ELECTRONIC GENERATED EVIDENCE UNDER THE NIGERIAN EVIDENCE ACT 2011

Edited By: Asykobi

In the last few years, the use of computers in Nigeria has grown tremendously. So these days, communication systems, financial transactions, Smart Card Reader for election purposes etc depend on computers. The judiciary, therefore, faces serious challenges to cope with technological development, especially as it affects the treatment of electronically generated evidence. This is so because the issue of admissibility of evidence in a court of law or tribunal is crucial to any trial whether in civil or criminal matters because it has the capacity to determine the outcome of a case one way or the other. And how a particular court treats such evidence is of utmost significance. A case may be lost or won on the strength of a particular piece of evidence that has been admitted or rejected as the case may be. This therefore, without much ado calls for a clear understanding, appreciation and interpretation of electronically generated evidence by the court or tribunal bearing in mind the new provision of Section 84 of the Evidence Act, 2011 as well as having regards to the spirit and intention of the Legislature in legislating the law.

The very fundamental innovation introduced into our evidentiary rules by the Evidence Act, 2011 is the express provision for admissibility of statements in documents produced by computers. Specifically, 

Section 84(1) expressly provides that 

“In any proceedings a statement contained in a document produced by a computer shall (emphasis mine) 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 sub section (2) of this section are satisfied in relation to the statement and computer in question”.

 The operating word “shall be admissible” means that the court or tribunal is under obligation to admit such evidence provided the four conditions per Section 84(2) are met, that is to say:

• 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 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.

What then is “document” and “computer”? Under the Evidence Act, 2011 there is a clear statutory interpretation of the two contentious words and this has cured the inadequacy of the repealed Section 2 of the Evidence Act, 2004, which did not expressly include a “computer output” and the non-definition of the word “computer”. For example, prior to the passage of the Evidence Act, 2011, opinion were divided on the issue whether the definition of “document” contained in Section 2 of the Evidence Act, 2004 included electronic or computer generated evidence. 

Under S.2 of the now repealed Evidence Act, 2004

“document” was narrowly interpreted to include only “books, maps, plans, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used for the purpose or recording the matter”.

Under the Evidence Act, 2011, a “document” includes the following:

• books, maps plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;

• any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

• any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

• any device by means of which information is recorded, stored or retrievable including computer output.

From the foregoing a document includes amongst other things any device by means of which information is recorded, stored or retrieved including “computer output” while “computer” is interpreted in the same section 258(1) of the Act to mean:

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.

Against the foregoing and with the benefit of hindsight, it is crystal clear that the narrow definition of “document” under section 2 of the evidence Act, 2004 and the non-definition of the word “computer” in the same statute gave rise to the controversy whether computer generated evidence was admissible or not in our courts and if they are admissible, whether as primary or secondary evidence. See Udoro v. The Governor, Akwa Ibom State, (2010)11 NWLR (pt 1205) 322. See further the case of UBA PLC v. ABACHA FOUNDATIONS, (2003) FWLR (pt. 178) 997 – 998, per Coomasie, JCA.

With the nascent evidentiary rules introduced by the Evidence Act, 2011, the shortcomings that existed in the above cases no longer arise because Section 51 of the Evidence Act, 2011 now succinctly provides that “entries in books of accounts or electronic records regularly kept in the course of business are admissible whether they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient to charge any person with liability”. So without any doubt or any ambiguity, “computer outputs” are documents provided for in our statute books as admissible primary evidence on their own merit once the four conditions stated above are complied with. That is to say once these four conditions precedent for admissibility of a statement contained in a document produced by a computer, and the evidence so generated is reliable and authenticated by appropriate authority, or signed by a person occupying a responsible position in relation to the operation of the relevant device; the evidence so generated shall be admitted in evidence once tendered.

It should be noted that our Section 84(2) is very similar to the position in England on the admissibility of computer generated evidence. This is not surprising since most of our legislations take a cue from that of England. Thus in R v Spilby (1991) Crim LR, 199 it was held that the computer print- out were real evidence. Also in R v Blackburn, R v Wade, the English Court of Appeal held the view that where the computer is used for word processing, a document produced thereby should be regarded as having been produced by a human being with the aid of computer.

The recent rejection of INEC document by the tribunal at Umuahia recently in which the tribunal hinged its rejection of the document on the fact that it should be tendered by the maker of the report, which is INEC is a miscarriage of justice. The document so rejected complied with our Section 84 of the Evidence Act, 2011. 

Throughout the provisions of sections 84, 258 and 51 relating to computer generated evidence, no mention was made about the maker of the ‘computer generated evidence’. A renowned scholar of international repute Professor Nnamdi Obiaraeri has submitted in his book ‘Contemporary Law of Evidence In Nigeria’ that our judges, other classes of judicial officers mandated to apply the technical rules of evidence and our legal practitioners who remain ministers in the temple of justice must be empowered through training, retraining and other veritable tools of capacity building in other to be able to grapple with the forensics in this era.