One of the most heated debates within the rank and file of the legal profession is the issue of the admissibility of electronic generated evidence particularly computer generated statements of Accounts.
Opinions are sharply divided amongst lawyers as to the admissibility of computer generated evidence with all manner of views being expressed some logical, others plausible while some are extreme bordering on the ridiculous.
One of the more popular views expressed is that the Evidence Act being an Old legislation enacted on the 1st of June, 1945 did not contemplate computer evidence thus statements of accounts produced by the computer are inadmissible.
The decision of the Court of Appeal in UBA PLC V SAFPU (2004) 3 NWLR (pt 861) 516, that Statements of Accounts produced by the computer in the form of print outs are inadmissible under section 97(1) and (2) of the Evidence Act even though otherwise relevant. For good measure the lamentation of the Court of Appeal in that case of the need for the amendment of the Evidence Act to be able to admit computer generated Statements of Account is quoted with flourish. Yet another equally competing and popular legal view is that computer generated Statements of Account are admissible in evidence under the Evidence Act. The decision of the Court of Appeal in the case of TRADE BANK V CHAMI (2003) 13 NWLR (pt. 836) 158 which conflicts with the earlier cited case of UBA V SAFPU (2004) 3 NWLR (pt. 861) 516 where computer generated statement of account was admitted by virtue of Section 38 of the Evidence Act is usually cited off-hand by lawyers in this group. .
In recent times some high profile criminal cases conducted by the Economic and Financial Crimes commission EFCC where statements of Accounts generated by computer prints-cut were rejected for not satisfying section 97 (1) (g) and (2) (e) of the Evidence Act have only sparked off more heated debates as to whether the Evidence Act allows for computer generated Statement of Account with both groups above maintaining their hard line positions on computer generated evidence.
The humble view of this column is that neither of the conflicting decisions in UBA V SAFPU AND TRADE BANK V CHAM1 (SUPRA) satisfactorily answers the question whether computer generated evidence is admissible under the Evidence Act or not. Indeed by giving conflicting decisions on the admissibility of computer generated the Court of Appeal with due respect has only added to the confusion over the admissibility of computer generated evidence as every lawyer and Court has a perfect excuse to pick and choose between the two decisions in support of their reactions.
Beyond further fueling the controversy neither decision directly answers the question whether computer generated statement of accounts is directly admissible under the Evidence Act taking into consideration the provisions of section 97 of then Evidence Act.
On the question of whether or not the absence of the word computer from the Evidence Act which was enacted pre the computer age, ipso facto makes computer generated evidence inadmissible. It is submitted that there is nothing esoteric in the word computer or in the device itself, what is important to note is that computer generated evidence like any document is produced by mechanical process, whether it be IBM Machine, computer print out even the archaic manual type writer or typesetting machine. The essence of statutory Interpretation is to interpret the words of a statute in line with current realities. That is why the American Constitution is still being interpreted till date even though made over 250 years and the Magna Carta of 1215 was on the English Statute Books for over 700 years before the statute was rested about a quarter of century ago. At no time did the age of the law stand in the way of its application to modem situations. Thus, with all due respect it is erroneous in law that on account of the old age of the Evidence Act and the fact that the word computer is missing from the Evidence. Act, computer generated evidence is inadmissible under the Evidence Act. In respect of the TRADE BANK V CHAMI case, it is submitted that the decision was delivered per Incuriam. On the nature of the Banker's Book/Statement of account admissible under the Evidence Act Section 97 was not adverted to, only sections 38 and 91 were referred to. The Court held that while section 38 is applicable section 91 was not. With due respect to their Lordships it has been held in a long line of Supreme Court case that a Statement of Account/Banker's Book to be admissible under the Evidence Act it must satisfy the requirements of section of 97 (2) (e) of the Evidence Act.
YASSIM V BARCLAYS BANK DCO (1968) 1 ANLR 171
YESUFU V ACB (1976) 4 SC 1
OGUMA V 1.BWA (1988) 1 NWLR (pt.73) 658.
