When A WhatsApp Conversation Printout Can Be Tendered Like That Of A Short Message Service (SMS)

By C.C.Udemba

Basic digital technological skill has made it easy for lawyers to obtain the hardcopy of a WhatsApp conversation but most often they attempt to tender it in evidence in the same manner as an SMS and that is where they encounter the difficulty of getting it admitted. A printed copy of an SMS and that of WhatsApp conversation are computer-generated evidence but they are distinct when sought to be tendered in evidence in our Nigerian judicial proceedings. Their distinctness is rooted in their digital programming.

While SMS is controlled by Global System for Mobile Communication (GSM), WhatsApp being an e-mail/social media application is controlled by internet network. Internet network makes use of mobile data/Wi-Fi but GSM does not. Whereas an SMS can only be done using one digital device (phone “or” personal computer with MODEM) at a time, WhatsApp can be operated using many digital devices (phones “and” personal computer) at the same time.

Therefore the question, whether the printout of a WhatsApp conversation is tendered just as that of an SMS?

Evidentially, the electronic conversation must be relevant, the content in the printout of the conversation pleaded and the printout frontloaded together with its certificate of authenticity,

In OROGUN & ANOR v. FIDELITY BANK (2018) LPELR 46601, the evidence in issue is an SMS. The respondent denied/disputed the information in the printout of the purported SMS conversation. It was held that it is fundamental that the printout should be tendered alongside with the operating digital device – the GSM phone used in the communication.

Joseph S. Ikyegh J.C.A opined therein that the essence of the GSM operating device following the printout is to render “Proper Records” which cannot be seen on the face of an SMS printout.

The learned Jurist went further to lay down what constitutes proper records, to wit:

1. Evidence of conversation (date, time of the message & whether the message was received by the other party)
2. Identification of the sender/receiver of such message.

The above requirement is not at variance with the combined reading of ss.94, 125 and 126 of Evidence Act, 2011. 

The printout of a WhatsApp conversation by its default tech configuration/programming comes with “Proper Records” which also satisfied the within cited sections of the Evidence Act. Therefore, the requirement for the operating device to be tendered alongside the printout of an electronic conversation is unnecessary with regards to tendering the printout of a WhatsApp conversation. Thus, the Court should disregard it and admit the document.

See, OROGUN & ANOR v. FIDELITY BANK (2018) LPELR 46601, Joseph S. Ikyegh J.C.A at pg.44

Also in BRILA ENERGY LTD v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-45651 C.A, it was held that the only requirement for admitting the printout of an e-mail – an internet network system is the fulfillment of s.84 of the Evidence Act, 2011

From the ongoing, it is clear that where counsel pleaded the content of the WhatsApp conversation in issue but failed to frontload its printout, for Counsel to succeed, he must tender the operating digital device (as a document as defined by s.258 of the Evidence Act, 2011. and in fulfillment of the requirement of “Proper Records”) at the time the witness-the maker gives oral evidence of it in the witness box.

Same is applicable where Counsel made the proper pleadings and frontloading but due to system malfunction/error the printout of the WhatsApp conversation does not have on it the “Proper Records”.

Again, if by reason of advancement in technology, SMS printouts starts having “Proper Records”, there will be no need tendering it along with the operating digital device (the GSM phone or Personal device with the MODEM).

Written By C.C.Udemba (Associate: Ukpai Ukair0 & Associates), C.C.Udemba.Attorney@Gmail.Com: 08187780666

NOTE: This is personal research as at 12/05/2021 and it contains the personal observations of the researcher.