The minimum requirement for the authentication of an electronically- generated evidence is its proof of certificate. Justice Alaba Omolaye-Ajileye of the Kogi State High Court writes on why the Nigerian law must square up with technological advancement. The author of the book titled: “A Guide to Admissibility of Electronic Evidence”, explains why Nigeria cannot be alien to technologically advancing world.
This article addresses one important issue of the Law of Evidence in relation to modern trends of advancement in technology. It focuses on Section 84 of the Evidence Act, 2011 (hereinafter simply referred to as Section 84), with particular reference to the requirements of authenticating electronically generated evidence by a certificate under subsection 4 thereof. Since the publication of the book: A Guide to Admissibility of Electronic Evidence, I have been inundated with questions relating to the status of a certificate of authentication under Section 84(4).
The task here is to attempt to address two issues within the context of Section 84. They are: (a) whether or not it is mandatory to tender a certificate of authentication along with electronically-generated evidence and (b) whether or not Section 84 provides two alternative ways of tendering electronically generated evidence. The two issues are closely related such that they can conveniently be taken together.
There is yet no direct judicial authority on these issues in Nigeria. Meanwhile, it is important to reiterate the well-known point that one area of jurisprudence in which the Evidence Act 2011 introduces a fundamental change is in the provisions dealing with admissibility of electronic evidence under Section 84. It is equally significant to acknowledge the fact that the said Section 84 is, essentially, a reproduction of section 65B of the Indian Evidence Act (1872) (as amended). It also lifts a substantial part of Section 69 and Part II of Schedule 3 of the Police and Criminal Evidence (PACE) Act 1984 (U.K).
It follows, therefore, that the interpretation of Section 84 of the Evidence Act, 2011 must necessarily draw strength from decisions of English and Indian courts, given the paucity of judicial authorities on the subject in Nigeria. In applying these foreign authorities, courts should, nevertheless, ensure that only current authorities and legislation are applied and relied upon in their decisions.
Admissibility of electronic evidence is governed by Section 84. subsections (1), (2) and (4) are the relevant provisions for the purpose of this work. I reproduce same hereunder:
• Section 84 (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 computer in question.
• Section 84 (2): The conditions referred to in subsection (l) 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 01′ is derived from • Section 84 (3)
• Section 84 (4) 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.
Four conditions are required to be fulfilled in Section 84(2). They are: (i) 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 (ii) during the period information was regularly fed into the computer; (iii) during the period, the computer was operating properly and during period of disuse the problem was not such as to affect the production of the document or the accuracy of its contents and (iv) that the information fed into the computer in the ordinary course of business. Section 84(4) also provides that where a statement is desired to be given in evidence, a certificate doing the following things shall be produced: (a) identifying the document 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 purposes of showing that the document was produced by the document and (c) dealing with any of the matters to which the conditions mentioned in subsection 2.
Securing admissibility of electronic document under Section 84 involves two steps. First, oral evidence must be adduced to satisfy the conditions stipulated under subsection 2. This enables a witness to lay proper foundation for admissibility of the document. The Supreme Court in Kubor & Anor v. Dickson & Ors (2014) succinctly emphasized this point when it held:
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 (2) of the Evidence Act 2011.
The second step requires the tendering of a certificate to authenticate the document. It is my view that production of a certificate is an additional step required by the Evidence Act 2011, to establish the fact that the computer that produced the document is reliable.
“It is not a way of avoiding or dispensing with the viva voce evidence of a witness who seeks to establish the foundation required under section 84(2)” (Omolaye-Ajileye, 2016). The two steps of laying foundation and tendering a certificate of authentication are intricately interwoven and linked such that they are inseparable. Both subsections (2) and (4) of Section 84 complement each other in such a way that one cannot be an alternative to the other.
For instance, merely tendering a certificate under Section 84(4), without more, will not satisfy the oral evidence required to lay foundational evidence under Section 84(2). Similarly, the fact that foundational evidence has been laid under Section 84(2) will not authenticate the document by a certificate.
A careful reading of Section 84 surely reveals that proof of certificate of authentication is mandatory. It is the minimum requirement of authenticating electronically generated evidence. Tendering a certificate of authentication under Section 84(4) should not be seen as a tedious exercise but a mandatory and necessary step. Indeed, as technology progresses, the dynamic nature of law may as well make law to advance to require further processes of authentication in the nearest future. The Court of Appeal admirably made this point recently in Dickson v. Sylva (2016, unreported) where it opined:
“There is no doubt with present and even future 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 (Otisi, JCA).
There are good reasons to support the view that it is mandatory to tender a certificate of authentication under Section 84(4). First and foremost, it is recognised that Section 84 consists of five subsections. There is nothing to indicate that any of the subsections should not be complied with. The fundamental principle of interpretation of statutes is to interpret the words in a statute in a way that would best carry out their object or purpose. There is no doubt that the object of tendering a certificate under Section 84(4) is to ensure that the document sought to be tendered is authentic. Therefore, Section 84 should not be interpreted to defeat that object.
Second, there is nowhere any disjunctive word such as “or” is used in Section 84 to suggest that one subsection out of the five subsections is in the alternative. Black’s Law Dictionary (6th Edition) defines ‘or’ as a “disjunctive participle to express an alternative or give a choice of one among two or more things.” Accordingly, the whole of Section 84 should be read together.
Section 69: PACE ACT
1984 (UK) and R. v. Shepherd.
