HON. HENRY SERIAKE DICKSON v. CHIEF TIMIPRE MARLIN SYLVA & ORS(2016)

HON. HENRY SERIAKE DICKSON v. CHIEF TIMIPRE MARLIN SYLVA & ORS

In The Supreme Court of Nigeria

On Wednesday, the 20th day of July, 2016

SC.518/2016

RATIO

INTERPRETATION OF THE PROVISION OF SECTION 84 OF THE EVIDENCE ACT 2011 AS TO WHETHER THERE IS NEED FOR THE CERTIFICATION OF GADGETS THAT WILL BE USED IN PLAYING OR DEMONSTRATING AN ALREADY ADMITTED PIECE OF EVIDENCE IN OPEN COURT

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: 6. … 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. 7. 8. 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. 9. 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. 10. 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.
11. 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. 12. 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: 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: (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). PER CHIMA CENTUS NWEZE, J.S.C

INTERPRETATION OF SECTION 84 OF THE EVIDENCE ACT 2011AS TO WHETHER THERE IS NEED FOR THE CERTIFICATION OF THE COMPUTER OR PROJECTOR TO BE USED IN PLAYING THE PRODUCED DOCUMENT(DVD} IN OPEN COURT

My understanding of the carefully reading of Section 84 (1) 2(a)- (d) 3(a) – (d) 4 (a) – (c) I cannot find the requirement for the certification of the computer or projector to be used in playing the DVD in open Court. For the proper understanding of my stance on this issue Section 84 is reproduced as follows:- “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 by any individual; (b) that over that period there was regularly supplied to the computer in the ordinary course of these 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 reproduced 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 computes 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 combination of computers, all the computers used for that purpose during that period shall be treated for that purpose during that period shall be treated for the purposes of this Section as constituting a single computer; and references in his 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 purposes 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 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 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 Subsection- (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 it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced directly of (without human intervention) by means of any appropriate equipment. (Emphasis mine)” From the above provisions, it is crystal clear that it is only with respect to the computer that “produces” the document in this case, the DVD (Exhibit P42B) that ought to be certified. The Court below lucidly expressed the true purport of the provisions of Section 84 of the Evidence Act 2011 when it found on page 581 of the record of appeal thus: “It is glaring that Exhibit P42B is tied to and has symbiotic relationship with Exhibit P42A, being the certificate of compliance required by law. Howbeit, the dire need or certification cannot be extended to the laptop and or projector, with which the contents of Exhibits P42B is to be retrieved, demonstrated, displayed and or played back. The former is akin to or represents the production stage while the latter constitutes the consumption stage. Authentication or quality control is essentially warranted at the production level and not the point of consumption. Finished products are consumed by customers at large once the price is affordable.” The words of this Section are clear and unambiguous and I would not give any other interpretation, outside the clear words See AROMOLARAN v. AGORO (2014) 18 NWLR (Pt. 1438) 153 at 174 (2015) ALL FWLR (Pt. 766) 574 at p. 597. FBN v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 483. PER SULEIMAN GALADIMA, J.S.C.

JUSTICES

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

Between

HON. HENRY SERIAKE DICKSON Appellant(s)

AND

CHIEF TIMIPRE MARLIN SYLVA
2. ALL PROGRESSIVES CONGRESS (APC)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

CHIMA CENTUS NWEZE, J.S.C

(Delivering the Leading Judgment): 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:
23. 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:
3. 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.
4.
5.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

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:
6. … 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.
7.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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:
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:
(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.

SULEIMAN GALADIMA, J.S.C.: This interlocutory appeal is against the judgment of the Court of Appeal, Benin Division, which upturned the decision of the Bayelsa State Governorship Election Tribunal, ordering that PW51 be recalled to demonstrate the contents of Exhibit P42B by a set of computers, contended

by the Appellant herein not to have been certified in accordance with the provisions of Section 84 of the Evidence Act 2011.

In an Election into the office of Governor of Bayelsa State, conducted by the 3rd Respondent herein on 5th and 6th December, 2015 and 9th January, 2016, the 1st Respondent was the candidate of the 2nd Respondent. The Appellant herein was declared winner of the election and has since been sworn in as Governor of Bayelsa State.

Aggrieved by the declaration of the Appellant the 1st and 2nd Respondents, as petitioners, filed a petition before the Governorship Election Tribunal, on 30/1/2016.

On 29th April, 2016, the said Tribunal at the instance of 1st and 2nd Respondents, issued a Supoena Duces Team Ad Testificadum on one Pedro Innocent the Production Manager of Channels Television Lagos to testify and produce DVD/CD/VCD/Audio Recoding and Video Clips of the coverage of 5th and 6th December, 2015 Governorship Election in Bayelsa in respect of the Southern Ijaw Local Government Area of the State.

On 10/5/2016, one Emmanuel Ogunseye was put in the witness box as PW51 pursuant to Section 84 of the Evidence Act, 2011

and a certificate of compliance/identification and a DVD were admitted as Exhibits P42A and P42B respectively.

