CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE (11)

CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE By Ademola Adewale
CONTINUED FROM LAST WEEK…
One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers have been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of 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." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.

Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.

It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.

Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.

(iv) DE-NOVO TRIALS:

Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71

This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.

There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.

(v) Dead, Infirm, Missing or Unavailable Witnesses:

It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.

It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.

The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.

This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.

Conclusion:

This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.