Electronic Evidence: Simple Documents Generated From Computers Require No Authentication Under Section 84 Of The Evidence Act, 2011

Attorney-General of the Federation v. Princewill Ugonna Anuebunwa (SC)

Case Review

By Hon. Justice Alaba Omolaye- Ajileye

Introduction

In a widely reported judgment, the Supreme Court of Nigeria recently granted the request for the extradition of a Nigerian, Princewill Ugonna Anuebunwa, wanted in the United States of America for his alleged complicity in some criminal activities. A Bench of five Honourable Justices of the Supreme Court (Coram: Dattijo Muhammad, Chima Centus Nweze, Helen Moronkeji Ogunwumiju, Tijani Abubakar, & Emmanuel Agim, JJSC) allowed the appeal by the Attorney-General of the Federation, restored the June 1, 2020 judgment by Justice Inyang Ekwo of the Federal High Court, Abuja and set aside the November 6, 2020 majority judgment of the Court of Appeal, Abuja.

Facts leading to the appeal
The facts of the case under review are simple. The case originated as an extradition proceeding before the Federal High Court, Abuja (Coram: I. E. Ekwo, J.), wherein the trial court ordered the extradition of the respondent to the United States of America to answer to a 2-count indictment in Case No: S6 16 Cr. 575 (PAC) and filed on the 19th June 2017 in the United States District Court, Southern District of New York, United States of America. The application was supported by two affidavits deposed to by Stephen Fullington and Andrew K. Chan, both of whom were stated to be operatives of the Federal Bureau of Investigation (FIB) in the USA. Also attached to the affidavit of Stephen Fullington were documents generated from a computer in the custody of deponents which were marked Exhibits D1-D4. The appellant relied heavily on these affidavits to ground its application for extradition of the respondent. In opposing the application, the respondent filed a counter-affidavit to the affidavit in support of the application and a notice of preliminary objection. One of the points of the preliminary objection, relevant to this discourse, was that the documents attached with the affidavit were inadmissible in law for failure to comply with the provisions of Section 84 of the Evidence Act, 2011. The facts relied upon by the respondent, in challenging the admissibility of the documents were that the documents, though produced by a computer, did not meet the conditions specified in Section 84 (2) (a-d) and section 84 (4). The trial court overruled the preliminary objection and granted the extradition application against the respondent.

Being dissatisfied with the decision of the trial court, the respondent appealed to the Court of Appeal, Abuja (Coram: Stephen Jonah Adah, Mohammed Mustapha, Mohammed Baba Idris, JJCA.). The Court of Appeal, in a split judgment of 2-1, held that Section 84 applied to extradition proceedings. Both Mohammed Mustapha, Mohammed Baba Idris, JJCA., delivered the judgment of the court, while Stephen Jonah Adah, JCA., dissented.
In holding that Section 84 applied to extradition proceedings, Idris, JCA., who read the lead judgment, made a scathing remark about the trial court, stating that the trial court failed to apply the law or probably did not appreciate the application of the law of evidence as it was evident that Section 84 of the Evidence Act applied to extradition proceedings. His Lordship, without mincing words, pronounced as follows:
Having in mind my views as already postulated above in relation to admissibility/authentication of documents and considering Section 17 of the Extradition Act as well, it is clear that the reproduced Section84(1) of the Evidence Act above, the section applies to extradition proceedings as well and thus for any evidence generated by a computer to be admissible, it has to comply with the provisions of the Section 84(2) of the Evidence Act… (Underlining mine for emphasis).

Adah, JCA., dissented from the opinion of his learned brothers. In his minority judgment, His Lordship held that Section 84 is not “automatically applicable to extradition proceedings.” According to His Lordship, Section 84 “only becomes applicable where the judex is not comfortable with the authenticity of the documents generated from the foreign jurisdictions.”

The majority judgment of the Court of Appeal set aside
The Supreme Court, in the end, affirmed the minority judgment of the Court of Appeal. In setting aside the majority decision, the Supreme Court held as follows:
‘‘The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage same where the admissibility of an original affidavit is in issue.’’ (Per Ogunwumiju, JSC., page 21).
Perhaps, the most outstanding pronouncement of the apex court concerning electronic evidence is the simple but prodigious statement that “It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document”(p.22). This is instructive because from this statement derives the fundamental principle of the Law of Electronic Evidence that has now finally resolved a recurring question regarding the status of simple documents produced by computers. It is clear that Section 84 is inapplicable to a simple document produced by a computer when such a computer is merely used as a tool such as a typewriter to produce the document. The authentication of such a document is invariably established by its originality and the signature or seal it carries. It was on this score that the Supreme Court concluded that “the bundle of documents not being computer-generated documents, ought to have been relied upon by the Court below.” (P. 24).

The significance of the case to the jurisprudence of electronic evidence
The judgment of the Supreme Court in the case is significant from various perspectives. However, the focus of this review is the aspect of the judgment dealing with the admissibility of electronically-generated documents. While treating issues relating to authentication of documents under the Extradition Act, the apex court has unwittingly addressed a compelling question concerning the applicability or otherwise of the provisions of Section 84 of the Evidence Act, 2011 to simple documents produced by computers. The summit court has authoritatively held that it would be ridiculous to assume that a document produced using a computer merely to type is a computer-generated document to warrant the application of Section 84 of the Evidence Act, 2011. Accordingly, the court further held that the documents attached to the affidavit in the extradition proceedings, being original official documents, produced directly from the computer of the deponents, were admissible in evidence, notwithstanding the allegation of non-compliance with the provisions of Section 84 of the Evidence Act, 2011.

