The Evidence Act was enacted in the colonial era, in 1945. When enacted, there was no provision for electronically generated evidence, probably because computer was not a major means of transaction in Nigeria at that time. The absence of the ‘reception provision’ posed a big challenge to the admissibility of such documents in the Law court.
Before the coming into being of the current Evidence Act, arguments have been made as to include or list computer generated documents under the category of documentary evidences. However, a thorough look at S. 2 of the 1945 Evidence Act, shows that computer generated evidence was never included in the definition of document. Thus the Court has over the years, taken a pro-active approach in allowing the reception of such documents.
Besides, the EFCC has gone to a Federal High Court in Abuja to seek the forfeiture of $3million said to be held for another governor by three persons and two companies.
Investigation by our correspondent revealed that officials of the mortgage firm also made a statement confirming that the governor owns the N500million.
A top source, who spoke in confidence with our correspondent, said: “When EFCC detectives traced the governor’s loot of N500million from the London-Paris Club refund to the account of the mortgage company, the firm wasted no time in disclosing the source.
“The mortgage firm has surrendered the cash to us; we have it in our custody. And on Monday (yesterday), we filed an application before the court for an interim forfeiture of the N500million in order to legalise its custody.
“The purported owner of the cash has a two-week deadline to come forward to claim it or have it forfeited permanently to the Federal Government.”
The court in the case of Esso West Africa Inc v. Oyegbola (1969) 1 NMLR 194, stated that ‘The Law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer’. The court anchored on the escape of relevancy to bypass the lacuna of the Law, and admitted documents that ordinarily would not have been admitted. These bodies of the gentlemen on the bench in the case of FRN v. Fani-Kayode (2010) All FWLR (pt. 534) 181, were possessed by the spirit of the Law in the wordings of Lord Denning in Packer v. Parker (1954) P. 15, 22, when the court rejected the argument of Ladi Williams, SAN which was of the positivist point of the ‘it is’ and not ‘ought to be’. The learned counsel was of the opinion that the court should not apply the Law to admit a computer printout, because the Evidence gives no provision for such. The Court of Appeal took a different approach which I will say was equitable.
On the 3rd day of June, 2011 the then president of Nigeria, His Excellency, Dr. Goodluck Jonathan, signed into Law the New Evidence Act. This New Law against the previous amendments, provided in S. 84 for the admissibility of Computer Generated Evidence. While S. 83 provides inter alia for the admissibility of documentary evidence as to facts in issue in which the maker of the such document who had personal knowledge of the matter dealt with by the statement is to be called as a witness as a general rule, the provision of S. 84 which deals with the admissibility of electronically generated evidence makes no mention of ‘MAKER’ but ‘DOCUMENT PRODUCED BY COMPUTERS’.
S. 83 (4) is clear on the ground that the maker of a document is one who made or produced such by him with his hand. Thus for the purpose of this write up, where a document is not produced by a person, partly written by same, signed or initiated by same or otherwise recognized by same in writing as one for the accuracy of which he is responsible, the same is not deemed to be the maker.
While the aspect of signing and writing of the said document to satisfy making seems to be clear, the aspect of production of such document seems to be vague especially when the production is from the computer or PRODUCED BY THE COMPUTER.
Where a document is typed by someone and printed by the same from the computer, who will be said to be the maker or producer? It is clear from the Law that though typed by someone, the fact that the document is printed from a computer makes the computer the producer. Nevertheless, the computer cannot in any circumstance tender same in court as the producer, so it has been argued that upon signing same, the person becomes the maker and can tender same in court. In other words, where it is not signed, it remains a computer produced copy.
However, where a picture snapped by someone, has been produced by a computer, in seeking to tender same in court upon satisfying the conditions in S. 84 of the Evidence Act, who will be said to be the maker? The Computer who produced same or the one who certifies? Can someone who does not certify but present when the snapping was made tender same in court in the absence of the one who certifies, while taking into consideration the fact that S. 84 does not make mention of Maker as it is with S. 83? This controversy played up in the case of the State v. Victoria Tarilayefa Gagariga (Suit No: YHC/YHC/27c/2015) in the Yenagoa Judicial Division of Bayelsa State.
In the said case, the state counsel, A.S. Arthur sought to tender a set of 14 photographs taken at the locus in quo, through PW2, a police officer who was there when the photographs were taken. A female police officer had in company of PW2 taken photographs of the scene. The female police officer by name Linda Model took the pictures by pressing the snap button. She has well made biro inscriptions on the pictures stating and fulfilling the conditions of S. 84 (4) of the Evidence Act, 2011 with respect to ‘the certificate of compliance’. However, she was posted out of the judicial division where the case was instituted making it impossible for her to testify before the court. The prosecution counsel thus sought to tender the said photographs through PW2, the male police officer, who accompanied the said Linda Model to the scene where the photographs were taken.
Mr. Alubi Esq., counsel for the accused, objected to the admissibility of the photographs on the ground that:
1) The source of the pictures is in doubt as therein a super imposition of objections.
2) By the combined reading of Sec 38, 83 (1) and (4), 87 (b) and 126 of the Evidence Act, the documents amount to documentary hearsay.
