PERSON NOT IN CONTROL OF COMPUTER THAT
PRODUCED DOCUMENT SHOULD BE EXEMPTED FROM THE CERTIFICATE REQUIREMENT UNDER
SECTION 84(4) OF THE EVIDENCE ACT, 2011.
BY:
ALAWARE PREYE ISAAC, ESQ.
The requirement of
certificate of authentication under Section 84(4) of the Evidence Act, 2011
when giving in evidence a computer generated document is one we are already
familiar with. It would also be recalled some relief induced excitement trailed
the wake of the Court of Appeal decision in BRILA ENERGY LTD. V. F.R.N. (2018) LPELR-43926 (CA) wherein it was
held that oral evidence is acceptable as an alternative to a certificate of
authentication. Rest assured that this discourse is not about a revisit to the
no longer new BRILA ENERGY principle
on Section 84(4). This short discourse essentially dwells on the critical interrogation
of the malleability and functionality of the provision of Subsection (4) of
Section 84 by some practical situations the subsection was enacted to regulate
and the implication thereof on the ends of justice.
The unfortunate situation
of legal doom or helplessness of having evidence shut out, that confronts a
person who seeks to give in evidence a computer generated document but is not
in control of computer that produced document, and as such unable to provide
the certificate of authentication under Section 84(4), must concern every
discerning legal mind. It is only better imagined how you have in your hands a very
credible computer generated document that is central to coasting your case to
victory but the court would not admit it for want of a certificate of
authentication, and you cannot provide the said certificate because you are not
in control of the computer that produced the document. I am sure some cases may
have been won and lost on the basis of computer generated documents that were
legitimately disallowed by the court for want of a certificate of authentication
which could not be adduced because the computer that produced the disallowed
document was not in control of the proponent of the document.This is indeed an unfair
practical reality foisted by Section 84(4).
The call for a personwho
seeks to give in evidence a computer generated document but is not in control
of computer that produced document to be exempted from the certificate requirement
under Section 84(4) has already been made. The learned Jurist, Hon. Justice
Alaba Omolaye Ajileyethankfully, made this call in His Lordship’s book
ELECTRONIC EVIDENCE (Revised Edition) 2019, at page 262 thus;
“The point had earlier been made in the previous chapter
that the scope of the applicability of section 84(4) should be limited to a
proponent whose computer device produced the electronic document. In other
words, production of a certificate as an essential element of process of
authentication should be made mandatory where a proponent is in control of the
device that produced the document. It is therefore, suggested that the law
should not be too strict on a party whose computer did not produce the electronic
document and it becomes impossible for him to produce same. This should be
treated as an exception to section 84(4) in the interest of justice. This is
because, it will amount to a denial of justice if an authentic document is kept
out of the consideration of the court by reason of the fact that a certificate
is not produced by a party who cannot possibly secure its production. In this
technological age, nothing more unjust can be conceived.”
Hon. Justice Ajileye’s foregoing
position derived fundamentally from a practical situation that confronted His
Lordship in court. The malleability and functionality of Section 84(4) was put
to serious test in the case ofOHAMUO
CHRISTIAN V. UNITED BANK FOR AFRICA (UBA) (Suit No. HC/KK/007CV/14) that was
heard by His Lordship as Judge of Kotonkarfe High Court, Kogi Statein which
judgment was entered in 2016. The situation is succinctly recounted in ELECTRONIC
EVIDENCE (Supra) at page 260 thus”
“…the claimant, a bank customer, asserted that he had
liquidated his indebtedness to the defendant, a commercial bank, yet, the bank
continued to make deductions from his salaries. He tendered his statement of
account generated from the computer of the bank but the bank refused or failed
to issue a certificate of authentication under section 84(4) of the Evidence
Act, 2011.”
