on wednesday, 20th july, 2016 (2016) lpelr …lawpavilionpersonal.com/ipad/books/41257.pdf · ·...
TRANSCRIPT
DICKSON v. SYLVA & ORS
CITATION: (2016) LPELR-41257(SC)
In the Supreme Court of Nigeria
ON WEDNESDAY, 20TH JULY, 2016Suit No: SC.518/2016
Before Their Lordships:
SULEIMAN GALADIMA Justice of the Supreme CourtOLABODE RHODES-VIVOUR Justice of the Supreme CourtNWALI SYLVESTER NGWUTA Justice of the Supreme CourtCLARA BATA OGUNBIYI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtKUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN Justice of the Supreme Court
CHIMA CENTUS NWEZE Justice of the Supreme Court
BetweenHON. HENRY SERIAKE DICKSON - Appellant(s)
And1. CHIEF TIMIPRE MARLIN SYLVA2. ALL PROGRESSIVES CONGRESS (APC)3. THE INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)4. PEOPLES DEMOCRATIC PARTY (PDP)
- Respondent(s)
RATIO DECIDENDI
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1. COURT - DUTY OF COURT: Duty of Court to confine its decision within respectable limits ofthe scope of the enquiry before it"I, entirely, endorse this view. The application to play the DVD had nothing to do with itsadmissibility (in any event, at that stage it was already in evidence). It rather rest on an,entirely, different juridical postulate which this Court explained in A.P.G.A. v. Al-Makura [2016]5 NWLR (Pt. 1505) 316, 343; Okereke v. Umahi & Ors [2016] 2-3 SC (Pt. 1) 1, 50. According tothis Court [per Nweze, JSC] in A.P.G.A. v. Al-Makura (supra) pages 343-344:This prescription [that parties have a duty to link their documents with their averments intheir pleadings] rests on the adversarial nature of our jurisprudence which we inherited fromthe common law.It is, therefore, the impregnable juridical postulate of our adversarial jurisprudence thatprohibits a Judge from embarking on an inquisitorial examination of documents outside theCourt room. A fortiori, it is anathema for a Judge to be allowed to act on what he discoveredfrom such a document in relation to an issue when that was not supported by evidence or wasnot brought to the notice of the parties to be agitated in the adversarial procedure. Theauthorities on this point are many. We shall only cite one or two of them here, Ivienagbor v.Bazuaye [1999] 9 NWLR (Pt. 620) 552; (1999) 6 SCNJ 235, 243; Owe v. Oshinbanjo (1965) 1 AllNLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324 at 333;Alhaji Onibudo & Ors v. Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v. Registered TrusteesRecreation Club (2004) FWLR (Pt. 190) 1360, 1380-1381; Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538; Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22.It is against this background that viva voce depositions and the entries in documents and,indeed assertions relating to entries in such documents in electoral materials are, invariably,tested under cross-examination, Ivienagbor v. Bazuaye (supra)."Per NWEZE, J.S.C. (Pp. 27-29,Paras. E-B) - read in context
2. COURT - DUTY OF COURT: Duty of Court not to go out of its way to fish out facts orevidence"As a corollary, Bello, JSC (as he then was; later C.J.N.) in Onibudo v. Akibu (supra) explainedthe rationale for the requirement of demonstrating documents in open Court. Hear HisLordship:It needs to be emphasized that the duty of a Court is to decide between the partieson the basis of what has been demonstrated, tested, canvassed and argued in Court. It is notthe duty of a Court to do cloistered justice by making an inquiry into the case outside even ifsuch inquiry is limited to examination of documents which were in evidence, when thedocuments had not been examined in Court and their examination out of Court disclosedmatters that had not been brought out and exposed to test in Court and were not suchmatters that, at least, must have been noticed in Court.."Per NWEZE, J.S.C. (Pp. 31-32, Paras.D-A) - read in context
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3. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"True, indeed, the lower Court was right in its view that the trial Tribunal misapplied theprovisions of Section 84 of the Evidence Act. The Section provides as follows:84(1): In any proceedings, a statement contained in a document produced by a computershall be admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(Italics supplied for emphasis).The conditions mentioned in Section 84(1) (supra) for theadmissibility of such statements produced by a computer are contained in Section 84 (2):(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 aperiod over which the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents, and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary course of those activities.According to Section 84(4):(4) In any proceedings where it is desired to give a statement in evidence by virtue of thisSection, a certificate(a) identifying the document containing the statement and describing the manner in which itwas produced; or(b) giving such particulars of any device involved in the production of that document as maybe appropriate for the purpose of showing that the document was produced by a computer; or(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate, and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for the purpose of thisSubsection it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it.Subsection 5 provides that:(5) For the purpose of this Section ???(a) Information shall be taken to be supplied to a computer if it is supplied to it in anyappropriate form and whether it is supplied directly or (with or without human intervention) bymeans of any appropriate equipment;(b) Where, in the course of activities carried on by any individual or body, information issupplied with a view to its being stored or processed for the purpose of those activities by acomputer operated otherwise than in the course of those activities, that information, if dulysupplied to that computer, shall be taken to be supplied to it in the course of those activities;(c) A document shall be taken to have been produced by a computer whether it was producedby it directly or (with or without human intervention) by means of any appropriate equipment.[Italics supplied for emphasis]. It is clear from its ipssissima verba that Section 84 (supra) laysdown the conditions for the admissibility of statements produced by a "computer:" which isdefined in Section 258 of the Act to mean "any device for storing and processing information,and any reference to information being derived from other information is a reference to itsbeing derived from it by calculation, comparison or any other process."Per NWEZE, J.S.C. (Pp.18-22, Paras. E-A) - read in context
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4. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"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 allbusinesses 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 natureof the evidence to discharge the burden of showing that there has been no improper use ofthe computer and it was operating properly will inevitably vary from case to case. Theevidence must be tailored to suit the needs of the case. I suspect that it will very rarely benecessary to call an expert and that in the vast majority of cases it will be possible todischarge the burden by calling a witness who is familiar with the operation of the computer inthe sense of knowing what the computer is required to do and who can say that it is doing itproperly. [italics supplied for emphasis]In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidenceunder Section 84(1) and (2) or by a certificate under Section 84(4). In either case, theconditions stipulated in Section 84(2) must be satisfied. However, this is subject to the powerof the Judge to require oral evidence in addition to the certificate. As the eminent Lord Griffithexplained in the said case [R v. Shepherd]:??? Proof that the computer is reliable can be provided in two ways: either by calling oralevidence or by tendering a written certificate??? subject to the power of the Judge to requireoral evidence. It is understandable that if a certificate is to be relied upon it should show on itsface that it is signed by a person who from his job description can confidently be expected tobe in a person to give reliable evidence about the operation of the computer. This enables thedefendant to decide whether to accept at its face value or to ask the Judge to require oralevidence which can be challenged in cross examination???"Per NWEZE, J.S.C. (Pp. 23-24,Paras. A-E) - read in context
5. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"... Indeed, contrary to the view of the trial Tribunal, Section 84 (supra) does not ordain anysuch "two different steps and stages." Contrariwise, the provisions of the said Section 84govern the admissibility of statements produced from computers. These provisions are,similarly, worded like Section 65B (1) and (2) of the applicable Act in India. Dealing with theseprovisions, the Court reasoned [a reasoning I take liberty to adopt in this judgment] in State v.Mohd. Afzal 107 (2003) DLT 385 that:Electronic record produced [from computers on magnetic tapes (hard discs)] has to be takenin the form of a print out. Subsection (1) of Section 65B [the equivalent of Section 84(1) of theNigerian Act] makes admissible without further proof, in evidence, print out of an electronicrecord contained on a magnetic tape subject to the satisfaction of the conditions mentioned inthe Section. The conditions are mentioned in Subsection (2) [this is the equivalent of Section84(2) of the Nigerian Act]. Thus compliance with Subsections (1) and (2) of Section 65B [thatis, Section 84(1) and (2) of the Nigerian Act] is enough to make admissible and proveelectronics record."Per NWEZE, J.S.C. (Pp. 30-31, Paras. C-C) - read in context
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6. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"Section 84 is reproduced as follows:-"84 (1) In any proceeding a statement contained in a document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question(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 aperiod over which the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof these activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents; and(d) that the information contained in the statement reproduced or is derived from informationsupplied to the computer in the ordinary course of those activities.(3) Where over a period the function of storing or processing information for the purposes ofany activities regularly carried on over that period as mentioned in Subsection (2)(a) of thisSection was regularly performed by computers, whether-(a) by a combination of computers operating over that period;(b) by different computes operating in succession over that period(c) by different combinations of computers operating in succession over that period; or(d) in any other manner involving the successive operation over that period, in whateverorder, of one or more computers and one or more combination of computers, all thecomputers used for that purpose during that period shall be treated for that purpose duringthat period shall be treated for the purposes of this Section as constituting a single computer;and references in his Section to a computer shall be construed accordingly.(4) In any proceeding where it is desired to give a statement in evidence by virtue of thisSection, a certificate.(a) identifying the document containing the statement and describing the manner in which itwas produced; (b) giving such particulars of any device involved in the production of thatdocument as may be appropriate for the purposes of showing that the document wasproduced by a computer;(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate; and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for purpose of thisSubsection, it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it.(5) For the purpose of this Subsection-(a) information shall be taken to be supplied to a computer if it is supplied to it in anyappropriate form and whether it is supplied directly or (with or without human intervention) bymeans of any appropriate equipment;(b) where, in the course of activities carried on by any individual or body, information issupplied with a view to its being stored or processed for the purposes of those activities by acomputer operated otherwise than in the course of those activities, that information, if dulysupplied to that computer, shall be taken to be supplied to it in the course of those activities;(c) a document shall be taken to have been produced by a computer whether it was produceddirectly of (without human intervention) by means of any appropriate equipment."Per GALADIMA, J.S.C. (Pp. 42-46, Paras. E-B) - read in context
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7. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The effect when a documentary evidencesupports oral evidence"... An exhibit, documentary evidence is a thing relied on by the party producing it for the solepurpose of strengthening his case. Once such evidence supports oral testimony such oraltestimony becomes more credible. See Omoregbe v. Lawani 1990 3-4 SC p.117: Kindley andOrs v. M G of Gongola State 1988 2 NWLR R/77 p. 47."Per RHODES-VIVOUR, J.S.C. (P. 53,Paras. E-F) - read in context
