ADMISSIBILITY OF ELECTRONIC
EVIDENCE IN NIGERIA
Prof. Bolaji Owasanoye
Taslim Elias Distinguished Professor of Law, Nigerian
Institute of Advanced Legal Studies, Senior Special Fellow,
United Nations Institute for Training and Research,
Formerly, Professorial Research Associate, School of Oriental
and African Studies, University of London, African Regional
Rep, IBA Criminal Law Committee 2011-2013; Executive
Director, Human Development Initiatives.
Conceptual Clarification
In this paper the words “Electronic evidence” or
“e-evidence” is used interchangeably with the
words “Digital Evidence”
• We take e-evidence to be legal evidence found
in computers and digital storage media or
evidence scientifically processed using computer
technology.
• WE EMPHASIZE THAT COMPUTERS CREATE
EVIDENCE AS WELL AS RECORD IT
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.”
Are These Computers or Not?
What is Electronic Evidence?
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1. Information in digital format (including electronic
records and digital media) used to prove allegations or
arguments.
2. Useable in internal investigation, trial before a
tribunal or court and in civil or criminal action
3. Used to establish facts – prove or disprove
allegations about events that have taken place
e.g. creating data on a device, copying data from
or to a device, deleting logs or database,
establish consistency or continuity of an action
or activity, etc.
Forms of Digital Storage Media
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4. Electronic evidence is associated with computer
forensics in different ways viz:
• (a) collecting the electronic evidence: identifying and
extracting digital information that can be used to
establish proof
• (b) protecting the electronic evidence: implementing
controls to ensure the integrity of information
available in digital format e.g. preserving a database or
log book
• (c) presenting the electronic evidence: processing
information in the context of events such that it is
understandable in a tribunal or court of law.
Electronic Record or Computer (Digitally)
Generated Evidence
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Emails
Instant Messaging
Phone logs
POS and ATM transaction logs
Social Media records – Facebook; Twitter; Whatsapp;
Instagram; Flickr; You Tube videos
Digital photos
Digital content in DVDS, CDS, Flash disks, Micro SD,
Files saved on or printed from Accounting Programs –
Peach Tree
Data saved on Communication devices, mobile or desk
phones, ipod, ipads, tablets,
Data retrieved from Cloud Computing
Electronic Record or Electronic Evidence Management
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Electronic records management is at the heart
credibility of electronic records and admissibility of
such records in trial
Traditional methods of archiving and records
management do not serve the management of
electronic records
Main challenge is how to ensure that information in
computer systems is a record, which is to say that it is
evidence or proof of a transaction
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Most collections of electronic data are not records because they
cannot qualify as evidence as is.
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Challenge is how do we know that electronic data has been
captured in a way that makes it a record i.e. a series or a
transaction upon which the law and court can rely because it has
been captured the way anticipated
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For Business Transactions –
• S. 51 of EA 2011 says“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.
Forensic Analysis of Electronic Evidence
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Bearing in mind that electronic data is not necessarily record
we face the next challenge what is it?
To know what electronic evidence is there must be analysis
1. The main objective of the forensic analysis is to explain the
state of a digital artefact e.g. To reassure ourselves that
information available on it as a result of a sequence of events
2. To guarantee that what is said to be electronic evidence is
truly what it is
3. If electronic evidence is what it is said to be then we can
admit it according to law of evidence
Collection and Examination of Data
• Electronic evidence relating to financial transactions can be
collected from many digital sources
• Because the character of electronic evidence is so
important developed countries have guidelines for
investigation and preservation of data.
• Guidelines supplement the law and are to ensure
admissibility of electronic evidence
• In Britain ACPO (Association of Chief Police Officers)
Guidelines warns investigators to preserve integrity of
electronic data to ensure that it is accurately collected and
preserved and there is a chain of custody
For example ACPO Principles in England include the
following 1. Do not take action to change data on any storage
media which may subsequently be relied upon in
court.
2. Data in storage should only be accessed by
competent persons able to give evidence of what
they did
3. Audit trail of what is done to any computer
based electronic evidence must be created and kept
4. Any officer in charge of a case must ensure these
rules are kept
• Electronic evidence recovered for any trial may
be taken from a static computer device or live
from a running system that is not shut down in
order to avoid data loss or service disruption
• Analysis is followed by a report which may be
oral, written or combined and may be in
graphics, voice or text
Challenge of Admissibility
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The investigation, acquisition and analysis of digital evidence
is dominated by technical rather than legal issues.
