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Hon. Henry Seriake Dickson V. Chief Timipre Marlin Sylva & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C

My Lords, the issue that calls for the intervention of this Court, in this interlocutory appeal, falls within a very compass. I shall revert to it anon. Before then, however, permit my intimation of its forensic travelogue through the rungs of the two lower Courts, namely, the Governorship Election Tribunal (hereinafter, simply, called the Trial Tribunal) and the Court of Appeal (in this judgment to be, simply, called the lower Court).

The third respondent in this appeal, the Independent National Electoral Commission, (INEC for short), conducted elections into the office of the Governor of Bayelsa State on December 5 and 6, 2015 and January 9, 2016. While the second respondent herein, All Progressives Congress (A.P.C.), sponsored the candidature of the first respondent, Chief Timipre Marlin Sylva; the appellant, in this appeal, Hon Henry Seriake Dickson, contested the said election under the platform of the Peoples Democratic Party (P.D.P.), the fourth respondent in this appeal.

Irked by INEC’s declaration of the due return

and due election of the appellant in the said election, the first and second respondents (as petitioners) repaired to the Trial Tribunal with their petition wherein they challenged the election and declaration of the appellant as the duly elected Governor of Bayelsa State. As is usual in forensic contests of this nature, the averments in the petitioners pleadings prompted vociferous and strident joinder of issues by the respondents. In all, issues were joined in the settled pleadings: issues which are yet to be determined by the Trial Tribunal.

Against this background, considerable circumspection is called for in this judgment, being a judgment in an interlocutory appeal, so as not to breach any aspect of the substantive issues that must, perforce, abide the final judgment of the said Trial Tribunal. To do otherwise would be to usurp its sole prerogative, nay more, to pre-empt and prejudice its ultimate decision as the forum of first instance.

In consequence, this factual narrative would be strictly, cabined to the facts that are relevant for the determination of this interlocutory appeal apropos the narrow issue raised therein. What is

more, there is even no doubt that what prompted the sequence of entreaties at the Trial Tribunal was the averment in paragraph 23 of the petition. The appellants averred thus:

Your Petitioners state that prior to the unilateral cancellation aforesaid [a fact deposed to in paragraphs 20 and 21 of the said Petition], the Returning Officer of the Bayelsa State Governorship election, Prof. Zana Akpagu, had announced to the whole world that election was conducted in Southern Ijaw Local Government Area and the result was being awaited. Your Petitioners hereby plead the video/CD/DVD/audio clip and newspaper report of the said announcement and shall rely on it (sic) at the trial.

(Italics supplied for emphasis)

In the course of the hearing, and sequel to an entreaty by the first and second respondents, the trial Tribunal, on April 29, 2016, caused a Subpoena Duces Tecum Ad Testificandun to be issued on Pedro Innocent or the production Manager of Channels Television, Lagos to testify and produce the DVD/CD/VCD/Audio Recording and Video Clips of the coverage of 5th/6th December, 2015, Governorship Election in Bayelsa State in respect of the Southern

Ijaw Local Government Area of the State, page 348 of the record. [In legal parlance, the above-mentioned Subpoena is a process to cause a witness to appear and tender a document and testify. This process commands him to lay aside all pretences and excuses and appear before a Court therein named, at a time therein mentioned to bring with him and produce to the Court, books, papers, in his hands, tending to elucidate the matter in issue].

Further to the order of the trial Tribunal permitting all the witnesses on subpoena to file written Statements on oath, Emmanuel Ogunseye filed a written deposition on oath, pages 349-351 of the record. For their bearing on this appeal, his depositions on paragraphs 3; 6 -12 are reproduced hereunder:

That I hold a Diploma in Television and Film Production, obtained from the Pencil Film and Television Institution, Lagos, in 2006. I have been working in the Production Department of Channels Television since 2007 and I am very conversant with electronic news gathering and of computers.

