CRITICAL APPRAISAL OF THE RELEVANCY AND ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE IN NIGERIA

CRITICAL APPRAISAL OF THE RELEVANCY AND ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE IN NIGERIA

ABSTRACT

In an attempt to address this fundamental issue regarding the admissibility of electronically generated evidence, recourse shall be paid had to the word evidence itself. Evidence is the means by which facts are proved excluding inferences and arguments. There are times in court when we desperately need to rely on evidence in order to prove a very vital point or issue in court. This point can be proved through the use of electronic generated documents which are believed to be in line with section 97 of the evidence act. Due to growth in technology, the use of electronic device such as computer printout, storage and communication system have risen sharply, especially in commercial and financial transactions in Nigeria and the world over which makes business communication greater in use. It would therefore be wrong for these electronic devices not to be accepted in court, if it has been valued and accepted all over the world. The thesis considers the problems posed to the admissibility of electronically generated evidence and the challenges bothering on authenticity, integrity, and confidentiality of the evidence and offers solutions to the problems or challenges that electronically generated evidence is facing. The essence of the foregoing is basically to give a detailed and sufficient analysis of the subject matter. As we know tendering and taking of evidence is inevitable in court proceedings and this thesis is set to focus on the electronically generated evidence; its importance and effect in our judicial system.

TABLE OF CONTENTS

ABSTRACT TABLE OF CASES

TABLE OF STATUTES

LIST OF ABBREVIATIONS

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

1.1.0: BACKGROUND TO THE STUDY

1.2.0: OBJECTIVES OF THE STUDY

1.3.0: FOCUS OF THE STUDY

1.4.0: SCOPE OF THE STUDY

1.5.0: METHODOLOGY

1.6.0: LITERATURE REVIEW

1.7.0: CONCLUSION

CHAPTER 2

DEFINITION OF EVIDENCE

2.0.0: INTRODUCTION

2.1.0: AN APPRAISAL OF WHAT IS EVIDENCE

2.2.0: CLASSIFICATION OF JUDICIAL EVIDENCE

2.3.0: RELEVANCY AND ADMISSIBILITY

2.3.1: WHAT IS A FACT

2.3.2: WHAT IS FACT IN ISSUE

2.3.3: RELEVANT FACT

2.4.0: DESCRIPTION OF AFFIDAVITS; AFFIDAVITS AND EXHIBITS

2.5.0: CONCLUSION

CHAPTER 3

ELECTRONICALLY GENERATED EVIDENCE; AN EXAMINATION.

3.0.0: INTRODUCTION

3.1.0: EVIDENTIAL STATUS OF ELECTRONICALLY GENERATED EVIDENCE

3.2.0: ELECTRONICALLY GENERATED EVIDENCE AND ITS ADMISSIBILITY

3.3.0: ELECTRONICALLY GENERATED EVIDENCE ADMISSIBLE WHETHER AS PRIMARY OR SECONDARY EVIDENCE
3.4.0: COMPUTER GENERATED EVIDENCE

3.4.1: ADMISSIBILITY OF COMPUTER PRINTOUT AS EVIDENCE

3.4.2: EVIDENCE OF THINGS SEEN THROUGH TELESCOPE AND BINOCULARS

3.4.3: TAPES, MOVIES, TELEPHONE CONVERSATION, TELEFAX AND OTHER SOUND RECORDINGS AS EVIDENCE

3.4.4: HOW TO EXHIBIT ELECTRONICALLY GENERATED EVIDENCE AND WEIGHT ATTACHED TO IT

3.5.0: CONCLUSION

CHAPTER 4

CHALLENGES POSED TO THE ADMISSIBILITY OF ELECTRONICALLY

GENERATED EVIDENCE

4.0.0: INTRODUCTION

4.1.0: PROBLEMS AFFECTING THE ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE

4.1.1: WAY OUT OF THE CHALLENGES

4.2.0: CONCLUSION

CHAPTER 5

GENERAL CONCLUSION.

5.0.0: CONCLUSION

5.1.0: RECOMMENDATIONS

BIBLIOGRAPHY

ARTICLES IN JOURNAL

ARTICLES ON THE INTERNET

BOOKS.

 

                                                          CHAPTER ONE

INTRODUCTION

1.0.0: INTRODUCTION

It is the earnest desire of parties to a suit that their evidence should be admissible, but not all evidence brought to court would be relevant and admissible. However, the discretion lies in the judge, based on the principles of law, which of the evidence adduced in court is relevant and admissible. The adversary trial system remains the cornerstone of our civil and criminal processes. Unlike the inquisitorial system which allows Judges to play active role and descend into the arena of conflict, the adversary trial process, limits our Judges to the role of unbiased umpires. A Judge must hold the scale of justice fairly and must not make a case for either party. The implication of this is that the task of presenting evidence before the court rests mainly with the parties. The Judge is like the referee of a boxing or football match, he is expected to ensure that the parties comply with the rules of the game. At the end of the case, he decides who the winner of the contest is. Perhaps, the most revolutionary implication of contemporary, technology development is the evolution of a paperless environment, characterized by three principal trends, namely; dematerialization of the work

place; Omnipresence, and malleability of electronic devices.2

The term „dematerialization‟ „omnipresence‟ „malleability‟ as respectively used above, means the process of the migration of information from the material world to the electronic world popularly called Cyberspace, a process, where physical or geographical distances have been removed as if were through the use communication gadgets, the adaptation of computer to the mutation of IT process from one form to another.

