ADMISSIBILITY OF STATEMENTS IN DOCUMENTS PRODUCED BY COMPUTERS

1.0        INTRODUCTION:

One of the new provisions included in the Evidence Act of 2011 to update the law of evidence in Nigeria to the twenty-first century and bring it to terms with the computer generation is Section 84 and 258 (1) of the Act. These sections define what a “computer” is in the jurisprudence of evidence and expanded the scope of the definition of a document.

2.0        DEFINITION OF A COMPUTER:

Section 258 (1) of the 2011 Evidence Act, defines a computer as

“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;”

3.0        DEFINITION OF A DOCUMENT:

Section 258 (1) of the Act, expanded the scope of the definition of a document to include:

(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, and

(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:

              (Emphasis supplied)

Similarly, Section 258 (1) of the 2011 Evidence Act, unlike the old Act defines a "Copy of a Document" to include:

(a)     in the case of a document falling within paragraph (b) but not (c) of the definition of "document" in this subsection, a transcript of the sounds or other data embodied in it;

(b)     in the case of a document falling within paragraph (b) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied in it whether enlarged or not;

(c)     in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and

(d)     in the case of a document not falling within the said paragraph (c) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged on not, and any reference to a copy of the material part of a document shall be construed accordingly;

4.0        ADMISSIBILITY OF A STATEMENT CONTAINED IN A DOCUMENT PRODUCED BY A COMPUTER:

Section 84 expressly permits the admissibility of a statement contained in a document produced by a computer once the four conditions precedent for it admissibility stated in Section 84 (2) of the Evidence Act of 2011 are met.

These four conditions precedent 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.

These four conditions precedent for admissibility of a statement contained in a document produced by a computer were considered by the Supreme Court in the recent case of   Dr. Imoro Kubor & Anor. v. Hon Seriake Henry Dickson & Ors. (2012) LPELR-SC.369/2012, where the eminent jurist, Onnoghen, J.S.C  expounded  that, the above conditions precedent were the pre-conditions laid down by the law  and consequently,  held that, the  two computer generated documents in issue were not admissible in evidence on the ground that, the said four conditions precedent were not satisfied by the Appellant.

Below is the dictum of His Lordship at pages 48-50, paras. F-E of the Report cited:

"Granted, for the purpose of argument, that Exhibits "D" and "L" being computer generated documents or e-documents down loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of section 84 of the Evidence Act, 2011. Section 84 (1) provides thus: "(i) 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 condition in sub-section (2) of this section is satisfied in relation to the Statement and the computer in question. The conditions are:- (a) that the documents containing the statement was produced by the computer during a period over which the computer was used regularly to store or process the information for the purpose 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 point or 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. There is no evidence on record to show that appellants in tendering Exhibits "D" and "L" satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held, at page 838 of the record thus:- "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 conditions set out under Section 84(2) of the Evidence Act, 2011. I agree entirely with the above conclusion. Since appellants never fulfilled the pre-conditions laid down by law, Exhibits “D" and “L” were inadmissible as computer generated evidence/documents."

 [Underlining supplied]

Be that as it may, Section 84 (4) of the Act provides that:

“    In any proceeding 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;

(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.

(i)  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.”

In the case of Kubor & Anor. v. Dickson & Ors. (supra) the issue of the certificate stated in Section 84 (4) was not an issue rather His Lordship referred to the failure of the Appellant to lay the  necessary foundation for the admission of  e-documents under Section 84 of the Evidence Act .

5.0        CONCLUSION:

It is submitted that, in the absence of the certificate referred to in Section 84(4), if a witness is a person occupying a responsible position in relation to the operation of the computer by which a document was generated such a witness may be led in evidence to lay the necessary foundation of the particulars required to be in the certificate.

By Akintunde Esan, Solicitor, Advocate and Chartered Mediator. Senior Partner, Ase Olodumare Chambers, a Lagos based dispute resolution law firm.