The presentation of the evidence is however based on the
law
The report of forensic analysis and conclusions of
investigators is presented as evidence
The audience is the judge but before the judge/court weighs
the evidence the lawyers (prosecution and defence) have a
chance to “evaluate” it also
The key question is whether admissibility and credibility of
electronic evidence is guaranteed because the process is
scientific and infallible?
International Best Practice
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In the USA developments moved in milestones
1923: Blood pressure deception test case of Frye v.
United States, 293 F. 1013 (District Court Circuit 1923; to
1993 Congenital defect case of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993) US Supreme Court;
to
1999 tyre burst case of Kumho Tire Co. v. Carmichael, 526
U.S. 137 (1999), US Supreme Court
In summary, USA position is that the Judge is the
ultimate GATE KEEPER of admissibility of e-evidence
though guided by the 1975 Federal Rules of Evidence
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The Daubert process identifies four general categories
that are used as guidelines when assessing a
procedure:
- Testing: Can and has the procedure been tested?
- Error Rate: Is there a known error rate of the
procedure?
- Publication: Has the procedure been published and
subject to peer review?
- Acceptance: Is the procedure generally accepted in
the relevant scientific
community?
UK
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To a limited extent there is still debate that the hearsay rule may apply
to digital evidence
“Proper working” tests of the computer in question have been
established in s.5, Civil Evidence Act (CEA), 1968, and s.69 of the Police
and Criminal Evidence Act (PACE) 1984.
In both laws the Courts want to be sure the computer evidence is
reliable because its source is relaible. In other words, the courts want
the source of electronic evidence authenticated
Authentication means satisfying the court
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(a) that the contents of the record have remained unchanged,
(b) that the information in the record does in fact originate from its
purported source, whether human or machine, and (c)
that extraneous information such as the apparent date of the record is
accurate.
South Africa
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First is presumption that e-evidence satisfies
s.35(5) of SA constitution that illegally obtained
evidence must be excluded if admission of such
renders trial unfair or will be detrimental to
administration of justice.
In Narlis vs SA Bank of Athens (1976)2SA 573
theh Court held that s.34 of Civil Proceedings
Evidence Act of 1965 did not cover admissibility of
computer printout
In response the Computer Evidence Act of 1983
was passed to allow e-evidence in civil cases only.
The CEA was ineffective so the Electronic
Communications Act of 2002 was passed to cover
e-evidence in civil and criminal cases
ECT Act South Africa
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ECT ACT- S.1 defines data as one generated, sent,
received or stored by electronic means and includes
voice and a stored record
S. 15 covers the admissibility and evidential weight of
electronic evidence.
Section 17 deals with the integrity of the digital
evidence
Other rules of admissibility of documentary evidence
were made applicable to electronic evidence.
Nigeria: Before EA 2011
• Esso West Africa Inc. vs 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".
• In Yesufu v. A.C.B, (1976) 4SC (Reprint) 1 @ 9-14. The Supreme
Court upheld an objection to the admissibility of a bank
statement prepared by an operator from the Ledger Card of the
bank because the bank failed to lay foundation of the existence
of a banker's book from which the entries were extracted as
well as its custody and control. In addition, it was contended
that there was no evidence that copy was examined with the
original entry and is correct.
• The Supreme Court held that the bank statements purportedly
derived from the day-to-day vouchers of the bank were
inadmissible without proper foundation being laid as under
Section 97 (1)(h) of the Evidence Act 1945.
• However in Anyaebosi v. R. T. Briscoe (1987) 3
NWLR (part 59) 84 @ 96-97 a statement of
account stored and reproduced from a
computer was held to be admissible under
Section 97 (1) and (2) of the old Evidence Act
1945.
• Similarly in F.R.N v. Fani-Kayode, (2010) 14
NWLR part 1214 p.481, the Court of Appeal,
followed Yesufu v. ACB and Anyaebosi v. R. T.
Briscoe and held that the computer printout of
a bank statement was admissible under Section
97 (1) and (2) of the old Evidence Act.
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Just as with paper documents and other evidence,
electronic evidence must Be Relevant and/or Material: i.e. the information must
assist the court do justice
Be Credible and/or Competent: i.e. the information
must be believable, trustworthy, and true.
The question is by what measure can we guarantee
that electronic evidence is relevant – S.1 EA 2011,
material (S.34), credible – (Hearsay or direct
evidence, original or copy and competent?
Note that relevance is as determined by s. 1EA 2011.
There is also the question of weight s.34
Evidence Act 2011
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1. What is a document?
An expanded meaning by s. 258
“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 so as to be capable (with
or without the aid of some other
equipment) of being reproduced
from it; and any device by means of
which information is recorded,
stored or retrievable including
computer output.
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.”