That on Friday 6th May, 2016, I received via email from our Library manager in Lagos,

Mr. Patrick Oranu, visual from Channels Television archives on our coverage of the announcement of Bayelsa State Governorship Election which includes the cancellation of the election in respect of Southern Ijaw Local Government Authority in Bayelsa State as transmitted by Channels TV on 7th December, 2015. I used my official Dell Desktop Computer System with serial number 25TF85J to produce a DVD containing the said visual, which I have in my possession to tender in evidence.

That in compliance with the subpoena, I wish to tender a DVD containing our coverage of the 5th and 6th December, 2015 Governorship Election in Bayelsa State in respect of Southern Ijaw Local Government Area of Bayelsa State as requested by this Tribunal.
That all the events mentioned herein were duly recorded by the Companys Camera man, Pedro innocent, using our official cameras, stored in DVD and kept in the custody of the Company’s Library Unit. I have the DVD here with me and with the permission of the Honourable Tribunal I can play the contents of the DVD with the aid of a laptop computer and a projector.
That this my statement, the video and other

computer-generated information in the DVD referred to in this statement herein were produced by the computers regularly used in our office for storing and processing information during the material period under consideration.

That I confirm that over the period of December, 2015 till date there was a regular supply of information of the kind contained in the said computers in the ordinary course of activities in our office. I also confirm that during this period, the said computers were operating properly and that if during the periods the system did not work properly, it did not affect the production of the said video or the accuracy of the contents. And I also confirm that the information contained in the DVD were produced or derived from information supplied to the computers in the ordinary course of our activities in the office.
That in further compliance with the requirements of the law, I hereby certify to the best of my knowledge that the video clips contained in the DVD were duly and legitimately recorded by the Companys Camera Man using a video camera with the brand name JVC 600 using memory card. At the end of the recording,

the contents of the memory card were transferred to DVD in the course of normal activities in the company. A separate certificate of identification signed by me is attached to the said DVD.

That I confirm that I am computer literate and participated in all stages of recording, production and packaging of the DVD sought to be tendered in the proceeding.

(Italics supplied for emphasis)

As evident from page 353 of the record, the said Emmanuel Ogunseye, designated as PW51, adopted his said statement as his evidence. Again, from page 355 of the record, it is not in doubt that, while the certificate which the said Emmanuel Ogunseye generated pursuant to Section 84 of the Evidence Act, 2011 was admitted in evidence at the trial Tribunal as exhibit P42A; the DVD, he referred to in his written statement on oath, and which he adopted as part of his evidence, was, also, admitted in evidence as exhibit P42B.

What, however, triggered off the objections culminating in the trial Tribunal’s ruling which yielded the judgment of the lower Court now on appeal before this Court was a subsequent application by S. T. Hon, learned SAN for the first and

second Petitioners (first and second respondents herein), “for exhibit P42B to be played in open Court,” (page 355 of the record, italics supplied for emphasis). Following the objections of Messrs Tayo Oyetibo, SAN and Abibo to Mr. Hon, SAN’s application, the trial Tribunal, in its Ruling, pages 356-358 of the record, proceeded thus: “(we have listened to the arguments for and in opposition to the application to play the DVD – Exhibit – P42B in open Court,” (page 356 of the record, italics supplied for emphasis).

It set out paragraph 8 of PW51’s written statement on oath wherein the said witness deposed that ” I can play the contents of the DVD with the aid of a laptop computer and a projector…” (Page 357 of the record; italics supplied by the trial Tribunal). It, then, observed as follows at page 357 of the record:

In other words, therefore, the contents of the DVD stand on its (sic, their) awn and has (sic, have) been duly certified by Exhibit P42A. However, the playing of the content of the DVD is the present application being contested. As shown by the wording of paragraph 8 of the witness statement, it is clear the laptop Computer and

the Projector are the machines or computers that relate to that application.

