Monday, 30 September 2019

THE ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE


THE ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE

BY.    AWARI PRINCE


DEDICATION
This work is dedicated to Almighty God for his loving kindness and awesome inspiration during this work.














ACKNOWLEDGEMENT
I Wish to humbly express my infinite gratitude to God Almighty for his mercy, grace and providence all through my stay in school and in the course of this research. He has been my fountain of knowledge and wisdom.
My special thanks and gratitude goes to my supervisor Dr. Z. Adangor for his scholarly contribution and guidance during my research.
I appreciate my father Mr. Chimezie Awari for his love and effort in ensuring that I begin and complete my study of law in the Rivers State University, Port Harcourt.  I would not also forget my mother Late Mrs. Mercy Awari for her love and guidance. I appreciate the effort and love of my step mother Joy Awari and her contribution to my studies.
My special gratitude also goes to my siblings; Mr. Ernest Awari, Mr. Chukwujindu Michael Awari, Ngozi Awari, Henry David, John David, my cousin Mary Oreke, to my anty Amarachi Vivian Ake, my step grandmother, Mrs. Pateince Ake, for their contributions, love and understanding all through my studies.
I also want to appreciate my neighbours, Mrs. Adekankwu Mr. & Mrs. Ideh, Rukky Ideh, Onoja Ideh, Mrs. Efe, Mrs. Ufoma, Alhaji Yusuf, Mrs. Ifeoma Nwachukwu, Ifeanyi Nwachukwu Miss. Glory, Iyawo, for their support and kindness towards me.
My very good, caring and supportive friends Okochi Ndubuisi Akata Owen Sordum Owen, Deborah Ezeh, Nneka Eze, Davies Justice, Amanda for their undying love despite my flaws. They have always believed in me even when I did not believe in myself. They will go far in life
I will also not forget, Amazige Pere Esther, Leesi Nagbi, Victor Tamuno, Owhondah Blessing, Basilia Oguchukwu, Nkiri Queen, Goodluck Herrika, Mary Ebe, Usoroh, B.E. Ferguson Benjamin Sophia, Eke Sophia, Ndii Favour, Anwuri shed, Given, Lawrence Iragunima, Nte Cleopas, Philip Andrew, Boma Benjamin, Nte Fredrick, Lemuel Ndendeng, Ese John, Okpara Smart, Chimbiko Boms, Lee Sampson, Fidel Bassey, and the entire class of 2018 for their cooperation and support.
Dr. Lucky Nwaoburu Emeka has been a strong bone supporting me with all he could and loving me unconditionally. His fatherly role is highly appreciated.
Finally I thank faculty of law for having me.



TABLE OF CONTENT
Title Page i
.Declaration page ii
Approval page iii.
Dedication iv.
Acknowledgement vi.
Table of contents vi.
Table of cases viii
Table of statute xii
Abbreviation xiii
Abstract xv
CHAPTER 1:  INTRODUCTION
      Background to the study 1
     Statement of the Problem 3
    Aim and objectives of study 5
      Scope of the study 5
      Significance of the study 6
      Limitation of the Study 6
      Research methodology 6
      Literature review 7
      Chapter analysis 9
CHAPTER 2:  LITERATURE REVIEW
1.2 Introduction 10
2.2. Definition of  “Evidence 10
2.3. Concept of admissibility 13
2.4. Classification of judicial evidence 16
2.5. Definition of computer 19
2.6. Conclusion 20
CHAPTER 3:  ADMISSIBILITY OF DOCUMENTARY EVIDENCE
3.1 Introduction 21
3.2 Category of Documentary Evidence 25
3.3. Execution of Document 26
3.4. Document which may no require signature 27
3.5. Signature in electronic document 28
3.6. Primary documentary evidence 29
3.7. Secondary documentary evidence 31
3.8. Conclusion 32

CHAPTER 4:  ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE
4.1. Introduction 33
4.2. Presumption as to Accuracy of Computer Generated Evidence 35
4.3 Condition for the admissibility of document produced by computer.  39
4.4. Document produced from a computer network or a combination
of computers 48
4.5. Supply of information to computer 50
4.6. Endorsed certificate raises presumption of genuineness 53
4.7. Likelihood of forgery of computer generated evidence 55
4.8. Evidence of things seen through telescope and binoculars 58
4.9. Weight to be attached to admissible statement 59
4.10. Status of computer generated evidence 62
4.10. Conclusion 64

CHAPTER FIVE
5.1 Summary of Finding 65
5.2 Recommendation 66
5.3 Conclusion 68
Bibliography 69
TABLE OF CASES
Trendtex trading corporation Ltd. v. Central Bank of Nigeria (1977) 1 All .E.R 881 CA.
Magit v. University of Makurdi (2006) All FWLR (Pt 298) 1313.
Awuse .v Odili (2005) 16 NWLR (Pt 952) 416 CA
R.V. Wood (1982) 76 Cr APPR 23
Onya v. Ogbuji (2011) All FWLR (Pt 556) 493
Chukwuogor v. Obuora (1987) 3NWLR (Pt.61) 464
Chief Eze v. Brigadier  General Okoloagu (RTD) & 125. (2010) 3 NWLR (Pt. 1180) 183.
Federal Military Government v. Sani (no 2) (1989) 4 NWLR (Pt. 117) 624
Lawal v. Union Bank of Nigeria Plc. (1995) 2 NWLR (Pt 378) 407.
Neka B.B.B. Manufacturing Co Ltd v. ACB Ltd  (2004) All FWLR  (Pt. 198) 117
Oniomoh v. Unijos (2006) All FWLR (Pt. 304) 552 C.A.
Nwabuoku v. Onwordi (2006) All FWLR (Pt. 331) 1236 S.C.
Abubakar v. Chuks (2007) 8 NWLR (Pt 1066) 386 S.C
Onwubuariri v. Igboasoiyi (2011) SCNJ 72.
Haruna v. Altorney general of Federal (2002) 9 NWLR (Pt. 1306) 419 SC.
Agbi v. Ogbeh (2006) All FWLR (Pt. 424) 1484 C.A.
N.S.I.T.F. M.B. v Klifo Nig Ltd (2010) All FWLR (Pt. 1249) 345 C.A.
Ogu v. M.T. & M.C.S. Ltd (2011) 8 NWLR (Pt. 1249) 345 C.A.
INEC v. Action congress (2009) 2 NWLR (Pt. 1126) 524 C.A
Punch (Nig) Ltd. v. Jumsum (Nig) Ltd (2011) 12 NWLR (Pt. 1260) 162 C.A
Oseni v. State (2011) 6 NWLR (Pt 1242) 138 C.A.
Subramaniem v. Public Prosecutor  (1956) 1 WLR 965 PC
Udedibia v. State (1976) USC 133, (1976) 10 NSCC 669
Almed v. State (2002) FWLR (Pt. 90) 1358 S.C.
Teper v. R (1952) A.C 480
Udor v State (2011) 11 NWLR (Pt. 1259) 472 C.A
Lovi v. State (1980) 12 NSCC 269.
Statute of liberty, Owners of Motorship Sapparo mare v. Owners of steam Tamber statute of liberty (1968) 2 AUER 1915
R.v wood (Stanley Williams) (1983) 76 Cr App R 23.
R v Mccarthy (1998) RTR 374.
Nwobodo v. Onoh  & Ors (1984) 1 Sc. 1.
RSSO West Africa Inc. v. Oladiti (1968) NWLR 453.
R v Regan (1887) 16 Cox C.C. 203.
Omisore & Anor v. Anegbesola & Ors (2015) 15 NWLR (Pt. 1482) 205.
Kubor v. Dickson (2013) 4 NWLR (Pt 1345) 534.
Castle v. Cross (1984) IWLR 1372 at 1377.
Tingle Jacobs & Co. v. Kennedy (1964) 1 All E.R 888 n
R v. Good (2005) DCR 804.
Nicholas v. Penny, Subnom Penny v Nicholas (1980) 2 All  E.R. 89.
United State v. Bonallo, 858 F. 2d 14 27, 1436 (9th cir 1988).
R v Shepherd (1993) 1 All E.R. 225 hl.
Ekiti State Independent Electoral Commission, & O55 v. DPP & Anor (2013) LPELR. 204 11.
Araka v. Egbue (2003) 7 SCNJ 114
DPP v. Mckeown (1997) 1 All E.R. 737.
Akenedolu & Anor v. Mimiko & Ors (2013) LPELR. 20532.
Lorriaine V. Markel American Ins. Co, 241 F.R.D. 534 (d. Md 2007).
R v. Cochrane (1993) Crim LR 48
Jagdeo Singh v. State & Ors CRL. A 527 of Feb. 2015.
Anvar v. Basheer & Ors (2014) 10 SCC 473.
Thorough goods case (1584) 2 Co Rep 99
Foster  v. Mackinnon (1869) LR 4 CP 704
R v. Mawji (2003) EWCA Crim 3067.
Robinson (1994) 98 Cr App R 370.
R v. Tobin  (2002) EWCA Crim 190
Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC.
Orlu v. Gogo Abite (2010) 8 NWLR (Pt. 1119) 307
PIP Ltd v. Trande Bank (Nig) Plc. (2009) 13 NWLR (1159)  577.
Rex v Masquid Ali & Aslig Hussein (Air 1964 Sc 72).
Guinness Nigeria Plc. V. Nwoke (2001) FWLR (Pt. 36) 981.
Esika v. Medolu (1997) 2 NWLR (Pt. 485)  54
Zekeri v. Alhassan (2003) FWLR (Pt 177) 777.
Uzor v. Delta Freeze Nigeria Ltd (2010) is NWLR (Pt. 1217) 553.