8. EVIDENCE - DOCUMENTARY EVIDENCE: Meaning of document"On the other hand, document is an instrument on which is recorded information or facts. Itcontains statements. A document is any physical embodiment of information or ideas such asletter, contract, receipt, a book of account, a blue print or an X-ray plate. See Strico v. Cotto87 Misc. 2nd 636, 324 NYS 2nd 483, 486."Per NGWUTA, J.S.C. (P. 56, Paras. A-C) - read in context
9. EVIDENCE - DOCUMENTARY EVIDENCE: Meaning of document"Section 258(1) of the Evidence Act, 2011 provides:"258. (1) In this Act -"documents" includes -(b) an disc, tape, sound track or other device in which sounds or other data (not being visualimages) are embodied so as to be capable (with or without the aid of some other equipment)of being reproduced from it; and(c) any film, negative, tape or other device in which one or more visual images are embodiedso as to be capable (with or without the aid of some other equipment) of being reproducedfrom it."Per KEKERE-EKUN, J.S.C. (P. 77, Paras. B-E) - read in context
10. EVIDENCE - DOCUMENTARY EVIDENCE: Duty of a party relying on documents in support ofhis case"After all, it has been held in numerous decisions of this Court that documents must not bedumped on the Court but must be demonstrated by linking them to specific aspects of party'scase. See: C.P.C. v. I.N.E.C. (2013) ALL FWLR (Pt. 665) 365 @ 385 SC; Iniama v. Akpabio(2008) 17 NWLR (Pt. 1116) 296 @ 299-300 D-B; A.P.G.A. v. Al-Makura (2016) 5 NWLR (Pt.1505) 316 @ 345."Per KEKERE-EKUN, J.S.C. (P. 81, Paras. A-C) - read in context
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11. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"Section 84 of the Evidence Act must now be examined. It reads:-"84 (1) In any proceeding a statement contained in a document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(2) The conditions referred to in Subsection (1) of this Section are -(a) that the document containing the statement was produced by computer during a periodover which the computer was used regularly to store or process information for the purposesof 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 courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly was out of operation during thatpart of that period was not such as to affect the production of the document or the accuracyof its contents; and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary cause of these activities.84 (4): In any proceeding where it is desired to give a statement in evidence by virtue of thisSection a certificate -(a) Identifying the document containing the statement and describing the manner in which itwas produced;(b) Giving such particulars of any device involved in the production of that document may beappropriate for the Purpose of showing that the document was produced by computer;(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate, and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for the purpose of thisSubsection it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it."Per RHODES-VIVOUR, J.S.C. (Pp. 50-52, Paras. D-E) - read incontext
12. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"The law is explicit that where an interpretation of a Statute would defeat the cause of justice,the Court should refrain there from. See Ikeupenikan v. State (2015) All FWLR (Pt. 788) 919 at959 a decision of this Court; on the same principle Ogbuagu, JSC also stressed the foregoingrule of Interpretation in the case of Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 138."Per OGUNBIYI, J.S.C. (Pp. 64-65, Paras. E-A) - read in context
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13. INTERPRETATION OF STATUTE - SECTION 84(1) AND (2) OF THE EVIDENCE ACT:Interpretation of Section 84(1) and (2) of the Evidence Act as regards condition for theadmissibility of electronic documents"Section 84(1) and (2) Evidence Act provides:-"84 (1) In any proceeding a statement contained in document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(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 aperiod over which the computer was used regularly to store or process information for thepurpose of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents; and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary course of those activities".The correct interpretation to be given to Section 84 of the Evidence Act where electronicallygenerated document is sought to be demonstrated is that such electronically generatedevidence must be certified and must comply with the preconditions laid down in Section 84(2).See: Kubor v. Dickson (2013) All FWLR (Pt. 676) 392 at 429." Per AKA'AHS, J.S.C. (Pp. 67-69,Paras. E-B) - read in context
14. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Properapproach for interpreting a statute divided into parts"As rightly submitted by the learned counsel to the 1st and 2nd respondent, the law is wellsettledthat when a particular Section of the law has many Subsections, all such Subsections must beread together for purpose of discovering the intention of the lawmaker. See Inakoju v. Adeleke(2007) All FWLR (Pt. 353) 3 at 200 SC and Oyeniyi v. Adeleke (2009) All FWLR (Pt. 476) 1902at 1912."Per OGUNBIYI, J.S.C. (Pp. 61-62, Paras. F-A) - read in context
15. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"It is pertinent to state that the position taken by the Lower Court is in accordance to settledprinciple laid down by this Court on the interpretation of Statutes wherein the following guidelines are clearly spelt out that:-1) It is the cardinal principle of law that a Court cannot, while interpreting a Statute, embarkon judicial legislation, namely lawmaking, See: Akintokun v. L.P.D.C. (2014) 13 NWLR (Pt.1345) 427 SC.2) It is also the law that a Court ought to expound and not to expand the law; that is to say itis to decide what the law is and not what it ought to be; it should tow the path of objectivityand not be subjective. See Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595 SC.3) It has been held also that a judge cannot and should not supply omissions in a Statute. SeeGovernor of Zamfara State v. Gyalange (2012) 4 SC. 1."Per OGUNBIYI, J.S.C. (Pp. 62-63, Paras. F-D) - read in context
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16. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"The law is settled that in the interpretation of Statutes, where the words are clear andunambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Barde(1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams(1982) 7 SC 27 @ 46; Nonye v. Anyichie (2005) 1 SCNJ 306 @ 316. Where an interpretationwill result in breaching the object of the Statute, the Court would not lend its weight to suchan interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007)15 NWLR (Pt. 1056) 118."Per KEKERE-EKUN, J.S.C. (P. 78, Paras. C-F) - read in context
17. WORDS AND PHRASES - "STATEMENT": Meaning of "statement""A statement, in a general sense, is an allegation, a declaration of matters of fact, etc. SeeBlack's Law Dictionary Special Deluxe fifth attestation, avowal, etc. See Burton's LegalThesaurus Fourth Edition page 993."Per NGWUTA, J.S.C. (Pp. 55-56, Paras. F-A) - read incontext
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CHIMA CENTUS NWEZE, J.S.C. (Delivering the
Leading Judgment): My Lords, the issue that calls for the
intervention of this Court, in this interlocutory appeal, falls
within a very compass. I shall revert to it anon. Before then,
however, permit my intimation of its forensic travelogue
through the rungs of the two lower Courts, namely, the
Governorship Election Tribunal (hereinafter, simply, called
“the Trial Tribunal”) and the Court of Appeal (in this
judgment to be, simply, called “the lower Court”).
The third respondent in this appeal, the Independent
National Electoral Commission, (“INEC” for short),
conducted elections into the office of the Governor of
Bayelsa State on December 5 and 6, 2015 and January 9,
2016. While the second respondent herein, All Progressives
Congress (A.P.C.), sponsored the candidature of the first
respondent, Chief Timipre Marlin Sylva; the appellant, in
this appeal, Hon Henry Seriake Dickson, contested the said
election under the platform of the Peoples Democratic
Party (P.D.P.), the fourth respondent in this appeal.
Irked by INEC's declaration of the due return
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and due election of the appellant in the said election, the
first and second respondents (as petitioners) repaired to
the Trial Tribunal with their petition wherein they
challenged the election and declaration of the appellant as
the duly elected Governor of Bayelsa State. As is usual in
forensic contests of this nature, the averments in the
petitioners’ pleadings prompted vociferous and strident
joinder of issues by the respondents. In all, issues were
joined in the settled pleadings: issues which are yet to be
determined by the Trial Tribunal.
Against this background, considerable circumspection is
called for in this judgment, being a judgment in an
interlocutory appeal, so as not to breach any aspect of the
substantive issues that must, perforce, abide the final
judgment of the said Trial Tribunal. To do otherwise would
be to usurp its sole prerogative, nay more, to pre-empt and
prejudice its ultimate decision as the forum of first
instance.
In consequence, this factual narrative would be strictly,
cabined to the facts that are relevant for the determination
of this interlocutory appeal apropos the narrow issue raised
therein. What is
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more, there is even no doubt that what prompted the
sequence of entreaties at the Trial Tribunal was the
averment in paragraph 23 of the petition. The appellants
averred thus:
23. Your Petitioners state that prior to the unilateral
cancellation aforesaid [a fact deposed to in paragraphs 20
and 21 of the said Petition], the Returning Officer of the
Bayelsa State Governorship election, Prof. Zana Akpagu,
had announced to the whole world that election was
conducted in Southern Ijaw Local Government Area and the
result was being awaited. Your Petitioners hereby plead the
video/CD/DVD/audio clip and newspaper report of the said
announcement and shall rely on it (sic) at the trial.
(Italics supplied for emphasis)
In the course of the hearing, and sequel to an entreaty by
the first and second respondents, the trial Tribunal, on
April 29, 2016, caused a Subpoena Duces Tecum Ad
Testificandun to be issued on Pedro Innocent or the
production Manager of Channels Television, Lagos to
testify and produce the DVD/CD/VCD/Audio Recording and
Video Clips of the coverage of 5th/6th December, 2015,
Governorship Election in Bayelsa State in respect of the
Southern
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Ijaw Local Government Area of the State, page 348 of the
record. [In legal parlance, the above-mentioned Subpoena
is a process to cause a witness to appear and tender a
document and testify. This process commands him to lay
aside all pretences and excuses and appear before a Court
therein named, at a time therein mentioned to bring with
him and produce to the Court, books, papers, in his hands,
tending to elucidate the matter in issue].
Further to the order of the trial Tribunal permitting all the
witnesses on subpoena to file written Statements on oath,
Emmanuel Ogunseye filed a written deposition on oath,
pages 349-351 of the record. For their bearing on this
appeal, his depositions on paragraphs 3; 6 -12 are
reproduced hereunder:
3. That I hold a Diploma in Television and Film Production,
obtained from the Pencil Film and Television Institution,
Lagos, in 2006. I have been working in the Production
Department of Channels Television since 2007 and I am
very conversant with electronic news gathering and of
computers.
4. …
5. …
6. That on Friday 6th May, 2016, I received via email from
our Library manager in Lagos,
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Mr. Patrick Oranu, visual from Channels Television
archives on our coverage of the announcement of Bayelsa
State Governorship Election which includes the
cancellation of the election in respect of Southern Ijaw
Local Government Authority in Bayelsa State as
transmitted by Channels TV on 7th December, 2015. I used
my official Dell Desktop Computer System with serial
number 25TF85J to produce a DVD containing the said
visual, which I have in my possession to tender in evidence.
7. That in compliance with the subpoena, I wish to tender a
DVD containing our coverage of the 5th and 6th December,
2015 Governorship Election in Bayelsa State in respect of
Southern Ijaw Local Government Area of Bayelsa State as
requested by this Tribunal.
8. That all the events mentioned herein were duly recorded
by the Company’s Camera man, Pedro innocent, using our
official cameras, stored in DVD and kept in the custody of
the Company's Library Unit. I have the DVD here with me
and with the permission of the Honourable Tribunal I can
play the contents of the DVD with the aid of a laptop
computer and a projector.
9. That this my statement, the video and other
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computer-generated information in the DVD referred to in
this statement herein were produced by the computers
regularly used in our office for storing and processing
information during the material period under
consideration.