It therefore behoves the applicant to do a certificate in compliance with Section 84 of the Evidence Act on them too, in particular the laptop computer to be used to transmit or transfer the content of the DVD to the slide (citing Section 258 (1)of the Evidence Act, 2011)

At page 358 of the record, the trial Tribunal disagreed with the submission of Mr. Hon, SAN. The learned senior counsel had canvassed the view that, once the computer used for storing the information in the CD has been certificated in compliance with Section 84 [supra], there would be no need to do so in respect of any other computer or device to retrieve and play same as sought to be done.

Indeed, it was the view of the trial Tribunal at page 358 of the record that prompted the appeal of the present first and second respondents to the lower Court. According to the said Tribunal:

When a document is sought to be given in evidence, and also to be demonstrated in Court the means of production of which document fall within the definition of computer in the Evidence Act, then two different

steps and stages are involved:

(1) the one used to store the information and;

(2) the one to be used to retrieve and if need be demonstrate or play them out – are involved.

Both categories of computers must be certified as required by Section 84 (supra). As I had said earlier, Exhibit P42A covers only the computers used in production of exhibit P42B – the DVD, but not the laptop computer and projector now sought to be used to retrieve and play out its content. To that extent therefore in respect of both last two documents (the laptop and projector) the provisions of Section 84 (supra) has (sic) not been complied with. Application to play the DVD – exhibit P42B is accordingly refused.

(Pages 358; italics supplied for emphasis)

Aggrieved by this ruling, the first and second respondents (as appellants) appealed to the lower Court.

Unimpressed with the above reasoning, the lower Court allowed the appeal. Consequentially, it ordered the trial Tribunal to recall the PW51 to demonstrate the contents of exhibit P42B in open Court.

Expectedly, the present appellant was not satisfied with this development; hence this

appeal. Although he formulated three issues, at the hearing of this appeal this morning, Oyetibo, SAN applied to abandon issues one and three so as to dwell on issue two only. Learned Counsel for the first and second respondents, S. T. Hon, SAN, also, applied to abandon his preliminary objection and Respondents’ Notice. The Court ordered as prayed; hence, only the second issue is outstanding. Accordingly, this appeal would be determined based on issue two alone. The said issue was couched thus:

Whether the Court of Appeal was not wrong in law when it held that the certification of the computers used to produce exhibit P42B in this case was sufficient and that it was not necessary under Section 84 of the Evidence Act 2011 to certify the computers sought to be used to demonstrate the contents of the exhibit in open

The first and second respondents rephrased the same Issue in a more felicitous manner thus:

Was the Court of Appeal correct to have held that Section 84 of the Evidence Act, 2011 was fully complied with to enable Exhibit P42B be demonstrated/played in open Court by the trial Tribunal

ARGUMENTS ON THE SOLE ISSUE

When

this appeal was heard this morning, July 20, 2016, learned counsel for the appellant, Tayo Oyetibo, SAN, who appeared with other counsel on the Counsels List, adopted the brief of argument Filed on June 29, 2016, together with the Reply Brief sans the abandoned issues. The arguments relating to the said issue two were canvassed on pages 11 – 30 of the said brief.

In the main, his contention was that, in addition to the certificate already admitted as exhibit P42B (relating to the DVD), an additional certificate was imperative with regard to the laptop computer, projector and electronic screen which were to be used to play or demonstrate the DVD in open Court. In his view, these are, also, computers within the meaning of Section 258 (1) of the Evidence Act, 2011 and must be certified pursuant to Section 84 (supra) pursuant to a community reading of Sections 84 and 258 (supra).

On his part, S. T. Hon. SAN, for the first and second respondents, who also appeared with other counsel, adopted and relied on the brief of argument filed on July 1, 2016, also, sans the abandoned issues one and three and the preliminary objection and Respondents’

Notice. His arguments in respect of this issue are to be found on pages 9 – 24 of the said brief. The net effect of his response is that there is nothing in Section 84 (supra) that requires certification in respect of the computer or projector to be used in playing the said DVD in open Court.

Counsel for the other respondents did not file briefs of argument.

