Should Computer Generated Documents In The Context Of Section 84 Of The Evidence Act, 2011 Include A Document Prepared By Its Maker Merely Using A Computer? By Alaware Preye Isaac, Esq.

The Evidence Act, 2011 and particularly Section 84 of the Act has emplaced a new legal order as it touches on computer generated documents that come before courts for evidential purposes, but the funny twist is that in the midst of this new legal order, there seems to be a legal chaos. Steve Martin, an American Writer once said “chaos in the midst of chaos isn’t funny, but chaos in the midst of order is”. The chaos metaphor here fully represents the scenario that jerks to life whenever a grey area pops up on a legal issue. The title of this piece therefore is a portrayal of the grey area that has birthed chaos in the midst of the new legal order emplaced by Section 84 of the Evidence Act, 2011 and this is funny.

To dispel any notion that this piece may be some hypothetical scenario, permit me to briefly relate how the grey area depicted by the title of this piece came about in the first place. Sometime last year (2018) during the trial of a land matter wherein I am Counsel for Claimant, the Claimant’s witness a surveyor was in the witness box. After the Litigation Survey Plan prepared by the surveyor was admitted in evidence without objection, his evidence-in-chief was closed. The Defendants’ counsel then swung on with his cross-examination and one of the questions that stood out went along this line; you produced this Survey Plan using a computer, and the witness indeed rightly answered “yes”. No further question was asked on this computer issue in follow up, apparently consigning the rest to the final address stage thereof. While I spontaneously exchanged mutual gazes of astonishment with other colleagues in court at the subtle invitation of Section 84 into the legal fray here, my immediate reflexive legal conclusion was that SECTION 84 HAS NO PLACE HERE. Not to worry as I have a response in place if and when the Defendants’ Counsel comes full circle on his subtle invitation of Section 84 (in respect of which I need not say more here for understandable reasons), this piece which is public interest driven, is principally about some further exploration of a yet to be fully explored tiny territory in a relatively new and evolving frontier in our jurisprudence – ELECTRONIC EVIDENCE.

Section 84(1) provides thus; 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.

Subsections (2), (3) and (4) are familiar and not relevant here, but the relevant subsection (5) provides thus; For the purpose of this section:-

(a). information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b). where in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c). a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

By Section 84(1) and (5)(a)-(c), a document prepared by its maker e.g. a surveyor (survey plan), architect (building plan), medical practitioner (medical report), quantity surveyor (valuation report), student (project/thesis), etc using a computer, is simpliciter a computer generated document in the context of Section 84, when such a document is sought to be given in evidence, where we follow the ordinary or literal interpretation of Section 84.

On when information is deemed to be supplied to a computer and then deemed to be produced by a computer, the Supreme Court in DICKSON V. SYLVA (2017) 8NWLR (Pt.1567) 167 reiterated the provisions of Section 84(5)(a)-(c) at page 202 paragraphs B-E before proceeding to unequivocally enjoin at page 255 paragraphs B-C that “the provisions of Section 84 of the Evidence Act is complete and should be given its ordinary meaning of interpretation of what the law is”. It must be crucially noted that Subsection (5)(a)-(c) sufficiently throws light on how and when a document can be said to be one produced by a computer. Though it is Section 84(1) that makes the far-reaching principal stipulation about a “document produced by a computer” the ancillary stipulations in Subsection (5)(a)-(c) are what provide the definitive clarity on how and when a document can become one “produced by a computer” in the context of Section 84(1). Literally applying the purport of Subsection (5)(a)-(c) to our surveyor example here, even though a surveyor supplied directly or (with or without human intervention) by means of any appropriate equipment information to a computer in the course of activities carried on by him with a view to its being stored or processed for the purposes of those activities, and it was produced by it directly or (with or without human intervention) by means of any appropriate equipment, such a document shall be taken to have been produced by a computer for the purposes of Section 84.

As an aside, the Supreme Court in OMISORE V. AREGBESOLA (2015) 15NWLR (Pt.1482) 205 in interpreting Section 84 has posited that it is not only internet generated documents that are caught up by the admissibility requirements of Section 84. That is, the reference to documents produced by computers in Section 84 is not limited to internet generated documents only, but extends to every other document produced by a computer.

