DICKSON v. SYLVA & ORS

CITATION: (2016) LPELR-41257(SC)

In the Supreme Court of Nigeria

ON WEDNESDAY, 20TH JULY, 2016Suit No: SC.518/2016

Before Their Lordships:

SULEIMAN GALADIMA Justice of the Supreme CourtOLABODE RHODES-VIVOUR Justice of the Supreme CourtNWALI SYLVESTER NGWUTA Justice of the Supreme CourtCLARA BATA OGUNBIYI Justice of the Supreme CourtKUMAI BAYANG AKA'AHS Justice of the Supreme CourtKUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN Justice of the Supreme Court

CHIMA CENTUS NWEZE Justice of the Supreme Court

BetweenHON. HENRY SERIAKE DICKSON - Appellant(s)

And1. CHIEF TIMIPRE MARLIN SYLVA2. ALL PROGRESSIVES CONGRESS (APC)3. THE INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)4. PEOPLES DEMOCRATIC PARTY (PDP)

- Respondent(s)

RATIO DECIDENDI

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1. COURT - DUTY OF COURT: Duty of Court to confine its decision within respectable limits ofthe scope of the enquiry before it"I, entirely, endorse this view. The application to play the DVD had nothing to do with itsadmissibility (in any event, at that stage it was already in evidence). It rather rest on an,entirely, different juridical postulate which this Court explained in A.P.G.A. v. Al-Makura [2016]5 NWLR (Pt. 1505) 316, 343; Okereke v. Umahi & Ors [2016] 2-3 SC (Pt. 1) 1, 50. According tothis Court [per Nweze, JSC] in A.P.G.A. v. Al-Makura (supra) pages 343-344:This prescription [that parties have a duty to link their documents with their averments intheir pleadings] rests on the adversarial nature of our jurisprudence which we inherited fromthe common law.It is, therefore, the impregnable juridical postulate of our adversarial jurisprudence thatprohibits a Judge from embarking on an inquisitorial examination of documents outside theCourt room. A fortiori, it is anathema for a Judge to be allowed to act on what he discoveredfrom such a document in relation to an issue when that was not supported by evidence or wasnot brought to the notice of the parties to be agitated in the adversarial procedure. Theauthorities on this point are many. We shall only cite one or two of them here, Ivienagbor v.Bazuaye [1999] 9 NWLR (Pt. 620) 552; (1999) 6 SCNJ 235, 243; Owe v. Oshinbanjo (1965) 1 AllNLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324 at 333;Alhaji Onibudo & Ors v. Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v. Registered TrusteesRecreation Club (2004) FWLR (Pt. 190) 1360, 1380-1381; Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538; Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22.It is against this background that viva voce depositions and the entries in documents and,indeed assertions relating to entries in such documents in electoral materials are, invariably,tested under cross-examination, Ivienagbor v. Bazuaye (supra)."Per NWEZE, J.S.C. (Pp. 27-29,Paras. E-B) - read in context

2. COURT - DUTY OF COURT: Duty of Court not to go out of its way to fish out facts orevidence"As a corollary, Bello, JSC (as he then was; later C.J.N.) in Onibudo v. Akibu (supra) explainedthe rationale for the requirement of demonstrating documents in open Court. Hear HisLordship:It needs to be emphasized that the duty of a Court is to decide between the partieson the basis of what has been demonstrated, tested, canvassed and argued in Court. It is notthe duty of a Court to do cloistered justice by making an inquiry into the case outside even ifsuch inquiry is limited to examination of documents which were in evidence, when thedocuments had not been examined in Court and their examination out of Court disclosedmatters that had not been brought out and exposed to test in Court and were not suchmatters that, at least, must have been noticed in Court.."Per NWEZE, J.S.C. (Pp. 31-32, Paras.D-A) - read in context

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3. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"True, indeed, the lower Court was right in its view that the trial Tribunal misapplied theprovisions of Section 84 of the Evidence Act. The Section provides as follows:84(1): In any proceedings, a statement contained in a document produced by a computershall be admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(Italics supplied for emphasis).The conditions mentioned in Section 84(1) (supra) for theadmissibility of such statements produced by a computer are contained in Section 84 (2):(2) The conditions referred to in Subsection (1) of this Section are ???(a) that the document containing the statement was produced by the computer during aperiod over which the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents, and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary course of those activities.According to Section 84(4):(4) In any proceedings where it is desired to give a statement in evidence by virtue of thisSection, a certificate(a) identifying the document containing the statement and describing the manner in which itwas produced; or(b) giving such particulars of any device involved in the production of that document as maybe appropriate for the purpose of showing that the document was produced by a computer; or(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate, and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for the purpose of thisSubsection it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it.Subsection 5 provides that:(5) For the purpose of this Section ???(a) Information shall be taken to be supplied to a computer if it is supplied to it in anyappropriate form and whether it is supplied directly or (with or without human intervention) bymeans of any appropriate equipment;(b) Where, in the course of activities carried on by any individual or body, information issupplied with a view to its being stored or processed for the purpose of those activities by acomputer operated otherwise than in the course of those activities, that information, if dulysupplied to that computer, shall be taken to be supplied to it in the course of those activities;(c) A document shall be taken to have been produced by a computer whether it was producedby it directly or (with or without human intervention) by means of any appropriate equipment.[Italics supplied for emphasis]. It is clear from its ipssissima verba that Section 84 (supra) laysdown the conditions for the admissibility of statements produced by a "computer:" which isdefined in Section 258 of the Act to mean "any device for storing and processing information,and any reference to information being derived from other information is a reference to itsbeing derived from it by calculation, comparison or any other process."Per NWEZE, J.S.C. (Pp.18-22, Paras. E-A) - read in context

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4. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"Interpreting provisions similarly worded like Section 84 (supra), the defunct House of Lords[per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphs A-C,[HL]: Documents produced by computers are an increasingly common feature of allbusinesses and more and more people are becoming familiar with uses and operation.Computers vary immensely in their complexity and in the operations they perform. The natureof the evidence to discharge the burden of showing that there has been no improper use ofthe computer and it was operating properly will inevitably vary from case to case. Theevidence must be tailored to suit the needs of the case. I suspect that it will very rarely benecessary to call an expert and that in the vast majority of cases it will be possible todischarge the burden by calling a witness who is familiar with the operation of the computer inthe sense of knowing what the computer is required to do and who can say that it is doing itproperly. [italics supplied for emphasis]In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidenceunder Section 84(1) and (2) or by a certificate under Section 84(4). In either case, theconditions stipulated in Section 84(2) must be satisfied. However, this is subject to the powerof the Judge to require oral evidence in addition to the certificate. As the eminent Lord Griffithexplained in the said case [R v. Shepherd]:??? Proof that the computer is reliable can be provided in two ways: either by calling oralevidence or by tendering a written certificate??? subject to the power of the Judge to requireoral evidence. It is understandable that if a certificate is to be relied upon it should show on itsface that it is signed by a person who from his job description can confidently be expected tobe in a person to give reliable evidence about the operation of the computer. This enables thedefendant to decide whether to accept at its face value or to ask the Judge to require oralevidence which can be challenged in cross examination???"Per NWEZE, J.S.C. (Pp. 23-24,Paras. A-E) - read in context

5. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"... Indeed, contrary to the view of the trial Tribunal, Section 84 (supra) does not ordain anysuch "two different steps and stages." Contrariwise, the provisions of the said Section 84govern the admissibility of statements produced from computers. These provisions are,similarly, worded like Section 65B (1) and (2) of the applicable Act in India. Dealing with theseprovisions, the Court reasoned [a reasoning I take liberty to adopt in this judgment] in State v.Mohd. Afzal 107 (2003) DLT 385 that:Electronic record produced [from computers on magnetic tapes (hard discs)] has to be takenin the form of a print out. Subsection (1) of Section 65B [the equivalent of Section 84(1) of theNigerian Act] makes admissible without further proof, in evidence, print out of an electronicrecord contained on a magnetic tape subject to the satisfaction of the conditions mentioned inthe Section. The conditions are mentioned in Subsection (2) [this is the equivalent of Section84(2) of the Nigerian Act]. Thus compliance with Subsections (1) and (2) of Section 65B [thatis, Section 84(1) and (2) of the Nigerian Act] is enough to make admissible and proveelectronics record."Per NWEZE, J.S.C. (Pp. 30-31, Paras. C-C) - read in context

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6. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"Section 84 is reproduced as follows:-"84 (1) In any proceeding a statement contained in a document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question(2) The conditions referred to in Subsection (1) of this Section are:(a) that the document containing the statement was produced by the computer during aperiod over which the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof these activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents; and(d) that the information contained in the statement reproduced or is derived from informationsupplied to the computer in the ordinary course of those activities.(3) Where over a period the function of storing or processing information for the purposes ofany activities regularly carried on over that period as mentioned in Subsection (2)(a) of thisSection was regularly performed by computers, whether-(a) by a combination of computers operating over that period;(b) by different computes operating in succession over that period(c) by different combinations of computers operating in succession over that period; or(d) in any other manner involving the successive operation over that period, in whateverorder, of one or more computers and one or more combination of computers, all thecomputers used for that purpose during that period shall be treated for that purpose duringthat period shall be treated for the purposes of this Section as constituting a single computer;and references in his Section to a computer shall be construed accordingly.(4) In any proceeding where it is desired to give a statement in evidence by virtue of thisSection, a certificate.(a) identifying the document containing the statement and describing the manner in which itwas produced; (b) giving such particulars of any device involved in the production of thatdocument as may be appropriate for the purposes of showing that the document wasproduced by a computer;(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate; and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for purpose of thisSubsection, it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it.(5) For the purpose of this Subsection-(a) information shall be taken to be supplied to a computer if it is supplied to it in anyappropriate form and whether it is supplied directly or (with or without human intervention) bymeans of any appropriate equipment;(b) where, in the course of activities carried on by any individual or body, information issupplied with a view to its being stored or processed for the purposes of those activities by acomputer operated otherwise than in the course of those activities, that information, if dulysupplied to that computer, shall be taken to be supplied to it in the course of those activities;(c) a document shall be taken to have been produced by a computer whether it was produceddirectly of (without human intervention) by means of any appropriate equipment."Per GALADIMA, J.S.C. (Pp. 42-46, Paras. E-B) - read in context

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7. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The effect when a documentary evidencesupports oral evidence"... An exhibit, documentary evidence is a thing relied on by the party producing it for the solepurpose of strengthening his case. Once such evidence supports oral testimony such oraltestimony becomes more credible. See Omoregbe v. Lawani 1990 3-4 SC p.117: Kindley andOrs v. M G of Gongola State 1988 2 NWLR R/77 p. 47."Per RHODES-VIVOUR, J.S.C. (P. 53,Paras. E-F) - read in context

8. EVIDENCE - DOCUMENTARY EVIDENCE: Meaning of document"On the other hand, document is an instrument on which is recorded information or facts. Itcontains statements. A document is any physical embodiment of information or ideas such asletter, contract, receipt, a book of account, a blue print or an X-ray plate. See Strico v. Cotto87 Misc. 2nd 636, 324 NYS 2nd 483, 486."Per NGWUTA, J.S.C. (P. 56, Paras. A-C) - read in context

