IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE AHIAZU MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU
ON, 15th February 2017.
BEFORE HIS LORDSHIP: HON. JUSTICE I.M.NJAKA.
SUIT NO HAM/59c/2016
THE STATE —————————————COMPLAINANT
VS.
ONYEKACHI OPARA
OBIANUJU OPARA ACCUSED PERSONS
RULING
On the 8th February 2017, the prosecution intended to tender a photograph through the PW3, the Police Officer who testified that he took photograph of the victim at the hospital. It could be recalled that earlier in the course of the Examination in Chief on the 25th January 2017, the PW3 has stated that the Victim was taken photograph of which he attached to the case file. On the 8thFebruary 2017 continuing in his Examination in Chief he stated: I equally told the court that I took photograph of the victim- PW1. That is the photograph. Then the Prosecution counsel sought to tender same in evidence.
The Accused Counsel, Francis Obiefule Esq., opposed admitting of same in evidence on the ground that the photograph was not accompanied with the negative.
Reacting to the opposition, the counsel to the State, C. Anyaoha Esq., stated that the document sought to be tendered is relevant. Relevancy governs admissibility. The witness said this is the photograph he took of the victim when he visited him in the hospital. The maker is the witness. And it is relevant for the just determination of the case. In this era of digital camera, it is trite that negative do not accompany photographs. The court is enjoined to do substantial justice at every point in time. And the substantial justice of this matter is anchored on the admissibility of the photographs sought to be tendered. He urged the court to admit the photograph in evidence and discountenance the opposition of the Defence.
In reply, the accused counsel stated there is no evidence emanating from the witness that the photograph was a digital one. The counsel cannot give evidence from the bar. The rules that negative will accompany photograph will apply in this case. They have not tendered any negative and therefore the photograph should be rejected and marked so.
When a document is relevant, it must also meet the other requirements of the law. I am of the opinion that while it is right to posit that all admissible documents must be relevant, it is not right to say that all relevant documents must be admitted in evidence. The admission in evidence of any relevant document is dependent of the fulfillment of conditions precedent to its admissibility. That a public document is relevant does not ipso fact make the uncertified secondary evidence of the public document admissible. If photographic evidence is relevant, but other considerations militate against its admission in evidence the court must examine those considerations.
Where photographs have been taken in a camera which uses photo-films, that is analog, it is my view that non-production of negatives will make the photographs inadmissible, its relevancy will be of no moment. In the cameras of olden days, the negative is the primary evidence and photo can be treated only as secondary evidence. So in the absence of primary evidence which is the negatives, the photographs are not admissible in evidence. In CHIEF JOSEPH ADEDAPO ALIBALOYE v. MR ABAYOMI AKOGUN & ORS (2015) LPELR-25207(CA) the Court of Appeal upheld the decision of the trial court to expunge as an exhibit photographs admitted without proper foundation or the negative. The court stated:
From the available evidence, Exhibits 7, 8, 9 and 10 are photographs of a petrol filling station, a church, a fence and a demolished part of the fence respectively. As rightly observed by respondents’ counsel, the pictures were copies of a common original and is therefore secondary evidence. The negatives which are primary evidence were not tendered and the reason for the failure to tender the negatives was not given by the appellant. No proper foundation has been laid down for the said photographs to be admitted in evidence as Exhibits. The admission of the pictures ran foul of Section 86(4) of the Evidence Act 2011. The documents were legally inadmissible but wrongly admitted by the trial Judge”.
The world has changed from analog to digital. Now there are digital cameras which can photograph anything without there being photo-films. From a digital camera, photos can be directly printed. The question of producing the negatives does not arise when it is digital.
In the case on hand, the Accused counsel has said there was no evidence from the witness that the photographs is digital. Indeed the witness did not say so. It was the counsel who said so.
Nevertheless, I am inclined to agree with the prosecution counsel and take judicial notice that the world has gone digital. As technology evolves, so does the scope of judicial notice. The term “judicial notice” is defined as
“the cognizance of certain facts which a judge under rules of legal procedure or otherwise may properly take or act upon without proof because they are already known to him or because of that knowledge which a judge has, or is assumed to have by virtue of his office.” See BALLENTINE’S LAW DICTIONARY 685 (3d ed. 1969).
See section 122 and 124 of the Evidence Act 2011.
The photographs are product of a digital camera that does not have negative like the analog.
The Evidence Act, 2011, by Section 258(1) (D) defines document to include”any device by means of which information is recorded, stored or retrievable including computer output and 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. It does appear to me that thedefinitions are wide enough to cover digital camera and other electronic devices that store, process and retrieve information. Then section 84(5) (C) provides “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.
According to Wikipedia, digital photographs are typically created solely by computer-based photoelectric and mechanical techniques, without wet bath chemical processing. Refer to https//en.wikipedia.org. What then are the consequences of accepting that the photograph is digital? The implication is that the photographs sought to be tendered is a document produced by computer. Digital photograph, being computer generated, to be admitted in evidence must comply with Section 84 of the Evidence Act 2011.
Has the prosecution complied with the requirement for the tendering of computer generated evidence? It is not unimaginable that either through intentional and skillful manipulation or through wants of skill on the part of the person who took the photograph or inadequate instruments or materials a photograph may not only be inaccurate but dangerously misleading as to what it depicts. The court must therefore be careful to ensure that the legal requirement for certification and proper foundation is strictly complied with to ensure the source and authenticity.
Section 84 of the Evidence Act 2011 is the basis for the consideration of admitting of any computer generated document in evidence after same must have passed the relevancy test. In DR. IMORO KUBOR & ANOR V. HON. SERIAKE HENRY DICKSON & ORS (2012) LPELR-9817(SC)the court stated:
“Granted, for the purpose of argument, that Exhibits “D” and “L” being computer generated documents or e-documents down loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of section 84 of the Evidence Act, 2011.
In ANVAR P.V. VERSUS, P.K. BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on Sept., 18, 2014, the India Supreme Court reliance on a similar provision of their Evidence Act declared “That Computer Output is not admissible without Compliance of 65B, EA.
Now it does appear that a party as in this case has two options of how the foundation for admitting a computer generated document in evidence can be laid. This was much said in HON. HENRY SERIAKE DICKSON v. CHIEF TIMIPRE MARLIN SYLVA & ORS (2016) LPELR-41257(SC). The court sated:
“In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (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”
The Prosecution has not produced any certificate and equally has not orally through the PW3 lay the proper foundation .Rules of evidence are more strictly enforced in criminal trials. I have alluded to the vulnerability of computer generated evidence. See Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV)
I hold that the failure of the prosecution in this case to lay a proper foundation in compliance with Section 84 of the Evidence Act 2011, will result in exclusion or rejection of the photographs sought to be tendered in this case. The photographs are hereby rejected and so marked.
I so hold.
HON. JUSTICE I. M. NJAKA
15th February, 2017
Appearances:
- Anyaoha Esq., (ACSC) with R.O. Acholonu Esq., (SSC) for the State
Francis O. Obiefule Esq., for the Accused