10. That I confirm that over the period of December, 2015
till date there was a regular supply of information of the
kind contained in the said computers in the ordinary course
of activities in our office. I also confirm that during this
period, the said computers were operating properly and
that if during the periods the system did not work properly,
it did not affect the production of the said video or the
accuracy of the contents. And I also confirm that the
information contained in the DVD were produced or
derived from information supplied to the computers in the
ordinary course of our activities in the office.
11. That in further compliance with the requirements of the
law, I hereby certify to the best of my knowledge that the
video clips contained in the DVD were duly and legitimately
recorded by the Company’s Camera Man using a video
camera with the brand name JVC 600 using memory card.
At the end of the recording,
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the contents of the memory card were transferred to DVD
in the course of normal activities in the company. A
separate certificate of identification signed by me is
attached to the said DVD.
12. That I confirm that I am computer literate and
participated in all stages of recording, production and
packaging of the DVD sought to be tendered in the
proceeding.
(Italics supplied for emphasis)
As evident from page 353 of the record, the said Emmanuel
Ogunseye, designated as PW51, adopted his said statement
as his evidence. Again, from page 355 of the record, it is
not in doubt that, while the certificate which the said
Emmanuel Ogunseye generated pursuant to Section 84 of
the Evidence Act, 2011 was admitted in evidence at the
trial Tribunal as exhibit P42A; the DVD, he referred to in
his written statement on oath, and which he adopted as
part of his evidence, was, also, admitted in evidence as
exhibit P42B.
What, however, triggered off the objections culminating in
the trial Tribunal's ruling which yielded the judgment of the
lower Court now on appeal before this Court was a
subsequent application by S. T. Hon, learned SAN for the
first and
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second Petitioners (first and second respondents herein),
"for exhibit P42B to be played in open Court," (page 355 of
the record, italics supplied for emphasis). Following the
objections of Messrs Tayo Oyetibo, SAN and Abibo to Mr.
Hon, SAN's application, the trial Tribunal, in its Ruling,
pages 356-358 of the record, proceeded thus: "(we have
listened to the arguments for and in opposition to the
application to play the DVD - Exhibit - P42B in open Court,"
(page 356 of the record, italics supplied for emphasis).
It set out paragraph 8 of PW51's written statement on oath
wherein the said witness deposed that "… I can play the
contents of the DVD with the aid of a laptop computer and
a projector..." (Page 357 of the record; italics supplied by
the trial Tribunal). It, then, observed as follows at page 357
of the record:
In other words, therefore, the contents of the DVD stand on
its (sic, their) awn and has (sic, have) been duly certified by
Exhibit P42A. However, the playing of the content of the
DVD is the present application being contested. As shown
by the wording of paragraph 8 of the witness statement, it
is clear the laptop Computer and
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the Projector are the machines or computers that relate to
that application.
It therefore behoves the applicant to do a certificate in
compliance with Section 84 of the Evidence Act on
them too, in particular the laptop computer to be used to
transmit or transfer the content of the DVD to the slide
(citing Section 258 (1)of the Evidence Act, 2011)
At page 358 of the record, the trial Tribunal disagreed with
the submission of Mr. Hon, SAN. The learned senior
counsel had canvassed the view that, once the computer
used for storing the information in the CD has been
certificated in compliance with Section 84 [supra], there
would be no need to do so in respect of any other computer
or device to retrieve and play same as sought to be done.
Indeed, it was the view of the trial Tribunal at page 358 of
the record that prompted the appeal of the present first
and second respondents to the lower Court. According to
the said 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
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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). As I had said earlier, Exhibit P42A
covers only the computers used in production of exhibit
P42B - the DVD, but not the laptop computer and projector
now sought to be used to retrieve and play out its content.
To that extent therefore in respect of both last two
documents (the laptop and projector) the provisions of
Section 84 (supra) has (sic) not been complied with.
Application to play the DVD - exhibit P42B is accordingly
refused.
(Pages 358; italics supplied for emphasis)
Aggrieved by this ruling, the first and second respondents
(as appellants) appealed to the lower Court.
Unimpressed with the above reasoning, the lower Court
allowed the appeal. Consequentially, it ordered the trial
Tribunal to recall the PW51 to demonstrate the contents of
exhibit P42B in open Court.
Expectedly, the present appellant was not satisfied with
this development; hence this
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appeal. Although he formulated three issues, at the hearing
of this appeal this morning, Oyetibo, SAN applied to
abandon issues one and three so as to dwell on issue two
only. Learned Counsel for the first and second respondents,
S. T. Hon, SAN, also, applied to abandon his preliminary
objection and Respondents' Notice. The Court ordered as
prayed; hence, only the second issue is outstanding.
Accordingly, this appeal would be determined based on
issue two alone. The said issue was couched thus:
Whether the Court of Appeal was not wrong in law
when it held that the certification of the computers
used to produce exhibit P42B in this case was
sufficient and that it was not necessary under Section
84 of the Evidence Act 2011 to certify the computers
sought to be used to demonstrate the contents of the
exhibit in open?
The first and second respondents rephrased the same Issue
in a more felicitous manner thus:
Was the Court of Appeal correct to have held that
Section 84 of the Evidence Act, 2011 was fully
compl ied with to enable Exhibi t P42B be
demonstrated/played in open Court by the trial
Tribunal?
ARGUMENTS ON THE SOLE ISSUE
When
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this appeal was heard this morning, July 20, 2016, learned
counsel for the appellant, Tayo Oyetibo, SAN, who
appeared with other counsel on the Counsel’s List, adopted
the brief of argument Filed on June 29, 2016, together with
the Reply Brief sans the abandoned issues. The arguments
relating to the said issue two were canvassed on pages 11 -
30 of the said brief.
In the main, his contention was that, in addition to the
certificate already admitted as exhibit P42B (relating to the
DVD), an additional certificate was imperative with regard
to the laptop computer, projector and electronic screen
which were to be used to play or demonstrate the DVD in
open Court. In his view, these are, also, computers within
the meaning of Section 258 (1) of the Evidence Act, 2011
and must be certified pursuant to Section 84 (supra)
pursuant to a community reading of Sections 84 and 258
(supra).
On his part, S. T. Hon. SAN, for the first and second
respondents, who also appeared with other counsel,
adopted and relied on the brief of argument filed on July 1,
2016, also, sans the abandoned issues one and three and
the preliminary objection and Respondents'
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Notice. His arguments in respect of this issue are to be
found on pages 9 - 24 of the said brief. The net effect of his
response is that there is nothing in Section 84 (supra) that
requires certification in respect of the computer or
projector to be used in playing the said DVD in open Court.
Counsel for the other respondents did not file briefs of
argument.
RESOLUTION OF THE ISSUE
As shown above, the lower Court was unimpressed with the
reasoning of the trial Tribunal to the effect that two
categories of certificates are required under Section 84
(supra), namely, one certificate with regard to the
production and another certificate for the demonstration of
the evidence in open Court. In the leading judgment, the
lower Court (per Otisi, JCA) demonstrated a clear grasp of
the issue in contention. Listen to the enchanting elucidation
of Otisi, JCA:
The proceedings leading to this appeal, as transcribed in
the record of appeal, reveal that foundation for
admissibility of the electronic evidence was well-laid. The
electronically- generated evidence was pleaded in the
Petition as found at pages 1 - 78 of the record. Evidence
concerning
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the said electronically-generated document, DVD, was
lucidly stated in the written deposition of PW51, found at
pages 349 - 351 of the record, which he adopted, page 353
of the record. The electronically-generated evidence in
issue, DVD, as well as its certificate of identification were
admitted in evidence. The certificate was exhibit P42A
while the DVD was exhibit P42B. In other words, the
electronically-generated evidence was admitted in evidence
having complied with the preconditions for its admissibility
as provided for by Section 84(supra)…
Having admitted the said DVD, the appellants sought to
have it played or demonstrated in open Court. It was the
refusal of the lower Tribunal to grant the application that
gave rise to this appeal…
(Pages 566 – 567 of the record; italics supplied for
emphasis).
His Lordship proceeded to disaggregate the statutory
requirement apropos the admissibility of electronically-
generated evidence in these words:
If the conditions for the admissibility of electronically-
generated evidence are fulfilled, there ought to be no other
impediment to it being demonstrated. The certification
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provided for in Section 84 relates to the computer(s) or
gadget(s) from which the electronic document is generated
or produced. While by virtue of the provisions of Section
258 the computer or gadget to play or demonstrate the
electronic document falls under the definition of computer,
by virtue of the provisions of Section 84, which governs
admissibility of electronically-generated documents, there
is no requirement for the certification of that other
computer or gadget employed to demonstrate or play the
electronically-generated document already admitted in
evidence…
(Pages 571 – 572 of the record; italics supplied for
emphasis).
Turning to the rationale for authentication, the erudite
Justice of the Court of Appeal opined thus, pages 572 -573
of the record:
In this digital age when different creations can be achieved
electronically, the reason for the requirement of
authentication or certification of the gadget or computer
used in producing and processing the electronically-
generated documents is not far-fetched. The party seeking
to rely on such evidence must be able to show that the data
and information contained in the
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electronically-generated document is truly what it claims to
be. The preconditions for admissibility set down by Section
84 are to establish this fact. The relationship between the
computer and the information is crucial. The electronic
evidence must be produced from a computer or gadget that
is inherently reliable and has been in operation over the
relevant period. There is no doubt that with present and
even future technological advances, the pre-conditions
attached to admissibility of electronically-generated
evidence by Section 84 may no longer be sufficient to
authenticate the reliability of electronic evidence. However,
these challenges are not in issue herein. One constant is
that the computer or gadget will only reproduce what has
been fed into it. The computer or gadget will demonstrate
or play what it receives. This is the reason why there is no
further need for certification of the computer or gadget to
be used to demonstrate or to play an already properly
admitted electronically-generated evidence, which had
complied with the pre-conditions of Section 84.
By means of rhetorical questions, His Lordship charted a
nexus between the application
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for the demonstration of the exhibit in open Court with the
requirements of the extant Electoral Act. Hear this:
One may ask, if electronically-generated evidence is
already an exhibit before the trial Tribunal or Court, in this
case the DVD, was not to be demonstrated or played, what
was the purport of admitting it in evidence? Was it simply
to dump it on the lower Tribunal, which is the roundabout
effect, and which would in effect… sidetrack the provisions
of Paragraph 46 of the First Schedule of the Electoral Act,
2010, as amended. These provisions are that a document
admitted in evidence may be read or taken as read by
consent. When a hard copy of a document is admitted in
evidence, its contents are examined and may be read for
the trial Court to determine if they establish the facts as
alleged or to determine what weight to attach thereto…
In the same vein, 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
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‘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…
(Pages 573 – 574 of the record).
