OMOIKE EMMANUEL v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12459(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of June, 2018
CA/B/291C/2016
RATIO
EVIDENCE: COMPUTER GENERATED EVIDENCE
“Section 84(4) of the Evidence Act, 2011, did not make provision for a certificate but rather it provides for the fundamental evidence that must be led in Court before a computer generated evidence can be admitted and relied upon. See Kubor Vs Dickson (2013) All FWLR (Pt. 676) 392 at 428 para G where the Supreme Court held per Onnoghen JSC (as he then was) thus:
“Granted, for the purpose of argument, that exhibits “D” and “L” being computer generated documents or document down loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011. Section 84(1) provides thus:
‘(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 condition in Sub-section (2) of this section are satisfied in relation to the statement and the computer in question.'” PER HUSSEIN MUKHTAR, J.C.A.
Before Their Lordships
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBUJustice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHOJustice of The Court of Appeal of Nigeria
Between
OMOIKE EMMANUELAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
The Appellant was arraigned by the Economic and Financial Crimes Commission (EFCC) on a 13 count charge before an Edo State High Court presided over by Justice E. F Ikpomwen on the 5/7/2013.
The trial Court, in its ruling on a no case submission delivered on the 15/5/2016, discharged the Appellant in Counts 2, 4, 6, 8, 14 and 15 of the amended charge.
In a judgment delivered on the 19/4/2016, the Court below discharged and acquitted the Appellant in Counts 7, 9, 10, 11 and 13 and convicted the Appellant on Counts 1, 3, 5 and 12 and sentenced him to seven years imprisonment with hard labour in each of the counts. The terms are to run concurrently.
The Appellant dissatisfied with the judgment of the trial Court filed a notice of appeal on the 16/6/2016. The notice of Appeal was amended with leave of the Court and predicated upon the following twin grounds;
1. The trial Court erred in law in admitting and placing reliance on exhibits “C1 – C50” in convicting the accused person.
PARTICULARS OF ERROR:
i. exhibits “C1 – C50” are computer generated documents.
ii. No proper foundation was laid as required by law before they were tendered and admitted.
iii. exhibits “C1 – C50” are inadmissible documents.
2. The trial Court erred in law in convicting the accused person in count 1, 3, 5 and 12 of the charge, when the said charges were not proved beyond reasonable doubt by the prosecution.
PARTICULARS OF ERROR:
i. The charges against the accused person were not proved beyond reasonable doubt.
ii. There is no evidence linking the accused person directing to the offences for which he was convicted.
iii. No witness gave evidence before the trial Court that the accused person defrauded him or intended to defraud him.
The Learned Counsel for the Appellant distilled, from the foregoing grounds, the following lone issue for determination in this appeal:
Whether the charges against the Appellant in Count 1, 3, 5 and 12 were proved beyond reasonable doubt. (Distilled from Grounds 1 and 2)
It was argued for the Appellant that the charges against which the Appellant was convicted in Counts 1, 3, 5, and 12 were not proved beyond reasonable doubt and that the trial Court wrongly relied on exhibit C1 – C50 in convicting the Appellant. The Learned trial judge observed (at page 268 – 269 of the record) as follows:
“I find therefore a link/connection between the accused person and the mails in exhibits C1 – C50. I believe the evidence of the prosecution albeit constructive possession, witnesses that the accused person had in his possession documents containing false pretence as stated in counts 1, 3, 5 12. These are shown in exhibits C19, C20 C21 for count 1. In count 3, they are shown in exhibits C25 and for count 5 is shown in exhibits C26 – 28. For count 12 as shown in exhibit C32. I find that for the other counts in the charge/information for which the accused defended in counts 7, 9, 10, 11 and 13 are based by evidence in exhibit Gl – G73 which have been adjudged inadmissible in law. Accordingly, the accused person is found not guilty as charged in counts 7, 9, 10, 11 and 13 discharged and acquitted in each of those counts. However, the prosecution has successfully linked the accused person with possession of the documents containing the false pretences in that they contain unreal, imaginary matters intended to deceive and mislead the recipients as contained in counts 1, 3, 5, 12.”
It was submitted for the Appellant that exhibit C1 – C50 which the trial Court relied upon in convicting the Appellant are inadmissible documents. They are computer generated documents for which foundational evidence is required under Section 84 of the Evidence Act and no such foundation was led before the admission of the documents. The trial Court in holding that exhibit C1 — C50 are admissible held (at pages 261- 262 of the Record) as follows:
“In the instant case exhibit A is the certificate of authentication accompanying exhibits B and C1 – C50 printed out of the Economic and Financial Crimes Commission Email trial. Under Section 84 of the Evidence Act 2011 exhibits B and C1 – C50 are properly admitted in evidence because the prosecution has complied with the provisions of Section 84 of the Evidence Act 2011 via exhibit A. It is my view that under the Evidence Act there is no distinction between documents printed out of an email and one printed out of a computer not connected to the internet. See page 120 of the book “A Guide To Admissibility of Electronic Evidence” by Omolaye – Ajlleye (J).
I also fail to see the distinction as contended by the prosecuting counsel. For all intents and purposes documents printed out of and one printed out of a computer not connected to the internet are one the same i.e. computer generated document and are subject to Section 84 of the Evidence Act 2011. Accordingly, exhibits G1 – G73 are not admissible for the determination of this case.
