ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE AND ELECTRONIC EVIDENCE
Computer generated evidence is a special type of evidence that requires special analysis by legal practitioners, judges, and members of the public.
ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE AND ELECTRONIC EVIDENCE
Computer generated evidence is a special type of evidence that requires special analysis by legal practitioners, judges, and members of the public. The term evidence in itself has several meanings depending on each given circumstance but we can take on the Black’s Law dictionary’s definition of the subject as something, including testimony, documents and tangible objects that tends to prove or disprove the existence of an alleged fact. S258(i) of the Evidence Act describes what evidence entails. However, since the topic deals with admissibility of evidence, we are not too concerned with evidence generally but we are more interested in the term “Judicial evidence”.
By definition, electronic devises covers a many items because most electronic devises are computer driven. As related to computer generated evidence, S2 of the Evidence Act 2011 states that “for the avoidance of doubt, all evidence given in accordance with section 1 shall unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings in which this Act applies, provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act”.
Now S1 of the Evidence Act 2011 states that: evidence may be given in any suit or proceedings, of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant and of no other ….”. The provision in this section is that such evidence shall not be allowed even if relevant but too remote to be material and also if such person is disentitled to use it to prove such fact by Law.
Before now, there was no specified provision of the evidence Act on computer generated evidence but as a result of the problem generated in course of proceedings, the present Governor of Bayelsa State, Chief Seriake Dickson, when he was at the House of Representatives, presented the bill which culminated in the present Evidence Act 2011.
The admissibility of statements in documents produced by computers is dealt with under section 84 of the Evidence Act, 2011, but before going further, it is important to know, the definition of “document” as recognized under the Evidence Act. By virtue of the provision of section 258 of the Evidence Act, 2011, document is defined as including any devise by means of which information is recorded, stored or retrievable including computer output. This section which defines document is all encompassing as it mentioned a lot of things
The same section now further defines what computer is all about. It states that it is any devise 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, comparison or any other process.
Now, this takes us to the question; “what are the criteria to be used to determine desirability of admitting such electronic devise evidence?
The answer to the above poser can be seen as answered by virtue of section 15 of the Evidence Act, 2011 with a list of the criteria thus;
-The probative value of the evidence.
-The importance of the evidence in the proceeding
-The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding.
-The gravity of the impropriety or contravention.
-Whether the impropriety or contravention was deliberate or reckless.
-Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention.
-The admissibility of computer generated evidence is governed by S84, Evidence Act 2011. Document is defined in S258 of the Act and it includes computer. Therefore section 84 of the Act provides that;
(1) In any proceedings, statement contained in a document produced by a computer shall be admissible, as evidence of any fact stated in it, 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.
From the wordings of section 84(1), it is clear that the admissibility of the computer generated evidence can only sail through only and if the conditions spelt out in section 84(2) of the Act is fulfilled. Therefore, the question is “what are the conditions section 84(1) of the Act is talking about? The conditions will be clearer as we look at the said section 84(2) which states thus;
“(2) The conditions referred to in subsection (i) of this section are; a) that the documents containing the statement was produced by a 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 contained in the statement of the kind from which the information so contained is derived;
c) that throughout the material part of that period, the computer was operating properly or if not, that in any respect in which it was not operating properly, or was out of operation, during that part of that period, was not such as to affect the production of the document or the accuracy of its contents and
d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
It is to be understood also that section 84, in providing that 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, put the admissibility of a document produced by a computer under the rules pertaining to oral evidence from sections 125-130 of the Evidence Act, 2011.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com
WRITTEN BY CHAMAN LAW FIRM TEAM
EMAIL: chamanlawfirm@gmail.com
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