Legal practitioners who argue that Section 84 prescribes two methods of proving electronically generated evidence often rely on Section 69 of the PACE Act 1984 and the decision of the House of Lords in R. v. Shepherd. For reasons that are very obvious, both the legislation and the case cannot be appropriate authorities for the proposition within the context of Section 84.
First, Section 69 of PACE Act 1984 has been repealed by Section 60 of the Youth Justice and Criminal Evidence Act 1999. Admissibility of computer evidence in the UK now follows the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can, however, be rebutted if evidence to the contrary is adduced.
Second, the arrangement of Section 84 is significantly different from that of PACE Act. Even when Section 69 of the PACE Act was in operation, its provisions were not arranged the way Section 84 is arranged. The relevant provisions for admissibility of electronic evidence under the PACE Act were divided into two. The first segment (S. 69) (1) which corresponds with Section 84 (1-3) of the Evidence Act 2011, constituted one broad section on its own while paragraph 8 of Schedule 3 to PACE Act which corresponds with Section 84 (4) of the Nigerian Evidence Act, constituted another broad segment. (Hon, S. T., 2013) Therefore, when Lord Griffith explained in R. v. Shepherd that “proof that the computer is reliable can be proved 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”, His Lordship was interpreting the provisions of a law that were contained in two compartments that made one an alternative to the other. Section 84 of the Nigerian Evidence Act is not so compartmentalised. What is more, the phrase “subject to the power of the judge to require oral evidence” that appeared in Lord Griffith’s judgment in R v. Shepherd (supra), derived from paragraph 9 Part II of schedule 3 of the PACE Act which specifically provided that:.
“Notwithstanding paragraph 8 above, a court may require oral evidence to be given of anything of which evidence could be given by a certificate under that paragraph.
Section 84 does not have the equivalence of the above quoted provision. The Nigerian law prescribes only one way and gives no discretion to judges to call or not to call oral evidence. As a matter of fact, the Supreme Court has decided in Kubor & Anor v. Dickson & Ors (2014) that a witness who seeks to tender electronic evidence must give oral evidence.
India’s experince Section 65B (4)
India has come a long way on the subject of admissibility of electronic evidence. Indian courts have developed case law regarding admissibility of electronic records, and judges in the country have also demonstrated perceptiveness in interpreting the law on the issue.
As stated earlier, Section 65B of the Indian Evidence Act 1872 (as amended) is in pari materia with Section 84 of the Evidence Act, 2011. Section 65B(4) of the Evidence Act of India mandates the production of a certificate of authentication as we have it under section 84(4). Despite the mandatory nature of the provision, the original attitude of Indian courts was to ignore the requirements. For instance, in State v. Mohd.Afzal & Ors (2003), a Delhi High Court, held that Section 65B(4) provides an alternative method to prove electronic record. Also, the Supreme Court of India, in NavjotSandhu v AfsanGuru (2005) held that courts could admit electronic records such as printouts and compact discs (CDs) as prima facie evidence without certificate of authentication. This trend continued for nine years until 2014 (Karia, et.al, 2015).
In 2014, there was a shift in the attitude of Indian courts towards interpretation of Section 65B. A creative interpretation was resorted to in order to enhance the process of authentication as contained in 65B. The Supreme Court of India conclusively decided that electronic records can be proved only in accordance with the procedure set out under Section 65B of the Evidence Act (Nigeria’s 84). In Anvar v. P.K. v. Basheer, & Ors (2014), the Supreme Court overruled its own decision in NavjotSandhu v AfsanGuru (supra) and redefined the law on admissibility of electronic records to reflect the letters of section 65B and ensure the credibility and evidential value of electronically generated evidence.
In that case, Mr. P.V. Anvar who had lost the previous Assembly election contended that his opponent P.K. Basheer had tarnished his image and assassinated his character. The Supreme Court of India declined to accept the view that the courts could admit electronic records without certificate of authentication. It held that in the case of any electronic record, for instance, CD, VCD, chip e.t.c., the same must be accompanied by a certificate in terms of Section 65B, obtained at the time of taking the document without which the secondary evidence pertaining to that electronic record is inadmissible; the essence being to enhance and safeguard the authenticity of such evidence. Explaining the rationale behind the decision, the Supreme Court of India stated:
“Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision e.t.c., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice”.
This is a progressive approach of interpreting provisions relating to production of certificate of authentication. Recently, the decision in Anvar’s case was followed in Jagdeo Sigh v. The State & Ors (2015), which involved the admissibility of intercepted telephone calls in a CD and CDR, which were without a certificate under Section 65B of the Indian Evidence Act. The High Court of New Delhi (Per Muralidhar, J.) held that the secondary electronic evidence without a certificate is inadmissible and cannot be looked into by the court for any purpose.
Finally, I posit that strict compliance with Section 84(4) is mandatory for a person who seeks to tender electronically generated evidence. Proper and holistic interpretation of Section 84 of the Evidence Act, 2011 is what is required to appreciate this point. Any other construction will be inconsistent with the spirit and letters of Section 84. Additionally, the purpose for which the subsection has been enacted will be defeated. The world is advancing in technology at an astronomical rate. Our law must be construed progressively to move with technological advancement.
Justice Omolaye- Ajileye is a Judge of the High Court of Kogi State and author of: “A Guide to Admissibility of Electronic Evidence”.
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