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The Effect of COVID-19 Pandemic on Section 84 of the Evidence Act 2011

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By Chris Uwakina Esq.

There is no doubt that the corona virus pandemic (COVID-19) has impacted negatively in the World’s ecosystem. This impact has transmogrified the jurisprudence of many Nations especially Nigeria. The practice of law and indeed justice delivery in Nigeria has been manually structured to a physical Courtroom. From filling of processes to hearing at trial and the recording of proceedings, lawyers and litigants must physically come to court to do so. There have been instances where people would journey from different parts of the World to only come to court and testify in a matter. Even in giving evidence in court, parties who wish to tender evidence of video recordings had to bring their television and video players in court.[1] There was no provision for a remote hearing and no facility installed in courts for such purpose. In fact, Nigerians and Lawyers celebrated the move that the courts advanced to the level of hearing and admitting video evidence pursuant to the Evidence Act 2011.

The COVID-19 pandemic has exposed the lacuna in our justice delivery vis-à-vis the hearing of proceedings in courtrooms. In this era of technological savoir-faire, Nigeria is still wallowing in the manual consideration of court proceedings and is yet to embrace the currency of technology in justice delivery. The pandemic presented to the judiciary the unfortunate opportunity to grudgingly adopt online proceedings. Only a few States have awoken to the realities of the new normal. Consequent of the COVID-19 pandemic and the resultant virtual reality the world has been thrown into, the Lagos State Judiciary has released Practice Directions for remote hearing of cases in Courts. The Chief Judge of Lagos State, Justice Kazeem Alogba signed the Lagos State Judiciary Remote Hearing of Cases COVID-19 Pandemic Period Practice Direction.[2] This Practice Direction was made in accordance with the relevant laws of Lagos State and was made to supersede the earlier rules of courts in the State. The Practice Directions make provisions for Electronic filing of processes, Services of processes electronically, preparations for Remote hearings, conduct of remote hearings, recording and adoption of Written Address, delivery of Judgment or Ruling.

In compliance with the Practice Direction, the first virtual court session was held via video conferencing platform, Zoom, at Ikeja High Court in Lagos. The case of State v. Olalekan Hameed [3], Justice Mojisola Dada held inter alia,

The sentence of this court upon you, Olalekan Hameed, is that you be hanged by the neck until you be pronounced dead and may the Lord have mercy upon your soul. This is the virtual judgment of the court.

The new regime of legal practice and justice delivery would equally affect the conditions provided in section 84 of the Evidence Act 2011. Subsections (1), (2) and (3) states as follow:

(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 –

  1. 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;
  2. 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;
  3. that throughout the period 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

that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities;

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate –

  1. Identifying the document containing the statement and describing the manner in which it was produced;
  2. 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.

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.

The requirements from the above subsections which formulate the conditions for the admissibility of computer generated evidence can be summarized as follows:

    1. Tender a certificate
    2. The certificate should identify the document containing the statement
    3. Describe the manner in which it was produced.
    4. Give the particulars of the computer or device used in the production of that document.
    5. The certificate should be signed by a person occupying a responsible position in relation to the operation of the computer or relevant device.

Under the old normal, these conditions were placed on the admissibility of computer generated evidence because the court was a physical or manual court. Also, the advancement of electronic evidence was at the teething stage. Now that proceedings would be conducted online via remote hearing, it therefore means that the proceedings would be heard through the computer. In Borno State of Nigeria, online proceedings had commenced from arraignment stage to judgment. Therefore, where the proceeding is ordinarily held remotely through the computer without conditions, it will also be impracticable for conditions to be placed on evidence emanating from the computer which will be held on a computer.

Consequently, if the new normal of online court remote hearing via the computer would face the test of time, it follows that the restrictions or conditions placed on the admissibility of computer generated evidence may fade out pretty soon, having been drastically affected by the COVID-19 pandemic innovations. It is the proposition of this article that section 84 of the Evidence Act 2011 and in fact, the entire oxygen of the Act needs a new breath by way of further amendment by the National Assembly to accommodate the new normal.

_________________________

[1] During the 2019 Presidential Election Tribunal, Counsels to Atiku Abubakar and the PDP brought their television and DVD in open court  to give evidence of a video recording

[2]The Practice Direction came into force on Monday, 4th May 2020

[3] (High Court of Lagos State, IkejaID/9006C/2019, 4th May 2020) 2020

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