After the admission in evidence of the certificate and the DVD, counsel to the 1st and 2nd Respondents applied to the Tribunal that the DVD (Exhibit P42B) be played in open Court with the use of a Laptop, a projector and an Electronic Screen different from the computers contained in the certificate tendered as Exhibits P42A, whereupon counsel to the Appellant raised an objection on the ground that the computers sought to be used to play the DVD were not certified as required by Section 84 of the Evidence Act, 2011.

Arguments on the point were fully canvassed, at the end of which the Tribunal upheld the objection and rejected the application to play the DVD.

The 1st and 2nd Respondents dissatisfied with the ruling of the Trial Tribunal filed two Notices of Appeal but subsequently relied on the Notice of Appeal filed on 20th May, 2016. Briefs and Reply were filed and exchanged by the parties. Delivering its considered judgment on 24th June, 2016 the Court of Appeal discountenanced the issue of its jurisdiction to entertain the

appeal filed before it on the grounds that the record of appeal transmitted to the Court of Appeal was incomplete. This objection was also argued by the 4th Respondent herein which raised the issue of the incompleteness of the record of appeal in its brief of argument.

Consequently the Court of Appeal delivered its judgment granting all the reliefs sought by the 1st and 2nd Respondents herein, as the Appellants in that appeal. The Court then ordered the Trial Tribunal to forwith recall PW51 for the purpose of demonstrating the contents of Exhibit P42B in open Court.

Being dissatisfied with the aforesaid judgment, the Appellant appealed on 27th June, 2016 to this Court and raised the following 3 issues namely:-
“1. Whether the judgment of the Court of Appeal was not a nullity for having been given without jurisdiction because the appeal brought by the 1st and 2nd Respondents herein was not validly entered in the Court of Appeal: Grounds 1 and 2.
2. 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 computer to be used to demonstrate the contents of the Exhibit in open Court: Grounds 5 and 6.
3. Whether the Court of Appeal was not wrong in law in refusing to follow its decision in AKEREDOLU v. MIMKO (2013) LPELR-20532 where it was held that the electronic gadgets to be used to demonstrate exhibits already admitted in evidence must be certified in accordance with the provisions of Section 84 of the Evidence Act 2011, on the ground that that part of its decision was obiter dictum:
Grounds 3 and 4.”

In response to the Appellant’s brief of argument the 1st and 2nd Respondents filed a Respondent’s Notice on 1st July, 2016 and incorporated their arguments on same and their reply brief also filed the same day. In paragraph 3.1 of their Brief the 1st and 2nd Respondents formulated the following three issues for determination:
“1. Was the judgment of the Court of Appeal a nullity on the ground of incomplete record of appeal or that the appeal at the Court of Appeal was invalidly entered Grounds 1 and 2
2. 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 Grounds 5 and 6.
3. Was the Court of Appeal wrong in refusing to follow its previous decision in AKEREDOLU v. MIMIKO (2013) LPELR- 20532 on the need to certify the electronic gadgets used or to be used in demonstrating in open Court electronic evidence, on the ground that the applicable part of that previous decision was obiter
Grounds 3 and 4.”

It is to be noted that today 20th July, 2016, when this appeal came up for hearing learned senior counsel for the Appellant and the 1st and 2nd Respondents conceded to narrow issue raised in issue 2 to consider the main appeal. Thereby all preliminary objections and other issues 1 and 2 of the Appellant and issues 1 and 2 of the 1st and 2nd Respondents were abandoned.

Hearing the appeal, Leaned Senior Silk TAYO OYETIBO, SAN; ALIYU UMAR, SAN and EMEKA ETIABA, SAN leading a formidable team of other counsel identified and relied upon the Brief of Argument of the Appellant filed on 29th June, 2016 and a Reply Brief to the 1st and 2nd Respondents filed on 13th July, 2016.

He briefly adumbrated on the second issue formulated in the Appellant’s Brief having abandoned the 1st and 3rd Issues. Issue 2 already set out above is posited on:-
“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 his 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 (Grounds 5 and 6).”

It is argued that the computers sought to be used to demonstrate Exhibit P42B ought to have been certified in compliance with Section 84(1) (2) (4) of the Evidence Act 2011. That the Laptop, Projector and Electronic Screen sought to be used, in this case to play the DVD Exhibit P42B in open Court are “computers” within the meaning of the expression in Section 258 (1) of the Evidence Act 2011.

It is submitted that in the first category, the statements contained in the judgment are produced when the document is tendered and the contents are immediately visible to the eyes. However, in the second category, neither the statements contained in the

electronic document nor the document itself can be said to have been brought out as the electronic document for the Court to see or hear.

For the proper appreciation of arguments on “electronic document” learned silk refers to the definition of ‘document’ in Section 258 (1) of the Evidence Act 2011.

In view of the copious arguments set out in the Appellants’ brief of argument on this issue, Learned Silk has urged us to allow the appeal.

In his snappy oral response, as an adumbration of his submissions in the 1st and 2nd Respondents’ brief filed on 1st July, 2016 and adopted, S. T. Hon. SAN leading other team of counsel, discountenanced arguments on his Notice of Preliminary objection. He conceded that the main appeal should be considered outrightly. He submitted that the trial Tribunal erred greatly in law when it refused to allow the 1st and 2nd Respondents play the DVD (Exhibit P42B) in open Court, resulting in grave injustice to the aforesaid Respondents.
He submitted that there is nothing in Section 84 of the Evidence Act 2011 that requires certification in respect of the computer or projector to be used in playing the DVD in

open Court.