9. EVIDENCE - DOCUMENTARY EVIDENCE: Meaning of document"Section 258(1) of the Evidence Act, 2011 provides:"258. (1) In this Act -"documents" includes -(b) an disc, tape, sound track or other device in which sounds or other data (not being visualimages) are embodied so as to be capable (with or without the aid of some other equipment)of being reproduced from it; and(c) any film, negative, tape or other device in which one or more visual images are embodiedso as to be capable (with or without the aid of some other equipment) of being reproducedfrom it."Per KEKERE-EKUN, J.S.C. (P. 77, Paras. B-E) - read in context

10. EVIDENCE - DOCUMENTARY EVIDENCE: Duty of a party relying on documents in support ofhis case"After all, it has been held in numerous decisions of this Court that documents must not bedumped on the Court but must be demonstrated by linking them to specific aspects of party'scase. See: C.P.C. v. I.N.E.C. (2013) ALL FWLR (Pt. 665) 365 @ 385 SC; Iniama v. Akpabio(2008) 17 NWLR (Pt. 1116) 296 @ 299-300 D-B; A.P.G.A. v. Al-Makura (2016) 5 NWLR (Pt.1505) 316 @ 345."Per KEKERE-EKUN, J.S.C. (P. 81, Paras. A-C) - read in context

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11. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility ofcomputer generated documents"Section 84 of the Evidence Act must now be examined. It reads:-"84 (1) In any proceeding a statement contained in a document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(2) The conditions referred to in Subsection (1) of this Section are -(a) that the document containing the statement was produced by computer during a periodover which the computer was used regularly to store or process information for the purposesof any activities regularly carried on over that period, whether for profit or not by anybody,whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly was out of operation during thatpart of that period was not such as to affect the production of the document or the accuracyof its contents; and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary cause of these activities.84 (4): In any proceeding where it is desired to give a statement in evidence by virtue of thisSection a certificate -(a) Identifying the document containing the statement and describing the manner in which itwas produced;(b) Giving such particulars of any device involved in the production of that document may beappropriate for the Purpose of showing that the document was produced by computer;(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) aboverelate, and purporting to be signed by a person occupying a responsible position in relation tothe operation of the relevant device or the management of the relevant activities, as the casemay be, shall be evidence of the matter stated in the certificate; and for the purpose of thisSubsection it shall be sufficient for a matter to be stated to the best of the knowledge andbelief of the person stating it."Per RHODES-VIVOUR, J.S.C. (Pp. 50-52, Paras. D-E) - read incontext

12. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"The law is explicit that where an interpretation of a Statute would defeat the cause of justice,the Court should refrain there from. See Ikeupenikan v. State (2015) All FWLR (Pt. 788) 919 at959 a decision of this Court; on the same principle Ogbuagu, JSC also stressed the foregoingrule of Interpretation in the case of Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 138."Per OGUNBIYI, J.S.C. (Pp. 64-65, Paras. E-A) - read in context

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13. INTERPRETATION OF STATUTE - SECTION 84(1) AND (2) OF THE EVIDENCE ACT:Interpretation of Section 84(1) and (2) of the Evidence Act as regards condition for theadmissibility of electronic documents"Section 84(1) and (2) Evidence Act provides:-"84 (1) In any proceeding a statement contained in document produced by a computer shallbe admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied inrelation to the statement and computer in question.(2) The conditions referred to in Subsection (1) of this Section are ???(a) that the document containing the statement was produced by the computer during aperiod over which the computer was used regularly to store or process information for thepurpose of any activities regularly carried on over that period, whether for profit or not, byanybody, whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary courseof those activities information of the kind contained in the statement or of the kind from whichthe information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, ifnot, that in any respect in which it was not operating properly or was out of operation duringthat part of that period was not such as to affect the production of the document or theaccuracy of its contents; and(d) that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the ordinary course of those activities".The correct interpretation to be given to Section 84 of the Evidence Act where electronicallygenerated document is sought to be demonstrated is that such electronically generatedevidence must be certified and must comply with the preconditions laid down in Section 84(2).See: Kubor v. Dickson (2013) All FWLR (Pt. 676) 392 at 429." Per AKA'AHS, J.S.C. (Pp. 67-69,Paras. E-B) - read in context

14. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Properapproach for interpreting a statute divided into parts"As rightly submitted by the learned counsel to the 1st and 2nd respondent, the law is wellsettledthat when a particular Section of the law has many Subsections, all such Subsections must beread together for purpose of discovering the intention of the lawmaker. See Inakoju v. Adeleke(2007) All FWLR (Pt. 353) 3 at 200 SC and Oyeniyi v. Adeleke (2009) All FWLR (Pt. 476) 1902at 1912."Per OGUNBIYI, J.S.C. (Pp. 61-62, Paras. F-A) - read in context

15. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"It is pertinent to state that the position taken by the Lower Court is in accordance to settledprinciple laid down by this Court on the interpretation of Statutes wherein the following guidelines are clearly spelt out that:-1) It is the cardinal principle of law that a Court cannot, while interpreting a Statute, embarkon judicial legislation, namely lawmaking, See: Akintokun v. L.P.D.C. (2014) 13 NWLR (Pt.1345) 427 SC.2) It is also the law that a Court ought to expound and not to expand the law; that is to say itis to decide what the law is and not what it ought to be; it should tow the path of objectivityand not be subjective. See Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595 SC.3) It has been held also that a judge cannot and should not supply omissions in a Statute. SeeGovernor of Zamfara State v. Gyalange (2012) 4 SC. 1."Per OGUNBIYI, J.S.C. (Pp. 62-63, Paras. F-D) - read in context

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16. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: The rulesor principles governing the interpretation of statutory provisions"The law is settled that in the interpretation of Statutes, where the words are clear andunambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Barde(1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams(1982) 7 SC 27 @ 46; Nonye v. Anyichie (2005) 1 SCNJ 306 @ 316. Where an interpretationwill result in breaching the object of the Statute, the Court would not lend its weight to suchan interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007)15 NWLR (Pt. 1056) 118."Per KEKERE-EKUN, J.S.C. (P. 78, Paras. C-F) - read in context

17. WORDS AND PHRASES - "STATEMENT": Meaning of "statement""A statement, in a general sense, is an allegation, a declaration of matters of fact, etc. SeeBlack's Law Dictionary Special Deluxe fifth attestation, avowal, etc. See Burton's LegalThesaurus Fourth Edition page 993."Per NGWUTA, J.S.C. (Pp. 55-56, Paras. F-A) - read incontext

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the

Leading Judgment): My Lords, the issue that calls for the

intervention of this Court, in this interlocutory appeal, falls

within a very compass. I shall revert to it anon. Before then,

however, permit my intimation of its forensic travelogue

through the rungs of the two lower Courts, namely, the

Governorship Election Tribunal (hereinafter, simply, called

“the Trial Tribunal”) and the Court of Appeal (in this

judgment to be, simply, called “the lower Court”).

The third respondent in this appeal, the Independent

National Electoral Commission, (“INEC” for short),

conducted elections into the office of the Governor of

Bayelsa State on December 5 and 6, 2015 and January 9,

2016. While the second respondent herein, All Progressives

Congress (A.P.C.), sponsored the candidature of the first

respondent, Chief Timipre Marlin Sylva; the appellant, in

this appeal, Hon Henry Seriake Dickson, contested the said

election under the platform of the Peoples Democratic

Party (P.D.P.), the fourth respondent in this appeal.

Irked by INEC's declaration of the due return

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and due election of the appellant in the said election, the

first and second respondents (as petitioners) repaired to

the Trial Tribunal with their petition wherein they

challenged the election and declaration of the appellant as

the duly elected Governor of Bayelsa State. As is usual in

forensic contests of this nature, the averments in the

petitioners’ pleadings prompted vociferous and strident

joinder of issues by the respondents. In all, issues were

joined in the settled pleadings: issues which are yet to be

determined by the Trial Tribunal.

Against this background, considerable circumspection is

called for in this judgment, being a judgment in an

interlocutory appeal, so as not to breach any aspect of the

substantive issues that must, perforce, abide the final

judgment of the said Trial Tribunal. To do otherwise would

be to usurp its sole prerogative, nay more, to pre-empt and

prejudice its ultimate decision as the forum of first

instance.

In consequence, this factual narrative would be strictly,

cabined to the facts that are relevant for the determination

of this interlocutory appeal apropos the narrow issue raised

therein. What is

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more, there is even no doubt that what prompted the

sequence of entreaties at the Trial Tribunal was the

averment in paragraph 23 of the petition. The appellants

averred thus:

23. Your Petitioners state that prior to the unilateral

cancellation aforesaid [a fact deposed to in paragraphs 20

and 21 of the said Petition], the Returning Officer of the

Bayelsa State Governorship election, Prof. Zana Akpagu,

had announced to the whole world that election was

conducted in Southern Ijaw Local Government Area and the

result was being awaited. Your Petitioners hereby plead the

video/CD/DVD/audio clip and newspaper report of the said

announcement and shall rely on it (sic) at the trial.

(Italics supplied for emphasis)

In the course of the hearing, and sequel to an entreaty by

the first and second respondents, the trial Tribunal, on

April 29, 2016, caused a Subpoena Duces Tecum Ad

Testificandun to be issued on Pedro Innocent or the

production Manager of Channels Television, Lagos to

testify and produce the DVD/CD/VCD/Audio Recording and

Video Clips of the coverage of 5th/6th December, 2015,

Governorship Election in Bayelsa State in respect of the

Southern

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Ijaw Local Government Area of the State, page 348 of the

record. [In legal parlance, the above-mentioned Subpoena

is a process to cause a witness to appear and tender a

document and testify. This process commands him to lay

aside all pretences and excuses and appear before a Court

therein named, at a time therein mentioned to bring with

him and produce to the Court, books, papers, in his hands,

tending to elucidate the matter in issue].

Further to the order of the trial Tribunal permitting all the

witnesses on subpoena to file written Statements on oath,

Emmanuel Ogunseye filed a written deposition on oath,

pages 349-351 of the record. For their bearing on this

appeal, his depositions on paragraphs 3; 6 -12 are

reproduced hereunder:

3. That I hold a Diploma in Television and Film Production,

obtained from the Pencil Film and Television Institution,

Lagos, in 2006. I have been working in the Production

Department of Channels Television since 2007 and I am

very conversant with electronic news gathering and of

computers.

4. …

5. …

6. That on Friday 6th May, 2016, I received via email from

our Library manager in Lagos,

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Mr. Patrick Oranu, visual from Channels Television

archives on our coverage of the announcement of Bayelsa

State Governorship Election which includes the

cancellation of the election in respect of Southern Ijaw

Local Government Authority in Bayelsa State as

transmitted by Channels TV on 7th December, 2015. I used

my official Dell Desktop Computer System with serial

number 25TF85J to produce a DVD containing the said

visual, which I have in my possession to tender in evidence.

7. That in compliance with the subpoena, I wish to tender a

DVD containing our coverage of the 5th and 6th December,

2015 Governorship Election in Bayelsa State in respect of

Southern Ijaw Local Government Area of Bayelsa State as

requested by this Tribunal.

8. That all the events mentioned herein were duly recorded

by the Company’s Camera man, Pedro innocent, using our

official cameras, stored in DVD and kept in the custody of

the Company's Library Unit. I have the DVD here with me

and with the permission of the Honourable Tribunal I can

play the contents of the DVD with the aid of a laptop

computer and a projector.

9. That this my statement, the video and other

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computer-generated information in the DVD referred to in

this statement herein were produced by the computers

regularly used in our office for storing and processing

information during the material period under

consideration.

