Electronic Evidence: Call for a review of section 84 of the Evidence Act, 2011, By Justice Alaba Omolaye-Ajileye (1)

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Section 84 of the Evidence Act, 2011 contains detailed provisions which lay down stringent preconditions for the admissibility of documents produced by computers. In summary, the first four conditions to be fulfilled in section 84(2)[2] are that:- (a) the document was produced over a period when the computer was regularly used[3]; (b) over the relevant period similar information was regularly supplied to it[4]; (c) throughout the relevant period the computer was operating properly[5] and, (d) the information derives from information supplied to the computer in the ordinary course of the activities then being carried on[6]. Sub-section (4) of the same section requires a certificate to be produced. The law demands that the certificate, inter alia, identifies the electronic document containing the statement, and describes how it is produced and gives the particulars of the device involved in the production of the document, to show that the document was produced by a computer, and purporting to be signed either by a person occupying a responsible official position with the operation of the relevant device, or the management of the relevant activities, whichever is appropriate.

By far, the most volatile and seemingly intractable provision is section 84(4) which, as stated above, commands the production of a certificate to authenticate the computer that produced an electronic document. The subsection has engendered many conflicting court judgments and thrust more questions than answering them. Several issues generated under the subsection have taxed and continued to tax the courts. These issues have also tested the capacity of courts at interpretation as well as their malleability. To date, the courts are still embroiled in many questions engendered by section 84(4).  These questions, some of which remain, so far, unanswered, necessitate a reiteration of my call for an update of section 84(4) by way of an overhaul. In the past editions of the Criminal Law Review Conference, I called for the abrogation of section 84(4) and suggested that the subsection should give way to a simple presumption that electronic devices worked well when they produced the affected documents until the contrary is proved.[7] I also posited that the onus should be on the party who holds a contrary view to prove the same.[8]

My approach to section 84(4) is premised on the basic notion that no law is enacted to hamper the dispensation of justice. The enactment of section 84 of the Evidence Act, therefore, I submit, was meant to facilitate the admissibility of electronic evidence and not to hinder it. It is also my view that the law cannot be static, it must be dynamic. The law relating to the admissibility of electronic evidence is expected to be a handmaid of justice. It is pertinent to note that section 84, generally, deals with conditions precedent for admission of electronically-generated documents. From my experience as a trial court judge, I have come to discover that a certificate under section 84(4) is no more than a formal document prepared to satisfy the provisions of section 84(4). A certificate under section 84(4) of the Evidence Act does not conclusively prove the facts contained in the electronic document or establish the truth of it.  Indeed, I see a certificate, under section 84(4) as part of a cumbersome process militating against the admissibility of electronic evidence, and by extension, the administration of justice. This couldn’t have been envisaged by the Legislature. Therefore, it is high time that the National Assembly reviewed section 84 and provided simple provisions for tendering electronic documents to ensure speedy justice in line with the modern trend around the world, which shall be discussed very shortly. Provisions such as we have in section 84 are now being treated as becoming outdated in other climes.

Recently, I delivered a paper on the admissibility of electronically-generated evidence at the 2021 Induction Course for Newly Appointed Judges and Kadis at the National Judicial Institute here in Abuja. At the end of my lecture, one of the participants approached me, privately, and expressed her opinion to me that, from the many things I had said and written about Section 84 of the Evidence Act, it appeared to her that I did not like Section 84(4). Really? I asked her. Well, she might be correct. The truth remains that because of the absence of absolute clarity or agreement of what section 84(4) says, different interpretations of the subsection have been provoked, such that, in some cases, one finds glaring cases of miscarriage of justice or outright injustice being committed. Critical documents have been found to have been rejected for flimsy reasons such as sufficient particulars of a device not stated in a certificate.

It is on record[9] that I have always called for a liberal approach to the interpretation of section 84. My recommendation remains that courts should not insist on the use of technical language to hold that a witness satisfies the stipulated conditions under that section. What should matter to courts is whether or not the evidence of a witness, broadly speaking, substantially covers all the requirements set out.[10]
I say again, at the risk of repetition, but for purposes of emphasis, that if our law is to match with the advancement in technology of the modern time, it is about the same time we begin to have a rethink about section 84 generally. It is to be recalled that section 84 was a reproduction of section 5 of the UK Civil Evidence Act, 1968. Section 69 of the Police and Criminal Evidence Act, 1984 of the United Kingdom, otherwise known as PACE Act, 1984, also enacted it. Section 5 of the UK Civil Evidence Act[11] was repealed in 1995, that is, sixteen years before the enactment of the Evidence Act, 2011. Section 69 of the PACE Act was also repealed by section 60 of the Youth Justice and Criminal Evidence Act, 1999, twelve years prior to Evidence Act, 2011,  It follows, therefore, that, when section 84 was added to the Evidence Act in 2011, Nigeria simply adopted a provision that had already been repealed in the UK. Section 5 of the UK Civil Evidence Act was repealed following the recommendations of the Law Commission – which stated that the framework under section 5 had become outdated following developments in computer technology and that there was no need for having a different regime for computer-generated documents.[12]
As Nigeria has adopted a provision that was deemed to be outdated in the UK, I hold the humble view that there is a need for a similar review in Nigeria as well, to address various practical difficulties that may arise while complying with section 84. Therefore, it is not about whether or not someone likes section 84 or hates it. It is about administering justice in a fast-changing world dominated by technology.