•Electronic storage devices can be
subjected to obligations of
discovery under O.26 R 8 to 14 of
High Court of Lagos Civil Procedure
Rules 2004 (Now 2012 Rules)
Admissibility of Statement in Documents Produced
By Computers S.84 EA 2011
 Computer is in regular use for storage or processing of
information with regard to activity in question
 Computer was operating properly or if temporarily out of
service, that condition did not affect production and
accuracy of content of computer
 information tendered as evidence is derived from
information supplied to computer
 information stored or processed by single, combination
or network of computers will be treated as information
derived from a single computer
 information may be supplied to computer directly or
indirectly with or without human intervention
Transferred or processed information moving from
another computer (e.g handheld device) to the
main storage computer is admissible so long as it is
supplied in appropriate form (84(5)
information produced or processed with or
without human intervention is admissible
A certificate must be produced signed by a person
responsible for management of the activities for
which the computer is used
Certificate must describe manner in which
document was produced and provide particulars of
device involved in its production;
It is sufficient if certificate states that it is to the
best knowledge and belief of person issuing it
Issues Arising from S.84 EA 2011
1. S.84 assumes that computer evidence will be from a computer
within jurisdiction of court.
2. In today’s world of global corporations and businesses this
assumption is forlorn. Many TNCs have their operations centrally
controlled through complex computer network systems.
3. A computer programed to receive specific data at intervals from
satellite feeds is in regular use. Hibernation is not a dysfuntion
4. Proof that a computer is operating properly may not always
require expert evidence as stipulated in s.68(1) EA 2011).
In R. v Spiby (1991) CLR 199 the Court held that a hotel manager could
give evidence to satisfy s. 69 of Police and Crim. Evi. Act, 1984 that
a computer was working properly at the relevant time. The
argument that only an engineer servicing the computer or an
expert in the field was competent to give such evidence was
rejected by the Court of Appeal.
Issues Arising from S.84 EA 2011 contd.
5. In a global network of computers each transmission from
one to other may be modified thus the notion of derived
from must be carefully examined
6. . S.84(5) -information moving from one computer to
another in appropriate form is software driven and not
human determined – e.g. data sharing via network; cloud;
same wifi; devices of one registered user etc.
7. Who is more appropriate to be designated responsible for
purpose of signing certificate – Network Administrator; IT
Manager; Supervising Officer; Data Processor; HOD or just
any designated officer within an organisation
8. What particulars of device is to be included in the
certificate – hardware or software details; model
description; OS, IOS; operating application or serial number
Application of S.84 EA 2011
• In Dr. Imoro Kubor & Anor v. Hon. Seriake Henry Dickson & Ors.
(2013) 4 NWLR (Pt.1345), 534 Appellants challenged election of
the Respondent as Governor of Bayelsa in Feb. 2012 governorship
election.
• Counsel for Petitioner/Appellant tendered from the Bar at the
Election Tribunal, computer printout of online versions of Punch
and Independent newspapers and a print out from INEC website
• The Respondents did not object so the documents were admitted.
• On appeal the admissibility of the exhibits was challenged on two
grounds. First, that they were public documents which ought to be
certified and secondly that having been tendered from the bar,
evidence was not adduced to meet the conditions of s.84(2) of EA.
• It was contended that the documents ought to be expunged from
the records.
Application of S.84 EA 2011
• The Supreme Court agreed with these submissions and held inter
alia that “Admissibility of a computer generated documents or document
downloaded from the internet is governed by the provision of section 84 of the
Evidence Act … A party that seeks to tender in evidence a computer –generated
document needs to do more than just tender same from the bar. Evidence in
relation to the use of the computer must be called to establish the above
conditions … Since the appellants never fulfilled the pre-conditions laid down by
law, exhibits “D” and “L” were inadmissible as computer- generated evidence.”
Per Onnoghen JSC.
• This case is the locus classicus on the point for now but it presents
fresh dilemma as it ignores role of technology and impact of egovernance e.g. INEC website, info on NBS portal and even eversion of law reports published by SC.
• It implies that electronic alerts and e-mails of bank transactions
have no value without certification.
Issues Arising from S. 84 EA 2011 contd.
S. 84 assumes that evidentiary “document” must still be printed.
It ignores expanded definition of “document” in s.258 that
“document” may be digital and not require printing
• What would have happened assumed the newspapers cited do
not have print versions e.g. E-Newspapers -Sahara Reporters;
Cable; Premium Times etc.
• E-Versions can only be viewed in e-format otherwise print must
be from website
• If this is in the public domain must there be certification? If Yes by
Who?
