By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
INTRODUCTION
Generally, in proving claims before the Courts, Parties resort to tendering different kinds of evidence; real, documentary, oral and so on in other to sway the verdict of the Court in their favour. As a variety of this evidence, the scope of documentary evidence is widely extensive.[1] Thus, this paper seeks to examine, in view of the relevant laws, whether photograph evidence is an e-document (which can be comfortably referred to as a computer/electronically generated document).
For an accurate examination, this paper is divided into two sections; the first provides an analysis of the meaning of electronic document, while the second considers the task in detail by discussing the conditions guiding its admissibility. The paper concludes by asserting that in view of the extant provisions of the principal legislation on evidence-the Evidence Act, 2011[2], photograph evidence can be an e-document.
MEANING OF ELECTRONIC DOCUMENT
In discussing electronic document, two hurdles must be crossed. The first hurdle is to understand what constitutes a document. By virtue of Section 258 Evidence Act 2011, a document includes books, maps, drawings, and photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than those means intended to be used or which may be used or what may be used for the purpose of recording this matter. By this definition, it is glaring that a photograph is a document.
Secondly, having understood what a document is, what then is an electronic document? Simply put, an electronic document is any document which is generated with the help and use of an electronic device such as mobile phones, laptops or computers.[3] Accordingly, for clarity, what constitutes a computer is defined by Section 258 of the Evidence Act as 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.
Thus, in the Philippine case of National Power Corp. v. Codilla,[4] the Court pointed out inter alia, that electronic documents are documents which contain information that is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
2.0 PHOTOGRAPH EVIDENCE AS AN E-DOCUMENT
Based on the above, two facts are unassailable; one, that a photograph is a document; and two, that any document produced by a computer or other electronic device is an e-document. Thus, since photographs can be produced electronically and in analogue format[5], this paper will only examine photograph evidence as an e-document by paying attention to the rule guiding its admissibility.
Consequently, for a photograph as an e-document to be admissible in evidence, the party tendering the photograph must firstly show that the photograph is relevant.[6] Secondly, the provisions of Section 84 E.A. 2011 as judicially affirmed in Dr. Imoro Kubor v. Hon. Seriake Dickson[7] must be religiously followed. By virtue of Section 84 (2) EA 2011, the conditions the photograph as an e-document must satisfy for its admissibility are as follows:
That the Photograph was produced by a computer. That over that period of producing the photograph, the computer was regularly supplied with information of the kind contained in the document (photograph). That throughout the material part of that period, the computer was operating properly, and if not, was not such as to affect the production of the document (Photograph). That the information contained in the document (Photograph) is a reproduction of the information supplied to the computer. To prove these conditions, the Supreme Court in DICKSON v. SYLVA & Ors[8] held that the party who seeks to tender the photograph (e-document) in evidence must lay a proper foundation either; by virtue of Section 84(1) EA 2011 through the testimony of a witness usually the photographer, who has direct knowledge of how such a document is recorded, stored and maintained; or by virtue of Section 84(4) EA 2011, producing a certificate of authentication signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities which identifies the document, describes the manner of its production; and states the particulars of the device used in the production of the document.[9]
Meanwhile, the reason for the above is because, as eminent Lord Griffith explained in R v. Shepherd, that 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.[10] Thus, upon the satisfaction of the above conditions, we respectfully submit that photograph evidence may be admissible as an e-document.
CONCLUSION
The paper has carefully examined the task. It acutely analyzed the meaning of document and electronic document under the Evidence Act and discussed the task further by examining photograph evidence as an e-document, coupled with the conditions guiding its admissibility. Thus, we finally submit that photograph evidence is evidence which is electronically generated either with the aid of a digital camera, phone, computer system etc. and as such, by a community reading of Sections 84(1), (2), (4) and 258(1) of Evidence Act, 2011, it is without doubt that they amount to electronic documents or in other words electronically generated documents.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.
Mr. Atoyebi has expertise in and a vast knowledge of Dispute Resolution and this has seen him advise and represent his vast clientele in a myriad of high level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.
He can be reached at atoyebi@omaplex.com.ng
CONTRIBUTOR: Toheeb Adeagbo, AICMC.
Toheeb is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in evidentiary issues.
He can be reached at toheeb.adeagbo@omaplex.com.ng.
[1] See generally Section 258 of the Evidence Act, 2011 which defined document to include items such as books, plans, photographs, and any matter expressed or described upon any substance by means of letters, figures or marks intended to be used or which may be used for the purpose of recording that matter.
[2] Hereafter referred to as E.A 2011
[3] Abubakar v. INEC (2020) 12 NWLR (Pt. 1737) 37
[4] (unreported with suit no. 170491, decided on 4/4/2007
[5] Richard Trenholm (2021) History of Digital Cameras: From 70s Prototype to Iphone and Galaxy everyday wonders retrieved from https://www.google.com/amp/s/www.cnet.com/google-amp/news/history-of-digital-cameras-from-70s-prototype-to-iphone-and-galaxys-everyday-wondersaccessed 3 August, 2022
[6] Section 1(a) E. A, 2011; See generally R v. YAECK (1991) 68 CCC (3d) 545 @ 565 and HOLLINGTON v. HEWTHORN & CO LTD (1943) 2 All ER 35 @ 39
[7](2012) LCN/5598 (CA)
[8] (2016) LPELR-41257(SC)
[9] Omisore and Anor v. Aregbesola & Ors [2015] 15 NWLR (Pt. 1482) 205
[10] Per NWESE J.S.C in DICKSON v. SYLVA & ORSCITATION (2016) LPELR-41257(SC) at page 23-24.