He has urged this Court to give literal rule of interpretation so as to give natural meaning to the provision, omitting no words and adding none. He has urged that the appeal be dismissed for lacking in merit.

Learned Silk Asiwaju A. S. Awomolo, SAN and Dr. O. Ikpeazu, SAN leading a large number of other counsel appeared for the 3rd Respondents. He filed no brief and for that reason he has nothing to urge this Court.

In similar vein AMAZUO BEREPROBERA, ESQ of counsel for the 4th Respondent who filed no brief, has equally nothing to urge the Court.

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 by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of these 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 reproduced 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 computes 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 combination of computers, all the computers used for that purpose during that period shall be treated for that purpose during that period shall be treated for the purposes of this Section as constituting a single computer; and references in his 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;<br< p=””

</br<

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purposes 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 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 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 Subsection-
(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 it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced directly of (without human intervention) by means of any appropriate equipment.
(Emphasis mine)”

From the above provisions, it is crystal clear that it is only with respect to the computer that “produces” the document in this case, the DVD (Exhibit P42B) that ought to be certified. The Court below lucidly expressed the true purport of the provisions of Section 84 of the Evidence Act 2011 when it found on page 581 of the record of appeal thus:
“It is glaring that Exhibit P42B is tied to and has symbiotic relationship with Exhibit P42A, being the certificate of compliance required by law. Howbeit, the dire need or certification cannot be extended to the laptop and or projector, with which the contents of Exhibits P42B is to be retrieved, demonstrated,

displayed and or played back. The former is akin to or represents the production stage while the latter constitutes the consumption stage. Authentication or quality control is essentially warranted at the production level and not the point of consumption. Finished products are consumed by customers at large once the price is affordable.”

The words of this Section are clear and unambiguous and I would not give any other interpretation, outside the clear words See AROMOLARAN v. AGORO (2014) 18 NWLR (Pt. 1438) 153 at 174 (2015) ALL FWLR (Pt. 766) 574 at p. 597. FBN v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 483.

In this appeal the evidence of PW51 satisfies the provisions of Section 84 of the Evidence Act 2011, he deposed to in paragraphs 7 – 11 of his Written Deposition on pages 350 – 351 of the Record of Appeal to that effect. He stated inter alia thus:
“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 …”

When PW51 entered the witness box on 10th May, 2016, he brought in Court the DVD he had produced using the

computers vividly described in his written deposition.

I am of the firm opinion that since Section 84 of the Evidence Act 2011 has limited its application to “production” of computer evidence and not “playing” or demonstrating of it in open Court. The literal rule of interpretation ought to be invoked by the Trial Tribunal to permit Exhibit P42B to be played before it.

For the foregoing reasons and for fuller ones set out in the lead judgment of my learned brother NWEZE, JSC I too agree with him and dismiss this appeal, as it is lacking in merit.

I affirm the judgment of the Court of Appeal. The trial Tribunal shall as a matter of urgency proceed to recall PW51 for the purpose of demonstrating the content of DVD Exhibit P42B in open Court. I award no costs parties to bear their own costs.

OLABODE RHODES-VIVOUR, J.S.C.: Briefly the facts are these. The appellant, the PDP candidate and the 1st Respondent, the APC candidate contested the General Election for Governor of Bayelsa State. The Independent National Electoral Commission (INEC), the body constitutionally set up to conduct the election declared the

Appellant elected. He is the Governor of Bayelsa State. Dissatisfied with the results as delivered by INEC the 1st Respondent filed a petition before the Bayelsa State Governorship Electoral Petition Tribunal. During trial, learned counsel for the Petitioner/1st Respondent tendered certificate of compliance/identification and DVD. Both were admitted as Exhibits ‘P42A’ and ‘P42B’. That is to say electronically generated evidence (Exhibit P42B, DVD) was admitted in evidence after the Tribunal was satisfied that there was compliance with Section 84 of the Evidence Act.

Thereafter learned counsel for the 1st Respondent urged the Tribunal that the DVD – Exhibit ‘P42B’ be played in Open Court. The Tribunal refused. The reasoning of the Tribunal is interesting. It said:
“… 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 contents. To that extent therefore in respect of both last two documents (the laptop and projector) the provisions of Section 84 of the Evidence Act has not been complied with…”

And on that

reasoning the application to play the DVD in open Court was refused. The Court of Appeal came to a different conclusion. That Court set aside the Ruling of the Tribunal and ordered that the DVD already admitted in the Tribunal as Exhibit ‘P42B’ be played/demonstrated in Open Court. This is what the Court had to say:-
“….When it is an electronically generated document which has been admitted in evidence upon fulfilling all preconditions 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”.

Section 84 of the Evidence Act must now be examined.
It reads:-
“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 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 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 cause of these activities.
84 (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 may be appropriate for the Purpose of showing that the document was produced by computer;
(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.”

A diligent examination of Section 84 of the Evidence Act reveals that the Section does not say that the computer or electronic device used in playing the DVD in open Court requires certification, rather it is only the computer that produces the DVD – Exhibit ‘P42B’ that requires certification. Section 84 in the

Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced.