Going by a literal interpretation of Section 84(1) and (5)(a)-(c) which the Supreme Court has enjoined in DICKSON V. SYLVA (Supra) coupled with the self same court’s above position that not only internet generated documents are computer generated documents, it is crystal clear that a document prepared by its maker merely using a computer is a computer generated document in the context of Section 84.

Here then comes the chaos. If a document prepared by its maker using a computer is a computer generated document, where then is the place of Section 83 of the Evidence Act, 2011 which specifically relates to the giving in evidence of a document prepared by its maker. The main part of Section 83(1) stipulates thus; In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original, be admissible as evidence of that fact if the following conditions are satisfied.

Although, the maker of a statement in a document is given a very broad definition in Section 83(4), the category of the maker this piece is mainly minded about is the maker that “signed or initialed” the document he made.

With the benefit of the relevant part of Section 83(1) in view, the germane query is; having made e.g. a surveyor available to court armed with an original copy of a survey plan prepared by him, does a party adducing the survey plan in evidence, in addition to satisfying the requirements of Section 83 also need to satisfy the requirements of Section 84 because the surveyor used a computer to produce the survey plan he made?

Dwelling further on interpretation, the Court of Appeal in BRILA ENERGY LTD. V. F.R.N. (2018) LPELR-43926 (CA) at page 21 embraced the legal maxim enumeratio unius est exclusio alterius (the specification of one thing is an exclusion of the other) and came to the holding that “when it comes to computer generated documents, the provision of Section 83 has been excluded”. The implication thereof is that a statement prepared by its maker in a document sought to be given in evidence remains governed by Section 83, but the moment the document containing the statement prepared by its maker was produced using a computer, Section 83 is excluded and Section 84 activated. The worrying reality is that most documents containing statements are prepared using a computer. Thus, it is now down to a battle as it were between Section 83 and Section 84.

Still sticking to the literal interpretation of Section 84 that a document prepared by its maker using a computer is a computer generated document in the context of Section 84, it must be understood that this then throws the door wide open to the non-maker of a document to conveniently tender same thereby obviating the invaluable opportunity of having the maker of the document cross-examined. This is because, as per the principle in BRILA ENERGY LTD. V. F.R.N. (Supra), Section 84 excludes the applicability of Section 83 on the necessity of bringing the maker of a computer generated document to court. This means a claimant who is not a surveyor can under Section 84 give in evidence a litigation survey plan because it is a computer generated document, once the conditions in Section 84(2) and (4) are satisfied.

The schism between Section 83 and Section 84 caught the learned attention of Hon. Justice L. A. Okunnu of the High Court of Lagos State. During the Bench-Bar Symposium on Electronic Evidence organized by the trailblazing Lagos based Chinua Asuzu’s The Write House, held at the Sheraton Hotel, Ikeja on the 29^th June, 2018, Hon. Justice Okunnu was one of the resource persons. In her paper entitled ELECTRONIC EVIDENCE: JUDICIAL APPLICATION, APPROACH AND INTERPRETATION, His Lordship specifically addressing the issue of Section 83 and Section 84 clarified as follows;

“My position, again, is that when the computer is being used as a typewriter, then the computer is not the maker of the document. It was under the control of a human maker. That maker would have to be called to tender the document and give a first-hand account in the manner laid down by section 83 as the statement in issue was actually made by him or her. But when the computer itself produced the document, it is section 84 that applies as the statement in the document was made by the computer. I stand to be corrected”.

Interestingly, it was the decision of Okunnu, J. in Charge No. ID/196^C/12 that constituted the subject of the appeal in BRILA ENERGY LTD. V. F.R.N. (Supra). The Court of Appeal in BRILA ENERGY LTD. V. F.R.N. (Supra) upheld the entirety of the decision of Okunnu, J. Permit me to further add that Okunnu, J. in the dazzling trial court decision interpretatively excluded the applicability of Section 83 when it comes to computer generated documents relying on the legal maxim enumeratio unius est exclusio alterius, which legal viewpoint was duly affirmed by the Court of Appeal.

In addressing this grey area whether computer generated documents in the context of Section 84 include a document prepared by its maker using a computer, the learned position of Okunnu, J. is a good starting point. To be definitive, Okunnu, J.’s position is that when the computer is being used as a typewriter, then the computer is not the maker of the document. It was under the control of a human maker. I am in absolute agreement with Okunnu, J.’s learned conclusion which is to the effect that when a document prepared by its maker using a computer is sought to be given in evidence, it should not be seen as a computer generated document in the context of Section 84, but that Section 83 should rather apply. This is exactly my humble position as well.