TABLE OF STATUTES
Evidence Act No. 18 of 2011
Police and Criminal Evidence 1984













LIST OF ABBREVIATION
ALL E.R.A.C. All England, Appeal Cases
A.C. Appeal cases
ALL N.L.R. All Nigeria Law Reports
ALL E.R. All England Reports
C.L.R. Common wealth Law Report
C.C.H.C.J. Certified Copies of High Court (of Lagos State) Judgments
C.O.X Coxs Equity
CR. APR R. Criminal Appeal Reports
E.C.S.L.R Law Reports of East Central State.
EAST. P.L.C. East Terms Reports, Privy Council
E.R. English Report
E.N.L.R Eastern Nigeria Law Reports
E.R.N.L.R. Eastern Region Law Reports
F.C.A.R.F.N.R Federal Courts of Appeals Report
F.N.R Federation of Nigeria Reports
F.S.C. Selected Judgments of the Federal Supreme Court
H.C.L.S. High Court of Lagos State Reports
H.C.N.L.R. High Court of Nigeria Law Reports
M.J.S.C. Monthly Judgment of Supreme Court of Nigeria
N.L.R. Nigeria Law Reports
M.N.L.R Mid-western Nigeria Law Reports
N.W.L.R. Nigeria Weekly Law Reports
S.C. Judgment of the Supreme Court
N.M.L.R. Nigeria Monthly Law Reports
K.B. Law Report Kings Bench
L.R,P.C. Law Report, Privy Council Appeals
L.J.Q.B. Law Journal Queens Bench
L.R.N. Law Report of Nigeria
T.L.R. Times Law Report
L.L.R. Lagos Law Report
W.L.R Weekly Law Report
Q.B. Queens Bench
Q.B.D Queens Bench Division.



ABSTRACT
The recognition and admissibility of Computer generated evidence is correlative to modernization and societal or civil reality. This arm of evidence for the sake of its peculiarity leaves us with contention as to its status and mode of admissibility, one which must be considered meticulously in the light of extant provisions of statute, case law and deduction from the mode of admissibility of traditional documentary evidence. What constitute computer generated evidence, the condition precedent for the admissibility, the weight attached to admissible statement, the presumption of the genuineness, the challenges facing its admissibility all attends the occasion to evince the entire character and mode of admissibility of this kind of evidence. The doctrinal research method is employed to achieve the objectives of this research. It is discovered in the course of this research that the pre-1900 Common Law still in force in Nigeria do not capture computer generated evidence, and upon the unwillingness to resort to post-1900 Laws which are seen to be less persuasive coupled with lack of technical know-how and computer literate judicial officers and counsels who still believe and duel in the haze of obsolete practices the law of computer generated evidence has not developed much. However it is recommended that there should be law reform especially the discard of ancient and obsolete practices i.e. pre-1900 Laws and computer appreciation as a precondition for appointment of judges and qualification of a legal practitioner. This will indeed improve the Law on admissibility of computer generated evidence in Nigeria. An addendum to the foregoing is that computer generated evidence must meet the condition precedent for admissibility stated in section 84 of the Evidence Act 2011.