10. That I confirm that over the period of December, 2015

till date there was a regular supply of information of the

kind contained in the said computers in the ordinary course

of activities in our office. I also confirm that during this

period, the said computers were operating properly and

that if during the periods the system did not work properly,

it did not affect the production of the said video or the

accuracy of the contents. And I also confirm that the

information contained in the DVD were produced or

derived from information supplied to the computers in the

ordinary course of our activities in the office.

11. That in further compliance with the requirements of the

law, I hereby certify to the best of my knowledge that the

video clips contained in the DVD were duly and legitimately

recorded by the Company’s Camera Man using a video

camera with the brand name JVC 600 using memory card.

At the end of the recording,

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the contents of the memory card were transferred to DVD

in the course of normal activities in the company. A

separate certificate of identification signed by me is

attached to the said DVD.

12. That I confirm that I am computer literate and

participated in all stages of recording, production and

packaging of the DVD sought to be tendered in the

proceeding.

(Italics supplied for emphasis)

As evident from page 353 of the record, the said Emmanuel

Ogunseye, designated as PW51, adopted his said statement

as his evidence. Again, from page 355 of the record, it is

not in doubt that, while the certificate which the said

Emmanuel Ogunseye generated pursuant to Section 84 of

the Evidence Act, 2011 was admitted in evidence at the

trial Tribunal as exhibit P42A; the DVD, he referred to in

his written statement on oath, and which he adopted as

part of his evidence, was, also, admitted in evidence as

exhibit P42B.

What, however, triggered off the objections culminating in

the trial Tribunal's ruling which yielded the judgment of the

lower Court now on appeal before this Court was a

subsequent application by S. T. Hon, learned SAN for the

first and

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second Petitioners (first and second respondents herein),

"for exhibit P42B to be played in open Court," (page 355 of

the record, italics supplied for emphasis). Following the

objections of Messrs Tayo Oyetibo, SAN and Abibo to Mr.

Hon, SAN's application, the trial Tribunal, in its Ruling,

pages 356-358 of the record, proceeded thus: "(we have

listened to the arguments for and in opposition to the

application to play the DVD - Exhibit - P42B in open Court,"

(page 356 of the record, italics supplied for emphasis).

It set out paragraph 8 of PW51's written statement on oath

wherein the said witness deposed that "… I can play the

contents of the DVD with the aid of a laptop computer and

a projector..." (Page 357 of the record; italics supplied by

the trial Tribunal). It, then, observed as follows at page 357

of the record:

In other words, therefore, the contents of the DVD stand on

its (sic, their) awn and has (sic, have) been duly certified by

Exhibit P42A. However, the playing of the content of the

DVD is the present application being contested. As shown

by the wording of paragraph 8 of the witness statement, it

is clear the laptop Computer and

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the Projector are the machines or computers that relate to

that application.

It therefore behoves the applicant to do a certificate in

compliance with Section 84 of the Evidence Act on

them too, in particular the laptop computer to be used to

transmit or transfer the content of the DVD to the slide

(citing Section 258 (1)of the Evidence Act, 2011)

At page 358 of the record, the trial Tribunal disagreed with

the submission of Mr. Hon, SAN. The learned senior

counsel had canvassed the view that, once the computer

used for storing the information in the CD has been

certificated in compliance with Section 84 [supra], there

would be no need to do so in respect of any other computer

or device to retrieve and play same as sought to be done.

Indeed, it was the view of the trial Tribunal at page 358 of

the record that prompted the appeal of the present first

and second respondents to the lower Court. According to

the said Tribunal:

When a document is sought to be given in evidence, and

also to be demonstrated in Court the means of production

of which document fall within the definition of computer in

the Evidence Act, then two different

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steps and stages are involved:

(1) the one used to store the information and;

(2) the one to be used to retrieve and if need be

demonstrate or play them out - are involved.

Both categories of computers must be certified as required

by Section 84 (supra). As I had said earlier, Exhibit P42A

covers only the computers used in production of exhibit

P42B - the DVD, but not the laptop computer and projector

now sought to be used to retrieve and play out its content.

To that extent therefore in respect of both last two

documents (the laptop and projector) the provisions of

Section 84 (supra) has (sic) not been complied with.

Application to play the DVD - exhibit P42B is accordingly

refused.

(Pages 358; italics supplied for emphasis)

Aggrieved by this ruling, the first and second respondents

(as appellants) appealed to the lower Court.

Unimpressed with the above reasoning, the lower Court

allowed the appeal. Consequentially, it ordered the trial

Tribunal to recall the PW51 to demonstrate the contents of

exhibit P42B in open Court.

Expectedly, the present appellant was not satisfied with

this development; hence this

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appeal. Although he formulated three issues, at the hearing

of this appeal this morning, Oyetibo, SAN applied to

abandon issues one and three so as to dwell on issue two

only. Learned Counsel for the first and second respondents,

S. T. Hon, SAN, also, applied to abandon his preliminary

objection and Respondents' Notice. The Court ordered as

prayed; hence, only the second issue is outstanding.

Accordingly, this appeal would be determined based on

issue two alone. The said issue was couched thus:

Whether the Court of Appeal was not wrong in law

when it held that the certification of the computers

used to produce exhibit P42B in this case was

sufficient and that it was not necessary under Section

84 of the Evidence Act 2011 to certify the computers

sought to be used to demonstrate the contents of the

exhibit in open?

The first and second respondents rephrased the same Issue

in a more felicitous manner thus:

Was the Court of Appeal correct to have held that

Section 84 of the Evidence Act, 2011 was fully

compl ied with to enable Exhibi t P42B be

demonstrated/played in open Court by the trial

Tribunal?

ARGUMENTS ON THE SOLE ISSUE

When

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this appeal was heard this morning, July 20, 2016, learned

counsel for the appellant, Tayo Oyetibo, SAN, who

appeared with other counsel on the Counsel’s List, adopted

the brief of argument Filed on June 29, 2016, together with

the Reply Brief sans the abandoned issues. The arguments

relating to the said issue two were canvassed on pages 11 -

30 of the said brief.

In the main, his contention was that, in addition to the

certificate already admitted as exhibit P42B (relating to the

DVD), an additional certificate was imperative with regard

to the laptop computer, projector and electronic screen

which were to be used to play or demonstrate the DVD in

open Court. In his view, these are, also, computers within

the meaning of Section 258 (1) of the Evidence Act, 2011

and must be certified pursuant to Section 84 (supra)

pursuant to a community reading of Sections 84 and 258

(supra).

On his part, S. T. Hon. SAN, for the first and second

respondents, who also appeared with other counsel,

adopted and relied on the brief of argument filed on July 1,

2016, also, sans the abandoned issues one and three and

the preliminary objection and Respondents'

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Notice. His arguments in respect of this issue are to be

found on pages 9 - 24 of the said brief. The net effect of his

response is that there is nothing in Section 84 (supra) that

requires certification in respect of the computer or

projector to be used in playing the said DVD in open Court.

Counsel for the other respondents did not file briefs of

argument.

RESOLUTION OF THE ISSUE

As shown above, the lower Court was unimpressed with the

reasoning of the trial Tribunal to the effect that two

categories of certificates are required under Section 84

(supra), namely, one certificate with regard to the

production and another certificate for the demonstration of

the evidence in open Court. In the leading judgment, the

lower Court (per Otisi, JCA) demonstrated a clear grasp of

the issue in contention. Listen to the enchanting elucidation

of Otisi, JCA:

The proceedings leading to this appeal, as transcribed in

the record of appeal, reveal that foundation for

admissibility of the electronic evidence was well-laid. The

electronically- generated evidence was pleaded in the

Petition as found at pages 1 - 78 of the record. Evidence

concerning

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the said electronically-generated document, DVD, was

lucidly stated in the written deposition of PW51, found at

pages 349 - 351 of the record, which he adopted, page 353

of the record. The electronically-generated evidence in

issue, DVD, as well as its certificate of identification were

admitted in evidence. The certificate was exhibit P42A

while the DVD was exhibit P42B. In other words, the

electronically-generated evidence was admitted in evidence

having complied with the preconditions for its admissibility

as provided for by Section 84(supra)…

Having admitted the said DVD, the appellants sought to

have it played or demonstrated in open Court. It was the

refusal of the lower Tribunal to grant the application that

gave rise to this appeal…

(Pages 566 – 567 of the record; italics supplied for

emphasis).

His Lordship proceeded to disaggregate the statutory

requirement apropos the admissibility of electronically-

generated evidence in these words:

If the conditions for the admissibility of electronically-

generated evidence are fulfilled, there ought to be no other

impediment to it being demonstrated. The certification

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provided for in Section 84 relates to the computer(s) or

gadget(s) from which the electronic document is generated

or produced. While by virtue of the provisions of Section

258 the computer or gadget to play or demonstrate the

electronic document falls under the definition of computer,

by virtue of the provisions of Section 84, which governs

admissibility of electronically-generated documents, there

is no requirement for the certification of that other

computer or gadget employed to demonstrate or play the

electronically-generated document already admitted in

evidence…

(Pages 571 – 572 of the record; italics supplied for

emphasis).

Turning to the rationale for authentication, the erudite

Justice of the Court of Appeal opined thus, pages 572 -573

of the record:

In this digital age when different creations can be achieved

electronically, the reason for the requirement of

authentication or certification of the gadget or computer

used in producing and processing the electronically-

generated documents is not far-fetched. The party seeking

to rely on such evidence must be able to show that the data

and information contained in the

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electronically-generated document is truly what it claims to

be. The preconditions for admissibility set down by Section

84 are to establish this fact. The relationship between the

computer and the information is crucial. The electronic

evidence must be produced from a computer or gadget that

is inherently reliable and has been in operation over the

relevant period. There is no doubt that with present and

even future technological advances, the pre-conditions

attached to admissibility of electronically-generated

evidence by Section 84 may no longer be sufficient to

authenticate the reliability of electronic evidence. However,

these challenges are not in issue herein. One constant is

that the computer or gadget will only reproduce what has

been fed into it. The computer or gadget will demonstrate

or play what it receives. This is the reason why there is no

further need for certification of the computer or gadget to

be used to demonstrate or to play an already properly

admitted electronically-generated evidence, which had

complied with the pre-conditions of Section 84.

By means of rhetorical questions, His Lordship charted a

nexus between the application

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for the demonstration of the exhibit in open Court with the

requirements of the extant Electoral Act. Hear this:

One may ask, if electronically-generated evidence is

already an exhibit before the trial Tribunal or Court, in this

case the DVD, was not to be demonstrated or played, what

was the purport of admitting it in evidence? Was it simply

to dump it on the lower Tribunal, which is the roundabout

effect, and which would in effect… sidetrack the provisions

of Paragraph 46 of the First Schedule of the Electoral Act,

2010, as amended. These provisions are that a document

admitted in evidence may be read or taken as read by

consent. When a hard copy of a document is admitted in

evidence, its contents are examined and may be read for

the trial Court to determine if they establish the facts as

alleged or to determine what weight to attach thereto…

In the same vein, when it is an electronically-generated

document which has been admitted in evidence, upon

fulfilling all pre-conditions and it is not taken as read by

consent, then it ought to be demonstrated or played to

prove the facts alleged. Otherwise, it remains a closed or

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‘sleeping’ document, which is unusable and which need not

have been brought before the trial Court or Tribunal in the

first place as it would merely amount to clutter…

(Pages 573 – 574 of the record).