In consequence, His Lordship allowed the appeal. He held
that “the lower Tribunal misapplied the provisions of
Section 84 (supra) in its ruling that the said provisions
were not complied with by the appellants’ PW51, and
thereby precluding the appellants from demonstrating or
playing the DVD, exhibit P42B in open Court," (pages 574 –
575 of the record). He ordered that the DVD admitted in
evidence before the lower Tribunal as exhibit P42B be
played/demonstrated in open Court. The Court also ordered
that PW51 shall be recalled to give effect to the order.
True, indeed, the lower Court was right in its view that the
trial Tribunal misapplied the provisions of Section 84 of the
Evidence Act. The Section provides as follows:
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
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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.
(Italics supplied for emphasis)
The conditions mentioned in Section 84(1) (supra) for the
admissibility of such statements produced by a computer
are contained in Section 84 (2):
(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
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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.
According to Section 84(4):
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this Section, a certificate
(a) identifying the document containing the statement and
describing the manner in which it was produced; or
(b) giving such particulars of any device involved in the
production of that document as may be appropriate for the
purpose of showing that the document was produced by a
computer; or
(c) dealing with any of the matters to which the conditions
mentioned in Subsection (2) above relate, and purporting to
be signed by a person occupying a responsible position in
relation to the operation of the relevant device or the
management of the relevant activities, as the case may be,
shall be evidence of the matter stated in the certificate; and
for the purpose of this Subsection it
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shall be sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
Subsection 5 provides that:
(5) For the purpose of this Section –
(a) Information shall be taken to be supplied to a computer
if it is supplied to it in any appropriate form and whether it
is supplied directly or (with or without human intervention)
by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any
individual or body, information is supplied with a view to its
being stored or processed for the purpose of those
activities by a computer operated otherwise than in the
course of those activities, that information, if duly supplied
to that computer, shall be taken to be supplied to it in the
course of those activities;
(c) A document shall be taken to have been produced by a
computer whether it was produced by it directly or (with or
without human intervention) by means of any appropriate
equipment.
[Italics supplied for emphasis]
It is clear from its ipssissima verba that Section 84 (supra)
lays down the conditions for the admissibility of statements
produced
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by a "computer:" which is defined in Section 258 of the Act
to mean "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."
In effect, it is Section 84 of the Evidence Act that lays down
the conditions for the admissibility of electronically
generated evidence, Kubor v. Dickson [2013] 2 NWLR
(Pt. 1345) 534, 577-578; Omisore and Anor v.
Aregbesola & Ors. [2015] 15 NWLR (Pt. 1482) 205,
295 and not Section 258 of the Act, the definition Section,
as erroneously, contended by Mr. Oyetibo, SAN for the
Appellant.
As shown above, the DVD in question was admitted in
evidence as exhibit P42B. Thus, in this appeal, what is in
issue in not even the admissibility of evidence, but the
narrow question whether Section 84 (supra) deals with the
additional requirement of certification of gadgets for
playing or demonstrating an already admitted piece of
evidence in open Court.
Both the trial Tribunal and Oyetibo, SAN argued in favour
of such an additional certificate. However, that cannot be.
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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
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(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]
In the instance appeal, there has been no suggestion that
the evidence of PW51 did not satisfy the above conditions.
Indeed, from his written deposition, which he adopted at
the
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trial Tribunal, the witness would appear to have more than
a passing acquaintance with the provisions of Section 84 of
the Evidence Act (supra). Hear what he said:
6. ... I used my official Dell Desktop System with serial
number 25TF85J to produce a DVD containing the said
visual, which I have in my possession to tender in evidence.
7. …
8. That all the events mentioned herein were duly recorded
by the Company's Camera man, Pedro Innocent, using our
official cameras, stored in DVD and kept in the custody of
the Company's Library Unit. I have the DVD here with me
and with the permission of the Honourable Tribunal I can
play the contents of the DVD with the aid of a laptop
computer and a projector.
9. That this my statement, the video and other computer-
generated information in the DVD referred to in this
statement herein were produced by the computers
regularly used in our office for storing and processing
information during the material period under
consideration.
10. That I confirm that over the period of December, 2015
till date there was a regular supply of information of the
kind contained in the said computers in the
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ordinary course of activities in our office. I also confirm
that during this period, the said computers were operating
properly and that if during the periods the system did not
work properly, it did not affect the production of the said
video or the accuracy of their contents. And I also confirm
that the information contained in the DVD were produced
or derived from information supplied to the computers in
the ordinary course of our activities in the office.
11. That in further compliance with the requirements of the
law, I hereby certify to the best of my knowledge that the
video clips contained in the DVD were duly and legitimately
recorded by the Company's Camera Man using a video
camera with the brand name JVC 600 using memory card.
At the end of the recording, the contents of the memory
card were transferred to DVD in the course of normal
activities in the company. A separate certificate of
identification signed by me is attached to the said DVD.
12. That I confirm that I am computer literate and
participated in all stages of recording, production and
packaging of the DVD sought to be tendered in the
proceeding.
[Italics supplied for
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emphasis]
As shown above, the said DVD was admitted in evidence.
Mr. Hon. SAN's application, at the trial Tribunal was that
the witness be allowed to play the said DVD in open Court.
It is rather strange that Oyetibo, SAN sought to resist the
attempt to play the said DVD at the hearing of the Tribunal.
As the lower Court, rightly, observed:
… 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…
Pages 573-574 of the record.
I, entirely, endorse this view. The application to play the
DVD had nothing to do with its admissibility (in any event,
at that stage it was already in evidence). It rather rest on
an, entirely, different juridical postulate which this Court
explained in A.P.G.A. v. Al-Makura [2016] 5 NWLR (Pt.
1505) 316, 343; Okereke v. Umahi
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& Ors [2016] 2-3 SC (Pt. 1) 1, 50. According to this
Court [per Nweze, JSC] in A.P.G.A. v. Al-Makura (supra)
pages 343-344:
This prescription [that parties have a duty to link their
documents with their averments in their pleadings] rests on
the adversarial nature of our jurisprudence which we
inherited from the common law.
It is, therefore, the impregnable juridical postulate of our
adversarial jurisprudence that prohibits a Judge from
embarking on an inquisitorial examination of documents
outside the Court room. A fortiori, it is anathema for a
Judge to be allowed to act on what he discovered from such
a document in relation to an issue when that was not
supported by evidence or was not brought to the notice of
the parties to be agitated in the adversarial procedure. The
authorities on this point are many.
We shall only cite one or two of them here, Ivienagbor v.
Bazuaye [1999] 9 NWLR (Pt. 620) 552; (1999) 6 SCNJ
235, 243; Owe v. Oshinbanjo (1965) 1 All NLR 72 at
75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco
(1971) 1 All NLR 324 at 333; Alhaji Onibudo & Ors v.
Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v.
Registered
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Trustees Recreation Club (2004) FWLR (Pt. 190)
1360, 1380-1381; Jalingo v. Nyame (1992) 3 NWLR
(Pt. 231) 538; Ugochukwu v. Co-operative Bank
[1996] 7 SCNJ 22.
It is against this background that viva voce depositions and
the entries in documents and, indeed assertions relating to
entries in such documents in electoral materials are,
invariably, tested under cross-examination, Ivienagbor v.
Bazuaye (supra).
Unarguably, therefore, Oyetibo, SAN's objection,
inadvertently, railroaded the trial Tribunal into an
unwarranted exercise of re-writing the requirements of
Section 84 (supra). As, already shown above, the Tribunal
reasoned that:
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:
(3) the one used to store the information and;
(4) 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]. As I had said earlier,
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Exhibit P42A covers only the computers used in production
of exhibit P42B � the DVD, but not the laptop computer
and projector now sought to be used to retrieve and play
out its content. To that extent therefore in respect of both
last two documents (the laptop and projector) the
provisions of Section 84 (supra) has (sic) not been complied
with. Application to play the DVD � exhibit P42B is
accordingly refused.
[page 358; italics for emphasis]
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." Contrariwise, the
provisions of the said Section 84 govern the admissibility of
statements produced from computers. These provisions
are, similarly, worded like Section 65B (1) and (2) of the
applicable Act in India. Dealing with these provisions, the
Court reasoned [a reasoning I take liberty to adopt in this
judgment] in State v. Mohd. Afzal 107 (2003) DLT 385
that:
Electronic record produced [from computers on magnetic
tapes (hard discs)] has to be taken in the form of a print
out.
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Subsection (1) of Section 65B [the equivalent of Section
84(1) of the Nigerian Act] makes admissible without further
proof, in evidence, print out of an electronic record
contained on a magnetic tape subject to the satisfaction of
the conditions mentioned in the Section. The conditions are
mentioned in Subsection (2) [this is the equivalent of
Section 84(2) of the Nigerian Act]. Thus compliance with
Subsections (1) and (2) of Section 65B [that is, Section
84(1) and (2) of the Nigerian Act] is enough to make
admissible and prove electronics record.
[Italics supplied for emphasis]
As a corollary, Bello, JSC (as he then was; later C.J.N.) in
Onibudo v. Akibu (supra) explained the rationale for the
requirement of demonstrating documents in open Court.
Hear His Lordship:
It needs to be emphasized that the duty of a Court is to
decide between the parties on the basis of what has been
demonstrated, tested, canvassed and argued in Court. It is
not the duty of a Court to do cloistered justice by making
an inquiry into the case outside even if such inquiry is
limited to examination of documents which were in
evidence, when the documents had not been
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examined in Court and their examination out of Court
disclosed matters that had not been brought out and
exposed to test in Court and were not such matters that, at
least, must have been noticed in Court…
[page 211, italics supplied for emphasis].
Invariably, this requirement of testing such documents in
open Court is, inextricably, tied to the question of their
authenticity: a post admissibility requirement which relate
to the weight attachable to them. It is in this context that
Section 34(1) of the Evidence Act, 2011 provides that:
34(1) In estimating the weight, if any, to be attached to a
statement rendered admissible as evidence by this Act,
regard shall be had to all the circumstances from which any
inference can reasonably be drawn as to the accuracy or
otherwise of the statement, and in particular
(a) …
(b) In the case of a statement contained in a document
produced by a computer –
(i) The question whether or not the information which the
statement contained, reproduces or is derived from, was
supplied to it, contemporaneously with the occurrence or
existence of the facts dealt with in that
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information, and
(ii) The question whether or not any person concerned with
the supply of information to that computer or with the
operation of that computer or any equipment by means of
which the document containing the statement was
produced by it , had any incentive to conceal or
misrepresent facts.
[Italic supplied]
My Lords, permit me to draw attention to the evident
affinity between the italicized expressions above with the
expressions in Section 84(2) (a) (b) (c) and (d) which are
the conditions that must be satisfied before "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," Section 84(1) (supra). In effect, although a
document produced from a computer may cross the
admissibility threshold in Section 84 (1) (2) and (4), it may
still not be accorded the requisite weight if the "accuracy"
conditions in Section 34(1) (b) (i) and (ii) are not complied
with.
