GATHERING AND ADMISSIBILITY OF
ELECTRONICALLY GENERATED
EVIDENCE
PROF. YEMI OSINBAJO SAN
INTRODUCTION
• NIGERIAN LAW OF EVIDENCE WAS
REMARKABLY SLOW IN RECOGNISING THE
CHALLENGES OF PROOF OF
ELECTRONICALLY –GENERATED EVIDENCE.
THE EVIDENCE ACT 1945 WAS ONLY
AMENDED TO RECOGNISE E-EVIDENCE IN
2011. HOWEVER THE APPELATE COURTS
HAD ALWAYS TAKN A PROACTIVE VIEW
DESPITE THE CONSTRAINTS OF THE LAW.
Nigerian Cases on Electronic Evidence
• IN PERHAPS THE EARLIEST CASE ON THE ADMISSIBILITY OF ELECTRONIC
EVIDENCE IN NIGERIA ESSO WEST AFRICA INC. V. T. OYEGBOLA (1969) 1
NMLR 194 THE SUPREME COURT SAID "THE LAW CANNOT BE AND IS NOT
IGNORANT OF MODERN BUSINESS METHODS AND MUST NOT SHUT ITS EYES
TO THE MYSTERIES OF THE COMPUTER".
• MORE RECENTLY IN FEDERAL REPUBLIC OF NIGERIA V FEMI FANI-KAYODE
C/A 2009., AT THE TRIAL OF THE RESPONDENT FOR MONEY-LAUNDERING, A
CERTIFIED COPY OF THE COMPUTER GENERATED STATEMENT OF ACCOUNT
OF THE RESPONDENT WAS TO BE TENDERED AS EVIDENCE. THE
RESPONDENT OPPOSED THE APPLICATION ON THE GROUND THAT THE
COMPUTER GENERATED STATEMENT OF ACCOUNT IS INADMISSIBLE UNDER
SECTION 97 OF THE EVIDENCE ACT. THE LEARNED TRIAL JUDGE UPHELD THE
OBJECTION AND REJECTED THE STATEMENT OF ACCOUNT THE COURT
APPEAL HELD THAT THE TERM “BANKER’S BOOKS” TO INCLUDE ALL OTHER
BOOKS USED IN THE ORDINARY COURSE OF BUSINESS IN THE BANK COULD
AS WELL INCLUDE OTHER METHODS AND DEVICES USED TO KEEP RECORDS
IN THE BANK.
THE PAPER-BASED LEGACY
• DOCUMENT AS WRITING ON A
SUBSTANCE IN LETTERS , FIGURES
OR MARKS
• SIGNATURES AS HANDWRITING OR
FINGER IMPRESSIONS
• PRINCIPLES OF EVIDENCE BASED ON
ANALOG CONSIDERATIONS.
DIGITAL OR E-EVIDENCE IS…..
•INFORMATON STORED OR
TRANSMITTED IN ELECTRONIC OR
DIGITAL FORM WHICH IS THEN SOUGHT
TO BE USED IN EVIDENCE
•
COMPUTER-GENERATED EVIDENCE
COULD INCLUDE……
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EMAILS
INSTANT MESSAGING AND HISTORIES
PHONE RECORDS AND LOGS
ATM TRANSACTION LOGS
PRINT- OUTS
SPREADSHEETS
INFORMATION ON SOCIAL MEDIA; FACEBOOK , TWITTER
VIDEOS – YOU TUBE
DIGITAL PHOTOGRAPHS
DVDS CDS
FILES SAVED FROM ACCOUNTING PROGRAMS
CHECK-LIST FOR
GATHERING,ADMISSIBILITY AND WEIGHT
• RELEVANCE +( LARGELY DETERMINED
BY THE EVIDENCE ACT 2011)- SECTION
1 EA 2011
• WAS IT PROPERLY OBTAINED?
• HEARSAY OR DIRECT EVIDENCE
• ORIGINAL OR COPY
• RELIABILITY CERTIFICATE
• WEIGHT – SECTION 34 EA
IS IT A DOCUMENT?
• FOR COUNSEL THE CRUCIAL
QUESTION IN KNOWING WHAT RULES
TO APPLY IS WHAT TYPE OF
EVIDENCE IS THE PARTICULAR EEVIDENCE? E.G
• IS AN EMAIL BEFORE BEING PRINTED
OUT A DOCUMENT?
• IS A DVD OR CD A DOCUMENT?
• IS A POSTING ON FACEBOOK
DOCUMENTARY?