In consequence, His Lordship allowed the appeal. He held

that “the lower Tribunal misapplied the provisions of

Section 84 (supra) in its ruling that the said provisions

were not complied with by the appellants’ PW51, and

thereby precluding the appellants from demonstrating or

playing the DVD, exhibit P42B in open Court," (pages 574 –

575 of the record). He ordered that the DVD admitted in

evidence before the lower Tribunal as exhibit P42B be

played/demonstrated in open Court. The Court also ordered

that PW51 shall be recalled to give effect to the order.

True, indeed, the lower Court was right in its view that the

trial Tribunal misapplied the provisions of Section 84 of the

Evidence Act. The Section provides as follows:

84(1):

In any proceedings, 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

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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.

(Italics supplied for emphasis)

The conditions mentioned in Section 84(1) (supra) for the

admissibility of such statements produced by a computer

are contained in Section 84 (2):

(2) The conditions referred to in Subsection (1) of this

Section are –

(a) 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;

(b) 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;

(c) 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

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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

(d) that the information contained in the statement

reproduces or is derived from information supplied to the

computer in the ordinary course of those activities.

According to Section 84(4):

(4) In any proceedings where it is desired to give a

statement in evidence by virtue of this Section, a certificate

(a) identifying the document containing the statement and

describing the manner in which it was produced; or

(b) 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; or

(c) 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

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shall be sufficient for a matter to be stated to the best of

the knowledge and belief of the person stating it.

Subsection 5 provides that:

(5) For the purpose of this Section –

(a) Information shall be taken to be supplied to a computer

if it is supplied to it in any appropriate form and whether it

is supplied directly or (with or without human intervention)

by means of any appropriate equipment;

(b) Where, in the course of activities carried on by any

individual or body, information is supplied with a view to its

being stored or processed for the purpose of those

activities by a computer operated otherwise than in the

course of those activities, that information, if duly supplied

to that computer, shall be taken to be supplied to it in the

course of those activities;

(c) A document shall be taken to have been produced by a

computer whether it was produced by it directly or (with or

without human intervention) by means of any appropriate

equipment.

[Italics supplied for emphasis]

It is clear from its ipssissima verba that Section 84 (supra)

lays down the conditions for the admissibility of statements

produced

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by a "computer:" which is defined in Section 258 of the Act

to mean "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."

In effect, it is Section 84 of the Evidence Act that lays down

the conditions for the admissibility of electronically

generated evidence, Kubor v. Dickson [2013] 2 NWLR

(Pt. 1345) 534, 577-578; Omisore and Anor v.

Aregbesola & Ors. [2015] 15 NWLR (Pt. 1482) 205,

295 and not Section 258 of the Act, the definition Section,

as erroneously, contended by Mr. Oyetibo, SAN for the

Appellant.

As shown above, the DVD in question was admitted in

evidence as exhibit P42B. Thus, in this appeal, what is in

issue in not even the admissibility of evidence, but the

narrow question whether Section 84 (supra) deals with the

additional requirement of certification of gadgets for

playing or demonstrating an already admitted piece of

evidence in open Court.

Both the trial Tribunal and Oyetibo, SAN argued in favour

of such an additional certificate. However, that cannot be.

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Interpreting provisions similarly worded like Section 84

(supra), the defunct House of Lords [per Lord Griffiths] had

this to say in R v. Shepherd [1993] 1 All ER 225, 231,

paragraphs A-C, [HL]:

Documents produced by computers are an increasingly

common feature of all businesses and more and more

people are becoming familiar with uses and operation.

Computers vary immensely in their complexity and in the

operations they perform. The nature of the evidence to

discharge the burden of showing that there has been no

improper use of the computer and it was operating properly

will inevitably vary from case to case. The evidence must be

tailored to suit the needs of the case. I suspect that it will

very rarely be necessary to call an expert and that in the

vast majority of cases it will be possible to discharge the

burden by calling a witness who is familiar with the

operation of the computer in the sense of knowing what the

computer is required to do and who can say that it is doing

it properly.

[italics supplied for emphasis]

In actual fact, Section 84 (supra) consecrates two methods

of proof, either by oral evidence under Section 84(1) and

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(2) or by a certificate under Section 84(4). In either case,

the conditions stipulated in Section 84(2) must be satisfied.

However, this is subject to the power of the Judge to

require oral evidence in addition to the certificate. As the

eminent Lord Griffith explained in the said case [R v.

Shepherd]:

… 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. It is understandable that if a

certificate is to be relied upon it should show on its face

that it is signed by a person who from his job description

can confidently be expected to be in a person to give

reliable evidence about the operation of the computer. This

enables the defendant to decide whether to accept at its

face value or to ask the Judge to require oral evidence

which can be challenged in cross examination…

[Italics supplied for emphasis]

In the instance appeal, there has been no suggestion that

the evidence of PW51 did not satisfy the above conditions.

Indeed, from his written deposition, which he adopted at

the

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trial Tribunal, the witness would appear to have more than

a passing acquaintance with the provisions of Section 84 of

the Evidence Act (supra). Hear what he said:

6. ... I used my official Dell Desktop System with serial

number 25TF85J to produce a DVD containing the said

visual, which I have in my possession to tender in evidence.

7. …

8. That all the events mentioned herein were duly recorded

by the Company's Camera man, Pedro Innocent, using our

official cameras, stored in DVD and kept in the custody of

the Company's Library Unit. I have the DVD here with me

and with the permission of the Honourable Tribunal I can

play the contents of the DVD with the aid of a laptop

computer and a projector.

9. That this my statement, the video and other computer-

generated information in the DVD referred to in this

statement herein were produced by the computers

regularly used in our office for storing and processing

information during the material period under

consideration.

10. That I confirm that over the period of December, 2015

till date there was a regular supply of information of the

kind contained in the said computers in the

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ordinary course of activities in our office. I also confirm

that during this period, the said computers were operating

properly and that if during the periods the system did not

work properly, it did not affect the production of the said

video or the accuracy of their contents. And I also confirm

that the information contained in the DVD were produced

or derived from information supplied to the computers in

the ordinary course of our activities in the office.

11. That in further compliance with the requirements of the

law, I hereby certify to the best of my knowledge that the

video clips contained in the DVD were duly and legitimately

recorded by the Company's Camera Man using a video

camera with the brand name JVC 600 using memory card.

At the end of the recording, the contents of the memory

card were transferred to DVD in the course of normal

activities in the company. A separate certificate of

identification signed by me is attached to the said DVD.

12. That I confirm that I am computer literate and

participated in all stages of recording, production and

packaging of the DVD sought to be tendered in the

proceeding.

[Italics supplied for

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emphasis]

As shown above, the said DVD was admitted in evidence.

Mr. Hon. SAN's application, at the trial Tribunal was that

the witness be allowed to play the said DVD in open Court.

It is rather strange that Oyetibo, SAN sought to resist the

attempt to play the said DVD at the hearing of the Tribunal.

As the lower Court, rightly, observed:

… when it is an electronically-generated document which

has been admitted in evidence, upon fulfilling all pre-

conditions and it is not taken as read by consent, then it

ought to be demonstrated or played to prove the facts

alleged. Otherwise, it remains a closed or 'sleeping'

document, which is unusable and which need not have been

brought before the trial Court or Tribunal in the first place

as it would merely amount to clutter…

Pages 573-574 of the record.

I, entirely, endorse this view. The application to play the

DVD had nothing to do with its admissibility (in any event,

at that stage it was already in evidence). It rather rest on

an, entirely, different juridical postulate which this Court

explained in A.P.G.A. v. Al-Makura [2016] 5 NWLR (Pt.

1505) 316, 343; Okereke v. Umahi

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& Ors [2016] 2-3 SC (Pt. 1) 1, 50. According to this

Court [per Nweze, JSC] in A.P.G.A. v. Al-Makura (supra)

pages 343-344:

This prescription [that parties have a duty to link their

documents with their averments in their pleadings] rests on

the adversarial nature of our jurisprudence which we

inherited from the common law.

It is, therefore, the impregnable juridical postulate of our

adversarial jurisprudence that prohibits a Judge from

embarking on an inquisitorial examination of documents

outside the Court room. A fortiori, it is anathema for a

Judge to be allowed to act on what he discovered from such

a document in relation to an issue when that was not

supported by evidence or was not brought to the notice of

the parties to be agitated in the adversarial procedure. The

authorities on this point are many.

We shall only cite one or two of them here, Ivienagbor v.

Bazuaye [1999] 9 NWLR (Pt. 620) 552; (1999) 6 SCNJ

235, 243; Owe v. Oshinbanjo (1965) 1 All NLR 72 at

75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco

(1971) 1 All NLR 324 at 333; Alhaji Onibudo & Ors v.

Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v.

Registered

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Trustees Recreation Club (2004) FWLR (Pt. 190)

1360, 1380-1381; Jalingo v. Nyame (1992) 3 NWLR

(Pt. 231) 538; Ugochukwu v. Co-operative Bank

[1996] 7 SCNJ 22.

It is against this background that viva voce depositions and

the entries in documents and, indeed assertions relating to

entries in such documents in electoral materials are,

invariably, tested under cross-examination, Ivienagbor v.

Bazuaye (supra).

Unarguably, therefore, Oyetibo, SAN's objection,

inadvertently, railroaded the trial Tribunal into an

unwarranted exercise of re-writing the requirements of

Section 84 (supra). As, already shown above, the Tribunal

reasoned that:

When a document is sought to be given in evidence, and

also to be demonstrated in Court the means of production

of which document fall within the definition of computer in

the Evidence Act, then two different steps and stages are

involved:

(3) the one used to store the information and;

(4) the one to be used to retrieve and if need be

demonstrate or play them out � are involved.

Both categories of computers must be certified as required

by Section 84 [supra]. As I had said earlier,

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Exhibit P42A covers only the computers used in production

of exhibit P42B � the DVD, but not the laptop computer

and projector now sought to be used to retrieve and play

out its content. To that extent therefore in respect of both

last two documents (the laptop and projector) the

provisions of Section 84 (supra) has (sic) not been complied

with. Application to play the DVD � exhibit P42B is

accordingly refused.

[page 358; italics for emphasis]

With profound respect, this is a most curious piece of

fallacious reasoning. Indeed, contrary to the view of the

trial Tribunal, Section 84 (supra) does not ordain any such

"two different steps and stages." Contrariwise, the

provisions of the said Section 84 govern the admissibility of

statements produced from computers. These provisions

are, similarly, worded like Section 65B (1) and (2) of the

applicable Act in India. Dealing with these provisions, the

Court reasoned [a reasoning I take liberty to adopt in this

judgment] in State v. Mohd. Afzal 107 (2003) DLT 385

that:

Electronic record produced [from computers on magnetic

tapes (hard discs)] has to be taken in the form of a print

out.

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Subsection (1) of Section 65B [the equivalent of Section

84(1) of the Nigerian Act] makes admissible without further

proof, in evidence, print out of an electronic record

contained on a magnetic tape subject to the satisfaction of

the conditions mentioned in the Section. The conditions are

mentioned in Subsection (2) [this is the equivalent of

Section 84(2) of the Nigerian Act]. Thus compliance with

Subsections (1) and (2) of Section 65B [that is, Section

84(1) and (2) of the Nigerian Act] is enough to make

admissible and prove electronics record.

[Italics supplied for emphasis]

As a corollary, Bello, JSC (as he then was; later C.J.N.) in

Onibudo v. Akibu (supra) explained the rationale for the

requirement of demonstrating documents in open Court.