Thus it cannot be correct that just because statement of account is generated by computer it is exempted from the strict certification requirements of section 97 (2) (e) of the Evidence Act.
If anything, the myriad of manipulations that a computer generated document could be put makes this strict requirement all the more imperative, We shall return to this theme later.
On the other hand the decision of the Abuja Division in UBA V SAFPU is not anymore helpful either. Even the lamentation about the need to amend the Evidence Act to be able to admit computer-generated Statement of Accounts is somewhat confusing.
As stated earlier there is nowhere in the Evidence Act that prevents the admissibility of computer generated statements of Account, so any talk of an amendment of the Evidence for that specific purpose is misplaced. In addition, it is not clear from the Judgment whether the refusal to admit the computer print out statements of Account is because it is simply a computer generated document or because of the provisions of section 97 (2) (e) of the Evidence Act were not met. The Court in fact held that the computer print out statement of account is relevant, so if it relevant is it not because it satisfies the provisions of the Evidence Act on admissibility and is thus cognizable under the Act. It is submitted that the Court ought to have limited its comments to the failure of that particular document to meet the requirements of the Evidence Act under Section 97 (2) (e) in which case the talk about legislative amendment to admit computer generated statement of account becomes unnecessary.
The view of this column is that computer generated statements of account just like any other computer generated evidence is admissible as documents generated through mechanical process but in the case of bank's statements section 97 (2) (e) of the Evidence Act as to certification must be strictly adhered to: to wit.
(a) That the book from which the entries were copied and made was at the time of making one of the ordinary books of the bank.
(b)That the entry was made in the usual and ordinary course of business;
(c) That the book is in the custody and control of the bank.
(d)That the copy has been examined with the Original entry and is correct.
UNITY LIFE & FIRE INSURANCE V IBWA (2001) 7 NWLR (pt.713)610.
YASSIM V BARCLAYS BANK DCO (SUPRA)
YESUFU V ACB (SUPRA)
OGUMA V IBWA (SUPRA)
All these decisions are Supreme Court decisions which are juridically superior to the 2 cases of TRADE BANK V. Chami and UBA V SAFPU which are not only conflicting but the source of so much controversy.
The above Supreme Court decisions are directly on point in respect of the admissibility of the Statements of Accounts/Bankers Books, thus remain the law on the admissibility of statements of account no matter how generated be it manually or by any form of mechanical process including by way of computer print out. It is in fact submitted that the compelling reason for certification is on account of the ease with which computer whiz-kids from all sides of the divide, be it those out to defraud others including banks and unwary customers or those on the side of banks and even prosecuting agencies bent on nailing a fraudster, can readily manipulate electronic records and documents for their parochial interest. After all, the primary rule of the computer m spite of all advancements is GIGO Garbage In Garbage Out. It is whatever information you feed into the system true or false that you get.
Certification remains the only guarantee against manipulated evidence from being freely admitted in a Court of law. The Supreme Court succinctly captured the compelling need for certification in the case of ARAKA V. EGBUE (2003) 7 SC 75 @ 84/85: "One main objective behind section 97 (2) (C) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the Original. This in addition to the need/or the preservation of public documents. In this age a/sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context a/section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process a/copying the Original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the Original and therefore not a carbon copy of the Original. The court has not the eyes of an eagle to detect such tricks”
We can add nothing useful to this observation of the apex Court.
CONCLUSION:
The Evidence Act even in its pristine form can readily accommodate computer generated evidence including computer print-out statement of accounts but such evidence must comply with the certification provision of section 97 (2) (e) of the Evidence Act. That remains the only way to ensure that only authentic computer generated statement of accounts rather than manipulated, forged, contrived or fake statements of accounts are admitted in Evidence.
Nevertheless, the entire Evidence Act needs to be overhauled to enact a modem and up to date Evidence Act for our dear nation to bring our law and jurisprudence of Evidence in line with the best global practices.