Exhibit ‘P42B’, electronically generated evidence was admitted in evidence as an exhibit after the Tribunal was satisfied that there was compliance with the provisions of Section 84 of the Evidence Act, (See Exhibit ‘P42A’).

After the DVD was admitted as Exhibit ‘P42B’ compliance with Section 84 of the Evidence Act is no longer required as that threshold had been well and timely passed once the DVD becomes an exhibit. The examination of the DVD (an exhibit) Includes playing it, and the DVD must be examined at some stage. In other climes the DVD would have been played by the Courts device and the Courts device would not require certification. The Refusal by the Tribunal to play the DVD to my mind was wrong. An exhibit, documentary evidence is a thing relied on by the party producing it for the sole purpose of strengthening his case. Once such evidence supports oral testimony such oral testimony becomes more credible. See Omoregbe v. Lawani 1990 3-4 SC p.117: Kindley and Ors v. M G of Gongola State 1988 2 NWLR R/77 p. 473.

The Petitioner

must be allowed to present and ventilate his case within the confines of the law and procedural requirements. Playing the DVD (Exhibit ‘P42B’) in Open Court is very much within the standards required.

For these brief reasons as well as those more fully given by my learned brother NWEZE, JSC I would dismiss the appeal. I affirm the judgment of the Court of Appeal and direct that the orders of that Court be complied with forthwith.

Appeal dismissed.

NWALI SYLVESTER NGWUTA, J.S.C.: I have the privilege of reading in draft before now the lead judgment of my learned brother, Nweze, JSC and I entirely agree with the reasoning leading to the dismissal of the appeal as unmeritorious.

I desire to chip in a word or two in demonstration of my agreement with the lead judgment.

The relevant facts of the case are sufficiently outlined in the lead judgment. The issue formulated by learned Senior Counsel for the Appellant reads:
”Whether the Court of Appeal was not wrong in law when it held that the certification of the computer used to produce Exhibit P42B in this case was sufficient and that it was not

necessary under S.84 of the Evidence Act 2011 to certify the imprints sought to be used to demonstrate the contents of the Exhibit in open Court, Grounds 5 & 6.”

In his turn learned Silk for the 1st and 2nd Respondents queried:
“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 Tribunal Grounds 5 & 6.”

Except for differences in phraseology the two issues are substantially the same. Exhibit P42A is a certificate in respect of the computers used to store information in the DVD. It is evidence of compliance with Section 84 (1) and (2) of the Evidence Act for the admission of the DVD which was admitted and marked Exhibit P42B.

Section 84 (2) outlines the conditions for admission of “a statement contained in a document produced by a computer”. The two key words in Section 84 of the Evidence Act appear to me to be “statement” and “document”. What is a statement and what is a document

A statement, in a general sense, is an allegation, a declaration of matters of fact, etc. See Black’s Law Dictionary Special

Deluxe fifth attestation, avowal, etc. See Burton’s Legal Thesaurus Fourth Edition page 993.

On the other hand, document is an instrument on which is recorded information or facts. It contains statements. A document is any physical embodiment of information or ideas such as letter, contract, receipt, a book of account, a blue print or an X-ray plate. See Strico v. Cotto 87 Misc. 2nd 636, 324 NYS 2nd 483, 486.

In view of the above definitions of statement and document, the DVD, Exhibit P42B, in so far as it is used to record and store information is a document and the information therein contained is a statement within the intendment of Section 84 of the Evidence Act.

I agree with the learned Silk leading for the appellant that the DVD, Exhibit P42B is a manufactured product. However, once any Information is recorded or stored therein through the instrumentality of a computer it becomes a document and the information so recorded or stored is a statement “contained in a document produced by a computer” within the meaning of Section 84 of the Evidence Act. The certificate, Exhibit P42A qualified the document (DVD) Exhibit P42B for admission

in evidence and it was so admitted and marked accordingly.
See; Kubor v. Dickson (2013) All FWLR (Pt.675) 392 at 429.

The point upon which the parties joined issue is the assertion of the appellant, denied by the respondent, that Section 84 of the Evidence Act requires another certificate in form of Exhibit P42A to produce the “statement contained in the document produced by a computer”. It has to be emphasized that in admitting the DVD, Exhibit P42B, what is really admitted is “a statement contained” in the DVD which is document produced by a computer. See Section 84 (1) of the Act.

The DVD, Exhibit P42B and its contents are akin to non-computer document or a document properly so called. A document properly so called is admitted in evidence for the Court or Tribunal to see and consider its contents (or statements contained therein). Once a document properly so called has been admitted in evidence, there is no condition to be satisfied before the Court or Tribunal can make use of the statement contained therein.

In the same vein, once the computer generated document has been admitted in evidence, having satisfied all the

requirements of Section 84 (2) of the Act, the statement therein contained can be produced for the Court or Tribunal by the means of any functional computer without a certificate in form of Exhibit P42A. I see no such requirement in the various provisions of Section 84 of the Evidence Act.