 

1

Professor Taiwo Osipitan (SAN),Head of Public Law, Faculty of Law, University of Lagos, ‘Reflections on the new Evidence Act 2011’, a paper presented at the Nigerian Bar Association (Ibadan branch) Annual Law Week on

26/10/2011, Page 1

Nweze C C Contentious Issues And Responses in Contemporary Evidence Law in Nigeria Vol. 2 Enugu , Institute For Development Studies, 2006 p209, see also Widdison R ‘electronic law practice. An exercise in legal futurology’ the Modern Law Review, vol. 60 No. 2 143 at 144.

ibid

ibid

With the technology advancement in the world that are being operated by individuals and corporate bodies in domestic works and financial transactions, these devices, the product of technology can be used for legal and illegal acts.5

However, the judiciary came to the rescue in this area of the law prior to the enactment of the Evidence act of 2011. It was done by interpreting and applying existing statutory and common law principles in ways and manners that incorporated the existing social realities and do justice not only directly to the litigating parties who have gone to court but also indirectly to the entire society. In playing that wonderful role, the judiciary clearly demonstrated that indeed whatever the arguments may be in theoretical jurisprudence on whether or not the courts should make law in developing legal cultures, they should and actually do make law. As one of Nigeria‟s most liberal and intelligent judges would say,

“It is said that the function of the court is to interpret laws made by the legislature and not to make laws. In theory that is so. But it must equally be admitted that judges are not robots (or Zombies) who have no mind of their own except to follow precedents … As the society is eternally dynamic and with fast changing nature of things. In the ever changing world and their attendants, complexities, the court should, empirically speaking, situate its decision on realistic premise regard being had to the society‟s construct and understanding of issues that affect the development of jurisprudence.”

 

The issue of admissibility of evidence is crucial to any trial, whether criminal or civil, as it has the capacity to determine the outcome of a case one way or the other. Only relevant evidence is said to be admissible in any case.

In Nigeria, the 2011 Evidence Act, Cap E. 14 is the legislation that contains the rules that deal with the admissibility of evidence in Nigerian Courts.

The admissibility of computer generated evidence before the enactment of the 2011 Evidence Act generated a lot of controversies, while some authorities endorsed the admissibility of Computer generated evidence, others insisted on the amendment of the Evidence Act as a condition for such admissibility.

Adegboro, A M the Relevance of Electronic Evidence in the Nigeria Legal System. Long Essay.

Igbinedon University, Okada, Edo State 2008, p45

Honorable Justice Pats- Acholonu of the Supreme court in Patrick Magit V University of Agriculture, Markurdi and 3Ors (2006) ALL FWLR (pt. 298) 1313, 1345 D-F.

At the time the old Evidence Act was enacted, the use of computer and other related gadgets were foreign to Nigeria. However, the use computer is the order of the day in the modern day business activities in Nigeria, Africa and the world at large, thus, turning the world to a global village. With this advancement in the activities of human beings, there was a need to advance the Nigerian legal jurisprudence so as to keep up with these developments. And by virtue of Section 84 of the 2011 Evidence Act, the Act provides for the admissibility of documents produced by a computer. Now, the question is, when is such evidence admissible, is it when it has proceeded from the computer or when it is still in the computer? This question will be dealt with in subsequent chapters.

Also, such things like (audio, tape recording, a video tape recording, electronic mail on computer screen) when presented as evidence and such things as electronically transmitted mandates in commercial transactions are regarded as document.

1.1.0: BACKGROUND TO THE STUDY

The latter part of the twentieth century was marked by the electronic transistor and machines and ideas made possible by it. As a result; the world changed from analogue to digital. Although the computer reigns supreme in the digital / electronic domain, it is not the only electronic device. An entire constellation of audio, video, communication and photographic devices are becoming so closely associated with the computer as to have converged with it.

Apart from records produced by stenography and photocopies, the previous Evidence enactment did not recognize any form of record produced by more advanced technology that has emerged since the enactment of that law in Nigeria.

Finally, as courts like society become more familiar with digital/electronic documents, they bucked away from the higher standard. Courts have since held in US V SCHOLLE that

“Computer data compilations … should be treated as any other records. However if data are stored in a computer … any printout or other output readable by sight, shown to

reflect the data accurately is an original.” In the Evidence Act 2011 definition of “document” have envisage writing by software and all such materials – tangible and intangible – are documents in the contemporary understanding and implication of the word.

