Managing Electronic Evidence

The 14th  Maritime Seminar for Judges ended last week in Abuja with Local and International participants. Mr. Patrick Opara, Legal Manager, Ecobank Nigeria Limited, delivered a paper on “Electronic Evidence in Admiralty Practice (Banking Perspective) 

TEXT OF PAPER ON ELECTRONIC EVIDENCE IN ADMIRALTY PRACTICE – BANKING PERPSECTIVE. PRESENTED AT THE 14TH INTERNATIONAL MARITIME SEMINAR FOR JUDGES,

31ST MAY TO 1ST JUNE 2016.

The objective of this paper is to review the operation of electronic evidence in admiralty practice and highlightthe banking perspective in Nigeria. The following approach will be adopted in doing this review.

v Status of electronic evidence.

 

v Concept of admiralty practice.

 

v Involvement of banks in admiralty practice/international transactions.

 

v Potential/likely issues with electronic evidence in admiralty practice.

 

v The banking experience/perspective.

 

v Conclusion.

 

Status of electronic evidence:

What is electronic evidence- Electronic or digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial of such case. Generally, before accepting or admitting digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required. 2

Globally, the use of digital evidence has increased in the past few decades as courts have allowed the use of electronic mails (e-mails), electronic signatures, video conferencing, numerical information, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, databases, the contents of computer memory, computer backups, computer printouts, logs from a hotel’s electronic door locks, and digital video or audio files.

The use of electronic evidence in proof of cases in Nigeria is provided for in Section 84 of the Evidence Act 2011 CAP E.14 (the ‘Evidence Act’). For ease of reference in the course of this paper, the above section of the Evidence Act is reproduced hereunder.

SECTION 84: Admissibility of Statements in Documents Produced by Computers.

“84 (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in subsection (1) of this section are –

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the

kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly

or, if not, that in any respect in which it was not operating properly or was out of

operation during that part of that period was not such as to affect the production of

the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from

information supplied to the computer in the ordinary course of those activities.

(3) Where over a period the function of storing or processing information for the purposes

of any activities regularly carried on over that period as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether –

(a) by a combination of computers operating over that period;

(b)by different computers operating in succession over that period;

(c) by different combinations of computers operating in succession over that period; or

(d)in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.

 

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b)giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) above related, 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.

(5) For the purpose of this section –

(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;

 

(b)where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the 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 in the course of those activities;

 

(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”

 

The effect of the above section/provision of the Evidence Act is;

• The Evidence Act has expanded the rule to include the admission of electronically generated documentssuch that documents produced or made by computer has become admissible provided direct oral evidence of such statement is admissible and the conditions expressed in Section 84(2) of the Evidence Act are satisfied.

 

The potency of Section 84 of the Evidence Act has been tested in the following cases.

(i) DR. IMORO KUBOR & ANOR. V. HON. SERIAKE HENRY DICKSON & 2 ORS. (2012) LPELR-15364 (CA)

 

The appeal in this matter arose from a judgement of the Governorship Election Tribunal. The Court of Appeal Port-Harcourt Division considered among other issues admissibility of documents produced by a computer and affirmed the provision of Section 84 of the Evidence Act. The Court held that an internet printout of the Punch Newspaper of 13th February, 2012 where scores of some of the candidates at the election were published is a computer printout and that it falls under Section 84(1) and (2) of the Evidence Act 2011. That a party that seeks to tender in evidence a computer generated document needs to do more than just 6

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. Per TSAMIYA, J.C.A. (at pages 50-51, paragraphs D-F).

(ii) P.D. HALLMARK CONTRACTORS NIGERIA LIMITED & ANOR. V. GLORIA KANROTMWA GOMWALK (2015) LPELR-24462 (CA)

The appeal emanated from the judgment of the High Court of Justice Plateau State on a property related matter. The Court of Appeal Jos Division considered the issue of admissibility of computer generated or processed statement; foundation or procedure to be laid for tendering a computer-generated or processed statement in evidence specifically, the issue of whether pictures pleaded and tendered along with Memory Card, as the evidence by which the pleaded pictures are to be proved by the appellants are not admissible in evidence because the Memory Card was not specifically pleaded. In its decision, the Court held thus. “Therefore a party who seeks to tender documentary evidence in Court to prove or disprove a fact in issue has to plead whether such document was processed or generated by “one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process,” for “each shall be primary evidence of the contents of the rest” of the document. Per TUR, J.C.A. (at pages 69-71, paragraphs B-C). The photographs were rejected because the memory card was not pleaded.