RESOLUTION OF THE ISSUE

As shown above, the lower Court was unimpressed with the reasoning of the trial Tribunal to the effect that two categories of certificates are required under Section 84 (supra), namely, one certificate with regard to the production and another certificate for the demonstration of the evidence in open Court. In the leading judgment, the lower Court (per Otisi, JCA) demonstrated a clear grasp of the issue in contention. Listen to the enchanting elucidation of Otisi, JCA:

The proceedings leading to this appeal, as transcribed in the record of appeal, reveal that foundation for admissibility of the electronic evidence was well-laid. The electronically- generated evidence was pleaded in the Petition as found at pages 1 – 78 of the record. Evidence concerning

the said electronically-generated document, DVD, was lucidly stated in the written deposition of PW51, found at pages 349 – 351 of the record, which he adopted, page 353 of the record. The electronically-generated evidence in issue, DVD, as well as its certificate of identification were admitted in evidence. The certificate was exhibit P42A while the DVD was exhibit P42B. In other words, the electronically-generated evidence was admitted in evidence having complied with the preconditions for its admissibility as provided for by Section 84(supra)

Having admitted the said DVD, the appellants sought to have it played or demonstrated in open Court. It was the refusal of the lower Tribunal to grant the application that gave rise to this appeal

(Pages 566 567 of the record; italics supplied for emphasis).

His Lordship proceeded to disaggregate the statutory requirement apropos the admissibility of electronically-generated evidence in these words:

If the conditions for the admissibility of electronically-generated evidence are fulfilled, there ought to be no other impediment to it being demonstrated. The certification

provided for in Section 84 relates to the computer(s) or gadget(s) from which the electronic document is generated or produced. While by virtue of the provisions of Section 258 the computer or gadget to play or demonstrate the electronic document falls under the definition of computer, by virtue of the provisions of Section 84, which governs admissibility of electronically-generated documents, there is no requirement for the certification of that other computer or gadget employed to demonstrate or play the electronically-generated document already admitted in evidence

(Pages 571 572 of the record; italics supplied for emphasis).

Turning to the rationale for authentication, the erudite Justice of the Court of Appeal opined thus, pages 572 -573 of the record:

In this digital age when different creations can be achieved electronically, the reason for the requirement of authentication or certification of the gadget or computer used in producing and processing the electronically-generated documents is not far-fetched. The party seeking to rely on such evidence must be able to show that the data and information contained in the

electronically-generated document is truly what it claims to be. The preconditions for admissibility set down by Section 84 are to establish this fact. The relationship between the computer and the information is crucial. The electronic evidence must be produced from a computer or gadget that is inherently reliable and has been in operation over the relevant period. There is no doubt that with present and even future technological advances, the pre-conditions attached to admissibility of electronically-generated evidence by Section 84 may no longer be sufficient to authenticate the reliability of electronic evidence. However, these challenges are not in issue herein. One constant is that the computer or gadget will only reproduce what has been fed into it. The computer or gadget will demonstrate or play what it receives. This is the reason why there is no further need for certification of the computer or gadget to be used to demonstrate or to play an already properly admitted electronically-generated evidence, which had complied with the pre-conditions of Section 84.

By means of rhetorical questions, His Lordship charted a nexus between the application

for the demonstration of the exhibit in open Court with the requirements of the extant Electoral Act. Hear this:

One may ask, if electronically-generated evidence is already an exhibit before the trial Tribunal or Court, in this case the DVD, was not to be demonstrated or played, what was the purport of admitting it in evidence Was it simply to dump it on the lower Tribunal, which is the roundabout effect, and which would in effect sidetrack the provisions of Paragraph 46 of the First Schedule of the Electoral Act, 2010, as amended. These provisions are that a document admitted in evidence may be read or taken as read by consent. When a hard copy of a document is admitted in evidence, its contents are examined and may be read for the trial Court to determine if they establish the facts as alleged or to determine what weight to attach thereto

In the same vein, when it is an electronically-generated document which has been admitted in evidence, upon fulfilling all pre-conditions and it is not taken as read by consent, then it ought to be demonstrated or played to prove the facts alleged. Otherwise, it remains a closed or

sleeping document, which is unusable and which need not have been brought before the trial Court or Tribunal in the first place as it would merely amount to clutter

(Pages 573 574 of the record).

