Hon. Dickson V. Chief Timipre Sylva & 3 Ors (2016) LPELR – 41257 (Sc): A Watershed In The Admissibility Of Computer Generated Evidence By Napoleon Umoh Esq.

Before the advent of the Evidence Act 2011, (hereinafter referred to as the 2011 Act) the 2004 Act, the predecessor enactment never made any provision for the admissibility of computer generated evidence. This lacuna endured until the 3^rd of June, 2011, when the 2011 Act came into force. The 2011 Act, alongside other major innovations, provided for the admissibility of electronically generated evidence or computer generated evidence.  The legislative innovation providing for the admissibility of computer generated evidence was codified in Section 84 of the 2011 Act. For an unabridged appraisal of the aforestated section, it is necessary to reproduce the material provisions of the section in question de verbo in verbum. Section 84 (1) enacts as follows: 84(1) – “ In any proceeding 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”. Subsection (2) of section 84 goes ahead to enumerate the conditions referred to in subsection (1). Section 84 (2) provides thus: (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. In defining a computer, Section 258 (1) interprets that ‘Computer’ means “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”. Section 84 of the 2011 Act has been tested and applied by the courts in a plethora of cases, foremost of them being the apex court decision in KUBOR V. DICKSON (2013) 26 WRN. 15. In this case, the first appellant, dissatisfied with the return of the 1^st Respondent as the duly elected governor of Bayelsa State at the gubernatorial elections of 11^th February, 2012, filed a petition before the Governorship Election Tribunal holden at Yenogoa against the Respondents claiming the reliefs that the 1^st Respondent was not qualified to contest the election into the office of Governor of Bayelsa State conducted by INEC, the 3^rd Respondent on the ground that there was a pending litigation in court over the right candidate of the 2^nd Respondent for the election. In a bid to prove their petition before the tribunal, appellants’ counsel tendered from the bar internet print outs of the Punch Newspaper and same was admitted as exhibits “D” and “L”. The trial judge however expunged the said exhibits “D” and “L” during the judgment on the grounds that they were uncertified public documents and that they were internet print outs which required certification under section 84 (4) of the Evidence Act 2011. The Appellant appealed to the Court of Appeal formulating a ground of appeal inter alia that the trial court erred in law by rejecting exhibits “D” and “L”. The appeal was adjudged unmeritorious and was dismissed. A further appeal to the Supreme Court also suffered dismissal. The Supreme Court emphasised that for a computer generated evidence to be admissible in Evidence, the conditions in section 84(2) must be complied with. Before the decision of the Supreme Court in HON. DICKSON V. CHIEF TIMIPRE SYLVA & ORS (2016) LPELR-41257 (SC), the practice has been to insist on compliance with section 84 (4) of the Evidence Act 2011. This subsection enjoins the production of a certificate identifying the document and specifying the device that was used in generating the document. Section 84(4) enacts thus: (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, (c)      dealing with any of the matters to which the conditions mentioned in   subsection (2) above related, 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 maybe, 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 persons stating it. As remarked earlier, compliance with the provisions of section 84 (4) of the 2011 Act was mandatory. A party intending to tender an electronic document had to produce a certificate of compliance with section 84 (4). Such a party must file the said certificate together with his processes and tender same in court and have same admitted as an exhibit. This had been the only accepted practice until the Supreme Court in HON. DICKSON V. CHIEF TIMIPRE SYLVA & ORS (supra) widened the bounds of section 84 thereby relaxing the hitherto practice of producing a compulsory certificate of compliance. In DICKSON V. SYLVA (Supra), the Supreme Court held that section 84 consecrates two methods of proof, either by oral evidence OR by a certificate. What is paramount is that the conditions ordained in section 84 (2) of the Act must be satisfied. In this case, the 1^st and 2^nd Respondents lodged an interlocutory appeal at the Court of Appeal challenging the ruling of the Governorship Election Tribunal refusing the application of the 1^st and 2^nd Respondents to demonstrate the contents of the DVD which had been tendered and admitted as exhibit at the tribunal. The facts culminating in the said ruling were that: the 1^st and 2^nd Respondents, who were petitioners at the tribunal had applied for issuance of subpoena duces tecum ad testificadum (a subpoena which summons a witness to produce a document and testify in court) on a witness, the Production Manager of Channels Television, Lagos to testify and produce a DVD/CD/VCD/Audio Recording and Video Clips of the coverage of 5^th/6^th December 2015 Governorship Election in Bayelsa State in respect of the Southern Ijaw Local Government Area of the state. The witness who was subpoened, filed his deposition on oath and also filed a certificate in compliance with section 84 (4) of the 2011 Act. The electronic document mentioned in the witness statement on oath and the certificate