In my humble view, producing the statement contained in a document produced by a computer which has been admitted in evidence is the same thing as providing the Court or Tribunal a document properly so called which has been admitted in evidence for the Court or Tribunal to read. Once the conditions for admission of the document have been satisfied and the document, be it one produced by a computer or one properly so called, admitted, there can be no other requirement before the Court or Tribunal can make use of the statement contained in the document.

For the above and the fuller and lucid reasons advanced in the lead judgment I also find no merit in the appeal and I accordingly dismiss same. I abide by the consequential orders in the lead judgment.

CLARA BATA OGUNBIYI, J.S.C.: The facts of this case have been spelt out in

the lead Judgment of my brother Chima Centus Nweze, JSC.

On the 10/05/2016, the Tribunal through the witness PW51 admitted in evidence the certificate of compliance with Section 84 of the Evidence Act, 2011 and the DVD produced with the use of computer and marked same as Exhibits P42A and P42B respectively.

Consequently, the Learned Senior Counsel for 1st and 2nd respondents applied that the DVD (Exhibit P42B) be played in open Court. Objections were taken by learned senior counsel for the appellant herein and the 4th respondent.

The Tribunal on the issue, ruled that the provisions of Section 84 of the Evidence Act has not been complied with. Hence the application to play the DVD Exhibit P42B was accordingly refused. On appeal to the Lower Court by the 1st and 2nd respondents, the Court discountenanced the objection challenging its jurisdiction to determine the appeal and granted all the reliefs sought by the 1st and 2nd respondents herein, as appellants in that appeal. The Lower Court thereupon ordered the trial Tribunal to forthwith, recall PW51 for the purpose of demonstrating the contents of Exhibit P42B in open Court.

The only surviving issue no.2 formulated by the

appellant reads as follows:-
2. Whether the Court of Appeal was not wrong in law when it held that the certification of the computers used to produced Exhibit P42B in this case was sufficient and that it was not necessary under Section 84 of the Evidence Act 2011 to certify the computer sought to be used to demonstrate the contents of the Exhibit in open Court.

Section 84(1) (2) and (4) of the Evidence Act has been reproduced in the lead judgment of my learned brother.

It is the submission by the appellants counsel that the laptop, projector and electronic screen sought to be used to play the DVD, i.e. Exhibit P42B, are devices used for storing and processing information and hence are therefore computers within the meaning of Section 258(1) of the Evidence Act; that in the application of Section 84(1) of the Act, regard must be had to what is admissible under the Section, that is to say, the statement contained in a document produced by a computer and not the document perse. In other words from the contents of Section 84(1), it is the statement contained in the document that is being admitted. The concept of document has been

defined in Section 258(1) of the Evidence Act 2011.

Counsel therefore faulted the Lower Court which he submits did not pay attention to the fact that what is being admitted under Section 84(1) is the statement contained in a document produced by a computer; that the Lower Court, did not also appreciate the distinction between a hardcopy of a document, the contents which are visible to the eye as against the contents of an electronic document like Exhibit P42B which are not visible; that the process of production to bring out the contents must be by use of computers which require certification in order to make the contents admissible under Section 84(1) of the Evidence Act.

It is the counsels submission therefore that the Tribunal was right in rejecting the application of the 1st and 2nd respondents.

On behalf of the 1st and 2nd respondent, it was argued that there is nothing in Section 84 of the Evidence Act 2011 that requires certification in respect of the computer or projector to be used in playing the DVD in open Court.

As rightly submitted by the learned counsel to the 1st and 2nd respondent, the law is well settled

that when a particular Section of the law has many Subsections, all such Subsections must be read together for purpose of discovering the intention of the lawmaker. See Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 200 SC and Oyeniyi v. Adeleke (2009) All FWLR (Pt. 476) 1902 at 1912.

Also and as rightly submitted by the said respondent’s counsel, where a process of production of a computer document has been completed, the concept of playing or transmission of such document cannot amount or be equated to the actual production thereof.

At page 567 of the record of appeal, the Lower Court for instant had this to say:-
“It is germane to note that all through the gamut of Section 84, no distinct specific provisions were made stating conditions for the playing or demonstrating an already admitted electronically generated evidence before the trial Court or Tribunal.
As rightly submitted by learned silk for the appellants, if there was an omission in this regard, it is certainly not part of judicial adjudication to supply it;”

It is pertinent to state that the position taken by the Lower Court is in accordance to settled principle

laid down by this Court on the interpretation of Statutes wherein the following guide lines are clearly spelt out that:-
1) It is the cardinal principle of law that a Court cannot, while interpreting a Statute, embark on judicial legislation, namely lawmaking, See: Akintokun v. L.P.D.C. (2014) 13 NWLR (Pt. 1345) 427 SC.
2) It is also the law that a Court ought to expound and not to expand the law; that is to say it is to decide what the law is and not what it ought to be; it should tow the path of objectivity and not be subjective. See Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595 SC.
3) It has been held also that a judge cannot and should not supply omissions in a Statute. See Governor of Zamfara State v. Gyalange (2012) 4 SC. 1

In a nutshell, the provisions of Section 84 of the Evidence Act is complete and should be given its ordinary meaning of interpretation of what the law is, which the trial Tribunal had failed to do in this case.