CHAPTER ONE
INTRODUCTION
Background To The Study
The invention of computer has refined and improved mans relationship so much so that in split seconds a Chinese is able to interact and transact business with a Nigerian. These interactions and transactions carried out via the use of computers are similar to those carried out otherwise than by the use of computers. Computer generated evidence is a modern trend in the law, and in particular, the law of Evidence. As a new form of documentary evidence recognized by the Evidence Act 2011 and defined by s.258 of the Act its admissibility is based on relevance of the fact in issue. However, the mere fact that computer generated evidence is a documentary evidence does not render it admissible automatically.
Thus if an oral evidence is inadmissible as hearsay evidence the fact that it is contained in a document, produced from a computer will not render it admissible; it will also be excluded as hearsay evidence.
The question then is on what basis will computer generated evidence be admissible?. The nature of computer generated evidence makes it a little different from the other form of documentary evidence we are accustomed to. The manner in which the information is supplied and whether the information supplied is the same information produced from the computer are problems which this form of documentary evidence may encounter and this is due to the tendency of the computer to malfunction.     
At this point it is imperative to define key terms of the research Topic.
Admissibility: according to Blacks Law Dictionary means capable of being legally admitted, allowable, permissible, worthy of gaining entry or being allowed to be entered into evidence in a hearing, trial or other official proceeding’.
Computer is defined in s.258(1) of the Evidence Act 2011 thus 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.
The term Evidence was defined in Awuse v Odili as
Any specie of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witness, records, documents, exhibits, concrete objects etc. for the purpose of inducing belief in the minds of the court or jury as to their contention.
In the course of this discourse on the admissibility of computer generated evidence, the analytical research Method shall be employed, I would examine the nature, scope and substance of computer generated evidence as a form of documentary evidence and the manner or condition precedent or criteria for its admissibility. This research will be done by examining various articles, Textbooks, Journals, case laws, statute etc. with relevant inputs on the subject matter.
1.2 Statement of the Problem
Computer generated evidence as a form of documentary evidence must be proved generally by the means with which traditional documentary evidence is proved although more specific condition are prescribed in section 84 of the evidence Act 2011. This being the case, for a statement contained in a document to be admissible it must either be a primary or secondary evidence as provided in section 85 of the Evidence Act 2011. Since the enactment of the Evidence Act 2011, case laws and various articles written on computer generated evidence have failed to discuss expressly and directly the status of computer generated evidence that is whether it is primary or secondary evidence or the circumstances under which it would be headed as primary or secondary evidence or when it will be primary or secondary evidence. The status of computer generated evidence is at the epicenter of its admissibility and its importance therefore cannot be ignored. Inference can however be drawn from Text books and case laws as to its status, but this work will examine same under a separate heading.
Computer generated evidence is not admissible merely because it is produced by a computer neither is there a presumption of authenticity in favour of such evidence to make it authentically admissible. For instance if an oral evidence is not admissible because it is hearsay, it will not be admissible simply because it is produced by a computer. The author of Phipson on Evidence argues that.
At common law, when digital document is relied upon to prove what it states and what it states depends wholly or in part on information supplied by a person the evidence is classified as hearsay.
The rules governing admissibility of documentary evidence and evidence generally apply to computer generated evidence.
Thus the following research questions would be addressed in this work.
What constitute computer generated evidence?
What are the condition precedent for the admissibility of computer generated evidence?
How information are supplied to computer?
What is the weight to be attached to admissible statements generated from a computer?
Is there a presumption of genuineness of computer generated evidence?
What is the challenges facing the admissibility of computer generated evidence?
1.3 Aim And Objectives Of Study
The aim of study is to examine thoroughly and evaluate the admissibility of computer generated evidence.
The objectives of the study are as follows:
To examine what constitute computer generated evidence
To identify and examine the condition precedent for the admissibility of computer generated evidence
To evaluate supply of information to computer
To evaluate the weight to be attached to admissible statement generated from a computer
To examine whether there is a presumption of genuineness of computer generated evidence
To identify and evaluate the challenges facing the admissibility of computer generated evidence.
1.4 Scope of the Study
This research is based on the law of evidence in Nigeria and specifically the admissibility of computer generated evidence in Nigeria. This topic covers a wide range as it bothers on the admissibility of documentary evidence, however my focus is on the admissibility of computer generated evidence which is a form of documentary evidence.
1.5 Significance of the Study
It is impossible to argue a case in court without application of the law of evidence.  Computer generated evidence being a form of evidence recognized by the Evidence Act 2011, thus this work upon its completion will serve as a guide to judges, lawyers, student etc. as various statute, case laws, journals, textbook etc. will be considered and reviewed in course of this research. The work will be of benefit to both the researcher and all who would seek information on this novel area of the law.
1.6 Limitation of the Study
The limitation of this research is hinged on lack of fund and research materials. Getting funds to do a thorough research has been a problem so that it becomes difficult to access information online or subscribe for such information necessary for carrying out smooth and thorough research, the result of which there is lack of material.
Time constraint is also a limitation of the study and this is due to lack of fund which in turn slows down the process of sourcing for materials.
1.7 Research Methodology       
There are two approaches to legal research, they are as follows
Doctrinal or conceptual legal research approach
Non-doctrinal or empirical legal research approach.
Doctrinal or conceptual legal research approach means the type of research that analyses books, statute, journals case laws etc. and there after makes findings and recommendation.
Empirical legal research approach involves the collection of facts and data through interviews.The research approach used in this work is the doctrinal or conceptual legal research approach.
There are different method of data analysis which include historical, analytical, descriptive, comparative analysis etc. The method of data analysis used in this work is the analytical method.
The mode of data collection adopted are both primary and secondary modes. The primary mode of data collection entails examining statutes, federal and state legislations, the constitution, case law, forms and precedents. While the secondary method of data collection entails examining and evaluating books, journals internet sources etc. 
1.8.   Literature Review
Under this heading various text and publications on evidence will be considered with particular reference to their contribution to computer generated evidence.
Early writers like Aguda and Fidelis Nwadialo who had written in the Era of the old Evidence Act did not account or make any contribution on the admissibility of computer generated evidence because it was alien to our legal system and Evidence Act. Also writer like J.A. Dada, Yemi Osinbanjo and Peter Murphy fall into this category as their works where published in the Era of the old Evidence Act.
However, author like Jerry Amadi made notable contribution on the admissibility of computer generated evidence his view on the subject is that document are not just the information in the computer and that the computer cannot be tendered in evidence in substitution for the document, but the document produced from a computer sought to be tendered in evidence is the concern of the court, and for such evidence to be tendered the condition stated in S.84 (2) a-c must be fulfilled, the emphasis being on the computer itself and not on the maker of the document as in the case of documentary evidence under S.83(1) a and b of the Evidence Act. Chris Wigwe also made contribution on the subject, he posited that by virtue of s.84(1) of the Evidence Act, where direct oral evidence would be admissible in proof of that statement produced by a computer then the document is also admissible. Obiaraeri Nnamdi also made an extensive contribution on the subject matter as well as S.T. Hons. Also Phipson on evidence as well as Alaba Omolaye Ajileye who devoted his book   to the admissibility of electronic evidence.
A lot of articles has been posted on line on the subject matter since the enactment of the Evidence Act 2011 much of which will be considered in this research.
1.9.   Chapter Analysis
Chapter one deals with introduction, which is also its title and covers background to the study statement of the problem, aim and objectives of the study, scope of the study, significance of the study, research methodology, limitations of the study, literature review and chapter analysis.
Chapter two is headed literature review it gives brief definition of the key concept as well as the history nature and scope of admissibility of computer generated evidence in Nigeria.
Chapter three deals with the admissibility of documentary evidence generally particular areas relevant to the research topic such as signature in electronic evidence primary and secondary documentary evidence etc.
Chapter four is headed admissibility of computer generated Evidence. This chapter discusses the condition precedent for admissibility of computer generated evidence how information is supply weight and status to document produced by computer, forgery of document produced by a computer,
Chapter five deal with general conclusion, summary of findings and recommendations.
CHAPTER 2
LITERARURE REVIEW
2.1 Introduction
This chapter focuses on the definition of key concept of this research topic (The Admissibility of Computer Generated Evidence). The law of evidence, the concept of admissibility, classification of evidence and computers comprises the concepts and subject of this chapter, and each concept will be defined and discussed.
2.2 Definition of Evidence
The word ‘evidence’ has been defined by several authors and means several things to lay men and could be employed to mean different thing as the circumstances permit. However our concern is what evidence” means as it pertains to the court and the legal system.
Blacks Law Dictionary defines evidence as:
Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or none existence of a fact.
The collective mass of things, especially testimony and exhibits presented before a tribunal in a dispute. The body of law regulating the admissibility of what is offered as proof into the record of legal proceeding.
Evidence simply is the means by which facts are made evident or established to the satisfaction of person enquiring into them granted that such facts are credible and sufficient to satisfy or convince prudent minds. In Onya v Ogbuji  the court held that:
The term evidence has been aptly described as any specie of proof or probative matter legally presented at the trial of any issue, by the parties and through the medium of witness, records, documents, exhibits, concrete objects, etc. For the purpose of inducing belief in the mind of the court or jury as to their contentions.
In Chukwuogor v Obuora the Supreme Court held that in its broadest sense, evidence encompasses and include the means employed for the purpose of proving a disputed fact. Again in Chief Eze v. Brigadier-General Okoloagu (RTD) & 125 ors, it was held by the court of appeal that the term evidence is defined as;
The facts signs or objects that make you believe that something is true or the information that is used in a court of law to try to prove something see Oxford Advanced Dictionary P.398 while in Blacks law Dictionary 7th Edition page 76 the term evidence is defined to mean something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. Case law authorities, defined evidence as the means whereby the court is informed as to the issue of facts as ascertained by the pleading it is the testimony , whether oral or documentary or real, which is produced before a court or tribunal on some facts in issue.
Law of Evidence in the words of Hirst,
Encompasses rather broader functions. It includes rules regulating the means and methods by which facts may be proved to the satisfaction of the court; it allocates burden of proof as between the parties, and it prescribes the standard of proof which the court must require before it can make a finding on a given issue. The law of evidence also include within its broader compass rules prescribing the relative functions of judge and jury in respect of the receipt and evaluation of evidence.     
S.T. Hon adopting the above definition of law of evidence stated that the definition of the law of evidence cannot be faulted, save that it should also be extended to cover areas like presumptions and judicial notice, which though do not arise necessarily out of proof; are necessary aspect of law of evidence, incorporated in almost all principal statute of evidence globally, including the Nigerian Evidence Act, 2011.
In a judicial proceeding the evidence cannot be done away with, as it forms the fulcrum of all judicial proceedings, especially those where issues of fact are raised or relied upon. Patts-Acholonu, J.S.C emphasized this point in the case of Neka BBB manufacturing Co. Ltd  v  A.C.B ltd, where after holding that neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be a substitute for evidence, he concluded that: “Evidence whether oral or documentary consist  of facts and facts are the fountain head of the law”.
The Law of Evidence also referred to as Evidence Law is an adjectival or procedural law. It is not a substantive law like criminal law or law of contract, Tort, maritime law etc. It does not define rights, duties, and liabilities of the parties to a transaction in issue as well as the legally permissible defenses, exemptions or exceptions. As an adjectival law, the Law of Evidence concerns itself primarily with prescribing the method or procedure for application of substantive law thereby regulating the mechanisms of proof before an adjuratory body.
The law of evidence concerns itself primary with judicial evidence
2.3 Concept of Admissibility
Admissibility is a term which refers to the state of being received into evidence of any fact in a judicial or quasi-judicial trial or proceeding.
According to Blacks Law Dictionary, admissibility” is the quality, state or condition of being allowed to be entered into evidence in a hearing, trial or other official proceeding.               
Admissibility can best be thought of as a concept consisting of two quite different aspect; disclosure to the trier of fact and express or implied permission to use as evidence if we think of admissibility as a question of disclosure or nondisclosure, it is usually easy to say whether or not an item of evidence has been admitted. When we consider the question of permissible use the concept seem more much more complex. In the first place, evidence may be admissible for one purpose but not for another  In the second place, questions of the permissible use of evidence do not arise only at the time of disclosure to the trier of fact. The court may have to consider admissibility in deciding whether or not an opponents rebuttal evidence is relevant, and whether or not counsel can argue to jury that the evidence prove a particular point.
For an evidence to be admissible it must be relevant to the facts in issue. Relevance and admissibility though related, are distinct in that admissibility involves the process whereby the court determines whether the law of evidence permit and relevant fact to be received by the court. 
Relevancy is determined by logic and commonsense, practical or human experience and knowledge of the affair. On the other hand, the admissibility of evidence depends first on the concept of relevancy of fact of a sufficiently high degree of probative value, and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it. Relevancy is generally known as logical relevancy while admissibility is known as legal relevancy. Relevancy is a question of fact. On the other hand, admissibility is the duty of the court to decide whether an evidence should be received by the court.
In Nwabuoku v Onwordi. The Supreme Court held that admissibility of evidence is based on relevancy, as a fact in issue is admissible if it is relevant to the matter before the court. It concluded that since relevance is the precursor of admissibility what is not relevant is also not admissible. Also in Abubakar v Chuks the Supreme Court held that;
Admissibility is a rule of evidence and it is based on relevancy see Sadau v The state (1968) 1 All NLR 124; Oguonzee v The state (1997) 8 NWLR (pt.518) 566. In determining the admissibility of evidence, the court will not consider how it was obtained; rather the court will take into consideration whether what is admitted is relevant to the issues being tried. See Igbinovia v The state (1981) 25C5. In Elias v  Disi (1962) 1 SCNLR 361 (1962) 1 ALL NLR 214, this court held that in determining admissibility of evidence, it is the relevancy of the evidence that is important and not how the evidence was obtained.
A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the fact in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of relevancy in so far as they confirm the facts pleaded. See Oyetunji v Akami (1986) 5 NLWR (pt.42) 461 In other words, a document which is consistent with the pleadings is admissible if the documents is admissible in law.
Admissibility therefore is the state of being accepted or allowed or received into evidence of any fact in a judicial or quasi-judicial proceeding.
2.4 Classification Of Judicial Evidence
There are various classification of evidence as can be seen in various decisions of court and the provisions of statute. However from a community reading of the Evidence Act 2011 the major classification of evidence include;
Oral evidence
Documentary evidence
Direct evidence
Circumstantial evidence
Real evidence and
Hearsay evidence
Our focus is on documentary evidence however other classes of evidence shall be briefly defined.
Oral Evidence
Oral evidence is the statement of a witness in court whether on oath or affirmation offered as evidence of the truth of the fact which is stated, S.125 of the Evidence Act provides that all facts except the contents of documents, may be proved by oral evidence.
Documentary Evidence 
Documentary evidence refers to statement or other matters or fact contained exposed or made in a document which is offered to the court is proof of an issue in judicial proceeding. The word document has been defined under S.258 (1) of the Evidence Act 2011 extensively compared to the old Evidence Act.
Direct Evidence
Direct evidence means that the existence of a given thing or fact is proved either by its actual production, or by the testimony of a witness who has himself perceived it. The general rule is that oral evidence must in all cases be direct as provided in s.126 of the Evidence Act, and reiterated in INEC v Action congress where Justice Salami stated:
section 77 of the Evidence Act, cap 112 of the Laws of the Federation of Nigeria, 1990 required that evidence on a matter should be from a person who saw or heard or perceived the matter if the matter is capable of being seen, heard or perceived and not from any other source. An evidence may be considered as hearsay if it does not emanate from the witness itself

Circumstantial Evidence
Although this class of evidence is not expressly stated in the Evidence Act, the Evidence Act contemplates it use in judicial proceeding. Circumstantial evidence is the direct opposite of direct evidence. It denotes the evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. Courts are however warned to take caution in the application of circumstantial evidence because it can be fabricated to cast suspicion on another. The danger of this kind of evidence is however in criminal proceeding.
Real Evidence
Real evidence is defined in S.258(1) of the Evidence Act 2011, as anything other than testimony, admissible hearsay or a document the contents of which are offered as evidence of a fact at a trial, what is examined by the court as a means of proof of such fact.