• Rigid application of certification requirement will occasion
injustice and ignore modern developments in technology as noted
in Esso West Africa vs. Oyagbola
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What Should Be the Court’s Approach?
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Constantly bear in mind Esso West Africa Inc. vs T.
Oyegbola that the law cannot be and is not ignorant of
modern business methods and must not shut its eyes to
the mysteries of the computer.
• Continuously recognize modern developments in
technology
• Always have right infrastructure and properly trained
personnel to ensure the court is digitally compliant
• Corroborate digital evidence if possible
Original (Primary) or Copy (Secondary)
• S. 88 EA 2011 - The main rule remains that documents shall be
proved by primary evidence.
• S.86. (1) says “Primary evidence means the document itself
produced for the inspection of the court.”
• Given the expanded meaning of “document” in s.258, the following
are documents and can be produced in court as originals- disc, tape;
sound track or any device in which sounds or other data (not being
visual images) are held and from which data may be reproduced.
• With this understanding, transcript of sound on an audio CD will be
treated as copy and reproduction of images in a film, negative, tape
or other device for storing visual images is a copy
• S.86(4) – where a set of documents are made by a uniform process,
all are regarded as originals
• Exceptions to the Primary Evidence rule are
Hearsay Rule
• S. 37 and 38 – The main rule on Hearsay
remains that a written or oral statement made
by a person not called as a witness is hearsay
and inadmissible
• A statement contained in a book, document or
record of any kind which is to be tendered to
prove truth of content but which is not
declared admissible under EA is hearsay and
inadmissible
Exceptions to the 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
Exception to Hearsay Rule: E-Business Records
•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.
•S.89(h)
Secondary evidence may be given of the existence, condition or
contents of a document when the document is an entry in a
banker's book
E-Business Records
• Section 90 (1) (i)-(iv) provides for inspection of a banker’s
book by a court upon a request of any party to legal
proceedings.
• Section 90 (1) (i)-(iv) provides for safeguards governing
admissibility of banker’s book. These are proofs:
• (1) that the book was at the time of the making of the entry
one of the ordinary books of the bank,
• (2) that the entry was made in the usual and ordinary course
of business, and
• (3), that the book must be in the custody or control of the
bank. The proof in this respect according may be given by a
partner or an officer of the bank either orally or by affidavit
sworn before any Commissioner for Oaths or a person
authorized to take affidavits.
Electronic Signatures
• S. 93 (1-3) EA 2011
• Electronic signatures are now 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.
Improperly Obtained Evidence
• S.14 EA gives the court a discretion to accept or reject
evidence obtained improperly or in contravention of a
law:
• The discretion is influenced by desirability of
admitting as against not admitting
• If the court admits, the weight to be attached to such
evidence will be determined by the court
• Weight is determined by the guidelines in s. 34 EA
Weight of E-Evidence
• S. 34 EA • Court must consider all circumstances which
may affect accuracy
• Was the e-evidence supplied to the computer
contemporaneously with fact in issue
• Did supplier of information have incentive to
conceal or misrepresent facts?
Nigeria moved close to global best practice in
2011 with passage of new Evidence Act
• New Act partly resolves dilemma on •
• Reliability/admissibility of computer records; and
• Reliability/admissibility of forensically analysed and
located data
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The law now needs to be tested frequently for
scope and interpretation by the courts
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S.68(1) Evidence Act 2011 formerly s. 57 provides
• (1) When the court has to form an opinion upon a point of
foreign law, native law or custom, or of science or art, or as to
identity of handwriting or finger impressions, the opinions
upon that point of persons specially skilled in such foreign
law, native law or custom, or science or art, or in questions as
to identity of handwriting or finger impressions, are relevant
facts.
• (2) Such persons are called “experts”
S.68 is not basis for automatic admissibility of digital or forensic
evidence simply because it is tendered by an expert.
The evidence must satisfy requirement of s.84 of Evidence Act
of 2011
Conclusion
• Lawyers and judges must understand the complexity
involved in digital technology and its value in scientific
analysis as a prelude to advocating effective laws and
principles for investigation and admissibility of electronic
evidence in pursuit of civil or criminal justice.
• Because of rudimentary understanding of digital
technology credibility of information derived
electronically is hardly contested by defense lawyers
only its admissibility is challenged
• The gap is that the conclusions they produce have yet to
be tested for reliability
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The test of reliability of e-evidence is inevitable
once knowledge of how it works becomes
widespread.
• Although the issue of admissibility will still be
crucial but so will be the credibility of the
technology used
• As the law and infrastructure improve judges,
lawyers, academics and other experts must be
prepared for the scrutiny that digital evidence will
require.
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Thank You
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bowasanoye@yahoo.com