SECTION 84 OF THE EVIDENCE ACT : CERTIFICATE NOT COMPULSORY

Ever wanted to tender digital photographs or a statement of account in evidence through the maker and the opposing counsel objected on the ground that you haven’t complied with the provisions of Section 84 of the Evidence Act, 2011, as a  result of your failure to file a certificate of compliance/identification?

This article focuses on Section 84 of the Evidence Act, 2011 and it seeks to bring to fore the existing alternative to filing a certificate of compliance/identification when a counsel intends to tender a computer generated document in evidence during trial.

Computer Generated Documents

For clarity, Computer generated documents include;

Books, Maps, Plans, Photographs, video, Disc, Tape etc, provided they were derived from any device used for storing and processing information. See Section 258 of the Evidence Act, 2011.

Condition for Admissibility of a Computer Generated Document

By Section 84(1) of the Evidence Act, the admissibility of computer generated documents is subject to the fulfillment of certain conditions. May I reproduce the said provision for convenience:

84(1): 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.

84 (2): The conditions referred to in Subsection (1) of this Section 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.

Suffice it to say that for a computer generated document to be admissible in evidence, evidence as to the functionality of the computer must first be given.

How is the Condition fulfilled?

Often times, I hear counsel objecting to the tendering of a computer generated document in these words “My Lord, Counsel has not complied with the provisions of section 84 by filing a certificate of compliance/identification”. Whenever the thought of an opposing counsel tendering a computer generated document in evidence comes to mind, the ensuing thought is ‘whether the opposing counsel filed a Certificate of compliance/identification alongside’. I was of the same thought until CJ’s research revealed otherwise.

Evidence of the functionality of the computer as required by Section 84 is not exclusive to a certificate of compliance/identification. Such evidence can be given orally by calling a witness who is the maker of the document; in the case of digital photographs, the Photographer or in writing by filing a Certificate of compliance/identification. This position was clearly elucidated by the Supreme Court in the case of DICKSON V. SYLVA & ORS (2016) LPELR-41257 (SC), where the Court had course to interpret the provisions of Section 84 of the Evidence Act, 2011. The Supreme Court, per CHIMA CENTUS NWEZE, J.S.C (Pp. 23-24, paras. A-E), held thus:

“Interpreting provisions similarly worded like Section 84 (supra), the defunct House of Lords [per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphs A-C, [HL]: Documents produced by computers are an increasingly common feature of all businesses and more and more people are becoming familiar with uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly. [italics supplied for emphasis].

In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and(2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied. However, this is subject to the power of the Judge to require oral evidence in addition to the certificate. As the eminent Lord Griffith explained in the said case [R v. Shepherd]:
Proof that the computer is reliable can be provided in two ways: either by calling oral evidence or by tendering a written certificate subject to the power of the Judge to require oral evidence. It is understandable that if a certificate is to be relied upon it should show on its face that it is signed by a person who from his job description can confidently be expected to be in a person to give reliable evidence about the operation of the computer. This enables the defendant to decide whether to accept at its face value or to ask the Judge to require oral evidence which can be challenged in cross examination. [Italics supplied for emphasis]”

What to do:

When next you seek to tender a computer generated document through its maker and an objection is raised as to your failure to file a certificate of compliance/identification;

1.    Be sure to check whether the witness deposed to the functionality of the computer or device as contained in S.84 (2) of the Evidence Act, 2011.

2.    If the witness did depose - join issues with the opposing counsel canvassing your argument based on the Supreme Court’s decision in DICKSON V. SYLVA (Supra).

3.    If the witness did not depose - before you tender the document, lay proper foundation by allowing the witness give evidence as to the functionality of the computer or device, or after the document is tendered and the objection raised, quietly withdraw same and apply for an adjournment to regularize.

4.    I believe you know what to do to regularize before the adjourned date!