Hear His Lordship:

It needs to be emphasized that the duty of a Court is to

decide between the parties on the basis of what has been

demonstrated, tested, canvassed and argued in Court. It is

not the duty of a Court to do cloistered justice by making

an inquiry into the case outside even if such inquiry is

limited to examination of documents which were in

evidence, when the documents had not been

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examined in Court and their examination out of Court

disclosed matters that had not been brought out and

exposed to test in Court and were not such matters that, at

least, must have been noticed in Court…

[page 211, italics supplied for emphasis].

Invariably, this requirement of testing such documents in

open Court is, inextricably, tied to the question of their

authenticity: a post admissibility requirement which relate

to the weight attachable to them. It is in this context that

Section 34(1) of the Evidence Act, 2011 provides that:

34(1) In estimating the weight, if any, to be attached to a

statement rendered admissible as evidence by this Act,

regard shall be had to all the circumstances from which any

inference can reasonably be drawn as to the accuracy or

otherwise of the statement, and in particular

(a) …

(b) In the case of a statement contained in a document

produced by a computer –

(i) The question whether or not the information which the

statement contained, reproduces or is derived from, was

supplied to it, contemporaneously with the occurrence or

existence of the facts dealt with in that

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information, and

(ii) The question whether or not any person concerned with

the supply of information to that computer or with the

operation of that computer or any equipment by means of

which the document containing the statement was

produced by it , had any incentive to conceal or

misrepresent facts.

[Italic supplied]

My Lords, permit me to draw attention to the evident

affinity between the italicized expressions above with the

expressions in Section 84(2) (a) (b) (c) and (d) which are

the conditions that must be satisfied before "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," Section 84(1) (supra). In effect, although a

document produced from a computer may cross the

admissibility threshold in Section 84 (1) (2) and (4), it may

still not be accorded the requisite weight if the "accuracy"

conditions in Section 34(1) (b) (i) and (ii) are not complied

with.

This, then, underscores the cogency demonstrating such

documents [like exhibit P42B] in open Court so as to afford

the proponent of such a document the opportunity of not

linking them

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with their averments in their pleadings and evidence on

records, A.P.G.A. v. Al-Makura (supra) 343; Okereke v.

Umahi & Ors (supra) 50; but more importantly with a

view to discharging the requirement which would facilitate

the Court's attachment of weight to them.

On the other hand, their demonstration in open Court

would, equally, afford the opponents the opportunity of

testing and contesting their accuracy in the usual

adversarial method of cross examination, Onibudo v.

Akibu (supra).

In all, I find that this appeal is wholly, unmeritorious and I,

therefore, enter an order dismissing it. Appeal Dismissed. I

affirm the judgment of the lower Court. The trial Tribunal

shall proceed forthwith to recall PW51 for the purpose of

demonstrating the said exhibit in open Court. Parties are to

bear respective costs.

SULEIMAN GALADIMA, J.S.C.: This interlocutory appeal

is against the judgment of the Court of Appeal, Benin

Division, which upturned the decision of the Bayelsa State

Governorship Election Tribunal, ordering that PW51 be

recalled to demonstrate the contents of Exhibit P42B by a

set of computers, contended

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by the Appellant herein not to have been certified in

accordance with the provisions of Section 84 of the

Evidence Act 2011.

In an Election into the office of Governor of Bayelsa State,

conducted by the 3rd Respondent herein on 5th and 6th

December, 2015 and 9th January, 2016, the 1st Respondent

was the candidate of the 2nd Respondent. The Appellant

herein was declared winner of the election and has since

been sworn in as Governor of Bayelsa State.

Aggrieved by the declaration of the Appellant the 1st and

2nd Respondents, as petitioners, filed a petition before the

Governorship Election Tribunal, on 30/1/2016.

On 29th April, 2016, the said Tribunal at the instance of 1st

and 2nd Respondents, issued a Supoena Duces Team Ad

Testificadum on one Pedro Innocent the Production

Manager of Channels Television Lagos to testify and

produce DVD/CD/VCD/Audio Recoding and Video Clips of

the coverage of 5th and 6th December, 2015 Governorship

Election in Bayelsa in respect of the Southern Ijaw Local

Government Area of the State.

On 10/5/2016, one Emmanuel Ogunseye was put in the

witness box as PW51 pursuant to Section 84 of the

Evidence Act, 2011

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and a certificate of compliance/identification and a DVD

were admitted as Exhibits P42A and P42B respectively.

After the admission in evidence of the certificate and the

DVD, counsel to the 1st and 2nd Respondents applied to

the Tribunal that the DVD (Exhibit P42B) be played in open

Court with the use of a Laptop, a projector and an

Electronic Screen different from the computers contained

in the certificate tendered as Exhibits P42A, whereupon

counsel to the Appellant raised an objection on the ground

that the computers sought to be used to play the DVD were

not certified as required by Section 84 of the Evidence Act,

2011.

Arguments on the point were fully canvassed, at the end of

which the Tribunal upheld the objection and rejected the

application to play the DVD.

The 1st and 2nd Respondents dissatisfied with the ruling of

the Trial Tribunal filed two Notices of Appeal but

subsequently relied on the Notice of Appeal filed on 20th

May, 2016. Briefs and Reply were filed and exchanged by

the parties. Delivering its considered judgment on 24th

June, 2016 the Court of Appeal discountenanced the issue

of its jurisdiction to entertain the

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appeal filed before it on the grounds that the record of

appeal transmitted to the Court of Appeal was incomplete.

This objection was also argued by the 4th Respondent

herein which raised the issue of the incompleteness of the

record of appeal in its brief of argument.

Consequently the Court of Appeal delivered its judgment

granting all the reliefs sought by the 1st and 2nd

Respondents herein, as the Appellants in that appeal. The

Court then ordered the Trial Tribunal to forwith recall

PW51 for the purpose of demonstrating the contents of

Exhibit P42B in open Court.

Being dissatisfied with the aforesaid judgment, the

Appellant appealed on 27th June, 2016 to this Court and

raised the following 3 issues namely:-

"1. Whether the judgment of the Court of Appeal was

not a nullity for having been given without

jurisdiction because the appeal brought by the 1st

and 2nd Respondents herein was not validly entered

in the Court of Appeal: Grounds 1 and 2.

2. Whether the Court of Appeal was not wrong in law

when it held that the certification of the computers

used to produce Exhibit P42B in this case was

sufficient and that it was not necessary

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under Section 84 of the Evidence Act 2011 to certify

the computer to be used to demonstrate the contents

of the Exhibit in open Court: Grounds 5 and 6.

3. Whether the Court of Appeal was not wrong in law

in refusing to follow its decision in AKEREDOLU v.

MIMKO (2013) LPELR-20532 where it was held that

the electronic gadgets to be used to demonstrate

exhibits already admitted in evidence must be

certified in accordance with the provisions of Section

84 of the Evidence Act 2011, on the ground that that

part of its decision was obiter dictum:

Grounds 3 and 4."

In response to the Appellant's brief of argument the 1st and

2nd Respondents filed a Respondent's Notice on 1st July,

2016 and incorporated their arguments on same and their

reply brief also filed the same day. In paragraph 3.1 of their

Brief the 1st and 2nd Respondents formulated the following

three issues for determination:

"1. Was the judgment of the Court of Appeal a nullity

on the ground of incomplete record of appeal or that

the appeal at the Court of Appeal was invalidly

entered? Grounds 1 and 2

2. Was the Court of Appeal correct to have held that

Section 84 of the

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Evidence Act 2011 was fully complied with to enable

Exhibit P42B be demonstrated/played in open Court

by the Trial Tribunal? Grounds 5 and 6.

3. Was the Court of Appeal wrong in refusing to

follow its previous decision in AKEREDOLU v.

MIMIKO (2013) LPELR- 20532 on the need to certify

the electronic gadgets used or to be used in

demonstrating in open Court electronic evidence, on

the ground that the applicable part of that previous

decision was obiter?

Grounds 3 and 4."

It is to be noted that today 20th July, 2016, when this

appeal came up for hearing learned senior counsel for the

Appellant and the 1st and 2nd Respondents conceded to

narrow issue raised in issue 2 to consider the main appeal.

Thereby all preliminary objections and other issues 1 and 2

of the Appellant and issues 1 and 2 of the 1st and 2nd

Respondents were abandoned.

Hearing the appeal, Leaned Senior Silk TAYO OYETIBO,

SAN; ALIYU UMAR, SAN and EMEKA ETIABA, SAN leading

a formidable team of other counsel identified and relied

upon the Brief of Argument of the Appellant filed on 29th

June, 2016 and a Reply Brief to the 1st and 2nd

Respondents filed on 13th July, 2016.

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He briefly adumbrated on the second issue formulated in

the Appellant's Brief having abandoned the 1st and 3rd

Issues. Issue 2 already set out above is posited on:-

"Whether the Court of Appeal was not wrong in law

when it held that the certification of the computers

used to produce Exhibit P42B in his case was

sufficient and that it was not necessary under Section

84 of the Evidence Act 2011 to certify the computers

sought to be used to demonstrate the contents of the

exhibit in open (Grounds 5 and 6)."

It is argued that the computers sought to be used to

demonstrate Exhibit P42B ought to have been certified in

compliance with Section 84(1) (2) (4) of the Evidence Act

2011. That the Laptop, Projector and Electronic Screen

sought to be used, in this case to play the DVD Exhibit

P42B in open Court are "computers" within the meaning of

the expression in Section 258 (1) of the Evidence Act 2011.

It is submitted that in the first category, the statements

contained in the judgment are produced when the

document is tendered and the contents are immediately

visible to the eyes. However, in the second category,

neither the statements contained in the

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electronic document nor the document itself can be said to

have been brought out as the electronic document for the

Court to see or hear.

For the proper appreciation of arguments on "electronic

document" learned silk refers to the definition of

'document' in Section 258 (1) of the Evidence Act 2011.

In view of the copious arguments set out in the Appellants'

brief of argument on this issue, Learned Silk has urged us

to allow the appeal.

In his snappy oral response, as an adumbration of his

submissions in the 1st and 2nd Respondents' brief filed on

1st July, 2016 and adopted, S. T. Hon. SAN leading other

team of counsel, discountenanced arguments on his Notice

of Preliminary objection. He conceded that the main appeal

should be considered outrightly. He submitted that the trial

Tribunal erred greatly in law when it refused to allow the

1st and 2nd Respondents play the DVD (Exhibit P42B) in

open Court, resulting in grave injustice to the aforesaid

Respondents.

He submitted that there is nothing in Section 84 of the

Evidence Act 2011 that requires certification in respect of

the computer or projector to be used in playing the DVD in

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open Court.

He has urged this Court to give literal rule of interpretation

so as to give natural meaning to the provision, omitting no

words and adding none. He has urged that the appeal be

dismissed for lacking in merit.

Learned Silk Asiwaju A. S. Awomolo, SAN and Dr. O.

Ikpeazu, SAN leading a large number of other counsel

appeared for the 3rd Respondents. He filed no brief and for

that reason he has nothing to urge this Court.

In similar vein AMAZUO BEREPROBERA, ESQ of counsel

for the 4th Respondent who filed no brief, has equally

nothing to urge the Court.

My understanding of the carefully reading of Section 84 (1)

2(a)- (d) 3(a) - (d) 4 (a) - (c) I cannot find the requirement

for the certification of the computer or projector to be used

in playing the DVD in open Court. For the proper

understanding of my stance on this issue Section 84 is

reproduced as follows:-

"84 (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

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are satisfied in relation to the statement and

computer in question

(2) The conditions referred to in Subsection (1) of

this Section are:

(a) 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 by any individual;

(b) that over that period there was regularly supplied to the

computer in the ordinary course of these activities

information of the kind contained in the statement or of the

kind from which the information so contained is derived;

(c) 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

(d) that the information contained in the statement

reproduced or is derived from information supplied to the

computer in the ordinary course of

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those activities.

