BRILA ENERGY LTD v. FRN (2018) LPELR-43926(CA)
PRACTICE AREA: EVIDENCE
HELD
On the whole, having resolved all ten issues against the Appellant, the Appeal was said to be without merit and same was dismissed accordingly. The Judgment of the High Court of Justice, Lagos State, inclusive of the order for restitution of the sum of N963, 796, 19.85k (Nine Hundred and Sixty Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Ninety-Nine Naira, Eighty-Five Kobo) to the Federal Government of Nigeria, in Charge No. ID/196c/3012 between The Federal Republic of Nigeria V Rowaye Jubril & Brila Energy Limited, delivered on 16th March, 2017 by Okunnu, J. was affirmed.
RATIO DECIDENDI
EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents
"It is also settled law that electronic evidence can be made in the ordinary course of business of establishments like banks and corporate bodies. The condition for the admissibility of this kind of evidence is that the maker must have made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory. This is also the import of Section 41 of the Evidence Act.
The Appellant has also sought to impugn the integrity of Exhibit 7 contending that the Respondent failed to tender the certificate of trustworthiness of the computer used in printing the documents in compliance with Section 84(4) of the Evidence Act. However, where such certificate is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert. See R V Shephard (1993) AC 380, where Lord Griffiths on this issue held -
"... therefore answer the certified question by saying that Section 69(1) of the Police Criminal Evidence Act 1984 can be satisfied by the oral evidence of a person familiar with the operation of the computer who can give evidence of its reliability and such person need not be a Computer expert."
Section 69(1) of the Police Criminal Evidence Act 1984 in the UK is the equivalent of Section of 84 of the Evidence Act, 2011. This condition was satisfied by the testimony of PW17 on oath when he explained the process of how he scanned the emails forwarding the report to him from Saybolt Concremat Brazil, printed them in colour and sent them to EFCC. I therefore have no reason to interfere with the finding of the trial Court in this regard."Per SANKEY, J.C.A. (Pp. 62-64, Paras. E-B)
EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents
"It is indeed the law as provided under Section 83 of the Evidence Act, 2011 that in a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document to establish that fact shall only be admissible as evidence of that fact if the conditions contained in paragraphs (a) to (d) thereof are satisfied. Section 84(1) goes on to be more specific on the nature of evidence when it provides inter alia 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 are satisfied in relation to the statement and the computer in question."
By the opening chapeau of this provision, computer generated documents are caught by the admissibility requirements of this provision. The relevant phrase here is "a statement contained in a document produced by a computer." The draftsman did not leave the meaning of the word "computer" to conjecture. In Section 258(1), the Act defines "computer". 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". What this means is the Exhibits P23-25, being computer-generated documents, could only be admissible in evidence upon compliance with the requirements of Section 84 (supra), and not Section 83 (supra). Therefore, the learned trial Judge was right when she relied on the legal maxim - enumeratio unius est exclusio alterius, which means, the specification of one thing is an exclusion of the other. Thus, I also take the view that when it comes to computer-generated documents, the provision of Section 83 has been excluded.
By Section 84(2) of the Evidence Act, 2011, there are four conditions which are required to be satisfied in relation to the document and computer in question -
1. That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
2. That during the period of regular use, information of the kind contained in the document or statement was supplied to the computer;
3. That the computer was operating properly during that period of regular use; and
4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
There is abundant evidence on record to show that PW9, in tendering Exhibits P23 to P25, satisfied these conditions. PW9 testified extensively before tendering the documents and laid the necessary foundation for their admission as e-documents under Section 84 of the Act. Thus, the requisite evidence in relation to the use of the computer was given and they sufficiently established the conditions set out in Section 84(2) of the Act.
Another condition for the admissibility of electronic evidence under Section 84(4) of the Act is the production of an authentication/trustworthiness certificate of the computer used in producing the documents. From case law, this subsection permits even non-experts to issue such a certificate, especially persons who, though not possessing the required professional qualifications may have acquired some practical knowledge and being in the position described in the subsection to bring him within the definition of an expert by the expanded definition of an expert in Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (Pt. 1377) 374. Whether an expert is competent in his field is a matter for the Court to decide, applying the credibility test after hearing his oral testimony.
Section 84, which is similar to Section 69 of UK PACE 1984, does not require the prosecution to show that the statement contained in the document is likely to be true.
Whether it is likely to be true or not is a question of weight for the Court to decide. Instead, all it requires as a condition for the admissibility of a computer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. See DPP V Mckeown (1997) 1 All ER 737.
If an authentication certificate is relied on, 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 position to give reliable evidence about the operation of the computer. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. See R V Shephard (1993) 2 WLR 102. There is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. However, such evidence may be authenticated by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence or by circumstantial evidence.
In the instant case, PW9 tendered Exhibit P22 authenticating the computer she used in accessing the information on Lloyds' Intelligence List Database and producing the print-outs of the Lloyds Intelligence List Report in the documents admitted in evidence as Exhibits P23-P25.