Hearsay Evidence 
Hearsay evidence was defined by the Privy Council in Sobramaniem v Public prosecutor as;
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained is the statement. It is not hearsay and admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made.

Section 37 of the Evidence Act 2011 defines hearsay evidence thus;
Hearsay means a statement-
Oral or written made otherwise than by a witness in a proceeding; or
Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Therefore by value of the provision in S.38 of the Evidence Act 2011 that hearsay evidence is inadmissible except as provided in the Act or under any other Act.

2.5 Definition Of Computer
Section 258(1) of the Evidence Act define computer as;
any device for storing and processing information and any reference to information being derived from other information, is reference to it being derived from it by calculation, comparison or any other process.
There is no generally accepted definition of computer, but a service of definition proposed. A computer is define as;
any device capable of accepting information, applying prescribed process to the information and supplying the result of these processes. A machine capable of accepting information, processing it and providing the result of the processes. A machine capable of accepting information, processing it and providing the result of the processes.   
2.6 Conclusion
The definition of key as well as their theoretical framework has been considered. So also has there been an appraisal of the classification of judicial evidence and the brief history of the introduction of computer generated evidence into our corpus juris. It is an irrefutable fact that evidence is the heart of legal practice and it touches on the core of justice. The law of evidence which is basically procedural guides the admissibility of evidence and the primary legislation which governs admissibility of evidence is the Evidence Act 2011.


CHAPTER 3
ADMISSIBILITY OF DOCUMENTARY EVIDENCE
3.1 Introduction
Pursuant to the inclusion of computer generated evidence into the Evidence Act 2011 as a form of documentary evidence, it is imperative to discuss briefly documentary evidence, it salient features and admissibility before delving into the subject matter as the general knowledge and understanding of documentary evidence will aid the full grasp and understanding of the subject matter of this research work
The best evidence rule prescribes that where a transaction has been reduced to documentary form and a party wishes to rely on it such document either its original or it secondary nature where permissible should be tendered in court. In Abubakar v Waziri the Supreme Court held that where a party pleads or leads evidence as to the existence of a document in proof of his case, the original or in an appropriate case, secondary evidence of it, should be tendered, as the law generally does not allow oral evidence to be led in proof of the content of such document. This rule underscores the nature of documentary evidence and situations where it is imperative or mandatory to produce such evidence in court in proof of an alleged transaction where such transaction is alleged to have been documented.
The general rule is that oral evidence cannot operate to vitiate or vary the terms of a document, this proposition is supported by S.128(1) of the Evidence Act 2011. However there are instances where oral evidence can be admitted to vary or qualify the terms of a document. This is due to the circumstances of the case. In Musa v Christlieb plc it was held that in a claim that money was paid to a person, it is not only documentary evidence that could be used to support the claim, but also oral evidence of a persons who witnessed the payment is receivable.
The general rule on admissibility of evidence is that where a piece of evidence is relevant to a given proceeding and one which is legally admissible the evidence should be admitted irrespective of custody or how it was obtained.
However the court reserves the power to exclude certain piece of evidence which though appears relevant or admissible may prejudice the parties, especially defendant in criminal matters and may exclude such evidence in the interest of justice. Such discretion must however be exercised judiciously.
Section 2 of the Evidence Act 2011, provides 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 to 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. In effect the evidence Act is the hanger on the question of admissibility of document in judicial proceedings to which this Act applies.   
 In Okonji v Njokanma, it was held that although admissibility of a document in a civil case is one while the question of weight to be attached to the document when it is eventually admitted is another, there are generally three main criteria that govern admissibility, namely.
Whether the document is pleaded;
Whether the document is relevant; and
Whether the document is admissible in law.
Achike J.S.C, who delivered the lead judgment held on page 275 of the law Report that the procedure for fulfilling the three conditions is by scaling of hurdles meaning invariably that the and after condition b is conjunctive that is that all three conditions must be fulfilled. He further stated on page 278 as follows:
I must hasten to say that a document may be admissible in evidence if it satisfies the prescribed conditions for admissibility for that purpose yet those conditions may be wholly unsatisfactory if such document is sought to be admitted in evidence for yet a different purpose. This is another way of saying that even if a document is admissible under certain provisions of the Evidence Act that does not Ipso facto make the same document admissible for all intents and purposes because where such document is intended in proof of a specific item under the relevant law, the specific requirement of provisions under that law must be satisfied to the hilt in order to effectuate the reception of that document in evidence.
The Supreme Court held further in this case that relevancy is determined from the surrounding circumstances of a particular case, holding that in the instant case since the disputed documents is extensively pleaded its relevance to the proceeding.         
However, relevancy alone is not enough; and in the case of admissibility of secondary documentary evidence the conditions laid down by the Evidence Act 2011 must be fulfilled before it will be admissible in evidence. In criminal proceedings, it has been held that what determines admissibility is relevancy. However, inadmissibility for one purpose does not mean inadmissibility for all purposes. Therefore a document may be inadmissible for one purpose but may be admissible for another purpose. However, a document cannot be admissible in some part and be inadmissible in other parts; it is either wholly admissible or inadmissible. A document does not become admissible merely because a previous document with the same toga or status has been admitted. In Buhari v INEC it was held by the Supreme Court, that the ruling on a document is tied to that document alone and cannot in anyway affect a previous or subsequent document tendered before the court. The Supreme Court stated that documents are not twins and cannot be treated as such by the court.
When a document is inadmissible in any event, objection or not, it remains inadmissible and the appellate court has inherent jurisdiction to exclude it, but if it is admissible only upon fulfillment of certain conditions, failure by a party to object to its admissibility will prelude that defaulting party from objecting later or on appeal.
It is worthy of note that in both evil and criminal proceedings, the source of evidence generally, and of documentary evidence in particular, is relevancy. Therefore once documentary evidence is relevant and admissible in law, it will be admitted in evidence, irrespective of the fact that the evidence was criminally, fraudulently or unlawfully obtained. Document are to be identified before they can be admissible. Where it is a handwriting the witness can identify the handwriting or signature on the documents failing which the document will not be admitted in evidence.
3.2. Category of Documentary Evidence
The admissibility of documentary evidence depends on whether the evidence falls within the category of documentary evidence or document as defined under S.258(1) of the Evidence Act 2011. Under this section, the categories of document includes:
 any matter expressed or described upon any substance by means of letters figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
Any 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 any.
Any film, negative, tape or other device in which one or more visual images are embodied so as to capable with or without the aid of some other equipments) of being reproduced from it; and
Any device by means of which information, is recorded stored or retrievable including computer output.
Thus one major element of computer generated evidence is that it is retrievable in the sense that the contents may be produce to court no matter the form in which it may be.
3.3. Execution Of Document     
For the purpose of this research it is pertinent to discuss the execution of document.
S.83 (4) of the Evidence Act 2011 provides that.
For the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.
The rationale for requiring a document to be signed or authenticated in any of the manners set out in S.83 (4) of the Evidence Act is to ascertain its genuineness and to know the true maker of the document. In Jinadu v Esurombi-Aro the Court of Appeal was of the opinion that failure to sign a document which ought to have been signed does not affect the admissibility of the document but the weight to be attached to it. Same position was held on appeal to the Supreme Court. Thus where a witness makes a statement under section 83(1) Such statement is admissible provided it fulfils the condition in S.83 (4).
3.4. Document Which May Not Require Signature.
Certain documents may not require signature, this does not mean that such documents are not admissible. A computer printout does not carry signature and so are electronic documents in general. In Arewa Textiles Plc v Finetex L td  the court per Salami JCA held that curriculum vitae in general sense is not required to be signed by the person it attest of and as such the document did not become inadmissible by reason of being unsigned. Salami JCA held that;
 there is also no law requiring him to sign his curriculum vitae  there is requirement to sign a judgment but as a matter of practice curriculum vitae are invariably not signed.
A document tendered as real evidence does not require any signature or initial; it is tendered as the res in issue and not necessary to prove a fact by its contents.
3.5. Signature in electronic document.
Usually, electronic documents may not be signed although a specimen signature can be scanned into a document to prove due execution where a document is printed from the email or sent from one email to another, the name in the email address may serve as proof of the origin of the document.
In the banking sector, a customers signature must be affixed to every payment slip or cheque as a signification of the origin and authenticity. In modern time, payments are made through automated teller machines (ATM). Payment is possible only when the customers Personal identification number is keyed into the machine. In effect, the PIN number constitutes the customers signature which the machine confirms before payment.
What may be garnered from the above is that several innovation introduced by the Evidence Act should be read as embracing these forms of documents and transaction, so that anything contained in a document which confirms that the maker actually made the document should be read as sufficient to bring the document under S.83(4) of the Evidence Act 2011.
3.6. Primary Documentary Evidence
S.85 of the Evidence Act provides that the content of document may be proved either by primary or by secondary evidence. The first limb which is primary evidence will be treated under its own headings, as well as secondary documentary evidence. Under S.88 of the Evidence Act 2011. The general rule is that a document shall be proved by primary evidence except in cases mentioned in the Act. Under S.86 of the Evidence Act, primary document means the document itself produced for the inspection of the court. It is the best evidence because the law regards primary evidence as affording the greatest certainty of the fact in dispute.
In S.86 of the Evidence Act 2011defines the category of primary evidence:
Primary evidence means the document itself produced for the inspection of the court.
Where a document has been executed in several part each part shall be primary evidence of the document.
Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
Where a number documents have all been made by one Uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest: but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
The law is that where primary evidence is available secondary evidence is inadmissible.The provision of the Evidence Act 2011 on primary evidence is self-explanatory. Where a document has several copies and is fully executed by one or some of the parties, the executed copies of the deed are primary evidence against the parties but secondary evidence where tendered by a party who did not executed it. The same rule applies to the production of several copies through a uniform process, like printing, lithography, photograph, or computer or other electronic or mechanical process.
A piece of evidence may be primary evidence for one purpose and secondary evidence for another. In R v Regan it was held that if the question is the exact message sent by telegram or cable, the original is the written message handed in for dispatch at the post office, but if the question is the message received, the original will be the actual telegram or cablegram delivered to the addressee.
3.7. Secondary Document Evidence
While primary documentary evidence is the original document produced for the inspection of the court, secondary documentary evidence is simply a copy of the original document or an oral account of it, or any means which may be used to prove the existence and content of the original without producing the original in evidence.
Section 87 of the Evidence Act 2011 defines secondary evidence to include.
Certified copies given under the provision hereafter contained in this Act
Copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy and copies compared with such copies.
Copies made from or compared with the original
Counterparts of documents as against the parties who did not execute them; and
Oral accounts of the contents of a document given by some person who has himself seen it.
It is worthy of note that for all this criteria stated for proof of secondary evidence, only certified copies can be used to proof public documents.
Finally the use of the word include in that section means that the instances of secondary documentary evidence in that section is not intended to be exhaustive.
3.8. Conclusion   
The discussion in the chapter evinces that for an evidence to be admissible, the status of such evidence must be defined. Thus where a document is neither primary nor secondary evidence of the fact in issue it is inadmissible in judicial proceedings. Varying categories of document where identified as well as the need to execute and identify them. It is also noted that the conditions stated in section 83 of the Evidence Act 2011 must be fulfilled if a document is to be admissible in evidence in a trial.