While I unreservedly agree with Okunnu, J.’s learned position, I most humbly beg to differ on the premises from which His Lordship’s conclusion was derived. As robust as His Lordship’s “typewrite model” on the interpretation of Section 84 is, my humble point of divergence is that the far-reaching effects of Section 84(5)(a)-(c) may not have been considered. Subsection (5)(a)-(c) provide the requisite insight on how and when a document becomes one produced by a computer, and had this subsection been considered in His Lordship’s paper already referred to above, a rethink may have been had on My Lord’s well-intentioned typewriter model. The purport of Subsection (5)(a)-(c) is that even though the computer is being used as a typewriter i.e. it was supplied with information by a human and was under the control and use of a human maker, it does not matter. In other words, according to Subsection (5)(a)-(c), a document is produced by a computer even though it was supplied with information by a human before the computer produced it and this is regardless of whether it was with or without human intervention or control.

The Apex Court’s enjoinment in DICKSON V. SYLVA (Supra), that a literal interpretation be given to Section 84 on computer generated documents with all sense of humility has a defeatist effect of throwing wide open the door for the non-maker of a document to conveniently tender same for the singular reason that the document was prepared using a computer. The latitude already accorded by Section 84 for non-makers of computer generated documents to tender same would be further widened to documents that traditionally should have been tendered by their makers. The adverse implication therefore is the obviation of the invaluable opportunity of having the maker of the document “vouch for the integrity (and, therefore probative value) of the document he made by him coming to court and facing the real test of integrity – the test of cross-examination”. (Per Okunnu, J. in His Lordship’s Judgment in Charge No. ID/196^C/12 as reproduced in His Lordship’s paper, supra)

It is against this backdrop I believe that our courts would consider the issue of whether a document prepared by its maker merely using a computer is a computer generated document in the context of Section 84, from a dynamic and proactive perspective by appropriately invoking the golden and/or mischief rules of interpretation to the rescue of Section 83. There is no doubt that a literal interpretation of Section 84 with respect to the issue under review would lead to absurdity, it is equally important to see it from the purposive approach on the original essence of Section 84 in relation to the mischief it was enacted to remedy. And the mischief aimed at by Section 84 is to ensure that statements derived or generated from the ever complex world of information technology are what they claim to be and their authenticity certificated, which concerns far transcend the mere use of a computer for the preparation of a document by its maker.

Although I am in accord with the principle in BRILA ENERGY LTD. V. F.R.N. (Supra), that Section 84 excludes the applicability of Section 83 when it comes to computer generated documents, an alternative approach (which alternative I do not subscribe to) could be the setting aside of this principle paving the way for Section 83 and Section 84 working together. This would then require the maker of a document who prepared it using a computer in addition to Section 83 to also satisfy the stipulations of Section 84. My reluctance to subscribe to this alternative is on the ground that the simple or mere use of a computer to prepare a document by its maker did not ab initio raise the concerns that necessitated the introduction of Section 84. The concerns that necessitated the introduction of Section 84 relate mainly with the more complex use of computers or electronic devices in the ever complex world of information technology.

nota bene;

The book ELECTRONIC EVIDENCE (Revised Edition) 2019, authored by Hon. Justice Alaba Omolaye Ajileye of the Kogi State High Court is a seminal work on electronic evidence in our jurisdiction. This more comprehensive work of 697 pages on electronic evidence is the latest from Hon. Justice Ajileye who has devoted about a decade of valuable time to the microscopic examination of the subject of electronic evidence – a relatively new and evolving frontier in our jurisprudence. As a cognoscente on electronic evidence in our jurisdiction, His Lordship is for its public interest and riveting nature respectfully invited to learnedly weigh in on whether a computer generated document in the context of Section 84 should include a document prepared by its maker merely using a computer.

Alaware Preye Isaac, Esq. a Legal Analyst and a Private Legal Practitioner is an Associate Counsel in the Law Firm of Timi Ambaiowei & Associates, Yenagoa, Bayelsa State, Nigeria.

He can be reached via; isaacalaware@gmail.com