Alive to the responsibility
of his station to dispense justice judiciously, His Lordship was minded that a
strict application of Section 84(4) would result in the claimant being denied
justice. Thus during trial in 2016,the bank objected to the admissibility of the
claimant’s statement of account for the claimant’s failure to satisfy the
requirements of Section 84(4),His Lordship preoccupied with the justice of the
case proceeded to ingeniously articulate an exception under Section 84(4) to
the effect that where the proponent of the computer generated document is not
in control of the computer device that produced the document, he should be exempted
from complying with the certificate requirement.His Lordship in a well
considered Ruling on the 29th July, 2016 ingeniously articulated
this exception and on its basis proceeded to accordingly admit the claimant’s
statement of account in that case.
The necessity to
universally embrace this exception under Section 84(4) in our jurisdiction as
articulated in 2016 by Hon. Justice Ajileye stares us right in the face in this
our modern society where digitization and information technology has become an
integral part of our daily lives. Apart from the OHAMUO CHRISTIAN V. UNITED BANK FOR AFRICA (UBA) (Supra) statement of account example, there
are other practical examples as well. For instance,whenever you step into modern
supermarkets, grocery stores, fast foods outlets, etc, most of them at the
payment points issue customers with computer generated Receipt Slips. In the
event of litigation by a customer with any of them, you sure know they would
not be generous enough to provide the customer with the certificate of
authentication required under Section 84(4) to enable the customer give in
evidence a Receipt Slip being a computer generated document.You can as well
relate same to the situation with some modern hospitals that have done away
with the traditional paper folders and now attend to patients using computerized
folders.You can also relate this to the boarding pass of flights which are also
computer generated.
Though the celebrated BRILA ENERGYdecision may have
enunciated that oral evidence is acceptable as an alternative to a certificate,
this should not be misunderstood to mean the principlecan come in handy for a
person not in control of computer that produced the document, to enable the person
adduce oral evidence. The Court of Appeal, per Sankey, J.C.A.in the BRILA ENERGYcase postulated the law at
page 63 thus;
“Where such certificate (of authentication) is not produced,
it has been held that oral evidence of a person familiar with the operation
of the computer can be given of its reliability and functionality; and that
such a person need not be a computer expert.” Underling emphasis mine.
Going further on how the
oral evidence alternative was met, the Court of Appeal at page 64 stated that;
“The condition was satisfied by the testimony of PW17 on
oath when he explained the process of how he scanned the emails forwarding the
report to him from Saybolt Concremat Brazil, printed them in colour and sent
them to EFCC.”
From the above statement of
the law in BRILA ENERGY, it is only
a person who is in control of the computer that can be “familiar with the
operation of the computer” and be capable of giving evidence “of its
reliability and functionality”. The PW17 in this case who gave the oral
evidence in satisfaction of Section 84(4) stated how he personally operated the
computer.Therefore, a person who is not in control of computer that produced
document and helpless to provide a certificate, cannot take advantage of the
oral evidence alternative in satisfaction of the requirement under Section
84(4). The privilege to either adduce a certificate or oral evidence in
satisfaction of Section 84(4) resides only in the person who is in control of
the computer that produced the document.
The courts’ interpretative
responsibility of expounding statutory provisions is a solemn responsibility
our courts have not shied away from whenever it becomes exigent. This solemn
responsibility was what courts were being reminded of by Aderemi,
J.S.C. in the Apex
Court decision in A.G. FEDERATION V.
ABUBAKAR (2007) 10NWLR (Pt.1041) 1at pages
171-172 paragraphs F-B.In exhorting judges, His Lordshipwent thus;
“… a Judge,
whenever faced with a new situation which has not been considered before, by
his ingenuity regulated by law, must say what the law is on that new situation;
after all, law has a very wide tentacle and must find solution to all man-made
problems. In so doing, let no Judge regard himself as making law or even
changing law. He (the judex) only declares it (law) – he considers the new
situation, on principle and then pronounces upon it. To me, that is the
practical form of the saying that the law lies in the breast of the Judge.”
The necessity of universally
embracing this exception under Section 84(4) in our jurisdiction was given a
very worthy credence and validation in 2018 by a decision of the Indian Supreme
Court in SHAFHI MOHAMMAD V. THE STATE OF
HIMACHAL PRADESH [JT 2018 (2) SC 349]. Permit me to return to this anon.