1.2.0: AIMS AND OBJECTIVES

The purpose of this work is to principally examine in full spotlight electronically generated evidence, what the effects are, what the Nigeria situation is as against what is the academic view. It will also examine the introduction of technology in our court system and its legal effect with emphasis on the admissibility of such evidence.

Many countries recognize the usefulness and ubiquity of computer technology by amending their laws to accommodate evidence obtained from such technological advancement.

It is aimed that adequate recommendations can be made on the importance, admissibility and potency of electronically generated evidence so as to help in quick dispensation of justice so that little time would be wasted debating on irrelevancies.

1.3.0: FOCUS OF THE STUDY

This work is aimed at focusing on researching into the effect of technological innovations as it affect court system and the basic understanding of the application of electronically generated evidence in both criminal and civil prosecution.

1.4.0: SCOPE OF STUDY

The scope of the study is seen in the way it clarifies the confusion that has surrounded the admissibility of electronically generated evidence. This thesis will evaluate the practical application of electronically generated evidence and how it has been able to fare in the present day court system. Hence, this thesis is able to lay bare given some rules the situation that must exist for electronically generated evidence to become admissible or otherwise.

1.5.0: METHODOLOGY

The method to be employed here in carrying out the research for the purpose of this paper would be mainly Library Based. Information would be sourced from textbooks, internet, journals written by jurist and public lectures delivered by various professors if any related to my thesis, studying them and drawing a conclusion and preferring recommendations.

Also, in illustrating the admissibility of electronically generated evidence, great reliance would be placed on case law and the Evidence Act will serve as the primary source of all the provisions to be analyzed.

1.6.0: LITERATURE REVIEW

The importance of the work has been intensified and brought to bear mainly in pages featuring the practical

application of the rules relating to electronically generated evidence in particular and its relevancy and admissibility of evidence in general.

Although, there is no single textbook on the topic of this thesis, there are related articles written by lawyers

and academics whose style and manner of approach will be explained below.

Also, Yemi Osinbanjo8

believes amongst other things that computer printouts are not original. He also

dispute with some English decisions even based on statutory provisions that computer generated evidence

is “real evidence”. The learned author also argues9

that those computer printouts do not qualify as

documentary evidence under section 91 (formerly section 90) of the Evidence Act. He concludes that

unless the Evidence Act is amended, it will be difficult for courts in Nigeria to admit computer and

electronically generated evidence in Nigeria. In my own opinion the learned author was right and I strongly

believe that this is what lead to Section 83 in the 2011 Evidence Act.

Amupitan J10 in his article “Admissibility of Electronically Generated Evidence” stated that the Nigeria

courts and the world over should at least give liberal interpretation to the admissibility of electronic

evidence if the law is to be relevant and useful at this computer age of information technology in order to

enhance and strengthen judicial activism.

Also, Fidelis Nwadialo11 seeks to explain why he had decided not to treat computer generated evidence. He

says he deliberately did this because there is no Nigeria law yet on the subject to have it included in a book

on Nigeria law of Evidence, firmly submitting that any pronouncement on it will either amount to a

suggestion or an opinion more suited for more journals as opposed to formal textbooks on law of Evidence.

yet, while commenting on the “Sources of Nigeria Law of Evidence,” the learned author12 is of the view,

having regard to the then section 5(a) of the Evidence Act and decision of the West African Court of

 

8

Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1

no 1. p. 260.

9

Ibid at pages 253 – 255.

10 J. Amupitan lecture notes on Law of Evidence. A University of Jos Lecturer.

11 Nwadialo F, Modern Nigeria Law of Evidence, 2n d Edition 1999.

12 Ibid at page 17

6 | P a g e

6

Appeal, WACA13 and the Federal Supreme Court14 that “any Evidence which would have been admissible

under the common law had the Act not been passed, will still be admissible.

Although these writers have voiced the opinion on electronically generated evidence, they have not gone in

depth on the topic.

1.7.0: CONCLUSION

Evidence can be the most important part of a trial. It can either convict or set them free. Our judicial system covers the entire society and the consequence of incorrect evidence can cause insurmountable damage to a person or a group of people. There must be a formalized and reliable way of getting to the truth as both sides have the right to tell the story. The fact that justice delayed is justice denied means that evidence produced quickly can assist in the dispensation of justice.

Rules of Evidence therefore exist to safeguard injustice as much as possible. Electronically generated Evidence has an impact in our court system in that its admissibility or inadmissibility can save or destroy a suspect in the process of dispensing judgments.

It is hoped that the thesis will be of use not only to researchers and other persons with a general interest in the Nigeria law on the subject but also those foreigners who are currently litigating or who may soon litigate any claim in Nigeria.

13 Onyeanwusi V Okpukpara (1953) 14 WACA 311.

14 R. V Itule (1961) 1 ALL NLR 462.

 

   CRITICAL APPRAISAL OF THE RELEVANCY AND ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE IN NIGERIA

 

 

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