CHAPTER  4
ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE
4.1. Introduction
The extensive definition of the term document in the Evidence Act 2011 is indeed a welcome innovation as it gives statutory backing for the admissibility of computer generated evidence, or the recognition of statement produced by a computer. The old Evidence Act did not contemplate computer generated evidence nor did it envision it being part of documentary evidence thus occasioning unmitigated hardship on legal practitioners and parties who probably would have had a good case.
 The Evidence Act, 2011 provides under  S.84 for the admissibility of computer generated evidence, it is interesting to note that this section was lifted directly from section 65B of the Indian Evidence Act 1872, as amended and  substantially from  section  69 of the English police and criminal  Evidence Act, 1984, popularly called in the united  kingdom the PACE Act, 1984.
S.84   of the Evidence Act 2011 operates to render frivolous and trifling objection moribund. This section does not recognize the existence of any dichotomy in the nature of electronically generated evidence and documentary evidence. It only recognizes a statement in a document produced by a computer.
It does not as well require the production of the original of a document. Furthermore, How a witness came about the document does not also appear to be part of any issue of consideration for the court under S.84.  Once it is a statement contained in a document produced by a computer it has passed through the hurdles and fulfill the conditions for admissibility prescribed in section 84 (2) and (4)
S.84prescribes condition for admissibility of computer generated evidence, and does not by it content abrogate other rules of evidence applicable to the admissibility of documentary evidence. For instance document that require certification will have to be certified under S.104of the Evidence Act. Thus if a certified document is electronically generated, it will then be subjected to conditions set out in section 84.
Under this section, the distinction between a private and a public document retains it sanctity and the technology involved do not make a document public or private, but the institution it resides. Therefore a computer printout of a judgment of a court of law remains a public document and will require certification to be admissible.
Ogunbiyi J.S.C stating this principle held in Kubor v Dickson, that;
The law is trite on the admissibility of such category of secondary evidence. In other words, and on the authority of section 90 (1) c and 102 (b) of the Evidence Act, It is only the certified true copy of the document as secondary evidence that is admissible. It is my considered view that the absence of certification had rendered Exhibit D a worthless document.
S. 38  of the Evidence Act 2011, make hearsay  evidence  inadmissible  however an exception to this rule is S.41 which states  that statements made in the ordinary course of business is admissible  when it consist of any entry, or memorandum  made in books, and electronic device kept in the ordinary course  of business. The proviso being that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the court considers it unlikely that the transaction was at that time still fresh in his memory. S. 84 applies to both civil and criminal proceeding with equal force.

4.2 Presumption as to Accuracy of Computer Generated Evidence
 In the united kingdom where S. 84 of the Evidence Act is substantially lifted from, and in all other jurisdictions that have similar provisions, there is a presumption, which has now become a presumption of law that a computer or other electronic evidence from which an output is propose to be tendered in evidence was operating at the time of the printout, accurately and correctly.
In castle v. cross   Brown, L.J stated that there is a presumption that, in the absence of any corollary evidence, a mechanical   instrument is working accurately. This presumption has also been held to apply to traffic lights  speedometers and stopwatches , since these devices are computer in their own rights. Same law applies to a computer working at the time the issue is raised in court.
This is also the law in Canada as held by Harvey J. in R v Good.
 However, S.84 of the Evidence Act seen not to agree with the above position.S.84 (2) (c) and (d) of the Evidence Act 2011 provides;
(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 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.
 From the forgoing position stated in these paragraph of subsection 2 of section 84 it is obvious that the presumption of accuracy is not made  in favour of a  statement produced by a computer or that the computer is working accurately or properly at the time the document was produced or when the  issue  was raised in court.
Thus it must be proved that throughout the material part of the period when the document was produced, the computer was operating properly or where it was not, it was not such as to affect the production of the document, and the accuracy of it content and that information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
With all due respect therefore, the view that there is a presumption of accuracy and good working condition of the computer respectively as posited by Sebastine Tar Hons cannot be correct. And in fact there is a presumption against the good working condition of the computer and accuracy of the document until it is proven otherwise.
In Kubor v. Dickson where a printout of online version of the punch newspaper and another document from the website of INEC was sought to be tendered, the respondent on appeal argued that since the two document were public documents, only a certified copy was admissible in evidence and they have been tendered from the bar without satisfying the conditions set out by S.84 (2)of the Evidence Act 2011. The Supreme Court agreed with the respondents. In the lead judgment, the Court stated as follows:
There is no evidence on record to show that the appellants in tendering exhibits D and L satisfied any of the above conditions. In fact, they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under S.84 b of the Evidence Act, 2011. No wonder therefore that the lower Court held at page 838 of the record thus.
A party that seeks to tender in evidence computer generated documents need to do more than just tendering same from the bar.  Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act, 2011.
I agree with the above conclusion. Since the appellants never fulfilled the pre-conditions laid down by law, Exhibit D L were inadmissible as computer generated evidence.

The presumption against the good working condition of the computer and the accuracy of the document finds expression in section 69(1) PACE Act 1984 and the decision in R. v. Shephard.
 The PACE Act provides in section 69(1) thus:
In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact therein unless it is shown-
(a) That there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer;
(b) That all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents; and
(c) That any relevant conditions specified in rules of court under subsection (2) below are satisfied.
This above position was interpreted by the apex court in England, in R v Shephard .
 Lord Griffiths stated.
The object of s.69 of the Act is clear enough. It requires anyone who wishes to introduce computer evidence to produce evidence that will establish that it is safe to rely on the document produced by the computer. This is an affirmative duty emphatically stated (sub-s (1):
a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown
Such a duty cannot be discharged without evidence by the application of the presumption that the computer is working correctly expressed in the maxim Omnia Praesumuntur rite esse acta as appears to be suggested in some of the cases
I therefore approach this question upon the basis that if the prosecution wishes to rely upon a document produced by a computer they must comply with s.69 in all cases.

