The Law & You: Admissibility Of Electronic Evidence – Things To Look Out For

1.0 Introduction

Today, everyday transactions are conducted on electronic platforms. The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life, and the legal system is no exception: in the event of disputes involving transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions. The recent amendment of the Evidence Act in 2011 was intended to provide for the use of such electronic evidence in court proceedings[1]. Before the amendment, the admissibility of electronic evidence in court proceedings had been controversial due to the absence of specific provisions in the previous act, even in light of Supreme Court decisions in Esso WA v Oyegbola[2] and similar cases in which it held that computer printouts were admissible[3].

2.0 Definition of terms

The word ‘electronic’ simplicita means data (comprising the output of analogue devices or data in digital format) that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system that is relevant to the process of adjudication[4]. It includes but not limited to e-mails, text documents, spread sheets, images and graphics, database files, deleted files, and data back-ups. Electronic evidence may be located on floppy disks, zip disks, hard drives, tape drives, CD-ROMs or DVDs, as well as portable electronic devices such as PDAs, cellular phones microfilms, pen recorders, faxes etc. Furthermore, the Evidence Act[5] defines the word computer to mean 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.

3.0 Admissibility of Electronic Evidence

In admitting an electronic document or device in evidence, the Supreme Court in Kubor v Dickson (1969) NMLR 194, held that “A party that seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.” The Supreme Court decision underscores two key points. First, it recognizes and endorses the use of electronic evidence in Nigeria. Second, it reiterates the conditions for the admissibility of electronic evidence. In determining the admissibility of electronic evidence in Kubor v Dickson (supra), the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Section 84(2) of the Evidence Act are satisfied.

4.0 Things to Look Out For Admissibility of Electronic Evidence

Stated more simply, the four conditions for admissibility of computer-generated evidence under Section 84(2) of the Evidence Act are as follows:

• That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
• That during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
• That the computer was operating properly during that period of regular use; and
• That information contained in the statement was supplied to the computer in the ordinary course of its normal use.

Further, Section 84(4) requires that the party which seeks to tender a computer-generated statement or document shall file a certificate:

• identifying the document or statement;
• describing the manner of its production;
• stating the specifications of the device used in the production of the document; and
• signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.

The definition of ‘document’ in Section 258(1) (d) includes “any device by means of which information is recorded, stored or retrievable including computer output”. Section 258 also defines a computer to mean “any device for storing and processing information”. This definition appears to be wide enough to cover all handheld phones, tablets, portable music devices, automatic teller machines (ATMs) and other electronic devices that store, process and retrieve information[6]. Under these provisions, the following forms of evidence should no longer present difficulty when tendered in court once the stipulated conditions are met:

• statements from telecommunications companies showing records of call logs and text messages;
• receipts of cash withdrawals and other transactions from ATMs;
• internet banking records; and
• records of online product purchases and bill payments (eg, utility bills and flight bookings).

It should be fairly easy under the provisions to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the Internet. However, it remains to be seen whether the provisions are sufficient to deal with issues such as authorship of online defamatory material – and specifically the question of whether the printout of the alleged defamatory material or the computer-saved file copy constitutes the original evidence. Nonetheless, with these extensive provisions, controversies about the admissibility of computer-generated evidence will be largely reduced.

5.0 Conclusion

The Supreme Court decision will doubtless increase the confidence of the international business community in the ability of the Nigerian legal system to deal with legal issues arising from commercial transactions conducted via electronic technology. However, more must still be done to develop the practice of the courts in respect of these provisions. There is a wealth of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in Nigerian law. However, advances in computer technology have also created greater opportunities for fraud and forgery (e.g., email hacking, identity theft and photograph manipulation), so the courts must be cautious in admitting electronic evidence. Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the keywords for courts in this area of evidence. A laudable provision which will help courts greatly is to be found in Sections 34(1)(b)(i) and (ii), prescribing guidelines for the courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted.  

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[1]  Cap E14, LFN 2011. [2] (1969) NMLR 194 [3] (1969) NMLR 194. See also Yesufu v ACB (1976) 4 SC 1 at 9-14; Anyaebosi v RT Brisco (1987) 3 NWLR (Pt 59) 84; Oguma Associates Co v IBWA (1988) 1 NSCC 395; Trade Bank v Chami (2003) 13 NWLR (Pt 836) 158; Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1182) 564; FRN v Fani-Kayode (2010) 14 NWLR (Pt 1214) 481; Continental v R Shipping [2013] 4 NWLR (Pt 1343) 67; and Lufthansa v William Ballnyne (2012). [4] Mason, S., (2007) Sources of digital evidence. In Mason, S. (Ed) Electronic Evidence: Disclosure, Discovery and Admissibility (1st ed.). Butterworth . [5] See section 258 (1) of the Evidence Act 2011, Cap E 14. [6] Kubor v Dickson: Admissibility of Electronic Evidence; <https://www.lexology.com/library/detail.aspx?g=f16ede4c-f04a-40a7-96c3-e6a4899f3cf0> accessed on 20^th April, 2018.

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This article was first published on 9th November 2018

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