HOW TO AVOID CERTIFICATE OF COMPLIANCE FOR ELECTRONIC EVIDENCE.* DAILY LAW TIPS (Tip 310) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
*HOW TO AVOID CERTIFICATE OF COMPLIANCE FOR ELECTRONIC EVIDENCE.* DAILY LAW TIPS (Tip 310) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
With the enactment of the Evidence Act, 2011, it is now easy to tender and use documents produced by computer in courts across Nigeria. The condition for such use is enshrined in section 84 of the Evidence Act and is a certificate of compliance showing that such document was authentically generated from a reliable computer in the ordinary cause of activities. The Supreme Court in DICKSON V. SYLVA (2017) 8 NWLR (PT 1567) 167, has held that such certificate can be written or oral, if written, it is still subject to the powers of court to demand for an oral evidence. Also, the Supreme Court held in our, per Onnoghen, JSC as he then was, that where there is no certificate of compliance, a document produced by computer will not be admissible.
Generally, Computer is defined in section 258 of the Evidence Act to include any device for storing and processing information. Hence, Computer and device are used interchangeably, here. Note that, both primary and secondary documents, that are documents produced by computer must also fulfill the conditions of section 84 of the Evidence Act aside any other condition ordinarily expected for such.
Below are questions and reasons for such questions, needed to lay proper foundation for oral certification of document produced by computer in any court in Nigeria.
Please tell this honourable court what document is referred to as “xxxxxxxxxxxx” [insert title of document] in your witness statement on oath?
Pursuant to section 84(4)(a) of Evidence Act, a document produced by computer should be identified. Such document should be mentioned giving its title and unique name. Like, bank statement of Mr. Musa Ibeh between 2nd April to 23 May, 2019.
How was the document produced?
Pursuant to section 84(4)(a) of Evidence Act, there should be a description of the manner a document produced by a computer was produced. This may include explaining and mentioning; typing, scanning, saving, emailing, downloading and sending procedures/steps/stages. See, ROWAYE JUBRIL v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43993(CA)
What device was used in producing the document?
Pursuant to section 84(4)(b) of Evidence Act, there should is need for provision of particulars/details of the computer like Name, Type, Model, Year and unique title (if any). Note that by section 84(3) of the Evidence Act, where sets, groups or combination of computers were used whether concurrently or simultaneously, they all will be regarded as constituting a single computer. Hence, in such situation one need not mention all the computers employed in producing a document.
How regular was the device used during the period the document was produced?
Pursuant to sections 84(2)(a) and 84(4)(c) of Evidence Act, there is need to establish that the computer was regularly used to store/process information by any person/persons for regular activities whether the activities are private or for profit making.
What was the device mainly and regularly used for?
Pursuant to sections 84(2)(b) and 84(4)(c) of Evidence Act, there is need to establish that the computer was regularly supplied information like the type on the document produced by computer sought to be tendered.
What was the condition of the device before the production of the document?
Pursuant to sections 84(2)(c) and 84(4)(c) of Evidence Act, the device was operating properly during the concerned period and that even if it was out of operation or part of it was not operating properly, that such never affected the document produced by computer or its content.
Where was the information on document produced by computer gotten from?
Pursuant to sections 84(2)(d) and 84(4)(c) of Evidence Act, there is need to establish that the information in the document produced by computer sought to be tendered was derived from the information supplied to the device in the ordinary and regular course of activities.
What is your relationship with the device?
Pursuant to section 84(4)(c) of Evidence Act, there is need to establish that the person providing a certification for document produced by computer and the computer used for such production, is a person of responsible position with regards to the operation of the device or the management the relevant activities. Such a person must not be a computer expert; he may even be a manager of a department/company that owns the concerned device and as such familiar with the computer.
My authorities are sections 84 and 259 of the Evidence Act, 2011. Also the Supreme Court Judgments in the cases of DICKSON V. SYLVA (2017) 8 NWLR (PT 1567) 167 and KUBOR V. DICKSON (2012) LPELR-9817(SC).
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Onyekachi Umah is a private Legal Practitioner with amazing experience in business law, intellectual property, transaction and regulation advisory, corporate, commercial, investment law and energy law as well as litigation and arbitration arising from them. He is a Legal Awareness Expert and also a Certified Arbitrator both in Nigeria and the United Kingdom. He is a member of the Chartered Institute of Arbitrators (UK) and a Certified Conflict Management Practitioner and Negotiator. He is a member of prestigious “Young ICSID” of International Centre for Settlement of Investment Disputes (ICSID), Washington DC. Among other, he has a certificate in Law of Contract from a program of Harvard University, a certificate in International Environmental Negotiation from United Nations Institute for Training and Research, Geneva and recently, a certificate in Conflict Management from United States Institute of Peace, Washington, D.C. He also holds a master of laws degree from University of Jos and he is a doctoral student at the faculty of law, Nassarawa State University.
Onyekachi is the managing partner of a leading law firm; Bezaleel Chambers International. He is the founder and President of a free law awareness platform known as www.LearnNigerianLaws.com that promotes awareness and understanding of rights and laws of Nigeria (#SabiLaw) and offers free daily law tips (#DailyLawTips). Understanding the challenges of Administration of Criminal Justice in Nigeria, he dedicates his daily law tips every Mondays to promoting Criminal Justice (#CriminalJusticeMonday). Recently, he started a new series on Election Laws tagged (#SabiElectionLaws) to increase legal awareness on elections laws, policies and regulations in Nigeria. He is the convener of the Sabi Law Lecture Series (#SabiLawLectureSeries), travelling around Nigeria delivering free law awareness lectures. He also organises and sponsors a quarterly competition, titled "Sabi Law Video Challenge" (#SabiLawVideoChallenge) where Nigerians win money (over $130.00 per winner) for making videos of themselves talking on any law or right as a way to promote law awareness and have fun. To further promote legal awareness among Nigerians across the world, he started a law awareness show titled "Sabi Law With Onyekachi Umah, Esq" (#SabiLawWithOnyekachiUmahEsq) showing on social media platforms via @LearnNigerianLaws.
Mr. Umah has written over Three Hundred (300) free to access articles and materials on law with a desire to enlighten the public. He is also on the board of companies and non government organisations. Among others, he is serving as a member of the Advisory Committee for Law Clinics Partnership for Reforming Pre-trial Detention in Kuje Prison Project funded by the United States Department Bureau for International Narcotics and Law Enforcement. He is member of the Rotary Club of Abuja, Metro (RCAM), District 9125. He has been featured as the Legal Personality of the Week by This Day Newspaper (a leading national newspaper) on its September 11, 2018 edition and was featured on the NigeriaLawyer.com as the Legal Personality of the Week on November 14, 2018. He has won several honours and awards for his innovative legal practise across the world.
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