4.3 Condition for the Admissibility of Document Produced by Computers
The reliability and authentication of a statement in a document produced by a computer is always sought by the court, this is because it.
 In the age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of section 97(2)c could be tutored and therefore not authentic. Photo-tricks could be applied in the process of copying the original document with the result that the copy which is secondary evidence does not completely or totally reflect the original court has no eagle eye to detect such tricks.
In Ekiti State Independent Electoral Commission & Ors v. DPP &AnorOnyemenan J.C.A said,
With our modern information communication technology, anything is possible. Documents and signatures are easily manipulated to the extent that genuineness of the documents can no longer be ascertained by mere observation with the eyes.
The susceptibility of computer records and the tendency for it to be hijacked, destroyed, copied, intercepted or deleted by hackers or viruses etc cannot be overlooked. As a result of this, S.84(2)was enacted to ensure that what is tendered in evidence before the court is prima facie reliable and worthy to be accepted as evidence.
The court on their part have not relented in its emphasis on the fulfillment of the condition stated in S. 84(2)of the Evidence Act, 2011 while adjudicating on matters regarding the admissibility of statement in document produced by a computer.
The English Court in R v. Shepherd while considering S. 69 of the PACE ACT of which S. 84of the Evidence Act was substantially lifted held that:
The object of S. 69 of the Act is clear enough. It requires anyone who wishes to introduce computer evidence to produce evidence that will establish that it is safe to rely on the document produced by the computer. This is an affirmative duty emphatically stated (sub s (1):
a statement in document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown

I therefore approach this question you the basis that if the prosecution wish to rely upon a document produced by a computer they must comply with S. 69 in all cases.
Also in DPP v. Mckeown the court commenting on S. 69 the PACE ACT 1984 said:
The purpose of section 69 of UK PACE 1984, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the jury. All that section 69 requires as a condition of the admissibility of computer-generated statement is positive evidence that the computer has processed, stored and re-produced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states.
Pursuant to the above stated position it is trite to say that for a statement in a document produced by a computer to be admissible the conditions stated in S. 84 of the Evidence Act, 2011 must be complied with. Thus, it is necessary to prove that the statement claimed to have been produced from the computer reflects, in the words of Tobi J.S.C. completely and totally, what was fed into and contained in the computer.
Section 84(1) of the Evidence Act provides as follow:
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.
Subsection 2
The conditions referred to in subsection (1) of this sections are-
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 profit or not, by any body, whether corporate or not, or by any individual;
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;
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 not 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
That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

Section 84(1) makes computer generated evidence admissible while in subsection 2, conditions for the admissibility of document produced by a computer are laid.
A locus classicus on the condition stated in S. 84(2) is the case of Kubor & Anor v. Dickson & Ors. In this case, the appellants challenged the election and return of the first respondent and the Governor of Bayelsa State in the February 11, 2012 governorship election. The document tendered by the appellants included a computer printout of the online version of the Punch Newspaper and another document from the website of the independent National Electoral Commission (INEC), the third appellant in the appeal. The electronic version of the punch was admitted and marked Exhibit D. The document form INECs website was equally admitted and marked Exhibit L. There was no evidence on record that the appellants, in tendering Exhibits D and L satisfied any of the conditions stated in section 84(2). The Supreme Court affirmed their rejection by the lower court. Apparently, the exhibit were tendered from the bar. The Supreme Court held:
Granted for purpose of augment, that Exhibits D and L being computer generated documents or e-documents down loaded from the internet are not public documents whose secondary evidence are admissible only by way of certified true copies then it means that their admissibility is governed by the Provisions of section 84 of the Evidence Act 2011
There is no evidence on record to show that the appellants in tendering exhibits D and L satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no Opportunity to lay the necessary foundations for their admission as e-documents under section 84 of the Evidence Act 2011. No wonder therefore that the lower court held at page 838 of the record thus:-
A party that seeks to tender in evidence a computer generated document need to do more than just tendering same from the bar. Evidence in relation to the use of computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.
I agree with the above conclusion. Since appellant never fulfilled the pre-conditions laid down by law, exhibit D and L were inadmissible as computer generated evidence/documents.
Also in Akeredolu& Anor v Mimiko andOrsone of the issue that came up before the court of Appeal was whether or not the contents of voters registers for 2011 and 2012 tendered in evidence as Exhibit P50A and P50B respectively before the Governorship Election Petition Tribunal ought to have been allowed to be demonstrated through electronic gadgets before the tribunal. The court of Appeal, while affirming the decision of the trial tribunal in rejecting the application for such demonstration emphasizes the need for laying of requisite foundation regarding conditions stipulated for admissibility of electronic evidence under section 84. The court states thus;
Going by the foregoing provision it is discernible that the appellant who were desirous of demonstrating electronically the content of Exhibit P50A and P50B failed to lay the necessary foundation regarding the conditions of the electronic gadget or computer they were going to use. To the extent that those conditions as spelt out in section 84 supra were unfulfilled the demonstration ought not to be allowed.
The decision by the Supreme Court in Kubor v. Dicksonand the court of Appeal inAkeredolusimply means that the condition stated in section 84(2) are mandatory if a party desires to tender e-documents.
It simply means that a party must lay the foundation for admissibility of computer generated evidence as stated in section 84(2) of the Evidence Act 2011. The purpose of laying foundation is to ascertain the reliability and trustworthiness of computer generated evidence. This is a function of the computer that generated the evidence and the contents of the document vis-à-vis what is contained in the computer.
[C]omputer data requires reliability as evidence from the system under which it is produced. If the original data fed in is not accurate or if the machine and it program are not well designed and operated of if the data produced is not properly evaluated, it has no probative force.

Therefore a witness who intends to tender computer generated evidence under Section 84(2) is required to lay proper foundation for it admissibility,
In essence, as a condition precedent to admissibility of a computer generated document, there must be evidence sufficient to establish or support a finding that the document in question is what the proponent claims it to be.
As a pre-condition under Section 84(2) the proper functioning of the computer is required to be established.
Section 84(2) (a)this is enacted to ensure that the computer from which a document was generated is reliable. The reliability of the computer is established by the fact that there is evidence to show that it was used regularly to store or process information for the purpose of activities regularly carried on over that period.
Under Section 82(2)(b)there must be proof that the document itself, produced by the computer, is authentic. The vulnerability of computer records to manipulation and tampering is directly in point. It must be established that the computer did exactly what it was instructed to do and noting more or less, and the document consist of what was fed into the computer. Under Section 84(2)(c) the question of trusting the operator of the computer arises. A computer without human effort or intervention can malfunction. It may be affected by viruses or bugs. In such situation the computer has the tendency to produce inaccurate data. The law therefore requires a party tendering such evidence to lay foundation as to the proper operation and that if there was malfunction it did not affect the accuracy of the document or the production thereof.


In DPP v Mckeownwhere the question was whether a document produced by a computer was inadmissible as a result of the inaccuracy of the timing of the mechanism under Section 69(1) of the Police and Criminal Evidence Act 1984. Lord Hoffmann, who delivered the lead judgment held on Page 743 that he wanted to assume that the inaccuracy in the time display meant that the computer was not operating properly
He however, held that the next inquiry was whether such improper functions was such as to affect the production of the document or the accuracy of its contents.
He said:
The question is therefore whether that was such as to affect the production of the document or the accuracy of its contents! if the words are used literally, it did In my view, however, the paragraph was not intended to be read in such a literal fashion. [T]he production of the document or the accuracy of its contents are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in uppercase? The fault has certainly affected the production of the document. But a rule which excludes another wise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of this rule.
Thus the malfunction of a computer is relevant if it affects the way the computer processes, store or retrieves the information used to generate the statement tendered in evidence, other malfunctions do not matter if it does not affect the production of the document or it accuracy. This was Lord Hoffmanns answer to the question he posed.
Under Section 84(2)(d) it must be established that the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
However, the authentication of computer generated evidence depends on the circumstances of the case. In Lorraine v Markel American Ins. Co.Judge Grimm stated that any serious consideration of the requirement to authenticate electronic evidence needs to acknowledge that, given the wide diversity of such evidence, there is no single approach to authentication that will work in all instances. Rather, as with the authentication of any kind of proffered evidence, the best or most appropriate method for authenticating electronic evidence will often depend upon the nature of the evidence and the circumstances of the particular case.

4.4 Document Produced from a Computer Network or a Combination of Computers
A network is:
A system in which terminals and Computers are linked together according to such factors as the distance between them, the amount of messages traffic expected between them, and the existence of appropriate Communication facilities needed to connect them. In some network there are alternative paths (communication links) from every computer or terminal to every other
According to Jerry Amadi,Most Corporate Institutions use the network system, with the effect that a set of information could be commonly showed by a number of computers. Using the network system, information could be fed into the computer from one city, and showed to computers from other city or cities. This information can also be altered via the internet. However, this alteration may not hamper the admissibility of the document containing the statement which had been fed in and produced in this manner.
Section 84(3) in contemplation of this circumstances provides:
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
By a combination of computer operating over that period; or
By different computers operating in succession over that period; or
By different combinations of computer operating in succession over that period, or
In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer shall be constituted accordingly.
In R v. Shepherdthe House of Lords took note of document produced by computer being an increasingly common feature in all business and more people are becoming familiar with it use.
Thus, the increasing use of the computer for business and the network system which connect two or more computers to one transaction is a trend which the law must follow, gone are the days when most computers stood alone on a desk. The majority of computers are now connected, at least intermittently, to some form of network. The traits left by the assortment of logs and files in computers can produce digital evidence in abundance, including use of
E-mail, connection to the internet and viewing of websites, and the transfer of file between computers.
The Evidence Act in a bid to make such evidence admissible in law takes such combination of computer as a single computer and document produced by it as admissible subject to the conditions in Section 84(2).

4.5 Supply of Information to Computer
Section 84(5) of the Evidence Act 2011, regulates the manner in which information is to be supplied to a computer, in other that the statement contained in a document produced by a computer is admissible.
Section 84(5) provides as follows:
For the purpose of this Section
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;
Where, in the course of activities carried on by any individual or body, information is supplied with a view to it 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 computer, shall be taken to be supplied to it in the course of those activities.
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.
It is submitted that this is an elastic provision as the law does not state what amounts to any appropriate form and appropriate equipment. It will therefore require the exercise of judicial discretion to interpret the expression appropriate form and appropriate equipment in any given case.


