course of the performance of its official duties, are clearly inadmissible in evidence and the lower courts are right in so holding. The fact that the exhibits are computer print outs or e-documents does not change their nature and character as public documents.
Against this backdrop, it is settled law that a public document even though a computer generated evidence still requires certification to be admissible or receivable in evidence because a computer-generated evidence possesses the status of a secondary evidence and by implication, the only admissible secondary evidence of a public document is the certified true copy.
- SHOULD A PUBLIC DOCUMENT BEING A COMPUTER-GENERATED EVIDENCE ATTACHED TO AN AFFIDAVIT COMPLY WITH SECTION 84?
It is an elementary principle of law that a document attached to an affidavit becomes an integral part of the affidavit evidence. The net implication is that computer generated evidence annexed to an affidavit has become part of the affidavit and the question of compliance with section 84 (2) of the Evidence Act will not arise. This principle also applies to public documents attached to affidavits. In Jukok International Limited v. Diamond Bank Plc11, the Court of Appeal held that public documents annexed to an affidavit form part of the affidavit and same do not require certification whatsoever.
The above poser was finally settled by the Supreme Court in Aondoakaa v Obot12. In Aondoakaa v. Obot supra, the Supreme Court held that copies of a public document attached to an affidavit need not be certified because same have formed part of the evidence adduced before the court.
- CONCLUSION
The law remains that a computer-generated evidence being a secondary evidence must comply substantially with the 4 conditions stipulated under Section 84 (2) of the Evidence Act and nothing more. It must be constantly borne in mind that admissibility of a computer generated evidence is one thing and the weight to attach to it is another thing. In considering the weight to attach to it, courts of law have been encouraged to take cognizance of the facts stated in section 34 (b) (i) & (ii) of the Evidence Act.
Footnotes
1. Amended in 2023
2. (1993) 1 ALL ER 225
3. (2017) 8 NWLR (Pt. 1567) 167
4. ibid
5. (2018) LPELR-43993 (CA)
6. ibid
7. ibid
8. (2016) LPELR-41665 (CA)
9. (2018) LPELR-44160 (CA)
10. ibid
11. (2016) 6 NWLR (Pt 1507) 106
12. (2021) LPELR-56605 (SC)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