This, then, underscores the cogency demonstrating such
documents [like exhibit P42B] in open Court so as to afford
the proponent of such a document the opportunity of not
linking them
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with their averments in their pleadings and evidence on
records, A.P.G.A. v. Al-Makura (supra) 343; Okereke v.
Umahi & Ors (supra) 50; but more importantly with a
view to discharging the requirement which would facilitate
the Court's attachment of weight to them.
On the other hand, their demonstration in open Court
would, equally, afford the opponents the opportunity of
testing and contesting their accuracy in the usual
adversarial method of cross examination, Onibudo v.
Akibu (supra).
In all, I find that this appeal is wholly, unmeritorious and I,
therefore, enter an order dismissing it. Appeal Dismissed. I
affirm the judgment of the lower Court. The trial Tribunal
shall proceed forthwith to recall PW51 for the purpose of
demonstrating the said exhibit in open Court. Parties are to
bear respective costs.
SULEIMAN GALADIMA, J.S.C.: This interlocutory appeal
is against the judgment of the Court of Appeal, Benin
Division, which upturned the decision of the Bayelsa State
Governorship Election Tribunal, ordering that PW51 be
recalled to demonstrate the contents of Exhibit P42B by a
set of computers, contended
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by the Appellant herein not to have been certified in
accordance with the provisions of Section 84 of the
Evidence Act 2011.
In an Election into the office of Governor of Bayelsa State,
conducted by the 3rd Respondent herein on 5th and 6th
December, 2015 and 9th January, 2016, the 1st Respondent
was the candidate of the 2nd Respondent. The Appellant
herein was declared winner of the election and has since
been sworn in as Governor of Bayelsa State.
Aggrieved by the declaration of the Appellant the 1st and
2nd Respondents, as petitioners, filed a petition before the
Governorship Election Tribunal, on 30/1/2016.
On 29th April, 2016, the said Tribunal at the instance of 1st
and 2nd Respondents, issued a Supoena Duces Team Ad
Testificadum on one Pedro Innocent the Production
Manager of Channels Television Lagos to testify and
produce DVD/CD/VCD/Audio Recoding and Video Clips of
the coverage of 5th and 6th December, 2015 Governorship
Election in Bayelsa in respect of the Southern Ijaw Local
Government Area of the State.
On 10/5/2016, one Emmanuel Ogunseye was put in the
witness box as PW51 pursuant to Section 84 of the
Evidence Act, 2011
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and a certificate of compliance/identification and a DVD
were admitted as Exhibits P42A and P42B respectively.
After the admission in evidence of the certificate and the
DVD, counsel to the 1st and 2nd Respondents applied to
the Tribunal that the DVD (Exhibit P42B) be played in open
Court with the use of a Laptop, a projector and an
Electronic Screen different from the computers contained
in the certificate tendered as Exhibits P42A, whereupon
counsel to the Appellant raised an objection on the ground
that the computers sought to be used to play the DVD were
not certified as required by Section 84 of the Evidence Act,
2011.
Arguments on the point were fully canvassed, at the end of
which the Tribunal upheld the objection and rejected the
application to play the DVD.
The 1st and 2nd Respondents dissatisfied with the ruling of
the Trial Tribunal filed two Notices of Appeal but
subsequently relied on the Notice of Appeal filed on 20th
May, 2016. Briefs and Reply were filed and exchanged by
the parties. Delivering its considered judgment on 24th
June, 2016 the Court of Appeal discountenanced the issue
of its jurisdiction to entertain the
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appeal filed before it on the grounds that the record of
appeal transmitted to the Court of Appeal was incomplete.
This objection was also argued by the 4th Respondent
herein which raised the issue of the incompleteness of the
record of appeal in its brief of argument.
Consequently the Court of Appeal delivered its judgment
granting all the reliefs sought by the 1st and 2nd
Respondents herein, as the Appellants in that appeal. The
Court then ordered the Trial Tribunal to forwith recall
PW51 for the purpose of demonstrating the contents of
Exhibit P42B in open Court.
Being dissatisfied with the aforesaid judgment, the
Appellant appealed on 27th June, 2016 to this Court and
raised the following 3 issues namely:-
"1. Whether the judgment of the Court of Appeal was
not a nullity for having been given without
jurisdiction because the appeal brought by the 1st
and 2nd Respondents herein was not validly entered
in the Court of Appeal: Grounds 1 and 2.
2. Whether the Court of Appeal was not wrong in law
when it held that the certification of the computers
used to produce Exhibit P42B in this case was
sufficient and that it was not necessary
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under Section 84 of the Evidence Act 2011 to certify
the computer to be used to demonstrate the contents
of the Exhibit in open Court: Grounds 5 and 6.
3. Whether the Court of Appeal was not wrong in law
in refusing to follow its decision in AKEREDOLU v.
MIMKO (2013) LPELR-20532 where it was held that
the electronic gadgets to be used to demonstrate
exhibits already admitted in evidence must be
certified in accordance with the provisions of Section
84 of the Evidence Act 2011, on the ground that that
part of its decision was obiter dictum:
Grounds 3 and 4."
In response to the Appellant's brief of argument the 1st and
2nd Respondents filed a Respondent's Notice on 1st July,
2016 and incorporated their arguments on same and their
reply brief also filed the same day. In paragraph 3.1 of their
Brief the 1st and 2nd Respondents formulated the following
three issues for determination:
"1. Was the judgment of the Court of Appeal a nullity
on the ground of incomplete record of appeal or that
the appeal at the Court of Appeal was invalidly
entered? Grounds 1 and 2
2. Was the Court of Appeal correct to have held that
Section 84 of the
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Evidence Act 2011 was fully complied with to enable
Exhibit P42B be demonstrated/played in open Court
by the Trial Tribunal? Grounds 5 and 6.
3. Was the Court of Appeal wrong in refusing to
follow its previous decision in AKEREDOLU v.
MIMIKO (2013) LPELR- 20532 on the need to certify
the electronic gadgets used or to be used in
demonstrating in open Court electronic evidence, on
the ground that the applicable part of that previous
decision was obiter?
Grounds 3 and 4."
It is to be noted that today 20th July, 2016, when this
appeal came up for hearing learned senior counsel for the
Appellant and the 1st and 2nd Respondents conceded to
narrow issue raised in issue 2 to consider the main appeal.
Thereby all preliminary objections and other issues 1 and 2
of the Appellant and issues 1 and 2 of the 1st and 2nd
Respondents were abandoned.
Hearing the appeal, Leaned Senior Silk TAYO OYETIBO,
SAN; ALIYU UMAR, SAN and EMEKA ETIABA, SAN leading
a formidable team of other counsel identified and relied
upon the Brief of Argument of the Appellant filed on 29th
June, 2016 and a Reply Brief to the 1st and 2nd
Respondents filed on 13th July, 2016.
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He briefly adumbrated on the second issue formulated in
the Appellant's Brief having abandoned the 1st and 3rd
Issues. Issue 2 already set out above is posited on:-
"Whether the Court of Appeal was not wrong in law
when it held that the certification of the computers
used to produce Exhibit P42B in his case was
sufficient and that it was not necessary under Section
84 of the Evidence Act 2011 to certify the computers
sought to be used to demonstrate the contents of the
exhibit in open (Grounds 5 and 6)."
It is argued that the computers sought to be used to
demonstrate Exhibit P42B ought to have been certified in
compliance with Section 84(1) (2) (4) of the Evidence Act
2011. That the Laptop, Projector and Electronic Screen
sought to be used, in this case to play the DVD Exhibit
P42B in open Court are "computers" within the meaning of
the expression in Section 258 (1) of the Evidence Act 2011.
It is submitted that in the first category, the statements
contained in the judgment are produced when the
document is tendered and the contents are immediately
visible to the eyes. However, in the second category,
neither the statements contained in the
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electronic document nor the document itself can be said to
have been brought out as the electronic document for the
Court to see or hear.
For the proper appreciation of arguments on "electronic
document" learned silk refers to the definition of
'document' in Section 258 (1) of the Evidence Act 2011.
In view of the copious arguments set out in the Appellants'
brief of argument on this issue, Learned Silk has urged us
to allow the appeal.
In his snappy oral response, as an adumbration of his
submissions in the 1st and 2nd Respondents' brief filed on
1st July, 2016 and adopted, S. T. Hon. SAN leading other
team of counsel, discountenanced arguments on his Notice
of Preliminary objection. He conceded that the main appeal
should be considered outrightly. He submitted that the trial
Tribunal erred greatly in law when it refused to allow the
1st and 2nd Respondents play the DVD (Exhibit P42B) in
open Court, resulting in grave injustice to the aforesaid
Respondents.
He submitted that there is nothing in Section 84 of the
Evidence Act 2011 that requires certification in respect of
the computer or projector to be used in playing the DVD in
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open Court.
He has urged this Court to give literal rule of interpretation
so as to give natural meaning to the provision, omitting no
words and adding none. He has urged that the appeal be
dismissed for lacking in merit.
Learned Silk Asiwaju A. S. Awomolo, SAN and Dr. O.
Ikpeazu, SAN leading a large number of other counsel
appeared for the 3rd Respondents. He filed no brief and for
that reason he has nothing to urge this Court.
In similar vein AMAZUO BEREPROBERA, ESQ of counsel
for the 4th Respondent who filed no brief, has equally
nothing to urge the Court.
My understanding of the carefully reading of Section 84 (1)
2(a)- (d) 3(a) - (d) 4 (a) - (c) I cannot find the requirement
for the certification of the computer or projector to be used
in playing the DVD in open Court. For the proper
understanding of my stance on this issue Section 84 is
reproduced as follows:-
"84 (1) In any proceeding 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
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are satisfied in relation to the statement and
computer in question
(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 by any individual;
(b) that over that period there was regularly supplied to the
computer in the ordinary course of these 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
reproduced or is derived from information supplied to the
computer in the ordinary course of
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those activities.
(3) Where over a period the function of storing or
processing information for the purposes of any
activities regularly carried on over that period as
mentioned in Subsection (2)(a) of this Section was
regularly performed by computers, whether-
(a) by a combination of computers operating over that
period;
(b) by different computes operating in succession over that
period
(c) by different combinations of computers operating in
succession over that period; or
(d) in any other manner involving the successive operation
over that period, in whatever order, of one or more
computers and one or more combination of computers, all
the computers used for that purpose during that period
shall be treated for that purpose during that period shall be
treated for the purposes of this Section as constituting a
single computer; and references in his Section to a
computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a
statement in evidence by virtue of this Section, a
certificate.
(a) identifying the document containing the statement and
describing the manner in which it was produced;
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(b) giving such particulars of any device involved in the
production of that document as may be appropriate for the
purposes of showing that the document was produced by a
computer;
(c) dealing with any of the matters to which the conditions
mentioned in Subsection (2) above relate; and purporting
to be signed by a person occupying a responsible position
in relation to the operation of the relevant device or the
management of the relevant activities, as the case may be,
shall be evidence of the matter stated in the certificate; and
for purpose of this Subsection, it shall be sufficient for a
matter to be stated to the best of the knowledge and belief
of the person stating it.