Exhibit A relied upon by the trial Court did not meet the conditions set out in Section 84 of the Evident Act. It was submitted for the Appellant that for a computer generated document to be admitted and its content accorded probative value by any trial Court, the said document must satisfy the conditions set forth in Sections 84(2) and 84(4) of the Evidence Act, 2011.
It was submitted for the Appellant that the necessary conditions for admissibility of computer generated evidence were not established through exhibit A to warrant the admission of C1 to C50. The lower Court therefore was wrong in using inadmissible evidence to convict the Appellant. The Court was urged to resolve the lone issue in favour of the Appellant and allow the appeal.
It is pertinent that exhibit A that was intended to supply the necessary certification to ground the admissibility of computer generated evidence falls far short from satisfying the preconditions under Section 84(4) of the Evidence Act as the Learned Counsel for the Appellant rightly submitted. Thus, exhibit A that was signed as certificate by one Solomon Imolega (reproduced on page 158 of the record) merely reproduced the provisions of Section 82(2) of the Evidence Act, 2011.
Section 84(4) of the Evidence Act, 2011, did not make provision for a certificate but rather it provides for the fundamental evidence that must be led in Court before a computer generated evidence can be admitted and relied upon. See Kubor Vs Dickson (2013) All FWLR (Pt. 676) 392 at 428 para G where the Supreme Court held per Onnoghen JSC (as he then was) thus:
“Granted, for the purpose of argument, that exhibits “D” and “L” being computer generated documents or document down loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011. Section 84(1) provides thus:
‘(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 condition in Sub-section (2) of this section are satisfied in relation to the statement and the computer in question.’
The conditions 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 the 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 point or 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.
There is no evidence on record to show that appellants in tendering exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011.
No wonder therefore that the lower Court held, at page 838 of the record thus:
“A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011”.
In the instant case, no evidence was given by the PW 1 to lay the necessary foundation or requirement for admissibility of a computer generated document as provided by Section 84(4)(a) and (b) of the Evidence Act, 2011. The provision is reproduced as follows:
“In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer”.
The supporting certification required under Section 84(4)(a) and (b) are glaringly absent in exhibit A. Similarly, there are no particulars of any device used in the production of exhibits C1 – C50. In the circumstances therefore the Court below ought not to have rejected exhibit C1 – C50 as inadmissible pieces of evidence. The lower Court was under a duty, where it admitted inadmissible evidence in the course of the trial proceedings, to expunge such evidence. I therefore have no hesitation in expunging exhibits C1 to C50 as this Court has power to expunge from record any inadmissible evidence wrongly admitted. See Abubakar Vs Joseph (2008) All FWLR (Pt. 432) Pg 1065 where the Supreme Court held at page 1103 paras G — I as follows:
“That exhibit D was admitted in evidence without objection, is/was of no moment. This is because and this is also settled in a line of decided authorities, that where inadmissible evidence has been admitted, it is the duty of the Court, not to act upon it. It is immaterial that its admission, was as a result of consent of the opposite party or that party’s default in failing to take an objection at the proper time. An appellate Court, has the power to reject such evidence and decide the case, on legal evidence. See the cases of Owonyi v. Omotosho (1961) 1 (Pt. 11) ANLR 304 at 305; Alashe & Ors. v. Olori Ilu & Ors. (1961) NMLR 66 at 67; Yassin v. Barclays Bank DCO (1968) 1 ANLR 171, 177; Olukade v. Alade (1976) 2 SC 183 at 188”.
See also N. M. A. Vs M. M. A. Inc (2008) All FWLR (Pt. 446) Pg 1916 at 1949 para D – G. In the instant case, exhibits C1 – C50 which the trial Court relied upon in convicting the Appellant were not shown to be admissible due to the failure of the prosecution to meet the requirement of the law as provided under Section 84 (2) and (4)(a) and (b) of the Evidence Act, 2011. There is no doubt that computer print-outs were not hearsay, and so admissible as good as direct oral evidence, if tendered in compliance with the law to prove the transfers of funds recorded in the system and did not merely assert that such transfers had taken place.
That was the necessary foundation, which the prosecution had failed to meet in tendering exhibits C1 to C50 that formed the basis of the Appellant’s conviction on counts 1, 3, 5 and 12. In the circumstances, I have no hesitation in expunging exhibits C 1 – C 50 as evidence wrongly admitted contrary to the provision of Section 84 of the Evidence Act 2011. It follows therefore that the conviction of the Appellant is baseless. The prosecution had failed to prove its case against the Appellant beyond reasonable doubt, which entitles him to an order of acquittal. The appeal is temeritously meritorious and is hereby allowed. The judgment of the lower Court delivered on 19th April 2016 is set aside.
The Appellant is entitled to be and is hereby discharged and acquitted on the said counts 1. 3. 5 and 12.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the judgment which has just been delivered by my learned brother, Hussein Mukhtar, JCA. I agree with the reasoning and conclusion contained therein which I adopt as mine. I too allow the appeal and set aside the judgment of the trial Court.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the Judgment just delivered by my Learned Brother, HUSSEIN MUKHTAR, JCA and I am in agreement that the appeal is meritorious. I too allow the appeal and abide by all other consequential orders of Court.
Appearances:
F. E. Onegbedan, Esq.
(Brief of: R. O. Isenalumhe, Esq.)For Appellant(s)
The Respondent was duly served through his counsel, K. O. Fayuju, Esq on 23/4/2018.For Respondent(s)