of compliance were tendered and admitted in evidence by the tribunal. The 1^st and 2^nd Respondents however were confronted with an objection by the appellants when they applied to have the content of the DVD displayed in open court via a laptop and a projector. The appellants objecting, contended that the laptop and project were not covered by the certificate of compliance already tendered and admitted before the tribunal. It was their argument that before the contents of the DVD (already admitted) can be demonstrated, the 1^st and 2^nd Respondents must produce a further certificate of compliance identifying the laptop and the projector wherewith the witness sought to have displayed the content of the DVD (exhibit P42B). The 1^st and 2^nd Respondents in urging the tribunal to overrule the objection, submitted that once the computer used for storing the information in the DVD has been certificated in compliance with section 84 (4), there would be no need to do so in respect of any other computer or device to retrieve and play same as sought to be done. The trial tribunal found the appellant’s objection meritorious and upheld same. The 1^st and 2^nd Respondents appealed to the court of Appeal, who allowed the appeal. The appellant further appealed to the Supreme Court. The appellant had formulated three issues for determination but at the hearing of the appeal two issues were abandoned by the appellant leaving a sole issue for determination viz: Whether the Court of Appeal was not wrong in law when it held that the certification of the computers used to produce exhibit P42B in this case was sufficient and that it was not necessary under section 84 of the Evidence Act 2011 to certify the computers sought to be used to demonstrate the contents of the exhibit in open? In dismissing the appeal after hearing submissions of parties, the apex court proceeded to further expound the principles applicable to the admissibility of electronic documents under section 84 of the Evidence Act 2011. It was held per Nweze JSC as follows: “It is section 84 of the Evidence Act that lays down the conditions for the admissibility of electronically generated evidence, Kubor V. Dickson (2013) 2 NWLR (pt.1345) 534, 577-578, Omisore and Anor V. Aregbesola & Ors (2015); 15 NWLR (Pt.1482) 205, 215 and not section 258 of the Act, the definition section…”. In further amplification of the provisions of section 84 of the Evidence Act, the learned Justice of the Supreme Court travelled to England to borrow the wisdom of the defunct House of Lords in R. V. Shepherd (1993) 1 ALL ER 225, 231 when they had cause to interpret a provision which is in pari materia with section 84 of the Evidence Act. His Lordship (Nweze JSC) went further to remark that: “In actual  fact, section 84 (supra) consecrates two methods of proof, 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”. In coming to this conclusion, the apex court quoted approvingly the dictum of Lord Griffith in R. V. Shepherd (supra) thus: “………….. 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 be 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 position 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…” In discountenancing the submissions of the appellant that the devices wherewith the 1^st and 2^nd Respondents sought to demonstrate the contents of the DVD must be certified in compliance with section 84 (4) of Act, the Supreme Court stated thus: “ The application to play the DVD had nothing to do with its admissibility (in any event, at that stage it was already in evidence)”. In further querying the reasoning of the trial tribunal that the subsequent devices must be certified before they can be used for demonstrating the contents of the DVD, the court held that: “…….contrary to the view of the trial tribunal, section 84 (supra) does not ordain any such “two different steps and stages”. Contrariwise, the provisions of the said section 84 govern the admissibility of statements produced from computers.” Quoting with approval the dictum of Bello JSC (as he then was) in Onibudo V. Akibu (1982) All N.L.R 207, the court concluded that “the duty of a court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in court. It is not the duty of a court to do cloistered justice by making an inquiry into the case outside even if  such inquiry is limited to examination of documents which were in evidence, when the documents had not been examined in court and their examinations out of court disclosed matters that had not been brought out and exposed to test in court and were not such matters that at least, must have been noticed in court…..” This decision has expounded commendably the breadth of section 84 of the Act. By this decision, a party seeking to rely on an electronic document at trial will be held to have satisfied the requirements of section 84 if he pleads the conditions prescribed in section 84(2) in his pleadings. Such a party must equally depose to those facts in his statement on oath and adopt same during trial. A party also has the option of filing a certificate in compliance with section 84(4) . The provisions of section 84(1) and (2) AND section 84 (4) enact disjunctive requirements to be satisfied by a party before such a party can completely found upon any electronic document during trial. It is hoped that the courts will continue to expound the provisions of the Evidence Act 2011 in future to meet new challenges. Napoleon Umoh Esq writes from Lagos, cycluxx@gmail.com  ]]>

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