To start this discuss, it has to be first stated that technologically generated evidence has been argued to offend some of the following general rules of evidence:
(i) The issue of the custody and the reliability of the evidence tendered if it is not the original document.
(ii) The best evidence rule which requires that a party must produce the original document during a trial or where the original document is not available, secondary evidence of it in the form of a copy, with other corroborating notes, etc, must be produced.
(iii) The rule against the admission of hear-say evidence which forbids witnesses giving evidence on facts that they do not directly or personally witness or know about.
It is apposite to equally give a legal definition to some salient words that would help us in understanding the discuss, hence, we shall try given a working definitions of “Document, “Computer”, and Evidence Section 258 (1)(d) of the Evidence Act, 2011 describes a document, for the purpose of this discuss, to include “any device by means of which information is recorded, stored or retrievable including computer output”.
A Computer is in turn described to be “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.”
Evidence itself has generally been described by authors to be “the means by which facts are proved, excluding inferences and arguments”.
The general basis for the admissibility of documentary evidence has not radically changed under the Evidence Act 2011 as documentary evidence is still mostly admissible where the original hard copy of such a document is produced in a Court of Law. See Section 83(1) of the Evidence Act 2011. The Evidence Act, 2011 has however expanded this basic general rule to enable the admission of electronically generated documents under certain conditions which are enumerated hereunder.
Under the Evidence Act, 2011, one of the exceptions to the hearsay rule of evidence, is the provision that where even though the maker of the evidence cannot be called to give primary evidence on the “hearsay evidence”, such evidence is established to have been made and kept contemporaneously in an electronic device, in the ordinary cause of business or in the discharge of a professional duty or in acknowledgement, written or signed, of the receipt of money, goods, securities or of property of any kind. See Section 41 Evidence Act, 2011.
Where the statement and the recording of the transaction are not instantly contemporaneous, they must occur such that a Court of Law will consider it most likely that the transaction was at the time of the record, still fresh in the memory of the maker of the recorded statement.
Admissibility of Documents produced by a computer Section 84 of the Evidence Act 2011 provides that a statement contained in a document produced via a computer, which statement is relevant to the facts in issue, is admissible as evidence on the fulfilment of the following conditions precedent:-
(a) The computer from which the document was produced, was used regularly during the material period to store electronic information or to process information of the kind stated in the document;
(b) The computer from which the document was produced also had stored in it other information of the kind contained in the document or of the kind from which the information contained in the document was derived;
(c) That throughout the material period, the computer was operating properly; and where it was not, evidence must be provided to establish that during the period when the computer was not operating properly, the production of the document or the accuracy of its contents were not compromised or affected;
(d) That the information in the statement is reproduced or derived from the information supplied to the computer in the ordinary course of the activities in question.
The Evidence Act in an attempt to cure any ill or question of authenticity of such document that may arise in any court proceeding goes on to make an elaborate provision under Section 84(4) of the Evidence Act 2011,that where it is desirable to give a statement in evidence by virtue of Section 84 of the Evidence Act 2011, a Certificate identifying the document containing the statement and describing the manner in which the document was produced, with the particulars of any device involved in the production of the document, signed by a person occupying a responsible position in relation to the operation of the electronic device, shall be primary and sufficient evidence of the matters stated in the Certificate.
The Federal High Court in the ongoing case of FRN V. MURITALA NYAKO & ORS, wherein the prosecution, represented by Rotimi Jacobs, SAN, sought to tender Certificate of Identification, signed by one Aisha Balogun and two account opening documentations through the witness, but its admissibility was objected to by Ibrahim Isiyaku, SAN, counsel to the 4th and 8th defendants. The counsel had argued that the witness was not the maker of the documents as she did not sign it. He also stated that no foundation was laid before tendering it and as such it failed to satisfy the provisions of Section 83, subsection 1 of the Evidence Act, 2011, which requires that “the maker of a document has to be in court to tender same, unless if there are some reasons holding him back from coming to court, which must be stated as foundation preceding the tendering of the document”. Jacobs while replying on point of law, argued that the document, having been generated by the computer of the bank, can be tendered by anybody in the bank or any person that has the copy of the certificate envisaged under Section 84 (4) of the Evidence Act. He was quoted to have made the under-quoted argument which we have reproduced for our personal consumption and better understanding of his position;
“My Lord Section 84 prescribes that the certificate of identification has sufficient proof of the matter stated in the other certificate.” He argued that “the witness is an official of Union bank and she told your Lordship how she got this document. The person who signed the certificate owns a responsible position in the bank as an internal control officer of Union bank. They are not challenging the capacity in which Aisha signed the document. Once that certificate is produced, the provision of Section 146 of the Evidence Act enjoins your Lordship to presume that the certificate is produced by the person authorized”.