In R v Cochranea building society paid some amount of money into the appellants account. Shortly thereafter, a number of withdrawals were made in succession from ATM machines in different towns. The appellant was arrested and charged for theft, for fraudulent use of cash card. The crown canvassed evidence to show that when an ATM machine is used, the information typed in by the user was relayed to the branch computer, which retained a back-up copy of the transaction. The information was then transmitted to the central mainframe computer. The prosecution could not however establish an evidentiary foundation for the admission of the evidence, since it failed to lead evidence on the location of the mainframe computer. There was want of evidence to show that the mainframe computer was operating properly or correctly.
Although the appellant was convicted by the trial court his appeal was allowed. The Lord Justices considered that it was necessary to adduce credible evidence to explain how each of the relevant pieces of information printed on the till toll came into existence. In other words, the Court of Appeal held that it was necessary that appropriate evidence of sufficient authority must be called to describe the function and operation of the mainframe computer, including the process by which it validated transactions.
In this case, the manner in which the information was supplied to the ATM which is by entering the figure in the ATM machine can be said to be an information supplied to a computer in appropriate form and by means of an appropriate equipment, articulated in the Evidence Act. Similarly, it is also a means by which information or document is obtained without human intervention. As in this case where the information typed by the user is relayed to the branch computer, which retains a copy of the transaction and the information then transmitted to the Central Mainframe Computer.


4.6 Endorsed Certificate raises Presumption of Genuineness
A certificate is a document in which a fact is formally attested.
In other to satisfy the conditions stated in section 84(2) of the Evidence Act 2011 there is a requirement for the production of a certificate of authenticity accordance with which provides that:
In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-
  Identifying the document containing the statement and describing the manner in which it was produced;
 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.
  Dealing with any of the matters to which the conditions mentioned in subsection (2) above relates; 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.

The production of the certificate is an additional step required by law to establish the fact that the computer is reliable. It is not a way of avoiding or dispensing with the viva voce evidence of a witness who seeks to establish the foundation required under 84(2). In Jagdeo Smith v The state & Orswhile dealing with the admissibility of intercepted phone calls in a CD and CDR which were without a certificate under section 65B of the Indian Evidence Act, the court observed that the secondary electronic evidence without certificate is inadmissible and cannot be looked into by the court for any purpose whatsoever.

Under section 84(4) it is provided that the matters to be stated, is to be stated to the best of the knowledge of the person stating it. For proper understanding of section 84(4) it is expedient to read it together with section 84(1) and (2). If this is done, it becomes clear that it is mandatory that a certificate must accompany the electronically generated document that is to be tendered in evidence even where CDs or DVDs are tendered, they must be accompanied by a certificate.
What is required under section 84(4) is not certification of a document by mere stamping, but a certificate. Lord Griffiths observed in R v. Shepherdthat the certificate is not a rebuttable proof of its contents. The adverse party has a right to impugn the certificate, and he has a right to insist that the issuer of the certificate be called so as to be cross-examined on the content of the impugned certificate, subject to the overriding discretion of the court.

However, it is not clear whether or not the certificate can take the form of an affidavit. This is against the backdrop of the statement of affirmation required in section 84(4)b(I) that for this purpose of this sub-section, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. Under the Singapores Evidence Act (as amended), authenticity of electronic records, reliability and accuracy of the process of their production can be established by affidavits. It is suggested that our court should find nothing offensive in the use of affidavits to establish the fact required under section 84(4).

4.7 Likelihood of Forgery of Computer Generated Evidence
Forgery of document is an age long device employed by men in a bid to deceive others. It had began and existed even when it was difficult to do so how much more a document produced by a computer, which can be altered, intercepted through the internet or copied by hackers. Forgery of document has been recognized by the court since 1584 in Thorough goods Caseand in the case of Foster v. Makinnon
In R v. Mawjithe appellant was charged with the offence of threat to kill. The prosecution relied on e-mail which had been sent to the victim, it read.

Hi Bitch,
Dont think youre safe in the UK. Im going to kill you. I will make sure I get my hand on you waiting for you. Your loving husband. Riz.

Counsel to the appellant challenged the admissibility of the above statement, alleging on one part that it was hearsay, and asserting in the alternative that the statement of the above character was probably to be forged by a third party, and make it appear that the appellant sent it. The appellant in fact, called a witness who gave evidence to demonstrate how easy it was to produce a document that purported to be an e-mail, but which had nothing to do with the e-mail account for which it purported to come from. The English Court of Appeal rejected the argument and defense. On the question of hearsay, Kay, LJ stated:
Ones she had given evidence it seems to us she was entitled to produce a document which, if the jury accepted it to be a genuine document, confirmed in clear terms what it was that she had seen.

As it affected the origin or authenticity of the e-mail, the lord justice held that the email did not have to be authenticated in the way suggested by the appellant, because of the circumstance surrounding the events and the other evidence. The content of the e-mail demonstrated its authenticity on the face of the totality of the evidence led.

Thus no special authenticity is needed to be made on computer printout to qualify it for admissibility.
Stephen Mason supports the view that no special authentication need be made on a computer printout to qualify it for admissibility just like every other document. The learned author argued that,
It is not always necessary to obtain intricate details of a computer or its operating system for evidence and the means by which a document is authenticated may not necessarily require the evidence of an expert.

There is great deal of misunderstanding, for instance over the admissibility of email, to consider just one example. It is often asserted that because email can be easily forged it is important to prove an email has not been forged before it is admitted into evidence. This proposition is nonsense. Document on paper are forged or altered, as in the case of Scholastic Inc. v Stouffer (221 F. Supp. 2d 425 (S.D.N.Y. 2002), and letters are forged as in the case of Arrow Nominees, Inc. v Blackledge (2002) 1 BCK 709, (1999) Times, 8 December, (1999) All ER (d) 1200). The forgery of evidence is nothing new and just because it is to forge an email it does not mean that email correspondence is required to undergo an extensive forensic analysis to prove it is not a forgery for it to be admitted into evidence (emails can of course be forged; R v Debnath (2005) EWCA Crime 3472, (2006) Cr App Rep (S) 169). The authenticity of a document in digital format can be tested in other ways that are equally as effective.

Jerry Amadi noted that:
A party alleging that a computer printout was forged cannot assert that only when the document is sought to be tendered; he must plead that fact, and as the law has always been, in relation to question of forgery, he must plead that particulars of the forgery and prove the point beyond reasonable doubt.

Ford Elliot J observed;
Essentially, appellant would have us create a whole new body of law just to deal with emails or instant messages. The argument is that emails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the email, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to anothers email account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on anothers typewriter distinct letter head stationery can be copied or stolen.
We believe that email messages and similar forms of electronic communication can be properly authenticated within the existing framework we see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there was an adequate foundation showing of their relevance and authenticity.
Thus upon the relevance of the authorities stated above, it is proper to say that although electronic evidence can be forged (as much as traditional documents) no special authenticity will be required other than that required by section 84(2) and the certification required by under section 84(4) of the Evidence Act 2011. Therefore, whoever alleges forgery must plead the particulars of forgery.

4.8 Evidence of things seen through Telescope and Binoculars
Although the admissibility of Evidence seen through binoculars was not expressly advocated for in the Evidence Act 2011, and in the Indian Evidence Act 1872 as amended, its admissibility can however be received by the Court. The Supreme Court of India established the admissibility of this matters in the case of Rex v Masqud Ali & Ashiq Hussein in the following words;
We think that time has come when this court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence of proof that they are relevant to the issue involved in the case and that the prints as seen represents situations that have been reproduced by means of mechanical clinical devices. Evidence of things seen through telescopes or binoculars which could not be picked up by the naked eyes have been admitted.
According to S. T. Hons, this dictum is of strong persuasive power on Nigerian courts because it invariably means that such matters are admissible if they are relevant to a given case more so as the Nigeria law of Evidence has covered much relevancy.
Under section 68 of the Evidence Act, the Court can rely on expert evidence on matter of science and by virtue of section 122(3) of the Evidence Act, the court can resort to the aid to appropriate book and document of reference.

4.9 Weight to be attached to Admissible Statement


It is the duty of the Court to attach weight to admissible statement or evidence. Section 34 of the Evidence Act provides for guidelines as follows;
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-
To the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts and
In the case of a statement contained in a document produced by a computer-
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 information, and
The question whether or not any person concerned with the supply of information to 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.
2. For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
In Guinness Nigeria Plc. v Nwoke the purport of section 34(1) was considered by the Court of Appeal per Ibiyeye J.C.A. when the court held:
It will be recalled that Exhibit 11(1) to (3) are statements of three drivers tendered through the DW2 (a police Investigator) and were admitted in evidence by virtue of section 91(1) of the Evidence Act 1990. In effort, those Exhibits were not tendered through their makers. It is settled law that documents may be admitted by the consent of the court in the absence of their maker under section 91 of the Evidence Act 1990, the Court still has a duty to consider the weight to be attached to such documentary evidence before coming to the conclusion as to whether or not it establishes the facts stated therein. See A.G. Oyo State v. Failable Hotel (no.2) (supra) page 283. Factors to be taken into consideration are set out in section 92 (1) (Supra). I have pursued the factors taken into consideration by the said exhibits irrelevant and I am of the view that they are to a large extent valid. I will, however, supplement these bases by saying that the makers of the exhibits in point made professional statements in which they did not only implicate themselves but they also implicated the respondent. There is implicit evidence that after making the statement, they (the three drivers) realized that they might be prosecuted in a clear attempt to save themselves from possible trial and conviction, they became light footed and rendered themselves incommunicado. This is my view, shows that the three makers of Exhibit EN 11(1) to (3) had exhibited an incentive to conceal or misrepresent facts contained therein (that is to say the exhibits). The negative attitude of the maker of those exhibit has adversely affected the credibility, cogency and the weight of their statements EN 11(1) to (3) are tainted with inaccuracy borne out of the desire of the makers to misrepresent them. They are accordingly devoid of any probative value. This court will also not act on them. See section 227 of the Evidence Act 1990, Ajayi v. OLY Fisher (1956) IFSC 90 at 97; Esso West African Incorporation v Alli (1968) NMLR 414 at 423 and 424 and Kenneth Clarke &Avor v the State (1986) 4 NWLR (Pt. 35) 381 at 398 and 399. I therefore, resolve Issue No. 1 in the affirmative.
Having regard to the provision of section 84(2) of the Evidence Act, 2011 there is no doubt that facts relating to the integrity of a particular evidence, the manner in which a document was generated, maintained and produced, will be relevant in attaching weight to it. In effect the court is to consider all the circumstances of the case before attaching as much or as little evidential weight to the electronic evidence.


