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

 

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

• 0: CONCLUSION

 

CHAPTER 2

DEFINITION OF EVIDENCE

• 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

• 0: CONCLUSION

CHAPTER 3

ELECTRONICALLY GENERATED EVIDENCE; AN EXAMINATION.

• 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 ELETRONICALLY GENERATED EVIDENCE AND

WEIGHT ATTACHED TO IT

• 0: CONCLUSION

CHAPTER 4

CHALLENGES POSED TO THE ADMISSIBILITY OF ELETRONICALLY

GENERATED EVIDENCE

• 0: INTRODUCTION

4.1.0: PROBLEMS AFFECTING THE ADMISSIBILITY OF

ELECTRONICALLY GENERATED EVIDENCE

4.1.1: WAY OUT OF THE CHALLENGES

• 0: CONCLUSION

CHAPTER 5

GENERAL CONCLUSION.

• 0: CONCLUSION

5.1.0: RECOMMENDATIONS

BIBLIOGRAPHY

ARTICLES IN JOURNAL

ARTICLES ON THE INTERNET

BOOKS

      

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES

INDIA

Chand v Mahabir Prasad air 1956 punj. 173 

MAlkani v State of Maharashtra Air 1973 sc 157, 162

 Pratap Singh v State of Punjab AIR 1963 Pun. 298, 317 

Pratap Suigh v State of Punjab AIR 1964 sc. 72, 86 

Rex v Maqsud Ali & Ashiq Hussain Air (1964) sc. 72.

NIGERIA

ACB v Gwagwada (1994) 4 SCNJ (pt.II) 268 p.277.

Adeniyi v State (2001) FWLR pt 57, p. 809

Agunbiade v Sasegbon (1968) NMLR 223, 226.

Akingbade v Elemosho. Unreported suit no. Fsc 353/62.

Anyaebusi v R.T Briscoe Nigeria Ltd (1989 ) p.65 pt. 40  Chief Ogolo v IMB (Nig.) LFD (1998) 5 NWLR (pt. 419) 314 C.A

Chieka v Olusoga (1997) & NWLR 497 p.390.

ESSO W.A Incorporated v Oladiji (1968) NMLR 453

Garba v University of Maiduguri (1986) 1 NWER (pt. 18) 550

Habib Bank Ltd v Opomulero (2000) 15 NWLR (pt. 690), 315

Jimoh Ishola v State (1978) 9 & 10 SC 81, 104

John Bamigboye v A.G (W.N) 1966 NMLR, 266

Minister of Lands, Western Nigeria v Dr Nnamdi Azikwe & Ors (1969) 1 All NLR 4.  Nuba Commerical Farmers LFD & anor v Nal Merchant Bank LTD & anor (2003) FWLR (pt. 145) 661.

Prince Edward Eweka & ors. V Asonmwonriri Rawson (AKA Eweka) (2000) 10 WLR

(pt 702) 723 C.A

Salam, LAveal v The commissioner of Police (2001) NWLR 72.

UNITED KINGDOM

Bradford Corporation v Pickles (1895) A.C. 587

Carter v Roberts (1903) Ch.D 317

Foulkes v Chadd (1782) 3 Dong K.B 17.

Grant & Ors v Southwestern and Country properties (1974)2 ALL. ER 455.

Hollington v Hewthorn (1943) 1 K.B. 587 

Khan v UK (2000) crim. LR 684

R v Khan (1997) AC. 558

R v silverluck (1894) 2 Q.B 766  R v smurthwaith (1994) 1 ALL E.R 898

R v Spill by (1991) crim. LR. 1999.

Allen v Flood (1898) AC 1.

 

UNITED STATE  

Addison v United States (A.S Tex) 317 f & d 808

D’ Aquoin v United States 323 U.S. 427

Lopez v United States 323 U.S. 427

Massachusetts Bonding &  Insurance Co. v Norwich Pharmacal Co. 182 d (2 d Cir)

People v Ketchel 59, Cal. 2d 503.

United States v. Littwui (CA 6 Tex) 388 2d 141.

TABLE OF STATUTES

INDIA

Indian Evidence Act, 1872.

NIGERIA

Arbitration (ordinance) Act 1914, Cap .13, LFN 2004.

Arbitration and Conciliation Act Cap.A18 LFN 2004.

Constitution of the Federal Republic of Nigeria 1999, Cap. 4 LFN 2004.

Corrupt Practices and Other Related Offences Act 2000, Cap. 31 LFN 2004.

Economic and Financial Crime Commission Act 2002, Cap. E1 LFN 2004.

Evidence Act 1945, Cap. 112, LFN 2004.

Money Laundering (Prohibition) Act, 2000.

Nigeria Corrupt Practices and Other Related Offences Act, 2000

Nigeria Arbitration and Conciliation Act, Cap. A18 2004.

Practices of Arbitration in Nigeria 2006.

Supreme Court Ordinance No. 11 of 1863.

UNITED KINGDOM

English Civil Evidence Act, 1968.

Article 8, European Convention on Human Rights

 

MODEL LAW

UNCITRAL Model Law on International Commercial Arbitration, 1985. 