In plethora of decided cases, this Court has held times without number and warned parties against the dumping of documents on the Tribunal. See the case of CPC v. INEC (2013) All FWLR (Pt. 665) 364

at 385 SC. Also Paragraphs 46(4) of the 1st Schedule to the Electoral Act, 2010 as amended is where documents admitted in evidence are either read or taken as read.

In citing the case of Kubor v. Dickson (2013) All FWLR (Pt. 676) 393 at 429, the learned counsel for the 1st and 2nd respondents laid emphasis on the Judgment of this Court which decided on the admissibility of computer evidence wherein their Lordship quoted in extensor the provisions of Section 84(1) of the Evidence Act, and proceeded to lay down the procedure guiding admissibility thereon.

There is no law stating that when computer evidence is already admitted, another certification of the instrument used for its demonstration in open Court should again be produced. The absence of such cannot be imported with a view to defeat the provisions of Section 84 of the Evidence Act, thereof.

The law is explicit that where an interpretation of a Statute would defeat the cause of justice, the Court should refrain there from. See Ikeupenikan v. State (2015) All FWLR (Pt. 788) 919 at 959 a decision of this Court; on the same principle Ogbuagu, JSC also stressed the foregoing rule of

Interpretation in the case of Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 138.

My learned brother Nweze, JSC has dealt comprehensively with the issue raised and I adopt this reasoning and conclusion as mine. In the same vein, I am also of the considered opinion and hold that this appeal is bereft of any merit and I hereby dismiss same in terms of the lead judgment. The judgment of the Lower Court delivered on 24th June, 2016 is hereby affirmed by me. The appeal is hereby dismissed and the trial at the Tribunal should proceed forthwith.

The witness PW51 should be recalled and be allowed to demonstrate the exhibit objected to in the open Court. The parties are each to bear their respective costs of the appeal.

KUMAI BAYANG AKA’AHS, J.S.C.: I read in draft the lead judgment of my learned brother, Nweze, JSC in which he dismissed the appeal. I agree entirely with his reasoning and conclusion.

At the Bayelsa State Governorship Election Tribunal, Emmanuel Ogunseye deposed to a written statement at pages 349-351 of the Record of Appeal. He testified as PW51 and sought to play a DVD admitted as Exhibit

P42B in open Court.
The application was opposed by the then respondent (now appellant). The DVD was duly certified and the certificate was tendered as Exhibit P42A. The Tribunal ruled that when a document is sought to be given in evidence, and also to be demonstrated in Court, the computer used to store the information as well as the one to be used to retrieve and demonstrate such information must be certified in accordance with Section 84 of the Evidence Act. It therefore held that Section 84 of the Evidence Act was not complied with and consequently PW51 was precluded from playing Exhibit P42B in open Court. This ruling was reversed on appeal hence the appeal by the appellant to this Court.

The issue in this appeal is whether the Court of Appeal was wrong in law when it held that the Certification of the computers used to produce Exhibit P42B in this case was sufficient and it is 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 Court.

Learned Senior Counsel for the appellant submitted that the Laptop, Projector and electronic screen

sought to be used to play Exhibit P42B in Court must be certified before they can be used because they are also computers as defined in Section 258(1) of the Evidence Act.

The opening submission made by learned Senior Counsel for the 1st and 2nd respondents in respect of issue 2 in his brief is a little bit confusing. It appears learned Senior Counsel was addressing what took place at the Trial Tribunal instead of the Court of Appeal. At page 575 of the Records of Appeal, Otisi, JCA who wrote the lead judgment allowed the appeal and set aside the ruling of the Tribunal delivered on 10/5/2016 and concluded thus:-
“It is further ordered that the DVD admitted in evidence before the lower Tribunal as Exhibit P42B be played/demonstrated in open Court. It is also ordered that PW51 shall be recalled to give effect to this order”.

Section 84(1) and (2) Evidence Act provides:-
“84 (1) In any proceeding a statement contained in 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 purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind 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”.
The correct interpretation to be given to Section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2). See: Kubor v. Dickson (2013) All FWLR (Pt. 676) 392 at 429. In the instant case PW51 made a written deposition at pages 349-351 of the Record which he adopted at page 353. The certification as well as the electronically generated evidence in issue, the DVD in question, were admitted in evidence as Exhibits P42A and P42B respectively in support of the pleadings. Having met the pre-conditions, there is no impediment in the Evidence Act that would prevent the playing or demonstrating the contents of the already identified DVD on any computer such as the laptop, projector and screen.

The appeal therefore lacks merit and it is accordingly dismissed, I also affirm the judgment of the lower Court and further order that the Trial Tribunal shall proceed post-haste to recall PW1 for the purpose of demonstrating the contents of Exhibit P42B in open Court.

<br< p=””

</br<

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal is against the judgment of the Court of Appeal, Abuja Division on 24/6/2016 which allowed the appeal of the 1st and 2nd respondents and set aside the ruling of the Bayelsa State Governorship Election Tribunal sitting in Abuja delivered on 10/5/2016 wherein the Tribunal ruled that a DVD admitted in evidence as Exhibit P42B could not be played in open Court for failure to comply with Section 84 of the Evidence Act 2011.