The Supreme Court in SIFAX (NIG.) LTD. V. MIGFO (NIG.) LTD.(2018)
9NWLR (Pt.1623) 138,restated the longstanding hospitable disposition of our
legal system toforeign decisions or authorities which have a nonbinding but
persuasive effect on our courts. According to Augie, J.S.C. at page 180
paragraph D; “there is nothing in our
laws that says the Nigerian Courts cannot rely upon foreign decisions, which
includes foreign textbooks based on such decisions, rather they are useful in
the expansion of the frontiers of our jurisprudence”.
Our courts in
interpretatively dealing with Section 84 on electronic evidence, which is a
relatively new and evolving frontier in our jurisprudence, have a lot to draw
from other Common Law jurisdictions.For instance, the Court of Appeal in the BRILA ENERGYcase actually relied on the
foreign decision of the House of Lords in R.
V. SHEPARD(1993) AC 380, when it laid down the new position on Section
84(4) allowing oral evidence as an alternative in lieu of certificate of
authentication.
The Indian Supreme Court inSHAFHI MOHAMMAD V. THE STATE OF HIMACHAL
PRADESH [JT 2018 (2) SC 349] was confronted with a practical situation where
a strict application of the Section 65B(4) of the Indian Evidence Act on
electronic evidence would occasion injustice. Section 65B of the Indian
Evidence Acton electronic evidence is interestingly similar to our Section 84.
Their Section 65B has subsections (1)-(5) just as our Section 84 has
subsections (1)-(5). Thus, their Section 65B(4) provides for the certificate
requirement in much the same way as our Section 84(4). The Indian Supreme Court
while interpreting Section 65B(4) of the Indian Evidence Act which similarly
provides for their certificate requirement when adducing electronic evidence,
posited thus;
“Accordingly, we clarify the legal position on the subject on the
admissibility of the electronic evidence, especially by a party who is not in
possession of device from which the document is produced. Such party cannot be
required to produce certificate under Section 65B(4) of the Evidence Act”.
The above Indian Supreme
Court position which was arrived at in the overall interest of justice in no
small measure lends credence and validation to the position taken in 2016 byHon.
Justice Ajileye in OHAMUO CHRISTIAN V.
UNITED BANK FOR AFRICA (UBA) (Supra).
When similarly confronted with the reality that a person not in control of
computer that produced document would have difficulty making available a
certificate of authentication, the Indian Supreme Court proceeded without
hesitation to make an exception for such situations fundamentally in the
overall interest of justice.
There is no denying the
fact that a universal embrace of this exception under Section 84(4) in our
jurisdiction would further the ends of justice. What is not clear is whether or
not our lawmakers envisaged this sort of situation, but what is clear from this
discourse is that aperson who seeks to give in evidence a computer generated
document but is not in control of computer that produced the document should be
exempted from the certificate requirement under Section 84(4). It is in the
overall interest of justice that credible computer generated document need not
be shut out because the person in control of the computer that generated the
document refuses or neglects to make available to the proponent of the document
a certificate of authentication.
As central as
authentication of computer generated document is for admissibility purposes,
the Court of Appeal in the BRILA ENERGYcase
has acknowledged that a rigid or straightjacket approach is not the best,
implying that there be room for flexibility as the justice of each case demandsand
this corresponds with the essence of this discourse on the need for a person
who seeks to give in evidence a computer generated document but is not in
control of computer that produced document to be exempted from the strict
application of the certificate requirement under Section 84(4). Accordingto
Sankey, J.C.A.;
“There is no single approach to authentication applicable
across board. Instead, the most appropriate form of authenticating electronic
evidence will often depend on the nature of the evidence and the circumstances
of each particular case.”
The bottom-line is that Sankey,
J.C.A., in theadmonition abovehas made it clear that courts should be liberal
when dealing with the application of the provisions of the Evidence Act, 2011
on electronic evidence,particularly Section 84(4) on the authentication of
computer generated documents.By the way, I understand the BRILA ENERGYcase is on appeal before the Supreme Court. We all patiently
await the outcome of the appeal on this all important case on electronic
evidence.
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; [email protected]