In consequence, His Lordship allowed the appeal. He held that the lower Tribunal misapplied the provisions of Section 84 (supra) in its ruling that the said provisions were not complied with by the appellants PW51, and thereby precluding the appellants from demonstrating or playing the DVD, exhibit P42B in open Court,” (pages 574 575 of the record). He ordered that the DVD admitted in evidence before the lower Tribunal as exhibit P42B be played/demonstrated in open Court. The Court also ordered that PW51 shall be recalled to give effect to the order.

True, indeed, the lower Court was right in its view that the trial Tribunal misapplied the provisions of Section 84 of the Evidence Act. The Section provides as follows:

84(1):

In any proceedings, 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.

(Italics supplied for emphasis)

The conditions mentioned in Section 84(1) (supra) for the admissibility of such statements produced by a computer are contained in Section 84 (2):

(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.

According to Section 84(4):

(4) In any proceedings 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; or

(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; or

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

Subsection 5 provides that:

(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 purpose 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;

(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.

[Italics supplied for emphasis]

It is clear from its ipssissima verba that Section 84 (supra) lays down the conditions for the admissibility of statements produced

by a “computer:” which is defined in Section 258 of the Act 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.”

In effect, it is Section 84 of the Evidence Act that lays down the conditions for the admissibility of electronically generated evidence, Kubor v. Dickson [2013] 2 NWLR (Pt. 1345) 534, 577-578; Omisore and Anor v. Aregbesola & Ors. [2015] 15 NWLR (Pt. 1482) 205, 295 and not Section 258 of the Act, the definition Section, as erroneously, contended by Mr. Oyetibo, SAN for the Appellant.

As shown above, the DVD in question was admitted in evidence as exhibit P42B. Thus, in this appeal, what is in issue in not even the admissibility of evidence, but the narrow question whether Section 84 (supra) deals with the additional requirement of certification of gadgets for playing or demonstrating an already admitted piece of evidence in open Court.

Both the trial Tribunal and Oyetibo, SAN argued in favour of such an additional certificate. However, that cannot be.

Interpreting provisions similarly worded like Section 84 (supra), the defunct House of Lords [per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphs A-C, [HL]:

Documents produced by computers are an increasingly common feature of all businesses and more and more people are becoming familiar with uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.

[italics supplied for emphasis]

In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and

(2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied. However, this is subject to the power of the Judge to require oral evidence in addition to the certificate. As the eminent Lord Griffith explained in the said case [R v. Shepherd]:

Proof that the computer is reliable can be provided in two ways: either by calling oral evidence or by tendering a written certificate subject to the power of the Judge to require oral evidence. It is understandable that if a certificate is to be relied upon it should show on its face that it is signed by a person who from his job description can confidently be expected to be in a person to give reliable evidence about the operation of the computer. This enables the defendant to decide whether to accept at its face value or to ask the Judge to require oral evidence which can be challenged in cross examination

[Italics supplied for emphasis]

In the instance appeal, there has been no suggestion that the evidence of PW51 did not satisfy the above conditions. Indeed, from his written deposition, which he adopted at the

trial Tribunal, the witness would appear to have more than a passing acquaintance with the provisions of Section 84 of the Evidence Act (supra). Hear what he said:

… I used my official Dell Desktop System with serial number 25TF85J to produce a DVD containing the said visual, which I have in my possession to tender in evidence.