Mr. Alubi on arguing the authenticity of the documents stated that the biro pen marks on the document altered the nature of the documents thereby defeating its authenticity. On the second ground of objection, counsel argued that the male Police officer is not the maker of the documents, and as such cannot tender the said documents. Arguing further, he stated that if for any reason, she cannot be presented before the court, then S. 50 of the Evidence Act must be fulfilled which deals with the absence of public officer employed in public service of the federation or state to give evidence in court. Thus, failure to fulfill S. 50, and trying to tender the said documents through PW2 which is no maker of the document amounts to documentary hearsay, citing the case of Kubor v. Dickson (2012) LPELR-9817 (SC)
Counsel for the prosecution argued on the other side that the documents before the court were electronically generated documents, and that emphasis is on: ‘THE COMPUTER GENERATED SAME’. He argued citing the case of Slyva v. Dickson (2016) SC/518/2016 which came after the Kubor’s case, that computer generated evidence can be tendered orally or by certification. He cited S. 84 (1) of the Evidence Act and distinguished same from S. 83 and urged the court to admit same for its relevancy. The defence argued that relevancy is no longer the only yardstick for the admissibility of documents.
The court after evaluating the arguments on both said ruled on the issue of authenticity of the documents that the inscriptions which are directions made in biro pen do not in any way alter the nature of the documents as to doubt their authenticity. In the words of the court, ‘The original form of the document is still very visible and cannot in any forms be said to have been altered by the inscription thereon.’
On the issue of the computer generated documents, the court held that digital produced photographs by their very nature are computer generated documents and so for same to be admissible, they must comply with the provisions of Section 84 (1) and (2).
The court held that the writings on the back of the said photographs fulfilled the provision of S. 84 and therefore complied with the provision of certification as against the usual ‘separate Certificate’ made for such purpose as many may think.
Ruling on the issue as to fact that Linda Model is the maker of the document and not PW2, and as such an attempt to tender the document through PW2 amounts to documentary hearsay, the court held per Justice N. Aganaba, as follows:
“In the instance, the relevant question to ask is: who is the maker of the document? It should be borne in mind that the photographs sought to be tendered were made through a process of printing whose authenticity has confirmed by the certificate appearing at the back of the documents. The printing of the photographs as it were cannot in the circumstance be said to be the process of the its making. In fact the process of the making of the document can only be the application of the required force of the phone to capture the scene showing on it on the images produced at the splitting moments of the capture. All the photographer did was to press the relevant knob at that very moment the images were captured; the photographs not being artistic expressions, but being mere capturing images in the scene. In the circumstance- cannot be referred to exclusively within the knowledge of the photographer. All those present at the time the photographs were taken who were parts of the investigating team at the scene of crime and who saw the scenes as they were being captured are also as good a position as person who merely pressed knob that captured the scenes. In afterwards they can be in the circumstance referred to as co-makers of the documents. The photographer obviously did not work alone but worked along with the team of investigators of which the witness through whom the document is being sought to be tendered is part of. In the circumstances, it will amount to absurdity to hold that the witness is not part of the process of the making of the document.”
The bench ruling of the court in this case brings out inter alia, beautiful and novel areas of arguments.
(i) That the certificate of compliance in line with S. 84 of the Evidence Act need not necessarily be a SEPARATE DOCUMENTED CERTIFICATE fulfilling the requirement of the Act as regards compliance, but that an inscription on the photographs sought to be tendered as it is with the instant case, fulfilling the same requirement of the Law which a SEPARATE DOCUMENT for that purpose would have fulfilled is sufficient certification for that purpose. The said S. 84 (4) states as follows:
“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 if 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 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”.
(ii) That a computer can be a maker of a document, while the humans who joined in the making are co-makers.
This reasoning of the trial court is quite interesting for a judicial test. It poses questions as to whether S. 84 of the Evidence Act envisages the point of a ‘maker’ as it is with s. 83, and also even if the section contemplated the point of a maker; can the computer be said to the maker or the human who intervenes in the alternative? Or whether the computer and the human can both be said to be ‘makers’ at same time as it was reasoned by the learned judge?
Another question that may be asked is: Are the members of the investigating team co-makers of the document because they were present when the knob was pressed? Permit me to reproduce a part of the reasoning: All those present at the time the photographs were taken who were parts of the investigating team at the scene of crime and who saw the scenes as they were being captured are also as good a position as person who merely pressed knob that captured the scenes. In afterwards they can be in the circumstance referred to as co-makers of the documents.
Can a member of the investigating team who was only present at the capturing of the scene be as good as a person who knows perfectly well the functional capacity of the camera and the knob? Assuming only one officer eventually produces the printed copies from a printing device, can the other police officers or any other person who was present when the knob was pressed and scène captured be as good as the person who print out the copies and in a good position to fulfill the condition stated in S. 84 (2), having taken into consideration that the Camera and the printing device remain one single computer for the purpose of the Section? Perhaps the escape argument would be that being a maker of a document is one thing, fulfilling the conditions stated in the Act is another. In other words, even evidences by a maker may be refused where it fails to fulfill the conditions stated in the Act.
From the argument and points canvassed above in this case appraisal, it is clear that the Court has not shifted from the pathway of reasoning outside the box while interpreting the Law. The soundness or otherwise of the reasoning of My Lord, can only be determined by the Upper Court. But until then, it will be in the history of our legal system, that once upon a time, humans were interpreted to be co-makers with the computer with respect to documents generated by the computer.