The trend in technologically advanced countries of the word is not to place unnecessary inhibition on the process of admissibility of electronic evidence. In the United States of America, courts have held that electronic data can simply be authenticated by confirming that they were produced by the adversary during document discovery, as the act production itself implicitly authenticates the documents.[13] In the United Kingdom, with the repeal of section 5 of the UK Civil Evidence Act in 1995 and section 69 of PACE Act in 1999, a common law presumption that, in the absence of evidence to the contrary, the court will presume that mechanical instruments were working in order at the material time when they were used[14]. In Singapore, section 16A of the Singapore Evidence Act (as amended), contains three types of presumptions to address authentication issues. They are: (i) the presumption that mechanical devices were in order when they were used. (ii) presumption of authentication of the authenticity of business records of someone who is not a party to a civil or criminal proceeding. (iii) presumption of electronic records obtained by a proponent from an adverse party to a civil or criminal proceeding.

The foregoing suggests a revolutionary trend around the world that liberalizes the process of admissibility of electronic evidence. Nigeria must move with the world and jettison section 84.
India, like Nigeria, has stuck to its legislative provisions for admissibility of electronic records since 2000 as contained in section 65B of the Evidence Act, 1872 (as amended). The said section 65B is very similar to section 84 of the Nigerian Evidence Act. Consequent upon the conflicting opinions of the Supreme Court of India, the law on the interpretation of section 65B has been caught in a web of confusion. The Supreme Court of India, since 2005, has continued to churn out conflicting decisions on the same issue of certification under section 65B(4) of the Evidence Act, 1872 (as amended). Nigeria should avoid the Indian’s pitfalls early enough, and moved ahead with the modern world.

In the light of the foregoing, it is hereby urged that the National Assembly urgently moves to address the challenges posed by section 84 of the Evidence Act as currently constituted. While hopefully awaiting the next move of the Legislature on section 84, courts must not shirk their responsibility of proactive and purposeful interpretation of the provisions of the law of electronic evidence.

References
[1] A Judge of the High Court of Justice Kogi of Kogi State.
[2] The four conditions are contained in Section 84(2) of the Evidence Act, 2011
[3] Section 84(2)(a)
[4] Section 84(2)(b)
[5] Section 84(2)(c)
[6] Section 84(2)(d)
[7] See Omolaye-Ajileye (2018) Electronic Evidence, Updates, 2018 [Paper Presentation] Maiden Annual Criminal Law Review Conference, Abuja International Conference, 21st-22nd November, 2018.
[8] Ibid.
[9] See: Electronic Evidence (2019)
[10] Omolaye-Ajileye, (2019, Revised Edition) P. 327. (Jurist Publications Series).
[11] Section 84 is also substantially the same as the repealed Section 69 of the Police and Criminal Evidence Act, 1984 of the United Kingdom, otherwise known as PACE Act, 1984. The said section was repealed by Section 60 of the Youth Justice and Criminal Evidence Act 1999.
[12] See The Law Commission: The Hearsay Rule in Civil Proceedings. (Law Com. No 216, 1993) Pars. 3.14-3.21. Retrieved from: http://www.lawcom.gov.uk/app/uploads/2016/02/LC.-216-THE-HEARSAY-RULE-IN-CIVIL-PROCEEDINGS.pdf on Sunday, 31st October, 2021.

[13] In Nola Fine Art Inc. Ducks Unlimited Inc. (2015)US Dist Lexis 17450 (ED.La. Feb 12, 2015), defendant produced the email in Discovery. It was held that defendant cannot seriously dispute the email’s authenticity. . See also: Grimm , P., Joseph, G. and Cara D (2016 Best Practices for authenticating Digital Evidence. Retrieved from https://jhany.com/wp-content/uploads/2020/09/authenticatingdigitalevidence.pdf on Monday, 15/11/2021.
[14] Stephen Mason Electronic evidence: A proposal to reform the presumption of reliability and hearsay. Retrieved from:https://daneshyari.com/article/preview/466753.pdf Monday, 15/11/2021

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