4.10. Status of Computer Generated Evidence


Section 85 of the Evidence Act 2011 provides that the content of document may be proved by either primary or secondary evidence. An extrapolation of the provision of section 85 would conclude that where a document is neither primary nor secondary evidence it lacks probative value and is inadmissible as in the case of documentary hearsay on the one hand. On the other hand, such evidence may be admitted based on relevance however because it is neither primary nor secondary evidence, it lacks probative value and no weight will be attached to it.
Section 86 of the evidence Act 2011 provides for what constitute primary evidence. In sub-section 1 of this section, primary evidence is stated to mean the document itself produced for the inspection of the court. By this, the Act means the original of the document or a document obtained by the various processes articulated by the various subsections of section 86. On the other hand, section 87 of the Act provides for what constitute secondary evidence.
It seems that the same processes that apply to the proof of Primary and secondary traditional documentary evidence apply stricto-senso to statement contained in a document produced by a computer. For instance, in terms of primary evidence, section 86(4) provides;
Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the content of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
So also does the Section 87 apply to computer generated evidence. Evidence however may be primary for one purpose and secondary for another. In R v Regan it was held that if the question is the exact message sent by telegram or cable, the original is the written message handed in for dispatch at the post office, but if the question is the message received, the original will be the actual telegram or cablegram delivered to the addressee.
This case elicits that where the question is the actual message sent by the telegram or cable, the original being the primary evidence is the message handed in for dispatch at the post office while the secondary evidence is the message received or dispatched.
By virtue of the provision of the Evidence Act 2011, it is proper to say that the exact rules that apply to traditional documentary evidence in terms of whether they are primary or secondary apply sticto-senso to statement contained in a document produced by a computer.


4.11. Conclusion

Computer generated evidence is a specie of documentary evidence with its own pre-conditions for admissibility; however this pre-conditions as stated in section 84 of the Evidence Act 2011 does not apply in isolation of section 83 which provides for conditions for the admissibility of documentary Evidence generally. The discussion in this chapter evinces that there is no presumption as to accuracy in favour of computer generated evidence, and information shall be taken to have been supplied to a computer if it is supplied to a computer in an appropriate form and by means of appropriate equipment. An endorsed certificate as to the working condition of the computer by a person who is in a responsible position regarding the use and operation of the computer is presumed genuine evidence of that fact. Also the fact that a computer generated evidence can be forged does not impede on its admissibility and weight. Computer generated evidence must either be a primary or secondary evidence as any documentary evidence which does not fall under this category is inadmissible and probatively worthless.

                                       

                        CHAPTER FIVE


5.1. Summary of Finding

The Evidence Act, 2011 has achieved a great milestone in our legal system by recognizing computer generated evidence and providing for its admissibility. However our legal system and court have not fully comprehended this reality now prevalent in our law of evidence as it regards section 84 of the Evidence Act 2011.
This is as a result of technological backwardness and the rigidity of our legal system owing to the continual use and reference to the common rules on evidence did not contemplate computer generated evidence. This is evidenced in the fact that the first computer was invented by Charles Babbage in 1933, the first printer was invented in 1938.
The apathy of Nigerians to resort to the court for help with respect to transaction conducted via computer, the resort to self-help, the expensive nature of litigation, lack of knowledge or awareness as to the proof of computer generated evidence, the rigours involved in the use of such evidence, all contribute to the stunted growth of this form of  documentary evidence. 
 It is important to isolate the lack of computer literate judges who dwell in the haze of traditional, vague, and obsolete practices and would not embrace change for the improvement of our legal system. This attitude has led to the sluggish or weak growth of the theory and practice of computer generated evidence and its admissibility in Nigeria. This infertility is evidenced in the few cases decided in Nigeria on the subject matter. In the course of this research it was further discovered that the locus classicus case on computer generated evidence in Nigeria Kubor v dickson  decided in 2013 seem not to cover the ground on the subject matter. Thus the need to resort to foreign cases by both counsel and judges in the course of litigation and adjudication.

5.2.   Recommendation

Computer is useful to every parts of our life and as the world is becoming a global village the functions and convenience it provides is invaluable. For our legal system to thrive, capture transactions via computer and do justice, legal personnel should be versed in the use and operations of computer. I therefore recommend that computer based training as well as computer appreciation should be introduced into the Bachelor of Laws (LLB) program. Furthermore persons seeking to be appointed judges should undergo extra computer appreciation training as a criteria for appointment.
Equally there is need for continuous law reform to ensure that the law is constantly on the move to meet or adapt to fast changing society and not lag behind. In other regard Wigwe has noted that:
As the society changes the law cannot remain immutable for law must find answers for the society the Evidence Law and Procedure in our courts need a thorough review in view of the exigencies of electronically generated evidence and Information Technology. The reasoning for this is that the world is gradually going into a paperless world with its attendant challenges and loopholes necessitating the formulation of new rules of evidence in that regard.
In National Textiles Worker Union v Ram Krishnan, the Indian Supreme Court (per bhagwati) stated:
We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a living bark for itself. Similarly if the law fails to respond to the need of changing society, then either it stifle the growth of the society and choke it progress or if the society is vigorous enough it will cast away the law which stand in the face of its growth.
This dead bark with respect to Computer generated evidence is the ignorance of the judges and their unwillingness and slow pace in moving with the fast growing society. In order to make progress there is need for our legal system to shed that dead bark and grow a living bark (consistent law reform and response to changes). Lawyers and judges should therefore accept the suggestion of Bhagwati and cast away those attitude that stands in the way of the growth of the society and our legal system.
There is also the need to sensitize the public as to the justiciability of transactions via computer and the need to reduce the rigours and time spent on litigation process which is another dead bark that stifles the growth of law.


5.3.  Conclusion
    
The research work focuses on the admissibility of computer generated evidence. I have taken a critical look at the Evidence Act 2011 and various articles, textbooks, case laws etc. in the course of the research and discussions of this topic.
The research examines what constitute computer generated evidence, the condition precedent for its admissibility, supply of information to computer, the status of computer generated evidence, weight of admissible statement and presumption of genuineness of computer generated evidence.
It is by this research made clear that although computer generated evidence has it pattern and special conditions for admissibility, it is a form of documentary evidence and as such must be proved the same way traditional documentary evidence are proved under s.83 of the Evidence Act 2011. However the conditions stated in s.84 (2) of the Act must also be fulfilled along side the criteria set out in s.83 of the Act.
Thus the proof of computer generated evidence does not exist in isolation as the various rules governing the admissibility of Evidence in Nigeria also govern computer generated evidence. 




BIBLIOGRAPHY
Books
Aboki Y. Introduction to legal research methodology (2nd Tamaza Publishing company 2009).

Aguda T.A., The law of Evidence (Spectrum Law Publishing 2009).
Alaba A guide to admissibility of Electronic Evidence (Law Lords Publication 2016.

Amadi J., Contemporary Law of Evidence in Nigeria (Pearl Publishers 2011).

Computer Dictionary in the New Websters Dictionary of the English language (international ed),

Dada J.A., The Law of Evidence in Nigeria (Optimist Press Nigeria Company (2004).

Gamer B.A. Blacks Law Dictionary (8 ed West Publishing Company 2004). 

Gamer B.A., Blacks Law Dictionary (10th ed West Publishing Company).

Garner B.A. Blacks Law Dictionary (10ed) (West Publishing company  2004)

Hodge M.M., (ed.) Phipson on Evidence (17th ed., Sweet & Maxwell 2010).

Hon. S.T. Law of Evidence in Nigeria, vol. 1 (Pear 1 Publishers 2012).

Murphy P., A Practical approach to Evidence (Financial Training publication Limited 1980).

Nwadialo F., Modern Nigeria Law of Evidence (2nd ed., University of Lagos Press 1999).

Obiareri N.O. Contemporary Law of Evidence in Nigeria (Whitmont Press Limited 2012).

Stephen, M, Electronic Evidence 9Butterworth 2004).

Wigwe C.C., Introduction to the law of Evidence in Nigeria (Mounterest University Press 2016).

Internet Sources
--history of computer printer, www.google.com.ng/search?client/history/ computer/printer/printer&ved

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