The brief facts that gave rise to this appeal are that pursuant to a subpoena duces tecum ad testificandum issued on one Pedro Innocent, the Production Manager of Channels Television to produce “all DVD/CD/VCD/Audio recordings and video chips of the coverage of 5th/6th December 2015 Governorship Election in Bayelsa State in respect of Southern Ijaw Local Government Area of Bayelsa State” one Emmanuel Ogunseye deposed to a written statement. He testified as PW51 and tendered a certificate of compliance with Section 84 of the Evidence Act 2011 and the DVD produced with the use of a computer. The certificate of compliance was admitted as Exhibit P42A while

the DVD was admitted as Exhibit P42B. The 1st and 2nd respondents replied for the DVD, Exhibit P42B to be played in open Court. The application was opposed by the appellant.

The Tribunal held that the laptop computer and projector sought to be used to play the DVD and retrieve the information contained therein must be certified in accordance with Section 84 of the Evidence Act. Having not been so certified, the application to play the DVD in Court was refused.

On appeal to the lower Court, the ruling of the trial Tribunal was set aside. It ordered that the DVD already admitted in evidence be played/demonstrated in open Court and that PW51 be recalled to give effect to the order.

The parties duly exchanged briefs of arguments. The 1st and 2nd respondents and the appellant filed preliminary objections which they applied to withdraw at the hearing of the appeal so that the merit of the appeal could be dealt with.

At the hearing, MR. TAYO OYETIBO, SAN also abandoned issues 1 and 3 of his brief of argument filed on 29/6/2016 and argued the appeal on issue 2 alone.

S. T. HON. SAN also abandoned his respondent’s Notice and

arguments in respect of issues 1 and 3 in his brief filed on 1/7/2016 and argued issue 2 only. No briefs were filed on behalf of the 3rd and 4th respondents.

The said issue 2 as formulated by the appellant reads thus:
“Whether the Court of Appeal was wrong in law when it held that certification of the computer 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 computer sought to be used to demonstrate the contents of the exhibit in open Court.

At the hearing of the appeal MR. OYETIBO, SAN, further adumbrated on the submissions in the brief. He argued that Section 84(1) of the Evidence Act 2011 must be read in conjunction with Section 258(1) of the Act, particularly paragraphs (b) & (c) thereof. He argued further that what was admitted in evidence before the Tribunal was a bare DVD which would only become a document within the meaning of Section 258 (1) of the Evidence Act if it is shown that it contains sound or other data. He argued that the procedure by which the sound or data is brought out is what actually constitutes the statement and

therefore the electronic gadgets to be used in the exercise must also be certified in accordance with Section 84 of the Evidence Act.

S. T. HON. SAN, learned senior counsels for the 1st and 2nd respondents, on the other hand, argued that the contention of Mr. Oyetibo, SAN amounts to reading into the Section 84 what it does not contain. He urged the Court to employ the literal rule of interpretation. In oral adumbration of his brief, he submitted that Section 84 (2) (c) refers to the period during which the computer used to generate the document was operating (emphasis on “was”) and not the laptop computer or other gadget sought to be used in Court to demonstrate same. He argued that Section 285 (1) of the Evidence Act does not address the issues raised by the appellant.

For ease of reference, I reproduce hereunder the relevant paragraphs of Section 84(1) of the Evidence Act, 2011.
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 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 these 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 or that period was not such as to affect the production of the document of 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 combination 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

involve in the production of that documents as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the maters 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 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 Subsection –
(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 it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced directly or (without human intervention) by means of any appropriated equipment.”
(Emphasis supplied by me)

Section 258(1) of the Evidence Act, 2011 provides:
“258. (1) In this Act
“documents” includes
(b) an 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
(c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it.”

I agree with learned counsel for the 1st-2nd respondents that while Section 258(1) (b) & (c) in particular provides a general definition of what constitutes a document, Section 84 makes specific provisions for the admissibility of documents produced by a computer. Certainty the specific provision relating to admissibility

must be given priority over the general provision. The rationale for this approach is that the specific provision will be deemed to have anticipated the issue, as against the general provision. See: Kraus Thompson Organization v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) All FWLR (Pt. 720) 1247; Akpan v. The State (1986) 3 NWLR (Pt. 27) 225. The principle is “generalibus specialia dorogant”: special things derogate from general things.

The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams (1982) 7 SC 27 @ 46; Nonye v. Anyichie (2005) 1 SCNJ 306 @ 316. Where an interpretation will result in breaching the object of the Statute, the Court would not lend its weight to such an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.

Now a careful consideration of Section 84 reproduced infra would reveal

that the Section is concerned with the manner in which the electronic evidence sought to be relied upon is produced. The Section seeks to ensure the authenticity of the document and the integrity of the procedure used to bring it into being. Section 84 (2) (a) for example, refers to the document containing the statement sought to be relied upon having been produced by a computer during a period over which the said computer was used regularly to store or process information for the purposes of any activities regularly carried out over that period, whether for profit or not, by anybody, whether corporate or not. The Sub-sections refer to the storing or processing of information by the computer during the period when the document sought to be tendered was produced as well as the working condition of the computer, combination of computers, different computers operating in succession or different combinations of computers operating in succession during that period.