That all the events mentioned herein were duly recorded by the Company’s Camera man, Pedro Innocent, using our official cameras, stored in DVD and kept in the custody of the Company’s Library Unit. I have the DVD here with me and with the permission of the Honourable Tribunal I can play the contents of the DVD with the aid of a laptop computer and a projector.
That this my statement, the video and other computer-generated information in the DVD referred to in this statement herein were produced by the computers regularly used in our office for storing and processing information during the material period under consideration.
That I confirm that over the period of December, 2015 till date there was a regular supply of information of the kind contained in the said computers in the

ordinary course of activities in our office. I also confirm that during this period, the said computers were operating properly and that if during the periods the system did not work properly, it did not affect the production of the said video or the accuracy of their contents. And I also confirm that the information contained in the DVD were produced or derived from information supplied to the computers in the ordinary course of our activities in the office.

That in further compliance with the requirements of the law, I hereby certify to the best of my knowledge that the video clips contained in the DVD were duly and legitimately recorded by the Company’s Camera Man using a video camera with the brand name JVC 600 using memory card. At the end of the recording, the contents of the memory card were transferred to DVD in the course of normal activities in the company. A separate certificate of identification signed by me is attached to the said DVD.
That I confirm that I am computer literate and participated in all stages of recording, production and packaging of the DVD sought to be tendered in the proceeding.

[Italics supplied for

emphasis]

As shown above, the said DVD was admitted in evidence. Mr. Hon. SAN’s application, at the trial Tribunal was that the witness be allowed to play the said DVD in open Court. It is rather strange that Oyetibo, SAN sought to resist the attempt to play the said DVD at the hearing of the Tribunal. As the lower Court, rightly, observed:

when it is an electronically-generated document which has been admitted in evidence, upon fulfilling all pre-conditions and it is not taken as read by consent, then it ought to be demonstrated or played to prove the facts alleged. Otherwise, it remains a closed or ‘sleeping’ document, which is unusable and which need not have been brought before the trial Court or Tribunal in the first place as it would merely amount to clutter

Pages 573-574 of the record.

I, entirely, endorse this view. The application to play the DVD had nothing to do with its admissibility (in any event, at that stage it was already in evidence). It rather rest on an, entirely, different juridical postulate which this Court explained in A.P.G.A. v. Al-Makura [2016] 5 NWLR (Pt. 1505) 316, 343; Okereke v. Umahi

& Ors [2016] 2-3 SC (Pt. 1) 1, 50. According to this Court [per Nweze, JSC] in A.P.G.A. v. Al-Makura (supra) pages 343-344:

This prescription [that parties have a duty to link their documents with their averments in their pleadings] rests on the adversarial nature of our jurisprudence which we inherited from the common law.

It is, therefore, the impregnable juridical postulate of our adversarial jurisprudence that prohibits a Judge from embarking on an inquisitorial examination of documents outside the Court room. A fortiori, it is anathema for a Judge to be allowed to act on what he discovered from such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the adversarial procedure. The authorities on this point are many.

We shall only cite one or two of them here, Ivienagbor v. Bazuaye [1999] 9 NWLR (Pt. 620) 552; (1999) 6 SCNJ 235, 243; Owe v. Oshinbanjo (1965) 1 All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324 at 333; Alhaji Onibudo & Ors v. Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v. Registered

Trustees Recreation Club (2004) FWLR (Pt. 190) 1360, 1380-1381; Jalingo v. Nyame (1992) 3 NWLR (Pt. 231) 538; Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22.

It is against this background that viva voce depositions and the entries in documents and, indeed assertions relating to entries in such documents in electoral materials are, invariably, tested under cross-examination, Ivienagbor v. Bazuaye (supra).

Unarguably, therefore, Oyetibo, SAN’s objection, inadvertently, railroaded the trial Tribunal into an unwarranted exercise of re-writing the requirements of Section 84 (supra). As, already shown above, the Tribunal reasoned that:

(3) the one used to store the information and;

(4) the one to be used to retrieve and if need be demonstrate or play them out are involved.