Ademola A. Adewale
Legal Practitioner.
Opinions are sharply divided amongst lawyers as to the admissibility of computer generated evidence with all manner of views being expressed some logical, others plausible while some are extreme bordering on the ridiculous.
One of the more popular views expressed is that the Evidence Act being an Old legislation enacted on the 1st of June, 1945 did not contemplate computer evidence thus statements of accounts produced by the computer are inadmissible.
The decision of the Court of Appeal in UBA PLC V SAFPU (2004) 3 NWLR (pt 861) 516, that Statements of Accounts produced by the computer in the form of print outs are inadmissible under section 97(1) and (2) of the Evidence Act even though otherwise relevant. For good measure the lamentation of the Court of Appeal in that case of the need for the amendment of the Evidence Act to be able to admit computer generated Statements of Account is quoted with flourish. Yet another equally competing and popular legal view is that computer generated Statements of Account are admissible in evidence under the Evidence Act. The decision of the Court of Appeal in the case of TRADE BANK V CHAMI (2003) 13 NWLR (pt. 836) 158 which conflicts with the earlier cited case of UBA V SAFPU (2004) 3 NWLR (pt. 861) 516 where computer generated statement of account was admitted by virtue of Section 38 of the Evidence Act is usually cited off-hand by lawyers in this group. .
In recent times some high profile criminal cases conducted by the Economic and Financial Crimes commission EFCC where statements of Accounts generated by computer prints-cut were rejected for not satisfying section 97 (1) (g) and (2) (e) of the Evidence Act have only sparked off more heated debates as to whether the Evidence Act allows for computer generated Statement of Account with both groups above maintaining their hard line positions on computer generated evidence.
The humble view of this column is that neither of the conflicting decisions in UBA V SAFPU AND TRADE BANK V CHAM1 (SUPRA) satisfactorily answers the question whether computer generated evidence is admissible under the Evidence Act or not. Indeed by giving conflicting decisions on the admissibility of computer generated the Court of Appeal with due respect has only added to the confusion over the admissibility of computer generated evidence as every lawyer and Court has a perfect excuse to pick and choose between the two decisions in support of their reactions.
Beyond further fueling the controversy neither decision directly answers the question whether computer generated statement of accounts is directly admissible under the Evidence Act taking into consideration the provisions of section 97 of then Evidence Act.
On the question of whether or not the absence of the word computer from the Evidence Act which was enacted pre the computer age, ipso facto makes computer generated evidence inadmissible. It is submitted that there is nothing esoteric in the word computer or in the device itself, what is important to note is that computer generated evidence like any document is produced by mechanical process, whether it be IBM Machine, computer print out even the archaic manual type writer or typesetting machine. The essence of statutory Interpretation is to interpret the words of a statute in line with current realities. That is why the American Constitution is still being interpreted till date even though made over 250 years and the Magna Carta of 1215 was on the English Statute Books for over 700 years before the statute was rested about a quarter of century ago. At no time did the age of the law stand in the way of its application to modem situations. Thus, with all due respect it is erroneous in law that on account of the old age of the Evidence Act and the fact that the word computer is missing from the Evidence. Act, computer generated evidence is inadmissible under the Evidence Act. In respect of the TRADE BANK V CHAMI case, it is submitted that the decision was delivered per Incuriam. On the nature of the Banker's Book/Statement of account admissible under the Evidence Act Section 97 was not adverted to, only sections 38 and 91 were referred to. The Court held that while section 38 is applicable section 91 was not. With due respect to their Lordships it has been held in a long line of Supreme Court case that a Statement of Account/Banker's Book to be admissible under the Evidence Act it must satisfy the requirements of section of 97 (2) (e) of the Evidence Act.
YASSIM V BARCLAYS BANK DCO (1968) 1 ANLR 171
YESUFU V ACB (1976) 4 SC 1
OGUMA V 1.BWA (1988) 1 NWLR (pt.73) 658.