Section 84(4) sets out clearly what a certificate of identification must contain where it is sought to give a statement (electronically-generated) in evidence.

From the facts of this

case, the 1st and 2nd respondents fully complied with the provision. The statement on oath of PW51 contained depositions of all the material facts relating to the procurement of Exhibit P42B. He tendered the relevant certificate (Exhibit P42A) along with the DVD (Exhibit P42B) produced with the use of the computer.

At the stage, the 1st and 2nd respondents had done all that was necessary for the admissibility of Exhibit P42B and it was duly admitted in evidence. By the certificate, the 1st and 2nd respondents had established not only the authenticity of the document but the integrity of the process that produced it.

The is nothing in Section 84 of the Evidence Act 2011 that places a further requirement on the party seeking to rely on electronic evidence to certify the gadgets to be used in demonstrating what had already been admitted, as contended by learned senior counsel for the appellant. In my view, the interpretation suggested would certainly lead to absurdity. The computer or projector to be used to demonstrate the admitted evidence has no part to play in the production of the evidence or its authenticity. I therefore agree with the lower

Court that having fulfilled all the pre-conditions for the admissibility of Exhibit P42B, which had not been taken as read, it ought to be demonstrated in open Court for the necessary weight to be attached to it. After all, it has been held in numerous decisions of this Court that documents must not be dumped on the Court but must be demonstrated by linking them to specific aspects of party’s case. See: C.P.C. v. I.N.E.C. (2013) ALL FWLR (Pt. 665) 365 @ 385 SC; Iniama v. Akpabio (2008) 17 NWLR (Pt. 1116) 296 @ 299-300 D-B; A.P.G.A. v. Al-Makura (2016) 5 NWLR (Pt. 1505) 316 @ 345.

As rightly observed by the lower Court, the essence of the provisions of Section 84 (2) of the Evidence Act would be defeated, if after duly complying therewith, the party relying on the admitted electronically generated evidence is precluded from demonstrating same before the Court in order to prove his case. The trial Tribunal erred in reading into Section 84 of the Evidence Act pre-conditions that it did not contain. The decision was rightly set aside by the Court below.

For these and the more elaborate reasons eloquently advanced by my learned brother, CHIMA CENTUS

NWEZE, JSC in the lead judgment, which I have had the opportunity of reading in draft and with which I entirely agree, I also hold that this appeal lacks merit. I accordingly dismiss it and affirm the judgment of the Court below. Parties shall bear their respective costs.

Appearances

Tayo Oyetibo, SAN with him, Aliyu Umar (SAN), Emeka Etiaba (SAN), F. N. Nwosu, Esq., Wilson Ajuwo, Esq., Benchuks Nwosu, Esq., B. A. Azebi, Esq., Ngozi Ufelle (Miss), I. Agbaragu, Esq., Akpos Oroupa (Miss), Samuel Brisibe, Esq., Sunusi Musa, Esq., Dickson Sofiyegha, Esq., Kasie Ogbuawa (Miss), Joy Etiaba (Mrs.), M. J. Numa, Esq., Obaloluwa Adeleke, Esq., M. Mene-Josiah, Esq., Tare Anyankpele, Esq., I. J. Akpolu, Esq., Nnancy Shikaan (Miss), U. S. Jahun, Esq., Henry Leonard, Esq., Tunji Onibanjo, Esq., Godness Jim-Odoi (Miss), Maxwell Ezumezu, Esq., T. Iboroma (Miss), Ijeoma Okoye (Miss), Nancy Okoli (Miss), Kenechukwu Azie (Mrs.), Paul Mbeoma, Esq., Abdul Muhammed, Esq. and S. M. Abdulahi, Esq. For Appellant

AND

T. Hon, SAN with him, S. T. Abar, N. Uja (Miss), T. Azoom, G. T. Iorver, S. I. Yenge, F. Y. Jacob, J. J. Dabo, E. N. Agoh (Mrs.), O. Sorgwe, Torunrigha E. for 1st and 2nd Respondents

Asiwaju A. S. Awomolo, SAN with him, Dr Onyechi Ikpeazu (SAN), Don Umealor, Esq., Alex Ejeiseme, Esq., Eyitayo Fatogun, Esq., Tobechukwu Nweke, Esq., Nwachukwu Ibegbu, Esq., Akinyosoye Arosanyin, Esq., Obinna Onya, Esq., Jude Daniel Odi, Esq., Olajide Olaleye-Kumuyi, Esq., Bolaji Raphael Bello, Esq., Julius Mba, Esq., A. A. Akaahs, Esq., Akinloluwa Akinrinde, Esq., Chiwendu Isabella Okoro (Miss), Nnamaka Ofoegbu (Miss) for 3rd Respondent

Amazuo Bereproboga with him: Soala Jumbo, Aisha Aliyu (Mrs.), J. C. Nebo (Mrs.) Madu Joe Gadzama, Olajide A. Omosebi. for 4th Respondent For Respondent

LawCare Nigeria

HON. HENRY SERIAKE DICKSON v. CHIEF TIMIPRE MARLIN SYLVA & ORS(2016)

admin

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

admin

Related Story

YOU MAY HAVE MISSED