Exegetical Note on Flow-Chart of Admissibility of a Document under Sections 83 and 84 of the Evidence Act, 2011

Exegetical Note on Flow-Chart of Admissibility of a Document under Sections 83 and 84 of the Evidence Act, 2011

By Muhammad Nazir Faruk, Esq.

Generally, under the law of evidence, it’s observed that some of the most misconceived areas are the different procedures involved in the admissibility of a document under section 83 of the Evidence Act, 2011, and as well as the admissibility of a computer generated evidence under section 84 of the said Evidence Act.

The learned author: Amupitan J. O. (2013) on Evidence law; Law and Practice in Nigeria p. 48 argued that the two concepts are foundational topics in the law of Evidence.

Equally, the Apex Court of Nigeria in the case of Ezekwesili & Others vs Agbapuonwu & Others (2003) 9 NWLR (PT.825) 337 maintained the said concepts to constitute the heartbeat, the center pin and the pivot of the law of Evidence.

Historically, the repealed Evidence Act 2004 was a reincarnation of the old Evidence Act of 1945, which did operate in Nigeria for nearly 68 years and that is why it did not have a clear provision on Electronic Evidence and that made it difficult for Courts in Nigeria to admit such computer produced documents. It is equally part of the reason why the Supreme Court of Nigeria had made two conflicting decisions. And one of the decision that supports admissibility of a computer generated evidence was in the case of Esso West Africa Inc. v. T. Oyegbola (1969) NMLR 19 while the decision against the admissibility of the said computer evidence can be seen in the case Yesufu v. ACB (2004) NWLR (PT.861) 516 because the repealed evidence Act did not recognize the computer produced document.

Before delving into the main subject matter of discussion, it is of paramount importance to lay a foundation by discussing the legal status, admissibility and relevance, under the law of Evidence in Nigeria to wit:

Admissibility and Relevance:

Generally under the law of Evidence, the basis for admissibility of any document is relevance. This golden rule of admissibility has been put simply by the Supreme Court of Nigeria in the case of Nwabuaka v. Onwordi (2006) ALL FWLR (PT.331) 1236 at p.1251 that:

‘’Admissibility of Evidence is based on relevance. A fact in issue is admissible if it is relevant to the matter before the court. In that respect, relevancy is a precursor to admissibility. Flowing from the above, what is relevant is admissible and what is not relevant is not admissible’’ Per Ogundare JSC.

The question to be determined here is, what fact is relevant and what constitutes relevance under the evidence law.

Press Dada J.A in his book, “The Law of Evidence in Nigeria, [2015] ( 2nd ED] University of Calabar,  has made the following points on how to arrive at the fact which is relevant to the  fact in issue to wit:

‘’A fact is relevant if ;

1. it applies to a matter at hand;
2. it is logically connected and tending to prove or disprove a matter in issue, or having appreciable probative value; and

III.       it tends rationally to persuade the adjudicating tribunal in an attempt to prove or disprove a fact.’’

It is noteworthy that the issue of admissibility is quite different from weight to be attached to a document. In other words, to admit a document in evidence does not ip so facto mean attaching weight willy-nilly or necessarily on it. This position was further affirmed in the case of Motanyo v.  Elinwa (1994) 7 NWLR (PT. 35) 252 At 260 as follows:

‘’The legal admissibility of a piece of evidence is one thing, while the weight the court would attach to such evidence after it has been admitted is quite another thing’’ Per Kutigi JSC.

In the wisdom of my lord therefore, a documentary evidence may be admitted even without the maker as decided in the case of john & Anor v. The State (2011) LPELR 8152 SC where the court upheld the admissibility of a confessional statement as proper notwithstanding the fact that the 1st appellant was not the maker.

At this juncture, it is important to equally begin with the meaning ascribed to document in general and with reference to the provisions of the Evidence Act, 2011. This will no doubt pave a way for the discussion on the admissibility of document under two different provisions of the Evidence Act 2011, i.e s. 83 and s.  84 of the Evidence Act.

Admissibility of Evidence under section 83 of the Evidence Act 2011:

It is important to quote section 83 (1) of the Evidence Act, 2011 for the purpose of this write up and as it provides that:

‘’In any proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document be admissible as evidence of that fact if the following conditions are satisfied;

(a)       If the maker of the statement either;

1. Had personal knowledge of the matters dealt with by the statement; or
2. Where the document in question is or forms part of a record purporting to be a continuous record, made statement (in so far as the matter dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b)       If the maker of the statement is called as witness in the proceeding;

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.’’ In the case of Lambert v. Nigerian Navy (2006) 7 NWLR (PT.980 )514 at page 547 it was held that the proper person through whom a document is tendered is  the maker of such document… And if a person who was not a maker tenders the document, the trial judge should not attach any probative value to the document. This is because the person tendering the document not being the maker of the document cannot answer questions arising from any cross examination. See also the case of Iniama v. Akpabio(2008)17 NWLR (Pt.1116) 225 CA.

