Electronic evidence require certification and must be demonstrated

The computer or gadget to be used in playing or demonstrating electronic evidence does not need certification.

 

Dickson v. Sylva [2017] 8 NWLR (Pt. 1567) 167 at 222, paras. B-C, per Ngwuta, JSC:

“In the same vein, once the computer generated document has been admitted in evidence, having satisfied all the requirements of section 84(2) of the Act, the statement therein can be produced for the court or tribunal by the means of any functional computer without a certificate in form of exhibit P42A. I see no such requirement in the various provisions of section 84 of the Evidence Act.”

per Kekere-Ekun, JSC, at 234, paras. D-E:

“There is nothing in section 84 of the Evidence Act 2011 that places a further requirement on the party seeking to rely on electronic evidence to certify the gadgets to be used in demonstrating what had already been admitted, as contended by learned senior counsel for the appellant. In my view, the interpretation suggested would certainly lead to absurdity. The computer or projector to be used to demonstrate the admitted evidence has no part to play in the production of the evidence or its authenticity.”

Electronic evidence

Blogger’s Note:

The case involves an interlocutory appeal filed by the Appellant contesting the decision of the Court of Appeal which held, while overruling the trial Tribunal, that the computer device to be used in demonstrating an electronically-generated evidence does not require certification. What happened in the case was that the 1st and 2nd Respondents filed an action at the Election Tribunal challenging the declaration and return of the Appellant as the winner of the election into the office of the Governor of Bayelsa State held on 5th December, 2015, 6th December, 2015 and 9th January, 2016. The Tribunal then issued a subpoena duces tecum ad testificandum on the Production Manager working with Channels Television, Lagos to testify and produce the DVD/CD/VCD/audio recording and video clips of the coverage of the announcement of the election which includes the cancellation of the election in respect of Southern Ijaw Local Government Authority as transmitted by Channels TV on 7th December, 2015. The DVD was duly certified in accordance with the Evidence Act. Both the Certificate and DVD were admitted and separately marked as exhibits – P42A and P42B respectively. However, when the 1st and 2nd Respondents’ Counsel applied that the DVD be played in open court by a laptop or projector, the Appellant objected on the ground that the gadget sought to be used to play same, being a computer, ought to be equally certified. The Tribunal upheld the objection and refused the application of the 1st and 2nd Respondents’ Counsel to have the DVD played. Computer evidence

It is important to quote the reasoning of the Tribunal: “When a document is sought to be given in evidence, and also to be demonstrated in Court the means of production of which document fall within the definition of computer in the Evidence Act, then two different steps and stages are involved: (1) the one used to store the information; and (2) the one to be used to retrieve and if need be demonstrate or play them out – are involved. Both categories of computers must be certified as required by section 84 (supra)…”

Nweze, JSC would have none of such reasoning. His Lordship, in his characteristic nature, referred to several authorities, both local and foreign, and had this to say: “With profound respect, this is a most curious piece of fallacious reasoning. Indeed, contrary to the view of the trial tribunal, section 84 (supra) does not ordain any such “two different steps and stages.” See p. 206-207 of the report. I totally agree with the learned Justice of the Supreme Court. The Supreme Court unanimously dismissed the appeal.

Galadima, JSC was of the firm opinion that, by a literal interpretation, section 84 of the Evidence Act has limited its application to “production” of computer evidence and not the “playing” or “demonstration” of same in open court. See p. 216 of the report.

Rhodes-Vivour, JSC further reasoned and rightly too that “in other climes the DVD would have been played by the court’s device and the court’s device would not require certification.” See p. 219 of the report. There is indeed the urgent need for the Government to ensure that our courts and tribunals are well equipped. For instance, it is worrisome that many courts do not use transcribers as Judges still write in long hands especially during trial. This is regrettable.

The apex Court further held that the requirement for certification can be done orally or by filing the usual certificate. The Court also held that a trial Judge may request for oral evidence in addition to written certification.

One crucial point we learnt from the instant case is that it is absolutely wrong for a party to dump a piece of documentary evidence, especially the one in an electronic form without demonstrating or playing same in open court. In making his contribution on this point, Ogunbiyi, JSC warned parties against this practice. See p. 225 of the report. Nweze, JSC quoted and entirely adopted the position of the Court of Appeal in the case as follows: “When it is an electronically-generated document which has been admitted in evidence, upon fulfilling all pre-conditions and it is not taken as read by consent, then  it ought to be demonstrated or played to prove the facts alleged. Otherwise, it remains a closed or ‘sleeping’ document, which is unusable and which need not have been brought before the trial court or tribunal in the first place as it would merely amount to clutter.” See p. 205, paras. E-G of the report. His Lordship further explained that the rationale for this is that demonstration or playing of the evidence affords the party presenting the evidence the opportunity of linking same to facts pleaded. It also gives the other party the chance to test its accuracy by cross-examination and ultimately, the court would have had the materials to enable it decide the weight to be attached. See p. 209 of the report.

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