Challenges and admissibility of electronically generated evidence in Nigeria.

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Today, everyday transactions are conducted on electronic platforms. And the law is adjusting to the growing trend of computers and electronic documents like emails. 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.
The enactment of the Evidence Act, 2011 has attempted to correct some of the difficulties that the admissibility of electronically generated evidence do encounter in Nigerian Courts.

CONDITIONS FOR ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE.

S. 84 of Evidence Act provides for admissibility of computer generated evidence and the conditions that must be satisfied.

Admissibility of statements in document produced by computers. (1) 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 the computer in question.
(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.

(3) Where over a period, the function of storing or processing information for the purposes of any activities regularly carried on over that period, as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether –
(a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate – a. identifying the document containing the statement and describing the manner in which it was produced; or b.giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; or c. dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Definition section of the Evidence Act defined a computer as ” means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process;

Documents includes Document” includes – (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 disc, tape, sound track 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 some other equipment) of being reproduced from it,
(c)any film, negative, tape or other device 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 .

S 84 (4) of the Evidence Act provides that a party seeking to tender evidence under this section will have to tender a certificate prepared by the person who prepared the computer generated document. This has posed a lot of challenges as most electronic documents sought to tender has been rejected for devoid of a certificate. The courts are always mindful in admitting electronically generated evidence due to the fact that some of these documents can be doctored and fabricated.

per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphs A-C, [HL]: 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.
In actual fact, Section 84 (supra) consecrates two methods of proof, 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 the eminent Lord Griffith explained in the said case [R v. Shepherd]:

In HON. HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARLIN SYLVA And ORS. (2016) LPELR-41257(SC) it was stated 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 require oral evidence. It is understandable that if a certificate is to be 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”Per NWEZE, J.S.C. (Pp. 23-24, Paras. A-E)

CHIMA CENTUS NWEZE, J.S.C turning to the rationale for authentication, the erudite Justice of the Court of Appeal opined thus, pages 572 -573 of the record: In this digital age when different creations can be achieved electronically, the reason for the requirement of authentication or certification of the gadget or computer used in producing and processing the electronicallygenerated documents is not far-fetched. The party seeking to rely on such evidence must be able to show that the data and information contained in electronically-generated document is truly what it claims to be. The preconditions for admissibility set down by Section 84 are to establish this fact. The relationship between the computer and the information is crucial. The electronic evidence must be produced from a computer or gadget that is inherently reliable and has been in operation over the relevant period. There is no doubt that with present and even future technological advances, the pre-conditions attached to admissibility of electronically-generated evidence by Section 84 may no longer be sufficient to authenticate the reliability of electronic evidence. However, these challenges are not in issue herein. One constant is that the computer or gadget will only reproduce what has been fed into it. The computer or gadget will demonstrate or play what it receives. This is the reason why there is no further need for certification of the computer or gadget to be used to demonstrate or to play an already properly admitted electronically-generated evidence, which had complied with the pre-conditions of Section 84.

In effect, it is Section 84 of the Evidence Act that lays down the conditions for the admissibility of electronically generated evidence, Kubor v. Dickson [2013] 2 NWLR (Pt. 1345) 534, 577-578; Omisore and Anor v. Aregbesola & Ors. [2015] 15 NWLR (Pt. 1482) 205, 295 and not Section 258 of the Act, the definition Section.

 

Another challenge of electronically generated evidence is the issue of photographs. Some courts are of the opinion that before a computer generated evidence in form of photographs can be admitted. The negative of that photographs must be tendered in evidence. This view may cause hardship due to the fact that we are in a modern age where digital cameras and mobile phones exists. And these gadgets does not make you of negative films. Some courts are of the opinion that in any case you know you want to rely on a photograph, that it is proper to use a camera which can produce the negative of the film.

In KUBOR V DICKSON supra the supreme Court stated that a party that seeks to tender in evidence 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 conditions set out under section 84(2) of the Evidence Act 2011.

In this case the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is 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 Section 84(2) are satisfied.

A digital photograph without negative should be allowed as secondary evidence and admitted if the foundation as to the whereabouts of the film has been laid. There is no Section of the Evidence Act which prohibit admissibility of digital photographs and what is not prohibited should be allowed to be admitted in evidence. In ESSO WEST AFRICA INC. v T. OYEGBOLA 1969 NMLR 194 at Page 216 – 217, the Supreme Court made a progressive pronouncement that stand the test of time as follows:
“The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer. In modern times production and inscriptions on ledgers or other documents by mechanical process are common place and Section 37 cannot therefore only apply to books of accounts”.
There is a wealth of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in Nigerian law. However, advances in computer technology have also created greater opportunities for fraud and forgery (eg, email hacking, identity theft and photograph manipulation), so the courts must be cautious in admitting electronic evidence.

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