(3) Where over a period the function of storing or

processing information for the purposes of any

activities regularly carried on over that period as

mentioned in Subsection (2)(a) of this Section was

regularly performed by computers, whether-

(a) by a combination of computers operating over that

period;

(b) by different computes operating in succession over that

period

(c) by different combinations of computers operating in

succession over that period; or

(d) in any other manner involving the successive operation

over that period, in whatever order, of one or more

computers and one or more combination of computers, all

the computers used for that purpose during that period

shall be treated for that purpose during that period shall be

treated for the purposes of this Section as constituting a

single computer; and references in his Section to a

computer shall be construed accordingly.

(4) In any proceeding where it is desired to give a

statement in evidence by virtue of this Section, a

certificate.

(a) identifying the document containing the statement and

describing the manner in which it was produced;

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(b) giving such particulars of any device involved in the

production of that document as may be appropriate for the

purposes of showing that the document was produced by a

computer;

(c) 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 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.

(5) For the purpose of this Subsection-

(a) information shall be taken to be supplied to a computer

if it is supplied to it in any appropriate form and whether it

is supplied directly or (with or without human intervention)

by means of any appropriate equipment;

(b) where, in the course of activities carried on by any

individual or body, information is supplied with a view to its

being stored or processed for the purposes of those

activities by a computer operated

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otherwise than in the course of those activities, that

information, if duly supplied to that computer, shall be

taken to be supplied to it in the course of those activities;

(c) a document shall be taken to have been produced by a

computer whether it was produced directly of (without

human intervention) by means of any appropriate

equipment.

(Emphasis mine)"

From the above provisions, it is crystal clear that it is only

with respect to the computer that "produces" the document

in this case, the DVD (Exhibit P42B) that ought to be

certified. The Court below lucidly expressed the true

purport of the provisions of Section 84 of the Evidence Act

2011 when it found on page 581 of the record of appeal

thus:

"It is glaring that Exhibit P42B is tied to and has

symbiotic relationship with Exhibit P42A, being the

certificate of compliance required by law. Howbeit,

the dire need or certification cannot be extended to

the laptop and or projector, with which the contents

of Exhibits P42B is to be retrieved, demonstrated,

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displayed and or played back. The former is akin to or

represents the production stage while the latter

constitutes the consumption stage. Authentication or

quality control is essentially warranted at the

production level and not the point of consumption.

Finished products are consumed by customers at

large once the price is affordable."

The words of this Section are clear and unambiguous and I

would not give any other interpretation, outside the clear

words See AROMOLARAN v. AGORO (2014) 18 NWLR

(Pt. 1438) 153 at 174 (2015) ALL FWLR (Pt. 766) 574

at p. 597. FBN v. Maiwada (2013) 5 NWLR (Pt. 1348)

444 at 483.

In this appeal the evidence of PW51 satisfies the provisions

of Section 84 of the Evidence Act 2011, he deposed to in

paragraphs 7 - 11 of his Written Deposition on pages 350 -

351 of the Record of Appeal to that effect. He stated inter

alia thus:

"I used my official Dell Desktop Computer System

with serial number 25TF85J to produce a DVD

containing the said visual, which I have in my

possession to tender in evidence ..."

When PW51 entered the witness box on 10th May, 2016, he

brought in Court the DVD he had produced using the

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computers vividly described in his written deposition.

I am of the firm opinion that since Section 84 of the

Evidence Act 2011 has limited its application to

"production" of computer evidence and not "playing" or

demonstrating of it in open Court. The literal rule of

interpretation ought to be invoked by the Trial Tribunal to

permit Exhibit P42B to be played before it.

For the foregoing reasons and for fuller ones set out in the

lead judgment of my learned brother NWEZE, JSC I too

agree with him and dismiss this appeal, as it is lacking in

merit.

I affirm the judgment of the Court of Appeal. The trial

Tribunal shall as a matter of urgency proceed to recall

PW51 for the purpose of demonstrating the content of DVD

Exhibit P42B in open Court. I award no costs parties to

bear their own costs.

OLABODE RHODES-VIVOUR, J.S.C.: Briefly the facts are

these. The appellant, the PDP candidate and the 1st

Respondent, the APC candidate contested the General

Election for Governor of Bayelsa State. The Independent

National Electoral Commission (INEC), the body

constitutionally set up to conduct the election declared the

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Appellant elected. He is the Governor of Bayelsa State.

Dissatisfied with the results as delivered by INEC the 1st

Respondent filed a petition before the Bayelsa State

Governorship Electoral Petition Tribunal. During trial,

learned counsel for the Petitioner/1st Respondent tendered

certificate of compliance/identification and DVD. Both were

admitted as Exhibits 'P42A' and 'P42B'. That is to say

electronically generated evidence (Exhibit P42B, DVD) was

admitted in evidence after the Tribunal was satisfied that

there was compliance with Section 84 of the Evidence Act.

Thereafter learned counsel for the 1st Respondent urged

the Tribunal that the DVD - Exhibit 'P42B' be played in

Open Court. The Tribunal refused. The reasoning of the

Tribunal is interesting. It said:

"... Exhibit 'P42A covers only the computers used in

production of Exhibit 'P42B' the DVD, but not the

laptop computer and projector now sought to be used

to retrieve and play out its contents. To that extent

therefore in respect of both last two documents (the

laptop and projector) the provisions of Section 84 of

the Evidence Act has not been complied with..."

And on that

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reasoning the application to play the DVD in open Court

was refused. The Court of Appeal came to a different

conclusion. That Court set aside the Ruling of the Tribunal

and ordered that the DVD already admitted in the Tribunal

as Exhibit 'P42B' be played/demonstrated in Open Court.

This is what the Court had to say:-

"....When it is an electronically generated document

which has been admitted in evidence upon fulfilling

all preconditions and it is not taken as read by

consent, then it ought to be demonstrated or played

to prove the facts alleged, otherwise it remains a

closed or sleeping document which is unusable and

which need not have been brought before the trial

Court or Tribunal in the first place as it would merely

amount to clutter".

Section 84 of the Evidence Act must now be examined.

It reads:-

"84 (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

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conditions referred to in Subsection (1) of this

Section are -

(a) that the document containing the statement was

produced by 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;

(b) 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;

(c) 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

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

(d) that the information contained in the statement

reproduces or is derived from information supplied to

the computer in the ordinary cause of these activities.

84 (4): In any proceeding where it is desired to give a

statement

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in evidence by virtue of this Section a certificate -

(a) Identifying the document containing the

statement and describing the manner in which it was

produced;

(b) Giving such particulars of any device involved in

the production of that document may be appropriate

for the Purpose of showing that the document was

produced by computer;

(c) 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."

A diligent examination of Section 84 of the Evidence Act

reveals that the Section does not say that the computer or

electronic device used in playing the DVD in open Court

requires certification, rather it is only the computer that

produces the DVD - Exhibit 'P42B' that requires

certification. Section 84 in the

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Evidence Act is all about ascertaining the authenticity of

the device from which the exhibit was produced.

Exhibit 'P42B', electronically generated evidence was

admitted in evidence as an exhibit after the Tribunal was

satisfied that there was compliance with the provisions of

Section 84 of the Evidence Act, (See Exhibit 'P42A').

After the DVD was admitted as Exhibit 'P42B' compliance

with Section 84 of the Evidence Act is no longer required as

that threshold had been well and timely passed once the

DVD becomes an exhibit. The examination of the DVD (an

exhibit) Includes playing it, and the DVD must be examined

at some stage. In other climes the DVD would have been

played by the Courts device and the Courts device would

not require certification. The Refusal by the Tribunal to

play the DVD to my mind was wrong. An exhibit,

documentary evidence is a thing relied on by the party

producing it for the sole purpose of strengthening his case.

Once such evidence supports oral testimony such oral

testimony becomes more credible. See Omoregbe v.

Lawani 1990 3-4 SC p.117: Kindley and Ors v. M G of

Gongola State 1988 2 NWLR R/77 p. 473.

The Petitioner

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must be allowed to present and ventilate his case within the

confines of the law and procedural requirements. Playing

the DVD (Exhibit 'P42B') in Open Court is very much within

the standards required.

For these brief reasons as well as those more fully given by

my learned brother NWEZE, JSC I would dismiss the

appeal. I affirm the judgment of the Court of Appeal and

direct that the orders of that Court be complied with

forthwith.

Appeal dismissed.

NWALI SYLVESTER NGWUTA, J.S.C.: I have the

privilege of reading in draft before now the lead judgment

of my learned brother, Nweze, JSC and I entirely agree

with the reasoning leading to the dismissal of the appeal as

unmeritorious.

I desire to chip in a word or two in demonstration of my

agreement with the lead judgment.

The relevant facts of the case are sufficiently outlined in

the lead judgment. The issue formulated by learned Senior

Counsel for the Appellant reads:

''Whether the Court of Appeal was not wrong in law when it

held that the certification of the computer used to produce

Exhibit P42B in this case was sufficient and that it was not

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necessary under S.84 of the Evidence Act 2011 to certify

the imprints sought to be used to demonstrate the contents

of the Exhibit in open Court, Grounds 5 & 6."

In his turn learned Silk for the 1st and 2nd Respondents

queried:

"Was the Court of Appeal correct to have held that Section

84 of the Evidence Act 2011 was fully complied with to

enable Exhibit P42B be demonstrated/played in open Court

by the Tribunal? Grounds 5 & 6."

Except for differences in phraseology the two issues are

substantially the same. Exhibit P42A is a certificate in

respect of the computers used to store information in the

DVD. It is evidence of compliance with Section 84 (1) and

(2) of the Evidence Act for the admission of the DVD which

was admitted and marked Exhibit P42B.

Section 84 (2) outlines the conditions for admission of "a

statement contained in a document produced by a

computer". The two key words in Section 84 of the

Evidence Act appear to me to be "statement" and

"document". What is a statement and what is a document?

A statement, in a general sense, is an allegation, a

declaration of matters of fact, etc. See Black's Law

Dictionary Special

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Deluxe fifth attestation, avowal, etc. See Burton's Legal

Thesaurus Fourth Edition page 993.

On the other hand, document is an instrument on which is

recorded information or facts. It contains statements. A

document is any physical embodiment of information or

ideas such as letter, contract, receipt, a book of account, a

blue print or an X-ray plate. See Strico v. Cotto 87 Misc.

2nd 636, 324 NYS 2nd 483, 486.

In view of the above definitions of statement and document,

the DVD, Exhibit P42B, in so far as it is used to record and

store information is a document and the information

therein contained is a statement within the intendment of

Section 84 of the Evidence Act.

I agree with the learned Silk leading for the appellant that

the DVD, Exhibit P42B is a manufactured product.

However, once any Information is recorded or stored

therein through the instrumentality of a computer it

becomes a document and the information so recorded or

stored is a statement "contained in a document produced

by a computer" within the meaning of Section 84 of the

Evidence Act. The certificate, Exhibit P42A qualified the

document (DVD) Exhibit P42B for admission

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in evidence and it was so admitted and marked accordingly.

See; Kubor v. Dickson (2013) All FWLR (Pt.675) 392

at 429.

