ADMISSIBILITY OF STATEMENTS IN DOCUMENTS PRODUCED FROM COMPUTERS

1.0        INTRODUCTION:

One of the new provisions included in the Evidence Act of 2011 to update the law of evidence in Nigeria to the twenty-first century and bring it to terms with the computer generation is Section 84 and 258 (1) of the Act. These sections define what a “computer” is in the jurisprudence of evidence and expanded the scope of the definition of a document.

2.0        DEFINITION OF A COMPUTER:

Section 258 (1) of the Evidence Act, 2011, defines a computer as:

“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;”

3.0        DEFINITION OF A DOCUMENT:

Section 258 (1) of the Act, expanded the scope of the definition of a document to include:

(a)    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;

(b)    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

(c)     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

(d)    any device by means of which information is recorded, stored or

retrievable including computer output:

Similarly, Section 258 (1) of the Evidence Act, 2011, unlike the old Act defines a "Copy of a Document" to include:

(a)     in the case of a document falling within paragraph (b) but not (c) of the definition of "document" in this subsection, a transcript of the sounds or other data embodied in it;

(b)     in the case of a document falling within paragraph (b) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied in it whether enlarged or not;

(c)     in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and

(d)     in the case of a document not falling within the said paragraph (c) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged on not, and any reference to a copy of the material part of a document shall be construed accordingly;

4.0        ADMISSIBILITY OF A STATEMENT CONTAINED IN A DOCUMENT PRODUCED BY A COMPUTER:

Section 84 expressly permits the admissibility of a statement contained in a document produced by a computer once the four conditions precedent for it admissibility stated in Section 84 (2) of the Evidence Act of 2011 are met.

These four conditions precedent are:

(a)      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;

(b)      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;

(c)      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

(d)      that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

These four conditions precedent for admissibility of a statement contained in a document produced by a computer were considered by the Supreme Court in the recent case of   Dr. Imoro Kubor & Anor. V. Hon Seriake Henry Dickson & Ors. (2012) LPELR-SC.369/2012, where the eminent jurist, Onnoghen, J.S.C  expounded  that, the above conditions precedent were the pre-conditions laid down by the law  and consequently,  held that, the  two computer generated documents in issue were not admissible in evidence on the ground that, the said four conditions precedent were not satisfied by the Appellant.

Be that as it may, Section 84 (4) of the Act provides that:

“    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 of any deviceinvolved 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 be 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.”

In the case of Kubor & Anor. V. Dickson & Ors. (supra) the issue of the certificate stated in Section 84 (4) was not an issue rather His Lordship referred to the failure of the Appellant to lay the  necessary foundation for the admission of  e-documents under Section 84 of the Evidence Act .

5.0        CONCLUSION:

It is submitted that, in the absence of the certificate referred to in Section 84(4), if a witness is a person occupying a responsible position in relation to the operation of the computer by which a document was generated such a witness may be led in evidence to lay the necessary foundation of the particulars required to be in the certificate.

(SAMPLE CERTIFICATE OF COMPLIANCE)

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

                                               

                                                                                           SUIT NO: FHC/L/_______

BETWEEN:

1. MR GABRIEL LAWAL                                      PLAINTIFF             

                       

 AND

                                                                                                         

DANA AIRLINES LIMITED                                   DEFENDANT

CERTIFICATE OF COMPLIANCE

PURSUANT TO SECTION 84 (4) OF THE EVIDENCE ACT, 2011

I, Uche Stanley Merife, of Suites 201 – 203 West Wing, City Hall, Catholic Mission Street, Lagos, do hereby certify that the underlisted documents were published on the official website of the Accident Investigation Bureau (www.aib.gov.ng/publication.php) and printed from a HP 600B series Desktop computer, with Serial No: TRF2370S71, which is used in our office at Suites 201 – 203 West Wing, City Hall, Catholic Mission Street, Lagos, regularly to store and process information and is in good working condition:

      i.        A copy of the Updated Report on Dana Air 0992, 5N-RAM Crash of 03/06/2012 in Lagos, published 5^th September, 2012.

    ii.        A copy of AIB Interim Statement on Dana Air 0992 of 03/06/2012, published on 3^rd June, 2013.

The printed documents, which were compared to the copies in the above mentioned Desktop computer, are the same.

Thank you.

Yours faithfully,

Uche Stanley Merife