Photo Source: LegalNaija
The
Evidence Act was enacted in the colonial era, in 1945. When enacted, there was
no provision for electronically generated
evidence, probably because computer was not a major means of transaction in
Nigeria at that time. The absence of the ‘reception provision’ posed a big
challenge to the admissibility of such documents in the court of law.
Before
the coming into being of the current Evidence Act, arguments have been made as
to include or list computer generated documents under the category of documentary
evidence. However, a thorough look at S. 2 of the 1945 Evidence Act shows that
computer generated evidence was never included in the definition of document.
Thus, the Court has over the years taken a pro-active approach in allowing the
reception of such documents.
The
court in the case of Esso West Africa Inc v. Oyegbola (1969) 1
NMLR 194, stated that ‘The Law
cannot be and is not ignorant of modern business methods and must not shut its
eyes to the mysteries of the computer’. The court anchored on the escape of
relevancy to bypass the lacuna of the Law, and admitted documents that
ordinarily would not have been admitted. This body of the gentlemen on the
bench in the case of FRN v. Fani-Kayode (2010) All FWLR (pt. 534)
181, were possessed by the spirit of the law in the wordings of Lord
Denning in Packer v. Parker (1954) P. 15, 22, when the court rejected the
argument of Ladi Williams, SAN which was of the positivist point of the ‘it is’
and not ‘ought to be’. The learned counsel was of the opinion that the court
should not apply the Law to admit a computer printout, because the Evidence Act gives no provision of such. The Court of Appeal took a different approach which
I will say was equitable.
On
the 3rd day of June, 2011 the then president of Nigeria, His
Excellency, Dr. Goodluck Jonathan, signed into Law the New Evidence Act. This
New Law against previous amendments, provided for the admissibility of
Computer Generated Evidence in S.84. While S. 83 provides inter alia for the admissibility of documentary evidence as to
facts in issue in which the maker of such document who had personal
knowledge of the matter dealt with by the statement is to be called as a
witness as a general rule, the provision of S. 84 which deals with the
admissibility of electronically generated evidence makes no mention of ‘MAKER’
but ‘DOCUMENT PRODUCED BY COMPUTERS’.
S.
83 (4) is clear on the ground that the maker of a document is one who made or
produced such by him with his hand. Thus, for the purpose of this write up,
where a document is not produced by a person, partly written by same, signed or
initiated by same or otherwise recognized by same in writing as one for the
accuracy of which he is responsible, the same is not deemed to be the maker.
While the aspect of signing and writing of the said document to satisfy, making,
seems to be clear, the aspect of production of such document seems to be vague
especially when the production is from the computer or when it is PRODUCED BY
THE COMPUTER.
Where
a document is typed by someone and printed by the same person from the
computer, who will be said to be the maker or producer? It is clear from the
Law that though the document is typed by someone, the fact that the document is
printed from a computer makes the computer the producer. Nevertheless, the
computer cannot in any circumstance tender same in court as the producer, so it
has been argued that upon signing same, the person becomes the maker and can
tender same in court. In other words,
where it is not signed, it remains a computer produced copy.
However,
where a picture snapped by someone, has been produced by a computer, in seeking
to tender same in court upon satisfying the conditions in S. 84 of the Evidence
Act, who will be said to be the maker? The Computer who produced same or the
one who certifies? Can someone who does not certify but present when the
snapping was made tender same in court in the absence of the one who certifies,
while taking into consideration the fact that S. 84 does not make mention of maker
as it is with S. 83? This controversy played up in the case of the State
v. Victoria Tarilayefa Gagariga (Suit No: YHC/YHC/27c/2015) in the
Yenagoa Judicial Division of Bayelsa State.
In
the said case, the state counsel, A.S. Arthur (before he became Attorney
General of Bayelsa State) sought to tender a set of 14 photographs taken at the
locus in quo, through PW2, a police officer, who was there when the photographs
were taken. A female police officer had in company of PW2 taken photographs of
the scene. The female police officer by name Linda Model took the pictures by
pressing the snap button. She has well made biro inscriptions on the pictures
stating and fulfilling the conditions of S. 84 (4) of the Evidence Act, 2011
with respect to ‘the certificate of compliance’. However, she was posted out of
the judicial division where the case was instituted making it impossible for
her to testify before the court. The
prosecution counsel thus sought to tender the said photographs through PW2, the
male police officer, who accompanied the said Linda Model to the scene where
the photographs were taken.
Mr. Alubi Esq., counsel for the accused,
objected to the admissibility of the photographs on the grounds that:
1) The
source of the pictures is in doubt as therein a super imposition of objections.
2) By
the combined reading of Sec 38, 83 (1) and (4), 87 (b) and 126 of the Evidence
Act, the documents amount to documentary hearsay.
Mr.
Alubi, on arguing the authenticity of the documents, stated that the biro pen
marks on the document altered the nature of the documents thereby defeating its
authenticity. On the second ground of objection, counsel argued that the male
Police officer is not the maker of the documents, and as such cannot tender the
said documents. Arguing further, he stated that if for any reason she cannot be
presented before the court, then S. 50 of the Evidence Act must be fulfilled
which deals with the absence of public officer employed in public service of
the federation or state to give evidence in court. Thus, failure to fulfill S.