In his ruling, Justice Abang holding that the documents were admissible stated thus,
“I have carefully painstakingly considered the arguments of the learned counsel for the defendants opposing the admissibility of the documents sought to be tendered in evidence. I have also considered the argument of the learned senior counsel representing the prosecution. This is the moment that the court will apply the law to the fact of the case…I entirely agree with the learned counsel for the prosecution, Rotimi Jacobs, SAN, that the maker of the Certificate of Identification sought to be tendered in evidence, is Union Bank and not Aisha Balogun. “EFCC applied to Union Bank to be furnished with the statement of account in question. They did not apply to Aisha Balogun. The noble jurist in his wisdom went on to state that, “The bank is a legal person, not a natural person. Natural person acts for the bank. Any natural person working for the bank can tender in court the document requested by EFCC whether or not he is the person that signed the document.
Finally, my Lord concluded thus, “It is my humble view that the computer generated document can be tendered by any staff of the bank. The bank is the maker of that document and the provision of Section 53 (1) of the Evidence Act is complied with”.
It is pertinent to assert at this point that a document need not be tendered in evidence personally by the maker provided the foundationally reason as to why the maker is unable to so tender such document is first established by the party seeking to tender such document, this was the position of the court in SunTrust Savings & Loans ltd v. Home Securities Ltd & 3ors per HON. JUSTICE O.A. MUSA in a ruling delivered on 24th April, 2017, stated thus, “…the counsel contention is that such document can only be tender through the author I believe is a misconception by learned counsel to the 1st Defendant. the law is trite that the fact that the maker of a document was not called as a witness cannot render the document inadmissible. See Aba Dom V. State (1997) 9 NWLR pt. 479 pg. 1 also see Section 83 of Evidence Act 2011. It must then be categorically stated that a Regiscope (Cameras used by Banks to photograph persons receiving huge amounts across the Counter) Film and the Printed picture therefrom, necessarily do not require that it should be tendered in evidence through the maker. See the cases of Abubakar v. Chuks (2017)18 NWLR(pt.1066)386; Obembe v. Ekele (2001)10 NWLR( pt.722)677; Torti v. Ukpabi (1984)1 SC 370. In Obembe v. Ekele (2001)10 NWLR( pt.722)677@693 paras. F-H, the court per R.D. MUHAMMAD, JCA, expressly stated that “ …it is not mandatory that a document must be tendered through its maker. The court may admit a document in evidence even if the maker is available but not called as a witness…”.
With respect to section 83(4) of the Evidence Act, 2011, it must clearly be stated here that the purport of this section is to the effect that a document must be attested to by the person who can ascertain its accuracy and is equally aware of its contents. Here, the regiscope is an instrument of the bank though operated by an officer, so is a bank a legal and juristic person that carries out its operation through natural persons, hence, the said section applies to the bank who can attest to the veracity or otherwise of the document through it’s officers duly authorised to do so. This section of the Evidence Act does not on its own act as a caveat but more of an elaboration on the entire provision of section 83 and as a guide to admissibility of any document purporting to be tendered by another who is not the maker.
In Conclusion and flowing from the authorities so cited, it is our submission that having successfully shown that any film or printed pictures from a regiscope used in a bank can be said to qualify as a statement in context of section 258 (1)(d) of the Evidence Act, 2011 and such statement does not necessarily require that the maker tender same in evidence. As had been stated earlier where a statement is made by a computer regularly in use in banking operations, then it can be said that the maker of such statement/document is the bank, hence, the statement can be tendered in evidence by any responsible officer of the bank.