In the course of my childhood, mere accusations were not as simple as they sounded. At the mere mention of “You broke Daddy’s white mug, didn’t you?” uncontrollable weeping of guilt follows. However, growing through my teenage years into early adulthood, such accusations became accompanied by either stern facial expressions or instant retorts of “PROVE IT!” As domestic as this appears, it is a slight similitude of what happens when a party brings an action against another before a competent Court of Law. A party that asserts a claim must prove it, whether by electronically or manually generated evidence.
Now, we talk law. Proof by Evidence is a very critical aspect of judicial proceedings. This becomes even more thought-provoking when it pertains to Entries made in a Banker’s Book that are Electronically Generated.
As a starting point, evidence intended to prove facts before the Court must be both relevant and admissible. On the authority of Justus Nwabuoku & Ors. v. Francis Onwordi & Ors. (2006) 5 SC (Pt. 111) 103 at 114-115, the Court stated the law on relevancy and admissibility in the following words:
Admissibility, one of the cornerstones of our Law of Evidence, is based on relevancy. A fact in issue is admissible if it is relevant to the matter before the court. In that respect, it is correct to say that relevancy is a precursor to admissibility in our Law of Evidence. Flowing from the above, the negative statement that what is not relevant is not admissible is correct.
It is not the law that every document admitted by a court of law must be assigned probative value. A document could be admitted on the ground of relevancy but the court may not attach any weight on it, in the light of the circumstances of the case. In other words, admissibility which is based on relevancy is distinct from weight to be attached to the document.
The above dictum goes even further ahead to briefly shed light on the probative value to be attached to admitted evidence. However, since probative value only becomes important after admissibility, it is surely not the gravamen of this conversation.
From the basics, section 84 of the Evidence Act, 2011 is the prime provision governing the admissibility of electronically generated evidence, i.e. statement contained in a document produced by a computer. By section 84(1), electronically generated evidence must satisfy the conditions provided under section 84(2). For emphasis, section 84(2) refers to the conditions as follows:
- that the document containing the statement was produced by the computer during a period over 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;
- 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;
- 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 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
This provision has been given judicial approval in a number of judicial authorities particularly the case of Kubor & Anor. v. Dickson & Ors (2013) 4 NWLR (Pt. 1345) 534-594 where the Supreme Court held that admissibility of electronically generated documents requires the laying of proper foundations. The Court stated that electronically generated evidence/document must fulfill the condition-precedent for admissibility stated in Section 84(2) (supra). In clear explanatory terms, the four conditions stated under section 84(2) (supra) must be established. This position was further substantiated in UBN Plc. v. Agbontaen & Anor. (2018) LPELR-44160 (CA).
Section 258(1) of the EA, 2011 defines “computer” 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;”
The same section 258(1) defines “banker’s books” as including “related expressions” such as:
“…ledger, day books, account books and all other books used in the banking business”
It is important to state at this juncture that the above provisions touch on computer generated evidence/documents. As attention rises to the major point of conflict in this article, we turn our gaze to the admissibility of a banker’s book.
For clear understanding, primary evidence of a document refers to the original copy of a document. Secondary evidence refers to any evidence led which is not primary or original but shows the existence and content of the original copy of the document, e.g. a duplicate copy of the original document, oral testimony that the original copy of a document exists and of its contents.
Section 89(h) (supra) affirms the law that secondary evidence of banker’s book may be given in evidence. It is clearly reproduced below:
“89. Secondary evidence may be given of the existence, condition or contents or a document when:
(h) the document is an entry in a banker’s book”
By this provision, a photocopy for instance, of a banker’s book may be tendered in evidence in Court without fear or tremble. The genius of this crucial provision is palpable in that Banks are predominantly incorporated entities who are always in need of the original copies of their banking and transactional records.