50 and trying to tender the said documents through PW2 which is no maker of the
document amounts to documentary hearsay. He cited the case of
Kubor v. Dickson (2012) LPELR-9817 (SC)
Counsel
for the prosecution argued on the other side that the documents before the
court were electronically generated documents, and that emphasis is on: ‘THE
COMPUTER GENERATED SAME’. He argued citing the case of Slyva v. Dickson (2016)
SC/518/2016 which came after the Kubor’s case, that computer generated
evidence can be tendered orally or by certification. He cited S. 84 (1) of the
Evidence Act and distinguished same from S. 83 and urged the court to admit
same for its relevancy. The defense argued that relevancy is no longer the only
yardstick for the admissibility of documents.
The
court after evaluating the arguments on both ruled on the issue of authenticity
of the documents that the inscriptions which are directions made in biro pen do
not in any way alter the nature of the documents as to doubt their
authenticity. In the words of the court, ‘The
original form of the document is still very visible and cannot in any forms be
said to have been altered by the inscription thereon.’
On
the issue of the computer generated documents, the court held that digital
produced photographs by their very nature are computer generated documents and
so for same to be admissible, they must comply with the provisions of Section
84 (1) and (2). The court held that the writings on the back of the said
photographs fulfilled the provision of S. 84 and therefore complied with the
provision of certification as against the usual ‘separate certificate’ made for
such purpose as many may think.
Ruling
on the issue as to the fact that Linda Model is the maker of the document and
not PW2, and as such an attempt to tender the document through PW2 amounts to documentary
hearsay, the court held per Justice N.
Aganaba, as follows:
“In
the instance, the relevant question to ask is: who is the maker of the
document? It should be borne in mind that the photographs sought to be tendered
were made through a process of printing whose authenticity has confirmed by the
certificate appearing at the back of the documents. The printing of the
photographs as it were cannot in the circumstance be said to be the process of its
making. In fact the process of the making of the document can only be the
application of the required force of the phone to capture the scene showing on
it on the images produced at the splitting moments of the capture. All the
photographer did was to press the relevant knob at that very moment the images were
captured; the photographs not being artistic expressions, but being mere
capturing images in the scene. In the circumstance- cannot be referred to
exclusively within the knowledge of the photographer. All those present at the
time the photographs were taken who were parts of the investigating team at the
scene of crime and who saw the scenes as they were being captured are also as
good a position as person who merely pressed knob that captured the scenes. In
afterwards they can be in the circumstance referred to as co-makers of the
documents. The photographer obviously did not work alone but worked along with
the team of investigators of which the witness through whom the document is
being sought to be tendered is part of. In the circumstances, it will amount to
absurdity to hold that the witness is not part of the process of the making of
the document.’
The
ruling of the court in this case brings out inter
alia, beautiful and novel areas of arguments.
(i)
That the certificate of compliance in
line with S. 84 of the Evidence Act need not necessarily be a SEPARATE
DOCUMENTED CERTIFICATE fulfilling the requirement of the Act as regards
compliance, but that an inscription on the photographs sought to be tendered as
it is with the instant case, fulfilling the same requirement of the Law which a
SEPARATE DOCUMENT for that purpose would have fulfilled is sufficient
certification for that purpose. The said S. 84 (4) states as follows:
“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 if 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 (i) dealing with any of the
matters to which the conditions mentioned in subsection (2) above relate, 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 may be, shall 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 person
stating it”.
(ii)
That a computer can be a maker of a
document, while the humans who joined in the making are co-makers. This reasoning of the trial court is quite
interesting for a judicial test. It poses questions as to whether S. 84 of the
Evidence Act envisages the point of a ‘maker’ as it is with s. 83, and also,
even if the section contemplated the point of a maker, can the computer be said
to the maker or the human who intervenes in the alternative? Or whether the
computer and the human can both be said to be ‘makers’ at same time as it was
reasoned by the learned judge?
Another question that
may be asked is: Are the members of the investigating team co-makers of the
document because they were present when the knob was pressed? Permit me to
reproduce a part of the reasoning: All
those present at the time the photographs were taken who were parts of the
investigating team at the scene of crime and who saw the scenes as they were
being captured are also as good a position as person who merely pressed knob
that captured the scenes. In afterwards they can be in the circumstance
referred to as co-makers of the documents.
Can a member of the investigating
team who was only present at the capturing of the scene be as good as a person
who knows perfectly well the functional capacity of the camera and the knob?
Assuming only one officer eventually produces the printed copies from a
printing device, can the other police officers or any other person who was
present when the knob was pressed and scène captured be as good as the person
who print out the copies and in a good position to fulfill the condition stated
in S. 84 (2), having taken into consideration that the Camera and the printing
device remain one single computer for the purpose of the Section? Perhaps the
argument would be that being a maker of a document is one thing, fulfilling the
conditions stated in the Act is another. In other words, even evidence by a
maker may be refused where it fails to fulfill the conditions stated in the
Act.
From
the argument and points canvassed above in this case appraisal, it is clear
that the Court has not shifted from the pathway of reasoning outside the box
while interpreting the Law. The soundness or otherwise of the reasoning of His
Lordship, can only be determined by the Upper Court. But until then, it will be
in the history of our legal system, that once upon a time, humans were
interpreted to be co-makers with the computer with respect to documents
generated by the computer.
By
Ebi Robert