Thus it cannot be correct that just because statement of account is generated by computer it is exempted from the strict certification requirements of section 97 (2) (e) of the Evidence Act.
If anything, the myriad of manipulations that a computer generated document could be put makes this strict requirement all the more imperative, We shall return to this theme later.
On the other hand the decision of the Abuja Division in UBA V SAFPU is not anymore helpful either. Even the lamentation about the need to amend the Evidence Act to be able to admit computer-generated Statement of Accounts is somewhat confusing.
As stated earlier there is nowhere in the Evidence Act that prevents the admissibility of computer generated statements of Account, so any talk of an amendment of the Evidence for that specific purpose is misplaced. In addition, it is not clear from the Judgment whether the refusal to admit the computer print out statements of Account is because it is simply a computer generated document or because of the provisions of section 97 (2) (e) of the Evidence Act were not met. The Court in fact held that the computer print out statement of account is relevant, so if it relevant is it not because it satisfies the provisions of the Evidence Act on admissibility and is thus cognizable under the Act. It is submitted that the Court ought to have limited its comments to the failure of that particular document to meet the requirements of the Evidence Act under Section 97 (2) (e) in which case the talk about legislative amendment to admit computer generated statement of account becomes unnecessary.
The view of this column is that computer generated statements of account just like any other computer generated evidence is admissible as documents generated through mechanical process but in the case of bank's statements section 97 (2) (e) of the Evidence Act as to certification must be strictly adhered to: to wit.
(a) That the book from which the entries were copied and made was at the time of making one of the ordinary books of the bank.
(b)That the entry was made in the usual and ordinary course of business;
(c) That the book is in the custody and control of the bank.
(d)That the copy has been examined with the Original entry and is correct.
UNITY LIFE & FIRE INSURANCE V IBWA (2001) 7 NWLR (pt.713)610.
YASSIM V BARCLAYS BANK DCO (SUPRA)
YESUFU V ACB (SUPRA)
OGUMA V IBWA (SUPRA)
All these decisions are Supreme Court decisions which are juridically superior to the 2 cases of TRADE BANK V. Chami and UBA V SAFPU which are not only conflicting but the source of so much controversy.
The above Supreme Court decisions are directly on point in respect of the admissibility of the Statements of Accounts/Bankers Books, thus remain the law on the admissibility of statements of account no matter how generated be it manually or by any form of mechanical process including by way of computer print out. It is in fact submitted that the compelling reason for certification is on account of the ease with which computer whiz-kids from all sides of the divide, be it those out to defraud others including banks and unwary customers or those on the side of banks and even prosecuting agencies bent on nailing a fraudster, can readily manipulate electronic records and documents for their parochial interest. After all, the primary rule of the computer m spite of all advancements is GIGO Garbage In Garbage Out. It is whatever information you feed into the system true or false that you get.
Certification remains the only guarantee against manipulated evidence from being freely admitted in a Court of law. The Supreme Court succinctly captured the compelling need for certification in the case of ARAKA V. EGBUE (2003) 7 SC 75 @ 84/85: "One main objective behind section 97 (2) (C) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the Original. This in addition to the need/or the preservation of public documents. In this age a/sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context a/section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process a/copying the Original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the Original and therefore not a carbon copy of the Original. The court has not the eyes of an eagle to detect such tricks”
We can add nothing useful to this observation of the apex Court.
CONCLUSION:
The Evidence Act even in its pristine form can readily accommodate computer generated evidence including computer print-out statement of accounts but such evidence must comply with the certification provision of section 97 (2) (e) of the Evidence Act. That remains the only way to ensure that only authentic computer generated statement of accounts rather than manipulated, forged, contrived or fake statements of accounts are admitted in Evidence.
Nevertheless, the entire Evidence Act needs to be overhauled to enact a modem and up to date Evidence Act for our dear nation to bring our law and jurisprudence of Evidence in line with the best global practices.
Ademola A. Adewale
Legal Practitioner.
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