(5) For the purpose of this Subsection-
(a) information shall be taken to be supplied to a computer
if it is supplied to it in any appropriate form and whether it
is supplied directly or (with or without human intervention)
by means of any appropriate equipment;
(b) where, in the course of activities carried on by any
individual or body, information is supplied with a view to its
being stored or processed for the purposes of those
activities by a computer operated
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otherwise than in the course of those activities, that
information, if duly supplied to that computer, shall be
taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a
computer whether it was produced directly of (without
human intervention) by means of any appropriate
equipment.
(Emphasis mine)"
From the above provisions, it is crystal clear that it is only
with respect to the computer that "produces" the document
in this case, the DVD (Exhibit P42B) that ought to be
certified. The Court below lucidly expressed the true
purport of the provisions of Section 84 of the Evidence Act
2011 when it found on page 581 of the record of appeal
thus:
"It is glaring that Exhibit P42B is tied to and has
symbiotic relationship with Exhibit P42A, being the
certificate of compliance required by law. Howbeit,
the dire need or certification cannot be extended to
the laptop and or projector, with which the contents
of Exhibits P42B is to be retrieved, demonstrated,
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displayed and or played back. The former is akin to or
represents the production stage while the latter
constitutes the consumption stage. Authentication or
quality control is essentially warranted at the
production level and not the point of consumption.
Finished products are consumed by customers at
large once the price is affordable."
The words of this Section are clear and unambiguous and I
would not give any other interpretation, outside the clear
words See AROMOLARAN v. AGORO (2014) 18 NWLR
(Pt. 1438) 153 at 174 (2015) ALL FWLR (Pt. 766) 574
at p. 597. FBN v. Maiwada (2013) 5 NWLR (Pt. 1348)
444 at 483.
In this appeal the evidence of PW51 satisfies the provisions
of Section 84 of the Evidence Act 2011, he deposed to in
paragraphs 7 - 11 of his Written Deposition on pages 350 -
351 of the Record of Appeal to that effect. He stated inter
alia thus:
"I used my official Dell Desktop Computer System
with serial number 25TF85J to produce a DVD
containing the said visual, which I have in my
possession to tender in evidence ..."
When PW51 entered the witness box on 10th May, 2016, he
brought in Court the DVD he had produced using the
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computers vividly described in his written deposition.
I am of the firm opinion that since Section 84 of the
Evidence Act 2011 has limited its application to
"production" of computer evidence and not "playing" or
demonstrating of it in open Court. The literal rule of
interpretation ought to be invoked by the Trial Tribunal to
permit Exhibit P42B to be played before it.
For the foregoing reasons and for fuller ones set out in the
lead judgment of my learned brother NWEZE, JSC I too
agree with him and dismiss this appeal, as it is lacking in
merit.
I affirm the judgment of the Court of Appeal. The trial
Tribunal shall as a matter of urgency proceed to recall
PW51 for the purpose of demonstrating the content of DVD
Exhibit P42B in open Court. I award no costs parties to
bear their own costs.
OLABODE RHODES-VIVOUR, J.S.C.: Briefly the facts are
these. The appellant, the PDP candidate and the 1st
Respondent, the APC candidate contested the General
Election for Governor of Bayelsa State. The Independent
National Electoral Commission (INEC), the body
constitutionally set up to conduct the election declared the
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Appellant elected. He is the Governor of Bayelsa State.
Dissatisfied with the results as delivered by INEC the 1st
Respondent filed a petition before the Bayelsa State
Governorship Electoral Petition Tribunal. During trial,
learned counsel for the Petitioner/1st Respondent tendered
certificate of compliance/identification and DVD. Both were
admitted as Exhibits 'P42A' and 'P42B'. That is to say
electronically generated evidence (Exhibit P42B, DVD) was
admitted in evidence after the Tribunal was satisfied that
there was compliance with Section 84 of the Evidence Act.
Thereafter learned counsel for the 1st Respondent urged
the Tribunal that the DVD - Exhibit 'P42B' be played in
Open Court. The Tribunal refused. The reasoning of the
Tribunal is interesting. It said:
"... Exhibit 'P42A covers only the computers used in
production of Exhibit 'P42B' the DVD, but not the
laptop computer and projector now sought to be used
to retrieve and play out its contents. To that extent
therefore in respect of both last two documents (the
laptop and projector) the provisions of Section 84 of
the Evidence Act has not been complied with..."
And on that
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reasoning the application to play the DVD in open Court
was refused. The Court of Appeal came to a different
conclusion. That Court set aside the Ruling of the Tribunal
and ordered that the DVD already admitted in the Tribunal
as Exhibit 'P42B' be played/demonstrated in Open Court.
This is what the Court had to say:-
"....When it is an electronically generated document
which has been admitted in evidence upon fulfilling
all preconditions 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".
Section 84 of the Evidence Act must now be examined.
It reads:-
"84 (1) In any proceeding 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.
(2) The
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conditions referred to in Subsection (1) of this
Section are -
(a) that the document containing the statement was
produced by 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
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 cause of these activities.
84 (4): In any proceeding where it is desired to give a
statement
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in evidence by virtue of this Section a certificate -
(a) Identifying the document containing the
statement and describing the manner in which it was
produced;
(b) Giving such particulars of any device involved in
the production of that document may be appropriate
for the Purpose of showing that the document was
produced by computer;
(c) Dealing with any of the matters to which the
conditions mentioned in Subsection (2) above relate,
and purporting to be signed by a person occupying a
responsible position in relation to the operation of
the relevant device or the management of the
relevant activities, as the case may be, shall be
evidence of the matter stated in the certificate; and
for the purpose of this Subsection it shall be
sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it."
A diligent examination of Section 84 of the Evidence Act
reveals that the Section does not say that the computer or
electronic device used in playing the DVD in open Court
requires certification, rather it is only the computer that
produces the DVD - Exhibit 'P42B' that requires
certification. Section 84 in the
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Evidence Act is all about ascertaining the authenticity of
the device from which the exhibit was produced.
Exhibit 'P42B', electronically generated evidence was
admitted in evidence as an exhibit after the Tribunal was
satisfied that there was compliance with the provisions of
Section 84 of the Evidence Act, (See Exhibit 'P42A').
After the DVD was admitted as Exhibit 'P42B' compliance
with Section 84 of the Evidence Act is no longer required as
that threshold had been well and timely passed once the
DVD becomes an exhibit. The examination of the DVD (an
exhibit) Includes playing it, and the DVD must be examined
at some stage. In other climes the DVD would have been
played by the Courts device and the Courts device would
not require certification. The Refusal by the Tribunal to
play the DVD to my mind was wrong. An exhibit,
documentary evidence is a thing relied on by the party
producing it for the sole purpose of strengthening his case.
Once such evidence supports oral testimony such oral
testimony becomes more credible. See Omoregbe v.
Lawani 1990 3-4 SC p.117: Kindley and Ors v. M G of
Gongola State 1988 2 NWLR R/77 p. 473.
The Petitioner
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must be allowed to present and ventilate his case within the
confines of the law and procedural requirements. Playing
the DVD (Exhibit 'P42B') in Open Court is very much within
the standards required.
For these brief reasons as well as those more fully given by
my learned brother NWEZE, JSC I would dismiss the
appeal. I affirm the judgment of the Court of Appeal and
direct that the orders of that Court be complied with
forthwith.
Appeal dismissed.
NWALI SYLVESTER NGWUTA, J.S.C.: I have the
privilege of reading in draft before now the lead judgment
of my learned brother, Nweze, JSC and I entirely agree
with the reasoning leading to the dismissal of the appeal as
unmeritorious.
I desire to chip in a word or two in demonstration of my
agreement with the lead judgment.
The relevant facts of the case are sufficiently outlined in
the lead judgment. The issue formulated by learned Senior
Counsel for the Appellant reads:
''Whether the Court of Appeal was not wrong in law when it
held that the certification of the computer used to produce
Exhibit P42B in this case was sufficient and that it was not
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necessary under S.84 of the Evidence Act 2011 to certify
the imprints sought to be used to demonstrate the contents
of the Exhibit in open Court, Grounds 5 & 6."
In his turn learned Silk for the 1st and 2nd Respondents
queried:
"Was the Court of Appeal correct to have held that Section
84 of the Evidence Act 2011 was fully complied with to
enable Exhibit P42B be demonstrated/played in open Court
by the Tribunal? Grounds 5 & 6."
Except for differences in phraseology the two issues are
substantially the same. Exhibit P42A is a certificate in
respect of the computers used to store information in the
DVD. It is evidence of compliance with Section 84 (1) and
(2) of the Evidence Act for the admission of the DVD which
was admitted and marked Exhibit P42B.
Section 84 (2) outlines the conditions for admission of "a
statement contained in a document produced by a
computer". The two key words in Section 84 of the
Evidence Act appear to me to be "statement" and
"document". What is a statement and what is a document?
A statement, in a general sense, is an allegation, a
declaration of matters of fact, etc. See Black's Law
Dictionary Special
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Deluxe fifth attestation, avowal, etc. See Burton's Legal
Thesaurus Fourth Edition page 993.
On the other hand, document is an instrument on which is
recorded information or facts. It contains statements. A
document is any physical embodiment of information or
ideas such as letter, contract, receipt, a book of account, a
blue print or an X-ray plate. See Strico v. Cotto 87 Misc.
2nd 636, 324 NYS 2nd 483, 486.
In view of the above definitions of statement and document,
the DVD, Exhibit P42B, in so far as it is used to record and
store information is a document and the information
therein contained is a statement within the intendment of
Section 84 of the Evidence Act.
I agree with the learned Silk leading for the appellant that
the DVD, Exhibit P42B is a manufactured product.
However, once any Information is recorded or stored
therein through the instrumentality of a computer it
becomes a document and the information so recorded or
stored is a statement "contained in a document produced
by a computer" within the meaning of Section 84 of the
Evidence Act. The certificate, Exhibit P42A qualified the
document (DVD) Exhibit P42B for admission
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in evidence and it was so admitted and marked accordingly.
See; Kubor v. Dickson (2013) All FWLR (Pt.675) 392
at 429.
The point upon which the parties joined issue is the
assertion of the appellant, denied by the respondent, that
Section 84 of the Evidence Act requires another certificate
in form of Exhibit P42A to produce the "statement
contained in the document produced by a computer". It has
to be emphasized that in admitting the DVD, Exhibit P42B,
what is really admitted is "a statement contained" in the
DVD which is document produced by a computer. See
Section 84 (1) of the Act.
