ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE & POSSIBLE RECOMMENDATIONS TOWARDS EFFECTIVE ACHIEVEMENT IN LINE WITH SECTION 84 OF THE EVIDENCE ACT 2011.
By Gerald Ajoku Esq.
To say that the Evidence Act in Nigeria was in a frozen state before 2011 is an understatement. It is against this background that on the 3rd day of June, 2011 will for a long time to come, remain memorable to lawyer, judges and all those who are interested in the Nigerian Legal System. On this day, President Jonathan signed into law the Act, 2011. Many areas in the 1945 Act were in dire need of a reform, especially the areas relating to information technology in the specie of computer/electronically generated evidence. Growth and development over the years makes Computer a necessary business tool. Virtually every business transaction across the world, Nigeria inclusive, are largely computer related.
When the former Evidence Act (1945) was enacted, there must have existed very limited computers. Means of record keeping was predominantly through papers, files and cabinets. Today, the world has moved into more modern storage means, ranging from audio recording, video recording, CDs, DVDs, SMS messages to emails.
ADMISSIBILITY OF COMPUTER GENERATED DOCUMENT UNDER SECTION 84 OF THE EVIDENCE ACT 2011.
In general, the threshold test for the admissibility of evidence, including computer generated document is relevancy. Accordingly, only computer-generated documents, which establish the existence or non-existence of facts in dispute, are relevant, provided they are not rendered inadmissible by other exclusionary rule of law.
As regards, the standard for assessing the admissibility of computer-generated documents, the act extensively provides:
- 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.
- The conditions referred to in subsection (1) of this section are-
- 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;
- 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;
- 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
- that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
The Requirement for System Operator’s Certificate
Note that in any proceeding where computer generated evidence is intended to be presented, Section 84(4) of the Evidence Act which requires certificate duly signed by the designated system operator or any person who has responsibility for the management and operation of the computer system.
Failure to lay the necessary foundation of the admissibility of computer-generated evidence would render the document inadmissible. This trend of Nigerian Case law is predictable for the recent Supreme Court decision in Dr. Imoro Kubur & Anor v Hon. Seriake Henry Dickson & Ors. The document is online newspaper. The Supreme Court held that the document was inadmissible for failure to satisfy the four conditions stated in section 84(2) of the Evidence Act, 2011.
Electronic Evidence and Hearsay Rules
It is also important to examine how the source of Information and the mode of storage are relevant in determining whether the information constitutes hearsay or not. Computer information may be generated from variety of sources which include:
- Information supplied by human beings (for example where an operator input data into the computer);
- Information obtained from another device (e.g. shared data from equipment connected to network and);
- Information independently or automatically perceived or sensed by the computer evidence (e.g. auto recording by CCTV Camera etc).
Section 84(5) of the Evidence Act further takes care of this by outlining some of the varied sources of computer inputs and treats any documents obtained from any of the sources as a document produced by the computer whether it is produced by it directly or (with or without human intervention) by means of any device. It provides that for the purpose of this section:
- 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;
- 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;
- 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.
Overall, the classification and innovations introduced y the Evidence Act, 2011 particularly as regards the admissibility of computer/electronically generated evidence in a welcome development. However, it is plausible to argue that there remain a few problems that are being or are likely to be encountered in the application of Section 84 of the Act. These are:
- Reliability and Authenticity – This arises from the mode. The means by which the evidence in form are in stored. The questions that now come to mind are informal reliable. Is it of a quality that cannot remain untampered? Some software has been designed in such a way that makes any form of alteration is tampering difficult. On the other hand, documents saved in a computer and other devices such as recording devices are susceptible to tampering the challenge raises the question or authenticity. Having regard to section 84 (2) of the Evidence Act 2011 there is no doubt that facts relating to the integrity of a particular Evidence, the manner in which a document was generated, maintained and produced , will be relevant in attaching weight to it. In effect the court is bound by to consider all the circumstances from which the accuracy of the electronic evidence may be inferred and the court could attach as much or as little evidential weight to the electronic evidence as the circumstances of the case dictates. This recommendation was in line with the English case of the state of Delhi v. Mohd. Afzad & Ors. it was held that if someone challenges the accuracy of a computer evidence or electronic evidence on the ground of misuse of system or operating failure, he must prove same beyond reasonable doubt. The court observe that mere therotical and general apprehensions cannot make clear evidence defective and inadmissible
- Computer illiteracy among legal practitioners. Another major problem is that, most legal practitioners in Nigeria today are not yet computer literate. Lawyers should learn to appreciate the use of computer to discharge it duty as a legal practitioner, caution then is to be exercised by legal practitioners who are entrusted with evidence by their clients to avoid tampering or simply erasing the file, because electronic information is of a delicate nature.
- The Unpopular Nature of the IT (Information Technology) system in the judiciary some sections of the judiciary are yet to embrace computer friendly equipment. Judges still record long hand processes are filed and served manually. Unlike some advanced jurisdictions when police officers are increasingly using videos and tape recording in the investigation process, most police station is Nigeria still use handwritten confessional statements often denied by accused persons.
- It is recommended that computer literacy, which is very important, should be taken more seriously by law student, legal practitioners and indeed the entire judiciary, if the innovations introduced by the Evidence Act are to be fully appreciated.
- Our court need to be better equipped with adequate modern facilities to cope with the modern trends.
It is hoped that in the very near future, electronically generated evidence will assist in bringing about a faster, more accurate and more efficient dispensation of justice in Nigeria.
The ball is once again, in the court and the legislature to consider these recommendations. In matters concerninig legislation, the court are not in any stead to act, in UBA V. Tejumola & Sons, Obaseki, JSC, puts it most succinctly;
“The court is not the legislature. Its duty is to interpret the law and apply it to facts in the administration of justice. Its does not over step its bound and trespass upon sacred province of the legislature to enact laws and amend or repeal laws. The court can only draw attention to areas of the law where amendment is required or desirable.”
It is therefore incumbent upon the National Assembly to show sufficient interest on these issues as a matter of utmost urgency. The National Assembly should appreciate that we live in a changing world which require changing law. In a progressive world the law should not be static.
- Evidence Act, 2011
- A guide to the Admissibility of Electronic Evidence by Alaba Omolaye 2016.
- A paper presented by prof. Amos Atuama on Computer Generated Evidence.