On the submission of learned Senior Counsel that Exhibit P22 did not satisfy the requirement on the certification of the computer/device in Section 84(2) of the Evidence Act, I beg to differ. From the comprehensive evidence given by PW9, which has already been well stated by the Respondent in his Brief, as well as in the Judgment of the trial Court, Exhibit 22 is a certificate authenticating the computer that was used to down-load and print out the information on the said database. For ease of reference, Exhibit 22 attested inter alia as follows -
"I Olanubi Tolulola of the Economic and Financial Crimes Commission, attached to the Special Team on Petroleum Subsidy (STPS)... to the best of my knowledge and belief state as follows:
1. That Lloyds List Intelligence Vessel Movement reports marked as 1-6 was assessed from Lloyds website www.lloydslistintelligence.com between the 5th and 11th of June, 2012 and downloaded into an HP Laptop computer. The computer is regularly used to store and process information related to investigation activities of the Commission.
2. Over the period when the document was produced, information of this kind was regularly supplied to the computer in the ordinary course of investigation activities and the said computer was operating properly over that period of time.
3. I attest to the information produced as being a true and accurate record of what was produced by the said computer."
I am of the opinion that this certification is in tandem with the production processes approved by the Supreme Court in Dickson V Sylva (2017) 8 NWLR (Pt. 1567) 167, wherein Galadima, JSC held inter alia thus -
"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."
In addition, under Section 41 of the Evidence Act, 2011, there is an exception to the hearsay rule that relates to electronic evidence when it is a statement made in the ordinary course of business. Also, under the business record exception to the hearsay rule, Section 51 of the Act provides that electronic records regularly kept in the course of business are admissible whenever they refer to a matter before the Court. For ease of reference, the provisions are set out hereunder -
"41. A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed-by him, or of the date of a letter or other document usually dated, written or signed by him."
"51, Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
It must however be noted that for a document to be admitted as a business record, there must be some evidence of a business duty to make and regularly maintain a record of that type. Such evidence was also adduced through the PW9.
It has also been canvassed by the Appellant that the PW9 was not the maker of the said document referred to as Lloyds' List which was tendered through her. Again, from the totality of the evidence of the PW9, it is evident that the Lloyds' List Intelligence report is a business record about the movement of ships worldwide kept by Lloyds and made available to business organizations or individuals who subscribe to it by the payment of prescribed fees. It is therefore admissible under Sections 41 and 51 of the Evidence Act, 2011. Consequently, such a record is an exception to the hearsay rule.
It is also the contention of the Appellant that the said Lloyds' List is inadmissible in evidence because the PW9 had no personal knowledge of the facts contained in the print-out as she was not the person who uploaded the information on the website on the movement of M/T Overseas Limar, not being an employee and/or officer of Lloyds organization. However, the Lloyds' Intelligence List, being a business record which is also computer-generated, it is not necessary that it should be tendered through the maker. See Abubakar V Chuks (2007) 18 NWLR (Pt. 1066) 386; Obembe V Ekene (2001) 10 NWLR (Pt.722) 677; & Torti V Ukpabi (1984) 1 SC 370.
Thus, I agree with the learned trial Judge that the Lloyds' Intelligence List report falls within the category of a business record made in the ordinary course of business of the Lloyds' organization, and that Exhibit 22 (the certificate of trustworthiness of the computer used by PW9 in producing the Lloyd's Intelligence report satisfied the requirements in Section 84(2) and (4) of the Evidence Act."Per SANKEY, J.C.A. (Pp. 20-29, Paras. A-B)
CRIMINAL LAW AND PROCEDURE - OFFENCE OF FORGERY: Whether a person must be shown to have personally forged a document before he can be convicted for the offence of forgery
"It has also been argued that no evidence was adduced to prove that the Appellant forged the documents and that the signatories of the documents were also not produced. The law is that where a document was used as an intermediate step in the scheme of fraud in which the accused is involved, if it shown that such a document, was false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit the forgery. It is therefore immaterial who actually forged a document so long as an accused person is a party to the forgery. In Agwuna V AG Federation (1995) 5 NWLR (Pt.396) 418, the Supreme Court per Iguh, JSC held as follows -
"It is certainly not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. The position of the law is that all persons who are, participles criminis whether as principals in the first degree or as accessories before of after the fact to a crime are guilty of the offence and may be charged and convicted with [the] actual commission of the crime."
(Emphasis supplied)
See also on this Osondu V FRN (2000) 12 NWLR (Pt. 682) 483; & Hassan V Queen (1959) SCNR 520 at 522."Per SANKEY, J.C.A. (Pp. 76-78, Paras. F-A)
Appeal and vice versa
"I consider it expedient to resolve the appeal on the issues formulated by the Appellant as the Respondents would appear not to have a thorough understanding of the position of the law regarding issues formulated for the determination of an appeal; when having first distilled, its issue 1 from grounds 1 and 2 in the notice of appeal, again proceeded to distill its issue 2 from ground 2 in the notice of appeal. The position of the law in my considered view is settled to the effect that, while it is in order that an issue for the determination of an appeal can be formulated from one or more grounds of appeal, it is not permissible to formulate more than an issue from a ground of appeal."Per LOKULO-SODIPE, J.C.A. (P. 11, Paras. A-E)
APPEAL - RECORD OF APPEAL: Duty of an appellant in the compilation of record of appeal from the lower court
"The Appellant in my considered view would appear to have lost sight of the settled position of law to the effect that whether or not the record of app eal was compiled by him, he owed himself the duty to ensure that all materials necessary for
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