This is a remarkable decision, to the extent that it represents the first case where the Supreme Court examined the law and pronounced on what constitutes a computer-generated document, properly so-called, as against ordinary documents generated using a computer merely as a tool. The decision also invalidates the erroneous position in some quarters that any document produced by a computer must necessarily be treated as computer-generated to call for the application of Section 84 of the Evidence Act. For the avoidance of doubt, Section 84 of the Evidence Act, 2011 prescribes the conditions to be fulfilled to render statements contained in a document produced by a computer admissible.

In addition, the tenor or thrust of the Supreme Court’s decision in the case can be appreciated against the backdrop of its contribution to the advancement of the knowledge of the Law of Electronic Evidence as it remains yet another case where the scope of the applicability of Section 84 is restricted. It is to be recalled that the Court of Appeal, in Stanbic IBTC Bank v. LongTerm Global Capital Ltd & Ors (2021) LPELR – 55610 (CA) constricted the application of Section 84, when it held that a party who does not have the device from which a document is produced cannot be required to produce a certificate under section 84 (4) of the Evidence Act, 2011 to authenticate it.

Process of extradition
Extradition, undoubtedly, is a recurrent and topical issue in Nigeria. It is also an integral part of all criminal justice systems around the world. To successfully prosecute criminals, a criminal justice system normally requires four things – intelligence, information, evidence, and of course, the suspect. The more these four items are dispersed amongst different jurisdictions, the harder law enforcement becomes. It is, therefore, the effort of the international community to overcome these difficulties. Where the person to be tried is in a different jurisdiction, then, there is an invariable need to use the formal mechanism of extradition to bring him to justice. Extradition, therefore, is the formal process by which one jurisdiction asks another for the enforced return of a person who is in the requested jurisdiction and who is accused or convicted of one or more criminal offences against the law of the requesting jurisdiction. The return is sought so that the person will face trial in the requesting jurisdiction or punishment for such an offence or offences.

Section 6 of the Extradition Act, 2004 stipulates the procedure for the surrender of a fugitive in Nigeria. By the way, the Act under Section 21 thereof, defines a “fugitive” or “fugitive criminal” as any person accused of an extradition offence committed within the jurisdiction of a country other than Nigeria or any person, who has been convicted of an extradition offence in a country other than Nigeria is unlawfully at large before the expiration of a sentence imposed on him for that offence being, in either case, a person who is or is suspected of being in Nigeria. Section 6(1) of the Act states :
“a request for the surrender of a fugitive criminal of any country shall be made in writing to the Attorney-General by a diplomatic representative or consular officer of that country and shall be accompanied by a duly authenticated warrant of arrest or certificate of conviction issued in that country.”
(underlining mine)

It is important to situate this case in its proper perspective. The Supreme Court decided that no issue of admissibility under Section 84 of the Evidence Act arose and that such an issue should not have been imported into the extradition proceedings. It was the considered opinion of the Supreme Court that the Extradition Act, 2004 fully guides extradition proceedings, and the admissibility or otherwise of the duly authenticated documents in support of extradition request in such a proceeding is specifically provided for under Section 17 of the Extradition Act, notwithstanding any contrary provision in the Evidence Act, 2011. The apex court, therefore, entrenched Section 17 of the Extradition Act, vide Section 2 of the Evidence Act, as an exception to Section 84 of the Evidence Act on the principle that a specific statute on a matter is not affected by a general enactment on the same matter unless the earlier is radically inconsistent with the later, Attorney-General, Lagos State v. Attorney-General, Federation (2014) LPELR – 22701 (SC ) refers.

Another salient point that can be inferred from the decision of the Supreme Court in Princewill Anuebunwa’s case is that a document must be proved to have been produced by a computer before the provision of Section 84 can be activated. (See: A. Omolaye-Ajileye, Electronic Evidence, Revised edn., Jurist publication Lokoja, 2019, P. 569). See also: Zenith Bank PLC v. Nacoil International Limited. (CA/L593/2015, Unreported).

Validation of another exception formulated in the book: Electronic Evidence
The statement of law established by the Supreme Court in Princewill Anuebunwa’s case validates another theory of exception to Section 84 of the Evidence Act formulated by this writer in Chapter Thirteen of his book: Electronic Evidence (A. Omolaye-Ajileye, Electronic Evidence, Revised edn., Jurist publication Lokoja, 2019, Pp. 273-274) where it is stated thus:

“Another exception that may be extracted under section 84 (4) relates to documents that are generated using the computer merely as a tool such as a typewriter, for converting a text from one form to another e.g., letters, applications, petitions, etc. In such a situation, a document such as a letter, application, or petition is drafted on a computer and then printed out. The author appends his signature after verifying the content of the document, to authenticate it. The role of the software here has no significance as the software has not been instructed to alter the contents of the text input by the author. The only function the computer is serving is to store the information input by the author. There is no processing or value-added in terms of computer-generated data. Furthermore, the fact that the printout is taken at the time of production takes away any challenge as to storage or metadata of the contents or any manipulation. This would be equivalent to when a person writes a letter with a pen or typewriter and signs the same after verifying the contents. The only difference would be the print style, font, and the use of features like spell check e.t.c”

I then proceeded to differentiate this form of simple documents from documents produced through complicated processes where software plays a dominant role and computer analysis through Internet Protocols:

“In other cases, records are generated by software such as call detail records, and intercession voice clips. e.t.c. in such cases manual intervention is very limited. Software plays a dominant role. This usually involves a process and analysis done by computer to produce such a document e.g. an account statement, or online transaction.”

Conclusion
On the whole, the verdict of the Supreme Court in Princewill Anuebunwa’s case is a welcome addition to the ever-growing jurisprudence of electronic evidence. It can now be said that with the Supreme Court’s unequivocal pronouncement, the controversy around the status of a simple statement generated by a computer is now settled.