The point upon which the parties joined issue is the

assertion of the appellant, denied by the respondent, that

Section 84 of the Evidence Act requires another certificate

in form of Exhibit P42A to produce the "statement

contained in the document produced by a computer". It has

to be emphasized that in admitting the DVD, Exhibit P42B,

what is really admitted is "a statement contained" in the

DVD which is document produced by a computer. See

Section 84 (1) of the Act.

The DVD, Exhibit P42B and its contents are akin to non-

computer document or a document properly so called. A

document properly so called is admitted in evidence for the

Court or Tribunal to see and consider its contents (or

statements contained therein). Once a document properly

so called has been admitted in evidence, there is no

condition to be satisfied before the Court or Tribunal can

make use of the statement contained therein.

In the same vein, once the computer generated document

has been admitted in evidence, having satisfied all the

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requirements of Section 84 (2) of the Act, the statement

therein contained can be produced for the Court or

Tribunal by the means of any functional computer without a

certificate in form of Exhibit P42A. I see no such

requirement in the various provisions of Section 84 of the

Evidence Act.

In my humble view, producing the statement contained in a

document produced by a computer which has been

admitted in evidence is the same thing as providing the

Court or Tribunal a document properly so called which has

been admitted in evidence for the Court or Tribunal to

read. Once the conditions for admission of the document

have been satisfied and the document, be it one produced

by a computer or one properly so called, admitted, there

can be no other requirement before the Court or Tribunal

can make use of the statement contained in the document.

For the above and the fuller and lucid reasons advanced in

the lead judgment I also find no merit in the appeal and I

accordingly dismiss same. I abide by the consequential

orders in the lead judgment.

CLARA BATA OGUNBIYI, J.S.C.: The facts of this case

have been spelt out in

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the lead Judgment of my brother Chima Centus Nweze,

JSC.

On the 10/05/2016, the Tribunal through the witness PW51

admitted in evidence the certificate of compliance with

Section 84 of the Evidence Act, 2011 and the DVD

produced with the use of computer and marked same as

Exhibits P42A and P42B respectively.

Consequently, the Learned Senior Counsel for 1st and 2nd

respondents applied that the DVD (Exhibit P42B) be played

in open Court. Objections were taken by learned senior

counsel for the appellant herein and the 4th respondent.

The Tribunal on the issue, ruled that the provisions of

Section 84 of the Evidence Act has not been complied with.

Hence the application to play the DVD – Exhibit P42B was

accordingly refused. On appeal to the Lower Court by the

1st and 2nd respondents, the Court discountenanced the

objection challenging its jurisdiction to determine the

appeal and granted all the reliefs sought by the 1st and 2nd

respondents herein, as appellants in that appeal. The Lower

Court thereupon ordered the trial Tribunal to forthwith,

recall PW51 for the purpose of demonstrating the contents

of Exhibit P42B in open Court.

The only surviving issue no.2 formulated by the

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appellant reads as follows:-

2. Whether the Court of Appeal was not wrong in law when

it held that the certification of the computers used to

produced Exhibit P42B in this case was sufficient and that

it was not necessary under Section 84 of the Evidence Act

2011 to certify the computer sought to be used to

demonstrate the contents of the Exhibit in open Court.

Section 84(1) (2) and (4) of the Evidence Act has been

reproduced in the lead judgment of my learned brother.

It is the submission by the appellant’s counsel that the

laptop, projector and electronic screen sought to be used to

play the DVD, i.e. Exhibit P42B, are devices used for

storing and processing information and hence are therefore

computers within the meaning of Section 258(1) of the

Evidence Act; that in the application of Section 84(1) of the

Act, regard must be had to what is admissible under the

Section, that is to say, the statement contained in a

document produced by a computer and not the document

perse. In other words from the contents of Section 84(1), it

is the statement contained in the document that is being

admitted. The concept of document has been

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defined in Section 258(1) of the Evidence Act 2011.

Counsel therefore faulted the Lower Court which he

submits did not pay attention to the fact that what is being

admitted under Section 84(1) is the statement contained in

a document produced by a computer; that the Lower Court,

did not also appreciate the distinction between a hardcopy

of a document, the contents which are visible to the eye as

against the contents of an electronic document like Exhibit

P42B which are not visible; that the process of production

to bring out the contents must be by use of computers

which require certification in order to make the contents

admissible under Section 84(1) of the Evidence Act.

It is the counsel’s submission therefore that the Tribunal

was right in rejecting the application of the 1st and 2nd

respondents.

On behalf of the 1st and 2nd respondent, it was argued that

there is nothing in Section 84 of the Evidence Act 2011 that

requires certification in respect of the computer or

projector to be used in playing the DVD in open Court.

As rightly submitted by the learned counsel to the 1st and

2nd respondent, the law is well settled

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that when a particular Section of the law has many

Subsections, all such Subsections must be read together for

purpose of discovering the intention of the lawmaker. See

Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 200

SC and Oyeniyi v. Adeleke (2009) All FWLR (Pt. 476)

1902 at 1912.

Also and as rightly submitted by the said respondent's

counsel, where a process of production of a computer

document has been completed, the concept of playing or

transmission of such document cannot amount or be

equated to the actual production thereof.

At page 567 of the record of appeal, the Lower Court for

instant had this to say:-

"It is germane to note that all through the gamut of Section

84, no distinct specific provisions were made stating

conditions for the playing or demonstrating an already

admitted electronically generated evidence before the trial

Court or Tribunal.

As rightly submitted by learned silk for the appellants, if

there was an omission in this regard, it is certainly not part

of judicial adjudication to supply it;"

It is pertinent to state that the position taken by the Lower

Court is in accordance to settled principle

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laid down by this Court on the interpretation of Statutes

wherein the following guide lines are clearly spelt out that:-

1) It is the cardinal principle of law that a Court cannot,

while interpreting a Statute, embark on judicial legislation,

namely lawmaking, See: Akintokun v. L.P.D.C. (2014) 13

NWLR (Pt. 1345) 427 SC.

2) It is also the law that a Court ought to expound and not

to expand the law; that is to say it is to decide what the law

is and not what it ought to be; it should tow the path of

objectivity and not be subjective. See Amadi v. INEC

(2013) 4 NWLR (Pt. 1345) 595 SC.

3) It has been held also that a judge cannot and should not

supply omissions in a Statute. See Governor of Zamfara

State v. Gyalange (2012) 4 SC. 1

In a nutshell, the provisions of Section 84 of the Evidence

Act is complete and should be given its ordinary meaning of

interpretation of what the law is, which the trial Tribunal

had failed to do in this case.

In plethora of decided cases, this Court has held times

without number and warned parties against the dumping of

documents on the Tribunal. See the case of CPC v. INEC

(2013) All FWLR (Pt. 665) 364

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at 385 SC. Also Paragraphs 46(4) of the 1st Schedule to

the Electoral Act, 2010 as amended is where documents

admitted in evidence are either read or taken as read.

In citing the case of Kubor v. Dickson (2013) All FWLR

(Pt. 676) 393 at 429, the learned counsel for the 1st and

2nd respondents laid emphasis on the Judgment of this

Court which decided on the admissibility of computer

evidence wherein their Lordship quoted in extensor the

provisions of Section 84(1) of the Evidence Act, and

proceeded to lay down the procedure guiding admissibility

thereon.

There is no law stating that when computer evidence is

already admitted, another certification of the instrument

used for its demonstration in open Court should again be

produced. The absence of such cannot be imported with a

view to defeat the provisions of Section 84 of the Evidence

Act, thereof.

The law is explicit that where an interpretation of a Statute

would defeat the cause of justice, the Court should refrain

there from. See Ikeupenikan v. State (2015) All FWLR

(Pt. 788) 919 at 959 a decision of this Court; on the same

principle Ogbuagu, JSC also stressed the foregoing rule of

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Interpretation in the case of Elebanjo v. Dawodu (2006)

15 NWLR (Pt. 1001) 76 at 138.

My learned brother Nweze, JSC has dealt comprehensively

with the issue raised and I adopt this reasoning and

conclusion as mine. In the same vein, I am also of the

considered opinion and hold that this appeal is bereft of

any merit and I hereby dismiss same in terms of the lead

judgment. The judgment of the Lower Court delivered on

24th June, 2016 is hereby affirmed by me. The appeal is

hereby dismissed and the trial at the Tribunal should

proceed forthwith.

The witness PW51 should be recalled and be allowed to

demonstrate the exhibit objected to in the open Court. The

parties are each to bear their respective costs of the

appeal.

KUMAI BAYANG AKA'AHS, J.S.C.: I read in draft the

lead judgment of my learned brother, Nweze, JSC in which

he dismissed the appeal. I agree entirely with his reasoning

and conclusion.

At the Bayelsa State Governorship Election Tribunal,

Emmanuel Ogunseye deposed to a written statement at

pages 349-351 of the Record of Appeal. He testified as

PW51 and sought to play a DVD admitted as Exhibit

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P42B in open Court.

The application was opposed by the then respondent (now

appellant). The DVD was duly certified and the certificate

was tendered as Exhibit P42A. The Tribunal ruled that

when a document is sought to be given in evidence, and

also to be demonstrated in Court, the computer used to

store the information as well as the one to be used to

retrieve and demonstrate such information must be

certified in accordance with Section 84 of the Evidence Act.

It therefore held that Section 84 of the Evidence Act was

not complied with and consequently PW51 was precluded

from playing Exhibit P42B in open Court. This ruling was

reversed on appeal hence the appeal by the appellant to

this Court.

The issue in this appeal is whether the Court of Appeal was

wrong in law when it held that the Certification of the

computers used to produce Exhibit P42B in this case was

sufficient and it is not necessary under Section 84 of the

Evidence Act 2011 to certify the computers sought to be

used to demonstrate the contents of the Exhibit in open

Court.

Learned Senior Counsel for the appellant submitted that

the Laptop, Projector and electronic screen

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sought to be used to play Exhibit P42B in Court must be

certified before they can be used because they are also

computers as defined in Section 258(1) of the Evidence Act.

The opening submission made by learned Senior Counsel

for the 1st and 2nd respondents in respect of issue 2 in his

brief is a little bit confusing. It appears learned Senior

Counsel was addressing what took place at the Trial

Tribunal instead of the Court of Appeal. At page 575 of the

Records of Appeal, Otisi, JCA who wrote the lead judgment

allowed the appeal and set aside the ruling of the Tribunal

delivered on 10/5/2016 and concluded thus:-

"It is further ordered that the DVD admitted in evidence

before the lower Tr ibunal as Exhibi t P42B be

played/demonstrated in open Court. It is also ordered that

PW51 shall be recalled to give effect to this order".

Section 84(1) and (2) Evidence Act provides:-

"84 (1) In any proceeding a statement contained in

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

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in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this

Section are –

(a) 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 purpose of any activities regularly

carried on over that period, whether for profit or not, by

anybody, whether corporate or not, or by any individual;

(b) 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;

(c) 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

(d) that the information contained in the statement

reproduces or is derived from information supplied to the

computer in the ordinary course of those

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activities".

The correct interpretation to be given to Section 84 of the

Evidence Act where electronically generated document is

sought to be demonstrated is that such electronically

generated evidence must be certified and must comply with

the preconditions laid down in Section 84(2). See: Kubor v.

Dickson (2013) All FWLR (Pt. 676) 392 at 429. In the

instant case PW51 made a written deposition at pages

349-351 of the Record which he adopted at page 353. The

certification as well as the electronically generated

evidence in issue, the DVD in question, were admitted in

evidence as Exhibits P42A and P42B respectively in support

of the pleadings. Having met the pre-conditions, there is no

impediment in the Evidence Act that would prevent the

playing or demonstrating the contents of the already

identified DVD on any computer such as the laptop,

projector and screen.