Section 90(1)(e)(i-iii) (supra) then moves a step further to stipulate the proper foundation that must be laid for the admissibility of a banker’s book. The provision is clearly excerpted thus:
“90. (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of section 89 is as follows:
(e) in paragraph (h), the copies cannot be received as evidence unless it is first be proved that:
(i) the book in which the entries copied were made was at the time of making one of the ordinary books of the bank;
(ii) the entry was made in the usual and ordinary course of business;
(iii) the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank; and
(iv) the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.”
It therefore becomes clear that a banker’s book cannot pass the stern test of admissibility unless they satisfy the above-stated conditions provided in Section 90(1)(e)(i-iii). This position finds refuge on the authority of Ekpo v. GTB Plc. & Anor (2018) LPELR-46079.
Readers of this article must urgently exercise abundant caution at this point. A banker’s book which is to be tendered in its primary (original) evidential form will be admissible without the fulfillment of the above conditions provided in Section 90(1)(e)(i-iii). It is however opined that a situation where the original copies would be sought to be tendered is as rare as purple moonlight.
Flowing from the foregoing citation of statutory and judicial authorities on the admissibility of electronically generated evidence/documents on one hand, and admissibility of a banker’s book on the other hand, the main question that this article seeks to raise seamlessly erupts in the following words:
FOR AN ELECTRONICALLY GENERATED BANKER’S BOOK, WHAT TEST OF ADMISSIBILITY IN THE EVIDENCE ACT, 2011 SHOULD BE USED BY THE COURT?
During the formative stages of this article, the writer was at the Federal High Court, Ikoyi, Lagos State to witness a very contentious matter. Arriving at the Court, this article noticed in High Definition (HD), the spacious nature of the courtrooms; so spacious that clients and lawyers that come before the Court literally “lap” one another. This article however refuses to lend a voice to it. The issue that struck this article was the situation that transpired when an electronically generated banker’s book was to be tendered in evidence by the Plaintiff’s Counsel.
In this particular case, proper foundation was laid under section 84(2) of the Evidence Act (supra). However, just before tendering the document, Counsel opted to make reference to a combined effect of section 89 and 90 of the Evidence Act (as afore-cited) and realized that the two sections provide for proper foundations to be laid specifically on the admissibility of a banker’s book. Counsel premised his admissibility argument on the settled law as to a specific law/provision overriding a general law/provision. The Court appeared indecisive at this moment and upon the suggestion of the Plaintiff’s Counsel, the matter was adjourned for the proper foundation to the laid.
The above scenario played out in apparent respect to the ageless Latin maxim – abudans cautela non nocet which translates to “abundant caution does no harm”. However, in the midst of exercising abundant caution, the question remains: WHAT IS THE TRUE POSITION OF THE LAW?
This article could not come across any judicial authority directly pointing to the question above. However, it is respectfully submitted that the correct position of the law is that both foundations, i.e. that of electronically generated evidence on one hand, and that of banker’s book must be properly laid before an electronically generated entry in the banker’s book can be held admissible under the Evidence Act. In other words, the necessary foundation for the admissibility of an electronically generated banker’s book is dual-core, i.e. compliance with section 84(2) on one hand, and section 89(h) & Section 90(1)(e)(i-iii) (supra) on the other. This submission is based on the peculiar facts and reasoning of the Court in Kubor v. Dickson (supra).
In Kubor’s case, two electronically generated Exhibits were held inadmissible not just because they failed to fulfill the provisions of section 84(2) (supra) but also because they were public documents in their secondary evidence forms (on the face of it and as stated in the Election Petition) which were not Certified True Copies. For emphasis, the Court not only required the specific provision on e-generated evidence but also required compliance with the certification of secondary evidence (e.g. photocopies) of public documents.
In conclusion, the Kubor’s case scenario appears a very good fit for the gravamen of this article. Where a document is of such nature as to come under more than one section relevant to admissibility, efforts must be made by Counsel to be abundantly cautious in ensuring that all proper foundations for the admissibility of such document are laid. Therefore, where the document sought to be tendered in evidence is an electronically generated banker’s book, compliance with the relevant provisions of the Evidence Act (supra) are fundamental.
Lead Partner / Editor-in-chief
Law Axis 360°