LIST OF ABBREVIATIONS

AC		Appeal Cases
CA		Court of Appeal
Ch		Chancery Division
Ch.D		Law Reports Chancery Division (Eng)
Cal.2d		California Reports, second series Edition
Ed		Edition
EFCC		Economic and Financial Crimes Commission
E.R		England Report
FSCC		Federal Supreme Court Cases (Nigeria)
FWLR		Federation Weekly Law Report
ICSID		International Convention on the Settlement of Investment
		Disputes
IT		Information Technology
IULJ		Igbinedion University Law Journal
IMF		International Monetary Fund
JAL		Journal of African Law
JSE		Justice of the Supreme Court
K.B		King’s Bench
LFN		Laws of the Federation of Nigeria
	Ltd	Limited
	LWN	Laws of Western Nigeria
	Nig.	Nigeria
	NLPJ	Nigerian Law and Practice Journal
	NLR	Nigeria Law Report
	NMLR	Nigeria Monthly Law Report
	NWLR	Nigeria weekly Law Report
	PIN	Personal Identification Number
	PUN	Punjab
	Q.B	Queen Bench
	RAM	Random Access Memory
	ROM	Read Only Memory
	S.C	Supreme Court
	UJLJ	University of Jos Law Journal
	UK	United Kingdom
	UN	United Nation

UNCITRAL United Nations Commission on International Trade Law

UNIJOS          University of Jos

UNILORIN    University of Ilorin

UNIZIK          Nnamdi Azikwe University

WNLR             Western Nigeria Law Report

 

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0:   INTRODUCTION

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.^[1] 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,^[2] 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.^[3]

With the technology advancement in the world that are being operated by individuals and corporate bodies in domestic works and financial transactions, one cannot help but wonder why the Act does not provide for such. These devices, the product of technology can be used for legal and illegal acts.^[4]

However, the judiciary has come to the rescue at least in some area of the law. It has done this by interpreting and applying existing statutory and common law principles in ways and manners that incorporate 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 demonstrates 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.”^[5]

While the Evidence Act made by the British colonial government in 1945 continues in operation as about the only source of the law of Evidence in the country.^[6] Developments in such area as information, technology have gone way beyond what that statute could have envisaged at its enactment. For instance, when information recorded or stored in the memory of a computer is printed out in paper if it is not easy to say that the version in the memory is a document. Nor is it easy to assert that the print out is an original or a copy.

In the face of such a worrisome situation the Nigeria courts have been very alert in interpreting, the Act complimentary case law or common law principles in away that, it principally solves the problem of admissibility of pieces of evidence generated information technology. In effect, they have fashioned out rules and principles by which all electronically generated evidence can be admitted and acted upon by Nigeria courts. As we shall see hereafter however, some challenges attend the admission and use of those electronically generated materials, which challenges the courts have not even discussed talk the less of finding solution for.

Also, even if such things (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 can be 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.

Also, a motion was moved by a former Senator to permit admissibility of electronic and computer generated evidence^[7] and it was read for the first time at the senate last year. It was opined that since the Evidence Act was enacted 64 years ago, apart from some minor amendments effected between 1948 and 1958 and another minor amendment in 1999, the Act has remained unchanged. The problem of the Act is that it does not recognize any record except one written on a piece of paper.^[8] Apart from records produced by stenography and photo copies, it does not recognize any form of record produced by more advanced technology that has emerged since the enactment of that law in Nigeria.^[9]  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.”

 

 

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 technologically 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.

.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 have surrounded the admissibility of electronically generated evidence. This thesis will evaluate the practically 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 by means of secondary sources which is mainly documentary. Information would be sourced from textbooks, internet, journals written by jurist and public lectures delivered by various professors if there is 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 constitution 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 bare 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.

Afe Babalola ^[10] in his book :Law and Practice of Evidence in Nigeria” stated that a bill on information technology as well as the Evidence Bill 1998 which are still both before the National Assembly have hardly been attended to. On the other hand, some countries such as UK and USA have enacted statutes reforming their Laws, particularly the law of Evidence to take benefit of the advances in information, technology. It must be noted however that reform of the law of Evidence has been slow.

Also, Yemi Osinbanjo ¹¹believes 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 ^[11]also argues 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.

Amupitan J ^[12] 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 Nwadialo^[13] 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 author^[14] is of the view, having regard to section 5(a) of the Evidence Act and decision of the West African Court of Appeal, WACA^[15] and the Federal Supreme Court ^[16] 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.

 

 

 

[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.

[2] ibid

[3] ibid

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

Igbinedon University, Okada, Edo State 2008, p45

[5] 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. His Lordship recently passed on.

[6] It is now in Cap E14, LFN 2004. An Evidence Bill prepared, even belatedly in 1998 has failed to be enacted into law by the successive government that have ruled the country ever since.

[7] The Motion was moved by Senator Sola Akinyede, titled “A bill for an act to amend the Evidence Act”.

[8] Section 2 Evidence Act.

[9] In the Evidence Act’s definition of “document” they are definitely not documents. The Act did not envisage writing by software or any such thing. It is however the thesis of this work that all such materials – tangible and intangible – are documents in the contemporary understanding and implication of the word.

[10] Chief Afe Babalola, a Senior Advocate of Nigeria and is book “Law and Practice Evidence in Nigeria 2001”   11  Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1 no 1. p. 260.

[11] 12  Ibid at pages 253 – 255.

[12] J. Amupitan lecture notes on Law of Evidence. A University of Jos Lecturer.

[13] nd

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

[14] Ibid at page 17

[15] Onyeanwusi V Okpukpara (1953) 14 WACA 311.

[16] R. V Itule (1961) 1 ALL NLR 462.

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