WHAT IS A DOCUMENT
• SECTION 258 EA: “includes:
• ….any disc, tape, sound track,or other device in
which sounds and other data( not visual images)
are embodied so as to be capable of being
reproduced.
• Any film, negative, tape or other device in which
one or more visual images are embodied
ANY DEVICE BY WHICH INFORMATION IS
RECORDED, STORED OR RETRIEVABLE
INCLUDING COMPUTER OUTPUT.- PHONES,
IPADS
WHAT IS A COMPUTER
•S. 258 of the Evidence Act 2011 :
“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.”
*** PHONES, IPADS, ANDROIDS, MANY
ELECTRONIC HAND HELD DEVICES
QUALIFY
Computer - Generated Documents
• RELEVANT STATEMENTS IN DOCUMENTS
PRODUCED BY COMPUTERS ARE
ADMISSIBLE SUBJECT TO CONDITIONS
PRECEDENT BEING MET, ( S. 84 of the
Evidence Act of 2011). THIS PROVISION
APPLIES TO EMAILS, TEXT MESSAGES,
POSTINGS ON FACEBOOK, TWITTER ETC
• IN THE MORE RECENT CASE OF F.R.N V. FANI-KAYODE, THE
COURT OF APPEAL, FOLLOWING THE EARLIER SUPREME
COURT DECISIONS IN YESUFU V. ACB AND ANYAEBOSI V. R. T.
BRISCOE HELD THAT THE COMPUTER PRINTOUT OF A BANK
STATEMENT WAS ADMISSIBLE UNDER SECTION 97 (1) AND (2)
OF THE OLD EVIDENCE ACT. (2010) 14 NWLR PART 1214 P.481,
SEE PARTICULARLY THE OPINION OF SALAUWA JCA AT PAGE
506-507.
CONDITIONS PRECEDENT:
• A CERTICATE PRODUCED BY PARTY SEEKING TO
TENDER COMPUTER GENERATED DOCUMENT
• IDENTIFYING THE DOCUMENT AND DESCRIBING HOW IT
WAS PRODUCED
• GIVING PARTICULARS OF THE COMPUTER USED
REGULAR USE OF COMPUTER DURING RELEVANT
PERIOD TO PROCESS & STORE INFORMATION.
• SIMILAR INFORMATION WAS STORED AND PRODUCED
• OPERATING PROPERLY
• ORDINARY COURSE OF ACTIVITIES- (INFORMATION
WHICH WAS SUPPLIED TO THE COMPUTER)
• SIGNED BY PERSON OCCUPYING RESPONSIBLE
POSITION IN RELATION TO THE COMPUTER OR
RELEVANT ACTIVITIES
•THIS TREND OF NIGERIAN CASE LAW IS
PREDICTABLE FROM THE RECENT SUPREME
COURT DECISION IN DR. IMORO KUBOR &
ANOR V. HON. SERIAKE HENRY DICKSON &
ORS. (2012) LPELR-SC.369/2012.
• THE DOCUMENTS IN THIS CASE WERE TWO
PRINTOUTS FROM THE WEBSITE OF AN
ONLINE NEWSPAPER. THE SUPREME COURT
PER ONNOGHEN J.S.C HELD THAT THE
DOCUMENTS
WERE
INADMISSIBLE
FOR
FAILURE TO SATISFY THE FOUR CONDITIONS
STATED UNDER SECTION 84(2) OF THE
EVIDENCE ACT, 2011.
• RECENTLY HOWEVER, THE FEDERAL HIGH COURT IN A RULING
DELIVERED BY HON. JUSTICE GABRIEL KOLAWOLE IN F.G.N V.
SENATOR MOHAMMED NDUME ADMITTED A DVD TENDERED AS
EVIDENCE NOTWITHSTANDING THE PROPONENT’S FAILURE TO
SATISFY THE CONDITIONS UNDER SECTION 84(2) (A-D) OF THE
EVIDENCE ACT, 2011. IT WILL BE INTERESTING TO SEE IF THE
FEDERAL HIGH COURT’S DECISION CAN WITHSTAND APPELLATE
SCRUTINY CONSIDERING THE EARLIER DECISION OF THE
SUPREME COURT IN KUBOR V. SERIAKE (SUPRA).
ORIGINAL OR COPY?
•SECTION 88 DOCUMENTS SHALL BE
PROVED BY PRIMARY EVIDENCE BUT
THERE ARE EXCEPTIONS IN THE ACT.
