By C.C.Udemba Esq
Owing to the present technical hurdles inherent in the data transfer between WhatsApp as an application and E-mail as a system, some messages on the WhatsApp printout will appear as “deleted” and this seems inevitable.
The question now is what are those “deleted messages”?
As a matter of fact, when a WhatsApp chat is exported to e-mail, the text part of the conversation may be exported along with the Media part of the conversation – picture, video, document (Doc, Docx, PDF etc) or separately. However, all of them cannot be printed out together in one conversation printout and an attempt to do so will result in the system “corrupting the file” and it will appear as an “error print”.
Thus, they are to be printed separately.
Where it is only the text part of the conversation that was printed out, the spot where the media part of the conversation would ordinarily be will appear as a “deleted message”. Therefore it is not reliable for a Judge to believe the argument of counsel that the presence of a “deleted message” on the printout of the conversation is a proof that the conversation was maliciously “tempered with/doctored” before printing it out.
The media part of the conversation at all times prints independently of the text part of the conversation.
In such a situation, what then is the remedy for both Counsel and the Court for justice to be seen as done?
- Counsel should tender the digital operating device as we earlier discussed in lines 3-6 of the second to the last paragraph of the article titled “When a WhatsApp Conversation Printout Can Be Tendered Like That of a Short Message Service (SMS)” published by https://thenigerialawyer.com on 18/05/2021.
- The Witness should give oral evidence as to the content of the media conversation that appeared as “deleted message”, in such a way that it will correspond with the subsequent text conversation particularly or in line with circumstances of the case.
Though it was held in Ogundepo v. Olumessan (2012) All FWLR (Pt.609)1136 S.C that oral evidence cannot contradict, alter, add or vary contents of a document, the relevant exceptions in this discourse includes
- where the oral evidence is to provide for an omitted/supplement term of an agreement that was contained in a document that is not inconsistent with the terms in the document, that ought not to be documented and the court believed that the document did not contain the whole agreement. See, Savannah Bank v. Salami (1996) 9-10 SCNJ 187, and Suntai v. Tukur (2003) FWLR (pt.157) 1128
- Where it sought to establish intention of the parties in a long-drawn transaction of which ought not to be interpreted in isolation. See BFIG v. BPE (2008) ALL FWLR (Pt.416)1915 C.A
- To show circumstances of the case and a party’s statement to the document as to his intentions in reference to the particular subject matter to which the document relates, that is, where the language of the document applies to more than one subject matter.
See s. 129(8) Evidence Act, 2011.
- Where the witness made mistakes in his explanation that innocently conflicts with some contents of the printout, the Court must evaluate both the documentary and the oral evidence.
See Da Kabirikim v. Amefor (2009) ALL FWLR (PT.494) 1425 SC
- Counsel may also tender the printout of the “media part of the conversation” as a computer generated evidence.
- Finally, counsel must properly plead the media conversation.
We therefore suggest that a sequential screenshot of the whole conversation in the particular WhatsApp chat will help to solve the above highlighted issues. It shall be tendered as a picture and oral evidence would explain the entire conversation. In our contemporary digital age, not only do pictures contain images, they now contain internet conversations via screenshot/screen grabbing.
To printout a WhatsApp conversation from your email, open that particular chat and tap the “3 dots” key at the top right, then tap on “Export Chat” and select your email app, type in your email address (even the senders email address) as receiver, tap send and it will be sent into your email inbox. Relog into your email, download the document or media and then print.
This is a personal research as at 26/06/2021 and it contains the personal observations of the researcher.
C.C.Udemba Esq. (Associate: UKPAI UKAIR0 & ASSOCIATES), email@example.com: 08187780666.
(Cambridge University Press, January, 2021) By Professor Damilola S. Olawuyi, SAN, FCIArb, Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti
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