Admissibility of Electronic Evidence under section 84 of the Evidence Act, 2011:

It should be noted that Section 258 of the Evidence Act 2011, posits that, a document electronically produced in a retrievable video compact disc or any other audio visual  means ‘’computer’’ evidence. such retrievable video compact disc or any other audio visual means they can only be tendered in court as ‘’computer-generated evidence’’. This goes to show that the meaning of document has been broadened to include video and audio tape or anything produced by a computer as opposed to what was obtainable in the repealed Evidence Act. See the unreported case of Zenith Bank Plc  v.  Nacoil International Limited CA/L593/2015,.

The leading authority on electronic Evidence by Alaba Omolaye-Ajileye in the  book ‘’Electronic Evidence’’  argued that section 84 of the Evidence Act 2011,( which deals with the computer generated evidence ) has not been categorized as secondary evidence but rather an independent class of a direct evidence. The application of section 84 of the Evidence Act cuts across criminal and civil proceedings.

The said section 84 has settled down the issue of primary, secondary, original or hearsay in relation to electronic evidence. That is why Section 41 of the Evidence Act has made an electronic evidence an exception to hearsay evidence which is inadmissible under section 38 of the Evidence Act. Therefore, electronic evidence does not require the production of its original. In essence, Section 88 of the Evidence Act which requires the production of the original document is inapplicable under section 84 of the Evidence Act. And that, no objection can be sustained in court under section 83 of the Evidence Act on the ground that the maker of the electronic evidence must be called as a witness. This is because section 84 of the Act recognized the computer as the producer of the document. It was interestingly held in the case of Brila Energy limited v.  FRN (2018) LPELR CA/L6581 2017, that where issues involve admissibility of computer generated document application of section 83 of the evidence is excluded.

There are five conditions precedent to the admissibility of an electronic evidence, as provided for under section 84 (2) a,b,c,d & 84 (4) of the Evidence Act 2011. See the case of Kubor & Anor v. Dickson &

others (2013) NWLR (PT. 1345) 534 at 578. The five conditions that must be met up before an electronic evidence can be legally admitted in evidence are that;

1. a) Evidence must be led to show that the document containing the document was produced by the computer during a period over which the statement was produced by 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, or by any individual.
2. b) That, for a long time (i.e; during the production of the document), there has been regular supply to the computer ( the device) in the ordinary course of those activities, information of that kind contained in the statement or of the kind from which in the information so contained is derived.
3. c) That throughout the material part of the period, the computer was operating properly.
4. d) That the information contained in the document is derived from the information supplied to the computer (the device) in the ordinary course of those activities.
5. e) In any proceeding where it is desired to tender document in evidence by virtue of section 84 of the Act (electronically generated evidence) a certificate shall be attached to such document, identifying the document contained therein (e.g. the video compact disc) and describing the manner in which it (the document) was produced by a computer. Such certificate must give particulars of any device involved in the production of the document as may be appropriate for the purpose of showing that the document was produced by computer. The said certificate must 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. See section 84(4) a of the Evidence Act, 2011.

However, on the issue of tendering certificate of compliance it was held in the case of Brila Energy limited v. FRN (2018) LPELR CA/L6581 2017, per my lord SANKEY JCA that ‘’Where such a certificate 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’’

Generally principle of admissibility and weight under section 83 equally applies to section 84 of the evidence Act 2011. It is noteworthy that under our adjectival law, probative value comes after admissibility of any document as rightly posited by Alaba Omolaye-Ajileye in his book ‘’Electronic Evidence’’

Similarly, Section 34 (1) b of the Evidence Act 2011 provides that in determining the weight to be attached to a computer generated document regard shall be had to all circumstances from which any inferences can reasonably be drawn as to the accuracy or otherwise of the statement.

Conclusion

In conclusion, as against the backdrop of the above discussion, it is noteworthy that there are existing rules under the Evidence Act, 2011 which have not been abrogated in relation to electronic evidence being it in special class of a direct evidence. Also, the public document which requires certification under Section 104 of the Evidence Act for it to be admissible in evidence remains applicable in relation to electronic evidence. But private document is still what is under the evidence law. The simple arithmetic is,what makes a document private or public is not the 21st century technology involved but the institution it dwells on.It could therefore be submitted that, the requirements of the law on the admissibility of a document under section 83 are entirely distinct from the special requirements of the law under section 84 of the Evidence Act, 2011 respectively. Therefore the usual objections that may be sustained under section 83 can always be overruled under section 84 of the Evidence Act 2011

Mr. Muhammad Nazir Faruk is a Kano-based public legal practitioner (Email: [email protected]).

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