COPIES OF THESE NEW TYPES OF
DOCUMENTS
• A TRANSCRIPT OF THE SOUNDS OR OTHER DATA
EMBODIED IN AN AUDIO CD IS A COPY(Section .
258)
• A REPRODUCTION OF IMAGES IN A FILM ,
NEGATIVE , TAPE OR OTHER DEVICE FOR (S. 258)
STORING VISUAL IMAGES IS A COPY
• ***NOTE THAT IF DOCUMENTS MADE BY ONE
UNIFORM PROCESS ALL ARE ORIGINALS ( S.86 EA)
Electronic Signatures
• Electronic signatures are admissible.
• They can be proved in any manner or
• where it is shown that a procedure was
followed by the person executing a symbol or
followed some other security procedure for the
purpose of verifying that an electronic signature
was made to an electronic record.
s. 93 (1-3) of the Evidence Act 2011
capacity
THE HEARSAY OBSTACLE
• A WRITTEN OR ORAL STATEMENT MADE BY
A PERSON NOT CALLED AS A WITNESS IS
HEARSAY AND INADMISSIBLE
• ALSO A STATEMENT CONTAINED IN A
BOOK, DOCUMENT OR RECORD OF ANY
KIND WHICH IS TO BE TENDERED TO
PROVE THE TRUTH OF THE CONTENTS BUT
WHICH IS NOT DECLARED ADMISSIBLE
UNDER THE EVIDENCE ACT IS HEARSAY
AND INADMISSIBLE (SECTION 37 & 38 EA)
Electronic business records (exception to
the hearsay Rule)
• S. 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.
• S. 52:
“ An entry in any public or other official books, register or
record, including electronic record stating a fact ill issue or
relevant fact and made by a public servant in the discharge of
his official duty, or by any other person in the performance of a
duty specially enjoined by the law of the country in which such
book, register or record is kept, is itself admissible.
I REPORTER’S EVIDENCE
• IT APPEARS THAT A VIDEO
RECORDING ON A PHONE CAMERA BY
A BYSTANDER WOULD NOT HAVE THE
BENEFIT OF THE BUSINESS RECORDS
EXCEPTION. THE BYSTANDER MUST
BE CALLED AS A WITNESS TO TENDER
THE DOCUMENT.
BUSINESS RECORDS EXCEPTONS TO
HEARSAY RULE.
• S. 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 the date of a letter or other document usually dated written or signed by him:
–
Provided that the maker made the statement contemporaneously with the transaction recorded or
soon thereafter that the court considers it likely that the transaction was at that time still fresh in his
memory
• S. 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.
• S. 52:
“ An entry in any public or other official books, register or record, including electronic record stating a fact ill
issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person
in the performance of a duty specially enjoined by the law of the country in which such book, register or record
is kept, is itself admissible.
WAS THE EVIDENCE PROPERLY
OBTAINED?
•THE COURTS NOW HAVE A DISCRETION
TO REJECT EVIDENCE OBTAINED
IMPROPERLY N IN CONTRAVENTION OF
THE LAW. THE COURT IN EXERCISNG
ITS DISCRETION WILL WEIGH THE
DESIRABILITY OF ADMITTING AGAINST
THE UNDESIRABILITY OF ADMITTING
EVIDENCE OBTAINED IN THAT MANNER.(
S.14 EA)
WEIGHT OF COMPUTER GENERATED
EVIDENCE
• IN ESTIMATING WEIGHT COURT MUST
CONSIDER ALL CIRCUMSTANCES WHICH
MAY AFFECT ACCURACY.
• WAS THE PROPOSED EVIDENCE SPPLIED
TO COMPUTER CONTEMPORANEOUSLY
WITH THE FACTS IN ISSUE?
• DID THE SUPPLIER OF THE INFORMATION
HAVE INCENTIVE TO CONCEAL OR
MISREPRESENT FACTS? ( S. 34 EA )
CONCLUSION
• THE NEW EVIDENCE ACT HAS TO A LARGE
EXTENT CLARIFIED NIGERIAN LAW ON
ELECTRONICALLY GENERATED EVIDENCE.
IT HAS ALSO INTRODUCED MANDATORY
TECHNICALITIES WHICH MUST BE
ADVERTED TO BY COUNSEL OR RISK
REJECTION OF EVIDENCE. IT MIGHT BE
THAT THE FLEXIBLE APPROACH OF THE
COURTS PRE- EA 2011 WAS A MUCH
BETTER FOR ADMISSIBILITY.