The appeal therefore lacks merit and it is accordingly

dismissed, I also affirm the judgment of the lower Court

and further order that the Trial Tribunal shall proceed post-

haste to recall PW1 for the purpose of demonstrating the

contents of Exhibit P42B in open Court.

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-

EKUN, J.S.C.: This appeal is against the judgment of the

Court of Appeal, Abuja Division on 24/6/2016 which allowed

the appeal of the 1st and 2nd respondents and set aside the

ruling of the Bayelsa State Governorship Election Tribunal

sitting in Abuja delivered on 10/5/2016 wherein the

Tribunal ruled that a DVD admitted in evidence as Exhibit

P42B could not be played in open Court for failure to

comply with Section 84 of the Evidence Act 2011.

The brief facts that gave rise to this appeal are that

pursuant to a subpoena duces tecum ad testificandum

issued on one Pedro Innocent, the Production Manager of

Channels Television to produce "all DVD/CD/VCD/Audio

recordings and video chips of the coverage of 5th/6th

December 2015 Governorship Election in Bayelsa State in

respect of Southern Ijaw Local Government Area of Bayelsa

State" one Emmanuel Ogunseye deposed to a written

statement. He testified as PW51 and tendered a certificate

of compliance with Section 84 of the Evidence Act 2011

and the DVD produced with the use of a computer. The

certificate of compliance was admitted as Exhibit P42A

while

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the DVD was admitted as Exhibit P42B. The 1st and 2nd

respondents replied for the DVD, Exhibit P42B to be played

in open Court. The application was opposed by the

appellant.

The Tribunal held that the laptop computer and projector

sought to be used to play the DVD and retrieve the

information contained therein must be certified in

accordance with Section 84 of the Evidence Act. Having not

been so certified, the application to play the DVD in Court

was refused.

On appeal to the lower Court, the ruling of the trial

Tribunal was set aside. It ordered that the DVD already

admitted in evidence be played/demonstrated in open Court

and that PW51 be recalled to give effect to the order.

The parties duly exchanged briefs of arguments. The 1st

and 2nd respondents and the appellant filed preliminary

objections which they applied to withdraw at the hearing of

the appeal so that the merit of the appeal could be dealt

with.

At the hearing, MR. TAYO OYETIBO, SAN also abandoned

issues 1 and 3 of his brief of argument filed on 29/6/2016

and argued the appeal on issue 2 alone.

S. T. HON. SAN also abandoned his respondent's Notice

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arguments in respect of issues 1 and 3 in his brief filed on

1/7/2016 and argued issue 2 only. No briefs were filed on

behalf of the 3rd and 4th respondents.

The said issue 2 as formulated by the appellant reads thus:

"Whether the Court of Appeal was wrong in law when it

held that certification of the computer used to produce

Exhibit P42B in this case was sufficient and that it was not

necessary under Section 84 of the Evidence Act 2011 to

certify the computer sought to be used to demonstrate the

contents of the exhibit in open Court.

At the hearing of the appeal MR. OYETIBO, SAN, further

adumbrated on the submissions in the brief. He argued that

Section 84(1) of the Evidence Act 2011 must be read in

conjunction with Section 258(1) of the Act, particularly

paragraphs (b) & (c) thereof. He argued further that what

was admitted in evidence before the Tribunal was a bare

DVD which would only become a document within the

meaning of Section 258 (1) of the Evidence Act if it is

shown that it contains sound or other data. He argued that

the procedure by which the sound or data is brought out is

what actually constitutes the statement and

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therefore the electronic gadgets to be used in the exercise

must also be certified in accordance with Section 84 of the

Evidence Act.

S. T. HON. SAN, learned senior counsels for the 1st and

2nd respondents, on the other hand, argued that the

contention of Mr. Oyetibo, SAN amounts to reading into the

Section 84 what it does not contain. He urged the Court to

employ the literal rule of interpretation. In oral

adumbration of his brief, he submitted that Section 84 (2)

(c) refers to the period during which the computer used to

generate the document was operating (emphasis on "was")

and not the laptop computer or other gadget sought to be

used in Court to demonstrate same. He argued that Section

285 (1) of the Evidence Act does not address the issues

raised by the appellant.

For ease of reference, I reproduce hereunder the relevant

paragraphs of Section 84(1) of the Evidence Act, 2011.

84. (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

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satisfied in relation to the statement and computer in

question.

(2) The conditions referred to in Subsection (1) of this

Section are;

(a) that the document containing the statement was

produced by the computer during 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;

(b) that over that period there was regularly supplied to the

computer in the ordinary course of these activities

information of the kind contained in the statement or of the

kind from which the information so contained is derived;

(c) 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 or that period was not such as to

affect the production of the document of the accuracy of

its contents; and

(d) that the information contained in the statement

reproduces or is derived from information supplied to the

computer in the ordinary course of those

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activities.

(3) Where over a period the function of storing or

processing information for the purposes of any activities

regularly carried on over that period as mentioned in

Subsection (2) (a) of this Section was regularly performed

by computers, whether –

(a) by a combination of computers operating over that

period

(b) by different computers operating in succession over that

period;

(c) by different combinations of computers operating in

succession over that period; or

(d) in any other manner involving the successive operation

over that period, in whatever order, of one or more

computers and one or more combination of computers, all

the computers used for that purpose during that period

shall be treated for the purposes of this Section as

constituting a single computer; and references in this

Section to a computer shall be construed accordingly.

(4) in any proceeding where it is desired to give a

statement in evidence by virtue of this Section, a certificate

–

(a) identifying the document containing the statement and

describing the manner in which it was produced;

(b) giving such particulars of any device

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involve in the production of that documents as may be

appropriate for the purpose of showing that the document

was produced by a computer;

(c) dealing with any of the maters 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 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.

(5) For the purpose of this Subsection -

(a) information shall be taken to be supplied to a computer

if it is supplied to it in any appropriate form and whether it

is supplied directly or (with or without human intervention)

by means of any appropriate equipment;

(b) where, in the course of activities carried on by any

individual or body, information is supplied with a view to its

being stored or processed for the purposes of those

activities by a computer operated otherwise than in the

course of those activities, that information, if duly supplied

to that

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computer, shall be taken to be supplied to it in the course

of those activities;

(c) a document shall be taken to have been produced by a

computer whether it was produced directly or (without

human intervention) by means of any appropriated

equipment."

(Emphasis supplied by me)

Section 258(1) of the Evidence Act, 2011 provides:

"258. (1) In this Act –

"documents" includes –

(b) an disc, tape, sound track or other device in which

sounds or other data (not being visual images) are

embodied so as to be capable (with or without the aid of

some other equipment) of being reproduced from it; and

(c) any film, negative, tape or other device in which one or

more visual images are embodied so as to be capable (with

or without the aid of some other equipment) of being

reproduced from it."

I agree with learned counsel for the 1st-2nd respondents

that while Section 258(1) (b) & (c) in particular provides a

general definition of what constitutes a document, Section

84 makes specific provisions for the admissibility of

documents produced by a computer. Certainty the specific

provision relating to admissibility

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must be given priority over the general provision. The

rationale for this approach is that the specific provision will

be deemed to have anticipated the issue, as against the

general provision. See: Kraus Thompson Organization v.

N.I.P.S.S. (2004) 17 NWLR (Pt. 901) All FWLR (Pt.

720) 1247; Akpan v. The State (1986) 3 NWLR (Pt.

27) 225. The principle is "generalibus specialia dorogant":

special things derogate from general things.

The law is settled that in the interpretation of Statutes,

where the words are clear and unambiguous, they must be

given their natural and ordinary meaning. See: Ibrahim v.

Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C;

Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @

402 F-N. The exception is where to do so would lead to

absurdity. See: Toriola v. Williams (1982) 7 SC 27 @

46; Nonye v. Anyichie (2005) 1 SCNJ 306 @ 316.

Where an interpretation will result in breaching the object

of the Statute, the Court would not lend its weight to such

an interpretation. See: Amalgamated Trustees Ltd. v.

Associated Discount House Ltd. (2007) 15 NWLR (Pt.

1056) 118.

Now a careful consideration of Section 84 reproduced infra

would reveal

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that the Section is concerned with the manner in which the

electronic evidence sought to be relied upon is produced.

The Section seeks to ensure the authenticity of the

document and the integrity of the procedure used to bring

it into being. Section 84 (2) (a) for example, refers to the

document containing the statement sought to be relied

upon having been produced by a computer during a period

over which the said computer was used regularly to store

or process information for the purposes of any activities

regularly carried out over that period, whether for profit or

not, by anybody, whether corporate or not. The Sub-

sections refer to the storing or processing of information by

the computer during the period when the document sought

to be tendered was produced as well as the working

condition of the computer, combination of computers,

different computers operating in succession or different

combinations of computers operating in succession during

that period.

Section 84(4) sets out clearly what a certificate of

identification must contain where it is sought to give a

statement (electronically-generated) in evidence.

From the facts of this

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case, the 1st and 2nd respondents fully complied with the

provision. The statement on oath of PW51 contained

depositions of all the material facts relating to the

procurement of Exhibit P42B. He tendered the relevant

certificate (Exhibit P42A) along with the DVD (Exhibit

P42B) produced with the use of the computer.

At the stage, the 1st and 2nd respondents had done all that

was necessary for the admissibility of Exhibit P42B and it

was duly admitted in evidence. By the certificate, the 1st

and 2nd respondents had established not only the

authenticity of the document but the integrity of the

process that produced it.

The is nothing in Section 84 of the Evidence Act 2011 that

places a further requirement on the party seeking to rely

on electronic evidence to certify the gadgets to be used in

demonstrating what had already been admitted, as

contended by learned senior counsel for the appellant. In

my view, the interpretation suggested would certainly lead

to absurdity. The computer or projector to be used to

demonstrate the admitted evidence has no part to play in

the production of the evidence or its authenticity. I

therefore agree with the lower

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Court that having fulfilled all the pre-conditions for the

admissibility of Exhibit P42B, which had not been taken as

read, it ought to be demonstrated in open Court for the

necessary weight to be attached to it. After all, it has been

held in numerous decisions of this Court that documents

must not be dumped on the Court but must be

demonstrated by linking them to specific aspects of party's

case. See: C.P.C. v. I.N.E.C. (2013) ALL FWLR (Pt. 665)

365 @ 385 SC; Iniama v. Akpabio (2008) 17 NWLR

(Pt. 1116) 296 @ 299-300 D-B; A.P.G.A. v. Al-Makura

(2016) 5 NWLR (Pt. 1505) 316 @ 345.

As rightly observed by the lower Court, the essence of the

provisions of Section 84 (2) of the Evidence Act would be

defeated, if after duly complying therewith, the party

relying on the admitted electronically generated evidence

is precluded from demonstrating same before the Court in

order to prove his case. The trial Tribunal erred in reading

into Section 84 of the Evidence Act pre-conditions that it

did not contain. The decision was rightly set aside by the

Court below.

For these and the more elaborate reasons eloquently

advanced by my learned brother, CHIMA CENTUS

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NWEZE, JSC in the lead judgment, which I have had the

opportunity of reading in draft and with which I entirely

agree, I also hold that this appeal lacks merit. I accordingly

dismiss it and affirm the judgment of the Court below.

Parties shall bear their respective costs.

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