The DVD, Exhibit P42B and its contents are akin to non-
computer document or a document properly so called. A
document properly so called is admitted in evidence for the
Court or Tribunal to see and consider its contents (or
statements contained therein). Once a document properly
so called has been admitted in evidence, there is no
condition to be satisfied before the Court or Tribunal can
make use of the statement contained therein.
In the same vein, once the computer generated document
has been admitted in evidence, having satisfied all the
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requirements of Section 84 (2) of the Act, the statement
therein contained 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.
In my humble view, producing the statement contained in a
document produced by a computer which has been
admitted in evidence is the same thing as providing the
Court or Tribunal a document properly so called which has
been admitted in evidence for the Court or Tribunal to
read. Once the conditions for admission of the document
have been satisfied and the document, be it one produced
by a computer or one properly so called, admitted, there
can be no other requirement before the Court or Tribunal
can make use of the statement contained in the document.
For the above and the fuller and lucid reasons advanced in
the lead judgment I also find no merit in the appeal and I
accordingly dismiss same. I abide by the consequential
orders in the lead judgment.
CLARA BATA OGUNBIYI, J.S.C.: The facts of this case
have been spelt out in
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the lead Judgment of my brother Chima Centus Nweze,
JSC.
On the 10/05/2016, the Tribunal through the witness PW51
admitted in evidence the certificate of compliance with
Section 84 of the Evidence Act, 2011 and the DVD
produced with the use of computer and marked same as
Exhibits P42A and P42B respectively.
Consequently, the Learned Senior Counsel for 1st and 2nd
respondents applied that the DVD (Exhibit P42B) be played
in open Court. Objections were taken by learned senior
counsel for the appellant herein and the 4th respondent.
The Tribunal on the issue, ruled that the provisions of
Section 84 of the Evidence Act has not been complied with.
Hence the application to play the DVD – Exhibit P42B was
accordingly refused. On appeal to the Lower Court by the
1st and 2nd respondents, the Court discountenanced the
objection challenging its jurisdiction to determine the
appeal and granted all the reliefs sought by the 1st and 2nd
respondents herein, as appellants in that appeal. The Lower
Court thereupon ordered the trial Tribunal to forthwith,
recall PW51 for the purpose of demonstrating the contents
of Exhibit P42B in open Court.
The only surviving issue no.2 formulated by the
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appellant reads as follows:-
2. Whether the Court of Appeal was not wrong in law when
it held that the certification of the computers used to
produced Exhibit P42B in this case was sufficient and that
it was not necessary under Section 84 of the Evidence Act
2011 to certify the computer sought to be used to
demonstrate the contents of the Exhibit in open Court.
Section 84(1) (2) and (4) of the Evidence Act has been
reproduced in the lead judgment of my learned brother.
It is the submission by the appellant’s counsel that the
laptop, projector and electronic screen sought to be used to
play the DVD, i.e. Exhibit P42B, are devices used for
storing and processing information and hence are therefore
computers within the meaning of Section 258(1) of the
Evidence Act; that in the application of Section 84(1) of the
Act, regard must be had to what is admissible under the
Section, that is to say, the statement contained in a
document produced by a computer and not the document
perse. In other words from the contents of Section 84(1), it
is the statement contained in the document that is being
admitted. The concept of document has been
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defined in Section 258(1) of the Evidence Act 2011.
Counsel therefore faulted the Lower Court which he
submits did not pay attention to the fact that what is being
admitted under Section 84(1) is the statement contained in
a document produced by a computer; that the Lower Court,
did not also appreciate the distinction between a hardcopy
of a document, the contents which are visible to the eye as
against the contents of an electronic document like Exhibit
P42B which are not visible; that the process of production
to bring out the contents must be by use of computers
which require certification in order to make the contents
admissible under Section 84(1) of the Evidence Act.
It is the counsel’s submission therefore that the Tribunal
was right in rejecting the application of the 1st and 2nd
respondents.
On behalf of the 1st and 2nd respondent, it was argued that
there is nothing in Section 84 of the Evidence Act 2011 that
requires certification in respect of the computer or
projector to be used in playing the DVD in open Court.
As rightly submitted by the learned counsel to the 1st and
2nd respondent, the law is well settled
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that when a particular Section of the law has many
Subsections, all such Subsections must be read together for
purpose of discovering the intention of the lawmaker. See
Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 200
SC and Oyeniyi v. Adeleke (2009) All FWLR (Pt. 476)
1902 at 1912.
Also and as rightly submitted by the said respondent's
counsel, where a process of production of a computer
document has been completed, the concept of playing or
transmission of such document cannot amount or be
equated to the actual production thereof.
At page 567 of the record of appeal, the Lower Court for
instant had this to say:-
"It is germane to note that all through the gamut of Section
84, no distinct specific provisions were made stating
conditions for the playing or demonstrating an already
admitted electronically generated evidence before the trial
Court or Tribunal.
As rightly submitted by learned silk for the appellants, if
there was an omission in this regard, it is certainly not part
of judicial adjudication to supply it;"
It is pertinent to state that the position taken by the Lower
Court is in accordance to settled principle
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laid down by this Court on the interpretation of Statutes
wherein the following guide lines are clearly spelt out that:-
1) It is the cardinal principle of law that a Court cannot,
while interpreting a Statute, embark on judicial legislation,
namely lawmaking, See: Akintokun v. L.P.D.C. (2014) 13
NWLR (Pt. 1345) 427 SC.
2) It is also the law that a Court ought to expound and not
to expand the law; that is to say it is to decide what the law
is and not what it ought to be; it should tow the path of
objectivity and not be subjective. See Amadi v. INEC
(2013) 4 NWLR (Pt. 1345) 595 SC.
3) It has been held also that a judge cannot and should not
supply omissions in a Statute. See Governor of Zamfara
State v. Gyalange (2012) 4 SC. 1
In a nutshell, the provisions of Section 84 of the Evidence
Act is complete and should be given its ordinary meaning of
interpretation of what the law is, which the trial Tribunal
had failed to do in this case.
In plethora of decided cases, this Court has held times
without number and warned parties against the dumping of
documents on the Tribunal. See the case of CPC v. INEC
(2013) All FWLR (Pt. 665) 364
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at 385 SC. Also Paragraphs 46(4) of the 1st Schedule to
the Electoral Act, 2010 as amended is where documents
admitted in evidence are either read or taken as read.
In citing the case of Kubor v. Dickson (2013) All FWLR
(Pt. 676) 393 at 429, the learned counsel for the 1st and
2nd respondents laid emphasis on the Judgment of this
Court which decided on the admissibility of computer
evidence wherein their Lordship quoted in extensor the
provisions of Section 84(1) of the Evidence Act, and
proceeded to lay down the procedure guiding admissibility
thereon.
There is no law stating that when computer evidence is
already admitted, another certification of the instrument
used for its demonstration in open Court should again be
produced. The absence of such cannot be imported with a
view to defeat the provisions of Section 84 of the Evidence
Act, thereof.
The law is explicit that where an interpretation of a Statute
would defeat the cause of justice, the Court should refrain
there from. See Ikeupenikan v. State (2015) All FWLR
(Pt. 788) 919 at 959 a decision of this Court; on the same
principle Ogbuagu, JSC also stressed the foregoing rule of
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Interpretation in the case of Elebanjo v. Dawodu (2006)
15 NWLR (Pt. 1001) 76 at 138.
My learned brother Nweze, JSC has dealt comprehensively
with the issue raised and I adopt this reasoning and
conclusion as mine. In the same vein, I am also of the
considered opinion and hold that this appeal is bereft of
any merit and I hereby dismiss same in terms of the lead
judgment. The judgment of the Lower Court delivered on
24th June, 2016 is hereby affirmed by me. The appeal is
hereby dismissed and the trial at the Tribunal should
proceed forthwith.
The witness PW51 should be recalled and be allowed to
demonstrate the exhibit objected to in the open Court. The
parties are each to bear their respective costs of the
appeal.
KUMAI BAYANG AKA'AHS, J.S.C.: I read in draft the
lead judgment of my learned brother, Nweze, JSC in which
he dismissed the appeal. I agree entirely with his reasoning
and conclusion.
At the Bayelsa State Governorship Election Tribunal,
Emmanuel Ogunseye deposed to a written statement at
pages 349-351 of the Record of Appeal. He testified as
PW51 and sought to play a DVD admitted as Exhibit
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P42B in open Court.
The application was opposed by the then respondent (now
appellant). The DVD was duly certified and the certificate
was tendered as Exhibit P42A. The Tribunal ruled that
when a document is sought to be given in evidence, and
also to be demonstrated in Court, the computer used to
store the information as well as the one to be used to
retrieve and demonstrate such information must be
certified in accordance with Section 84 of the Evidence Act.
It therefore held that Section 84 of the Evidence Act was
not complied with and consequently PW51 was precluded
from playing Exhibit P42B in open Court. This ruling was
reversed on appeal hence the appeal by the appellant to
this Court.
The issue in this appeal is whether the Court of Appeal was
wrong in law when it held that the Certification of the
computers used to produce Exhibit P42B in this case was
sufficient and it is not necessary under Section 84 of the
Evidence Act 2011 to certify the computers sought to be
used to demonstrate the contents of the Exhibit in open
Court.
Learned Senior Counsel for the appellant submitted that
the Laptop, Projector and electronic screen
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sought to be used to play Exhibit P42B in Court must be
certified before they can be used because they are also
computers as defined in Section 258(1) of the Evidence Act.
The opening submission made by learned Senior Counsel
for the 1st and 2nd respondents in respect of issue 2 in his
brief is a little bit confusing. It appears learned Senior
Counsel was addressing what took place at the Trial
Tribunal instead of the Court of Appeal. At page 575 of the
Records of Appeal, Otisi, JCA who wrote the lead judgment
allowed the appeal and set aside the ruling of the Tribunal
delivered on 10/5/2016 and concluded thus:-
"It is further ordered that the DVD admitted in evidence
before the lower Tr ibunal as Exhibi t P42B be
played/demonstrated in open Court. It is also ordered that
PW51 shall be recalled to give effect to this order".
Section 84(1) and (2) Evidence Act provides:-
"84 (1) In any proceeding a statement contained in
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
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in relation to the statement and computer in question.
(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 purpose 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
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activities".
The correct interpretation to be given to Section 84 of the
Evidence Act where electronically generated document is
sought to be demonstrated is that such electronically
generated evidence must be certified and must comply with
the preconditions laid down in Section 84(2). See: Kubor v.
Dickson (2013) All FWLR (Pt. 676) 392 at 429. In the
instant case PW51 made a written deposition at pages
349-351 of the Record which he adopted at page 353. The
certification as well as the electronically generated
evidence in issue, the DVD in question, were admitted in
evidence as Exhibits P42A and P42B respectively in support
of the pleadings. Having met the pre-conditions, there is no
impediment in the Evidence Act that would prevent the
playing or demonstrating the contents of the already
identified DVD on any computer such as the laptop,
projector and screen.
