Before the amendment of the Evidence Act in 2011 to accommodate the admissibility of electronic evidence under Section 84 of the Act, both lawyers and Judges were at a cross road as to the nature of electronically generated evidence and its admissibility. Respite came in our adjectival law when Section 84 was introduced in the amendment of the Evidence Act in 2011.
Section 84 of the Evidence Act with its subsections now provides the legal framework for the admissibility of electronic evidence. By this section documents that were hitherto inadmissible now found their way into the body of evidence in a proceeding. For clarity, Section 84 (1) of the Evidence Act provides thus:
“in any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question’
Subsection (2) provide thus:” The conditions referred to in subsection
(1) of this section are:
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 purpose of any activities regularly carried on over that period, whether for profit or not, by any body, whether corporate or not, or by individual;
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;
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 cut 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
that the information contained in the statement reproduced or is derived from information supplied in the ordinary course of such activities”.
The Supreme Court in interpreting this section held in Dickson V. Sylva (2017) 8 NWLR, PT1567,167 at 200, F-H that compliance with section 84(1) and (2) is enough to render a document admissible and prove electronic record. See also Orogun & Anor us. Fidelity Bank (2018) LPELR – 46601.
Over the years, plethora of authorities agrees that for any electronically generated document to be admissible in any proceedings, it must comply with the mandatory provisions of Section 84(1) and (2). This, I must say, is a laudable improvement of our laws. It now enables parties to print and tender private documents stored in various electionic devices. This also allows, the court the benefit of perusing vital information for proper justice delivery.
However, lofty as the innovation under section 84 of the Evidence Act may appear, it is vested with so many challenges that tend to becloud its usefulness. One of such is that by the tenor of the conditions listed in subsection (2), they refer and are restricted to private information stored or supplied to the electronic device by the party seeking to rely on such information. Put differently, it only covers information supplied to the electronic device by that party. It is therefore in a nature of a private document that can only be produced and tendered by the maker.
The question now is; what of information surfed in the internet like Google or e-books, articles and other materials? These categories of information obtained through the computer or other electronic devices usually do not have the input of the party seeking to rely on them. obviously, the party seeking to rely on such information will not be competent to verify or attest to the process of storage of such information as stated in Section 84(2) of the Evidence Act. This is a major challenge that was not covered by Section 84 of the Evidence Act.
Another disturbing provision is Section 84(4) of the Evidence Act which requires the production of a “CERTIFICIATE” identifying the document and or certifying the condition stated in subsection (2) of section 84. Questions that readily present themselves are legion. Few of them are, who issues the certificate; what is the nature and form of the certificate; will affidavit suffice; is it proper for the the party relying on the document to certify himself; who is the appropriate body /person to certify information or document obtained from the computer and other electronic devices?
Unfortunately, the Evidence Act did not provide for the resolution of these issues. Thus, Section 84 of the Evidence Act lacks clarity in this regards.
In Collins Commerce Nig. Ltd V. Sky Bank plc (2019) LPELR – 46892, the contention was whether the document tendered complied with the mandatory provisions of Section 84 (4), The court in resolving the issue held, relying on Dickson V. Sylva (Supra) that for an electronically generated evidence to be admissible, it must comply with Section 84 (2) and must be certified as stated in subsection (4). Reading the judgment in Sky Bank ( supra) one would have expected the Appellate court to be more demonstrative by stating the nature of certification and the appropriate person to certify the document. Unfortunately, the court shyed away from that. This issue continues to remain vague and nebulous.
The lawmakers took the right steps by introducing Section 84 of the Evidence Act, but there is room for improvement to meet up with technological advancement. It is expected that section 84 should be amended to cover these grey areas to avoid unnecessary argument that may hinder the admissibility of a relevant document and administration of justice.
As laudable as the issue of Electronic evidence is to our evidence law, there is still much to be done to meet up with the present realities especially with the extensive reliance on technology and technological related activities.
Joyce Oduah,Ficmc
Former National Treasurer, NBA 2012-2014
Joyce Oduah is the Principal Partner of Joyce Oduah & Co, a seasoned Legal Practitioner, Notary Public, Corporate Expert Mediator, Leading Solicitor whose experience in the legal practise cuts across several fields.
