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This is not just the age of technology; it is an age when technological advancements make giant strides by the day. Some nations set the pace; others do the catching up but some lag behind in perpetuity. There are producers of technology – who smile to the bank with every technological innovation they unleash on the world – but there are also the perennial consumers of technology – who pay through their nose to acquire the latest innovations that define our modern world. Technological advancement has become so pervasive that it has invaded every facet of life; the hallowed chambers of justice are not left out. But, according to Justice Alaba Omolaye-Ajileye of the Kogi State Judiciary, Nigeria lags behind in one significant aspect – and I think we should listen to this advocate for an urgent review of the country’s Evidence Act, 2011 so that we can march, shoulder-to-shoulder, with the other nations that have taken cognisance of the place of electronically-generated information in the administration of justice.
In a paper delivered recently titled “Section 84 of the Evidence Act, 2011 – Time for a Review”, Justice Omolaye-Ajileye made his case as follows: “Section 84 of the Evidence Act 2011 contains detailed provisions which lay down stringent preconditions for the admissibility of documents produced by computers. In summary, the first four conditions to be fulfilled in section 84(2) are that (a) the document was produced over a period when the computer was regularly used (b) over the relevant period similar information was regularly supplied to it (c) throughout the relevant period the computer was operating properly; and (d) the information derives from information supplied to the computer in the ordinary course of the activities then being carried on. Sub-section (4) of the same section requires a certificate to be produced. The law demands that the certificate inter alia identifies the electronic document containing the statement and describes how it is produced and gives the particulars of the device involved in the production of the document to show that the document was produced by a computer and purporting to be signed either by a person occupying a responsible official position with the operation of the relevant device or the management of the relevant activities, whichever is appropriate.
“By far the most volatile and seemingly intractable provision is section 84(4) which, as stated above, commands the production of a certificate to authenticate the computer that produced an electronic document. The subsection has engendered many conflicting court judgments and thrust more questions than answering them. Several issues generated under the subsection have taxed and continued to tax the courts. These issues have also tested the capacity of courts at interpretation as well as their malleability. To date, the courts are still embroiled in many questions engendered by section 84(4). These questions, some of which remain, so far, unanswered, necessitate a reiteration of my call for an update of section 84(4) by way of an overhaul. In the past editions of the Criminal Law Review Conference, I had called for the abrogation of section 84(4) and suggested that the subsection should give way to a simple presumption that electronic devices worked well when they produced the affected documents until the contrary is proved. I also posited that the onus should be on the party who holds a contrary view to prove the same.
“My approach to section 84(4) is premised on the basic notion that no law is enacted to hamper the dispensation of justice. The enactment of section 84 of the Evidence Act, therefore, I submit, was meant to facilitate the admissibility of electronic evidence and not to hinder it. It is also my view that the law cannot be static, it must be dynamic. The law relating to the admissibility of electronic evidence is expected to be a handmaid of justice. It is pertinent to note that section 84, generally, deals with conditions precedent for admission of electronically-generated documents. From my experience as a trial court judge, I have come to discover that a certificate under section 84(4) is no more than a formal document prepared to satisfy the provisions of section 84(4). A certificate under section 84(4) of the Evidence Act does not conclusively prove the facts contained in the electronic document or establish the truth of it. Indeed, I see a certificate under section 84(4) as part of a cumbersome process militating against the admissibility of electronic evidence and, by extension, the administration of justice. This could not have been envisaged by the Legislature. Provisions such as we have in section 84 are now being treated as outdated in other climes.
“Recently, I delivered a paper on the admissibility of electronically-generated evidence at the 2021 Induction Course for Newly-Appointed Judges and Kadis at the National Judicial Institute in Abuja. At the end of my lecture, one of the participants approached me privately and expressed the opinion that, from the many things I had said and written about Section 84 of the Evidence Act, it appeared I did not like Section 84(4)! The truth remains that because of the absence of absolute clarity or agreement of what section 84(4) says, different interpretations of the subsection have been provoked, such that, in some cases, one finds glaring cases of miscarriage of justice or outright injustice being committed. Critical documents have been found to have been rejected for flimsy reasons, such as sufficient particulars of a device not stated in a certificate.
“I have always called for a liberal approach to the interpretation of section 84. My recommendation remains that courts should not insist on the use of technical language to hold that a witness satisfies the stipulated conditions under that section. What should matter to courts is whether or not the evidence of a witness, broadly speaking, substantially covers all the requirements set out. If our law is to match with the advancement in technology of the modern times, it is about time we began to have a rethink about section 84 generally. It is to be recalled that section 84 was a reproduction of section 5 of the UK Civil Evidence Act, 1968. Section 69 of the Police and Criminal Evidence Act, 1984 of the United Kingdom, otherwise known as PACE Act, 1984 also enacted it. Section 5 of the UK Civil Evidence Act was repealed in 1995, that is, 16 years before the enactment of the Evidence Act, 2011! Section 69 of the PACE Act was also repealed by section 60 of the Youth Justice and Criminal Evidence Act, 1999 – 12 years prior to Evidence Act, 2011! It follows, therefore, that, when section 84 was added to the Evidence Act in 2011, Nigeria simply adopted a provision that had already been repealed in the UK! Section 5 of the UK Civil Evidence Act was repealed following the recommendations of the Law Commission – which stated that the framework under section 5 had become outdated following developments in computer technology and that there was no need for having a different regime for computer-generated documents.
“As Nigeria has adopted a provision that was deemed to be outdated in the UK, I hold the humble view that there is a need for a similar review in Nigeria as well, to address various practical difficulties that may arise while complying with section 84. Therefore, it is not about whether or not someone likes section 84 or hates it. It is about administering justice in a fast-changing world dominated by technology. The trend in the technologically-advanced countries of the word is not to place unnecessary inhibition on the process of admissibility of electronic evidence (the United States of America, the UK, and Singapore are examples).
“The foregoing suggests a revolutionary trend around the world that liberalizes the process of admissibility of electronic evidence. Nigeria must move with the world and jettison section 84. India, like Nigeria, has stuck to its legislative provisions for admissibility of electronic records since 2000 as contained in section 65B of the Evidence Act, 1872 (as amended). The said section 65B is very similar to section 84 of the Nigerian Evidence Act. Consequent upon the conflicting opinions of the Supreme Court of India, the law on the interpretation of section 65B has been caught in a web of confusion. The Supreme Court of India, since 2005, has continued to churn out conflicting decisions on the same issue of certification under section 65B (4) of the Evidence Act, 1872 (as amended). Nigeria should avoid the Indian pitfalls early enough and move ahead with the modern world.
“In the light of the foregoing, it is hereby urged that the National Assembly urgently move to address the challenges posed by section 84 of the Evidence Act as currently constituted. While hopefully awaiting the next move of the Legislature on section 84, courts must not shirk their responsibility of proactive and purposeful interpretation of the provisions of the law of electronic evidence”.
I dare to say that a case has been eloquently made by someone who wears the shoe and who, therefore, knows where it pinches, for an amendment to the Nigerian Evidence Act, 2011 to aid the administration of justice. The National Assembly’s binoculars in 2022 should, in addition to self-serving amendments, also capture this particular item that promises to serve the interest of all.
*Former editor & chairman of the editorial board of The PUNCH newspapers, BOLAWOLE is a columnist with the Sunday Tribune (ON THE LORD’S DAY column) and the New Telegraph newspaper (TREASURES column every Wednesday). He is also a public affairs analyst on radio, television, traditional and digital media.