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 [email protected]