Both categories of computers must be certified as required by Section 84 [supra]. As I had said earlier,

Exhibit P42A covers only the computers used in production of exhibit P42B the DVD, but not the laptop computer and projector now sought to be used to retrieve and play out its content. To that extent therefore in respect of both last two documents (the laptop and projector) the provisions of Section 84 (supra) has (sic) not been complied with. Application to play the DVD exhibit P42B is accordingly refused.

[page 358; italics for emphasis]

With profound respect, this is a most curious piece of fallacious reasoning. Indeed, contrary to the view of the trial Tribunal, Section 84 (supra) does not ordain any such “two different steps and stages.” Contrariwise, the provisions of the said Section 84 govern the admissibility of statements produced from computers. These provisions are, similarly, worded like Section 65B (1) and (2) of the applicable Act in India. Dealing with these provisions, the Court reasoned [a reasoning I take liberty to adopt in this judgment] in State v. Mohd. Afzal 107 (2003) DLT 385 that:

Electronic record produced [from computers on magnetic tapes (hard discs)] has to be taken in the form of a print out.

Subsection (1) of Section 65B [the equivalent of Section 84(1) of the Nigerian Act] makes admissible without further proof, in evidence, print out of an electronic record contained on a magnetic tape subject to the satisfaction of the conditions mentioned in the Section. The conditions are mentioned in Subsection (2) [this is the equivalent of Section 84(2) of the Nigerian Act]. Thus compliance with Subsections (1) and (2) of Section 65B [that is, Section 84(1) and (2) of the Nigerian Act] is enough to make admissible and prove electronics record.

[Italics supplied for emphasis]

As a corollary, Bello, JSC (as he then was; later C.J.N.) in Onibudo v. Akibu (supra) explained the rationale for the requirement of demonstrating documents in open Court. Hear His Lordship:

It needs to be emphasized that the duty of a Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of a Court to do cloistered justice by making an inquiry into the case outside even if such inquiry is limited to examination of documents which were in evidence, when the documents had not been

examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court and were not such matters that, at least, must have been noticed in Court

[page 211, italics supplied for emphasis].

Invariably, this requirement of testing such documents in open Court is, inextricably, tied to the question of their authenticity: a post admissibility requirement which relate to the weight attachable to them. It is in this con that Section 34(1) of the Evidence Act, 2011 provides that:

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

(a)

(b) In the case of a statement contained in a document produced by a computer

(i) 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

(ii) The question whether or not any person concerned with the supply of information to that computer or with the operation of 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.

[Italic supplied]

My Lords, permit me to draw attention to the evident affinity between the italicized expressions above with the expressions in Section 84(2) (a) (b) (c) and (d) which are the conditions that must be satisfied before “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,” Section 84(1) (supra). In effect, although a document produced from a computer may cross the admissibility threshold in Section 84 (1) (2) and (4), it may still not be accorded the requisite weight if the “accuracy” conditions in Section 34(1) (b) (i) and (ii) are not complied with.

This, then, underscores the cogency demonstrating such documents [like exhibit P42B] in open Court so as to afford the proponent of such a document the opportunity of not linking them

with their averments in their pleadings and evidence on records, A.P.G.A. v. Al-Makura (supra) 343; Okereke v. Umahi & Ors (supra) 50; but more importantly with a view to discharging the requirement which would facilitate the Court’s attachment of weight to them.

On the other hand, their demonstration in open Court would, equally, afford the opponents the opportunity of testing and contesting their accuracy in the usual adversarial method of cross examination, Onibudo v. Akibu (supra).

In all, I find that this appeal is wholly, unmeritorious and I, therefore, enter an order dismissing it. Appeal Dismissed. I affirm the judgment of the lower Court. The trial Tribunal shall proceed forthwith to recall PW51 for the purpose of demonstrating the said exhibit in open Court. Parties are to bear respective costs.

SC.518/2016

Hon. Henry Seriake Dickson V. Chief Timipre Marlin Sylva & Ors (2016) LLJR-SC

Hon. Henry Seriake Dickson V. Chief Timipre Marlin Sylva & Ors (2016)

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