The appeal therefore lacks merit and it is accordingly
dismissed, I also affirm the judgment of the lower Court
and further order that the Trial Tribunal shall proceed post-
haste to recall PW1 for the purpose of demonstrating the
contents of Exhibit P42B in open Court.
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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-
EKUN, J.S.C.: This appeal is against the judgment of the
Court of Appeal, Abuja Division on 24/6/2016 which allowed
the appeal of the 1st and 2nd respondents and set aside the
ruling of the Bayelsa State Governorship Election Tribunal
sitting in Abuja delivered on 10/5/2016 wherein the
Tribunal ruled that a DVD admitted in evidence as Exhibit
P42B could not be played in open Court for failure to
comply with Section 84 of the Evidence Act 2011.
The brief facts that gave rise to this appeal are that
pursuant to a subpoena duces tecum ad testificandum
issued on one Pedro Innocent, the Production Manager of
Channels Television to produce "all DVD/CD/VCD/Audio
recordings and video chips of the coverage of 5th/6th
December 2015 Governorship Election in Bayelsa State in
respect of Southern Ijaw Local Government Area of Bayelsa
State" one Emmanuel Ogunseye deposed to a written
statement. He testified as PW51 and tendered a certificate
of compliance with Section 84 of the Evidence Act 2011
and the DVD produced with the use of a computer. The
certificate of compliance was admitted as Exhibit P42A
while
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the DVD was admitted as Exhibit P42B. The 1st and 2nd
respondents replied for the DVD, Exhibit P42B to be played
in open Court. The application was opposed by the
appellant.
The Tribunal held that the laptop computer and projector
sought to be used to play the DVD and retrieve the
information contained therein must be certified in
accordance with Section 84 of the Evidence Act. Having not
been so certified, the application to play the DVD in Court
was refused.
On appeal to the lower Court, the ruling of the trial
Tribunal was set aside. It ordered that the DVD already
admitted in evidence be played/demonstrated in open Court
and that PW51 be recalled to give effect to the order.
The parties duly exchanged briefs of arguments. The 1st
and 2nd respondents and the appellant filed preliminary
objections which they applied to withdraw at the hearing of
the appeal so that the merit of the appeal could be dealt
with.
At the hearing, MR. TAYO OYETIBO, SAN also abandoned
issues 1 and 3 of his brief of argument filed on 29/6/2016
and argued the appeal on issue 2 alone.
S. T. HON. SAN also abandoned his respondent's Notice
and
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arguments in respect of issues 1 and 3 in his brief filed on
1/7/2016 and argued issue 2 only. No briefs were filed on
behalf of the 3rd and 4th respondents.
The said issue 2 as formulated by the appellant reads thus:
"Whether the Court of Appeal was wrong in law when it
held that certification of the computer used to produce
Exhibit P42B in this case was sufficient and that it was not
necessary under Section 84 of the Evidence Act 2011 to
certify the computer sought to be used to demonstrate the
contents of the exhibit in open Court.
At the hearing of the appeal MR. OYETIBO, SAN, further
adumbrated on the submissions in the brief. He argued that
Section 84(1) of the Evidence Act 2011 must be read in
conjunction with Section 258(1) of the Act, particularly
paragraphs (b) & (c) thereof. He argued further that what
was admitted in evidence before the Tribunal was a bare
DVD which would only become a document within the
meaning of Section 258 (1) of the Evidence Act if it is
shown that it contains sound or other data. He argued that
the procedure by which the sound or data is brought out is
what actually constitutes the statement and
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therefore the electronic gadgets to be used in the exercise
must also be certified in accordance with Section 84 of the
Evidence Act.
S. T. HON. SAN, learned senior counsels for the 1st and
2nd respondents, on the other hand, argued that the
contention of Mr. Oyetibo, SAN amounts to reading into the
Section 84 what it does not contain. He urged the Court to
employ the literal rule of interpretation. In oral
adumbration of his brief, he submitted that Section 84 (2)
(c) refers to the period during which the computer used to
generate the document was operating (emphasis on "was")
and not the laptop computer or other gadget sought to be
used in Court to demonstrate same. He argued that Section
285 (1) of the Evidence Act does not address the issues
raised by the appellant.
For ease of reference, I reproduce hereunder the relevant
paragraphs of Section 84(1) of the Evidence Act, 2011.
84. (1) In any proceeding 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
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satisfied in relation to the statement and computer in
question.
(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 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 these 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 or that period was not such as to
affect the production of the document of 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
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activities.
(3) Where over a period the function of storing or
processing information for the purposes of any activities
regularly carried on over that period as mentioned in
Subsection (2) (a) of this Section was regularly performed
by computers, whether –
(a) by a combination of computers operating over that
period
(b) by different computers operating in succession over that
period;
(c) by different combinations of computers operating in
succession over that period; or
(d) in any other manner involving the successive operation
over that period, in whatever order, of one or more
computers and one or more combination of computers, all
the computers used for that purpose during that period
shall be treated for the purposes of this Section as
constituting a single computer; and references in this
Section to a computer shall be construed accordingly.
(4) in any proceeding where it is desired to give a
statement in evidence by virtue of this Section, a certificate
–
(a) identifying the document containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device
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involve in the production of that documents as may be
appropriate for the purpose of showing that the document
was produced by a computer;
(c) dealing with any of the maters to which the conditions
mentioned in Subsection (2) above relate; and purporting
to be signed by a person occupying a responsible position
in relation to the operation of the relevant device or the
management of the relevant activities, as the case may be,
shall be evidence of the matter stated in the certificate; and
for purpose of this Subsection, it shall be sufficient for a
matter to be stated to the best of the knowledge and belief
of the person stating it.
(5) For the purpose of this Subsection -
(a) information shall be taken to be supplied to a computer
if it is supplied to it in any appropriate form and whether it
is supplied directly or (with or without human intervention)
by means of any appropriate equipment;
(b) where, in the course of activities carried on by any
individual or body, information is supplied with a view to its
being stored or processed for the purposes of those
activities by a computer operated otherwise than in the
course of those activities, that information, if duly supplied
to that
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computer, shall be taken to be supplied to it in the course
of those activities;
(c) a document shall be taken to have been produced by a
computer whether it was produced directly or (without
human intervention) by means of any appropriated
equipment."
(Emphasis supplied by me)
Section 258(1) of the Evidence Act, 2011 provides:
"258. (1) In this Act –
"documents" includes –
(b) an disc, tape, sound track or other device in which
sounds or other data (not being visual images) are
embodied so as to be capable (with or without the aid of
some other equipment) of being reproduced from it; and
(c) any film, negative, tape or other device in which one or
more visual images are embodied so as to be capable (with
or without the aid of some other equipment) of being
reproduced from it."
I agree with learned counsel for the 1st-2nd respondents
that while Section 258(1) (b) & (c) in particular provides a
general definition of what constitutes a document, Section
84 makes specific provisions for the admissibility of
documents produced by a computer. Certainty the specific
provision relating to admissibility
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must be given priority over the general provision. The
rationale for this approach is that the specific provision will
be deemed to have anticipated the issue, as against the
general provision. See: Kraus Thompson Organization v.
N.I.P.S.S. (2004) 17 NWLR (Pt. 901) All FWLR (Pt.
720) 1247; Akpan v. The State (1986) 3 NWLR (Pt.
27) 225. The principle is "generalibus specialia dorogant":
special things derogate from general things.
The law is settled that in the interpretation of Statutes,
where the words are clear and unambiguous, they must be
given their natural and ordinary meaning. See: Ibrahim v.
Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C;
Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @
402 F-N. The exception is where to do so would lead to
absurdity. See: Toriola v. Williams (1982) 7 SC 27 @
46; Nonye v. Anyichie (2005) 1 SCNJ 306 @ 316.
Where an interpretation will result in breaching the object
of the Statute, the Court would not lend its weight to such
an interpretation. See: Amalgamated Trustees Ltd. v.
Associated Discount House Ltd. (2007) 15 NWLR (Pt.
1056) 118.
Now a careful consideration of Section 84 reproduced infra
would reveal
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that the Section is concerned with the manner in which the
electronic evidence sought to be relied upon is produced.
The Section seeks to ensure the authenticity of the
document and the integrity of the procedure used to bring
it into being. Section 84 (2) (a) for example, refers to the
document containing the statement sought to be relied
upon having been produced by a computer during a period
over which the said computer was used regularly to store
or process information for the purposes of any activities
regularly carried out over that period, whether for profit or
not, by anybody, whether corporate or not. The Sub-
sections refer to the storing or processing of information by
the computer during the period when the document sought
to be tendered was produced as well as the working
condition of the computer, combination of computers,
different computers operating in succession or different
combinations of computers operating in succession during
that period.
Section 84(4) sets out clearly what a certificate of
identification must contain where it is sought to give a
statement (electronically-generated) in evidence.
From the facts of this
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case, the 1st and 2nd respondents fully complied with the
provision. The statement on oath of PW51 contained
depositions of all the material facts relating to the
procurement of Exhibit P42B. He tendered the relevant
certificate (Exhibit P42A) along with the DVD (Exhibit
P42B) produced with the use of the computer.
At the stage, the 1st and 2nd respondents had done all that
was necessary for the admissibility of Exhibit P42B and it
was duly admitted in evidence. By the certificate, the 1st
and 2nd respondents had established not only the
authenticity of the document but the integrity of the
process that produced it.
The 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. I
therefore agree with the lower
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Court that having fulfilled all the pre-conditions for the
admissibility of Exhibit P42B, which had not been taken as
read, it ought to be demonstrated in open Court for the
necessary weight to be attached to it. After all, it has been
held in numerous decisions of this Court that documents
must not be dumped on the Court but must be
demonstrated by linking them to specific aspects of party's
case. See: C.P.C. v. I.N.E.C. (2013) ALL FWLR (Pt. 665)
365 @ 385 SC; Iniama v. Akpabio (2008) 17 NWLR
(Pt. 1116) 296 @ 299-300 D-B; A.P.G.A. v. Al-Makura
(2016) 5 NWLR (Pt. 1505) 316 @ 345.
As rightly observed by the lower Court, the essence of the
provisions of Section 84 (2) of the Evidence Act would be
defeated, if after duly complying therewith, the party
relying on the admitted electronically generated evidence
is precluded from demonstrating same before the Court in
order to prove his case. The trial Tribunal erred in reading
into Section 84 of the Evidence Act pre-conditions that it
did not contain. The decision was rightly set aside by the
Court below.
For these and the more elaborate reasons eloquently
advanced by my learned brother, CHIMA CENTUS
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NWEZE, JSC in the lead judgment, which I have had the
opportunity of reading in draft and with which I entirely
agree, I also hold that this appeal lacks merit. I accordingly
dismiss it and affirm the judgment of the Court below.
Parties shall bear their respective costs.
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