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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.
Technology can be used as a medium to communicate, store and transmit information in civil practice and criminal activity. The proliferation of electronic media has caused that more and more legal, commercial and criminal activities are carried out by electronic instruments and the need to regulate this source of evidence has gained momentum.
Once the electronic information is admitted by a court, it becomes electronic evidence, this type of evidence has become increasingly prevalent in, for example, commercial litigation, criminal fraud prosecutions and bankruptcy proceedings. Which can often assist to prove or disprove a fact or a point of law. Electronic evidence is a valuable and abundant source of evidence in legal proceedings.
In view of the rapid technological developments, it is common that there is a gap between technology and the law. The courts have struggled with the traditional rules of evidence and adapting those to newer technologies with inconsistent results, an example of this has been how perceptions of the concept of reliability has caused confusion between the principles of admissibility, authentication, hearsay, the best evidence rule and evidential weight. This is generally the case due to the fact that legal systems do not develop at the same pace that technology does. The law of evidence, like many other fields of law, find it difficult to adapt to a world in which paper is replaced by electronic documents. The courts have struggled with the traditional rules of evidence and adapting those to newer technologies with inconsistent results, an example of this has been how perceptions of the concept of reliability has caused confusion between the principles of admissibility, authentication, hearsay, the best evidence rule and evidential weight. The courts should also distinguish between the different forms of electronic evidence such as, computer-assisted and computer-generated, for different evidentiary rules will apply.
1.1 Background to the Study
The convergence of information technology and communication is rapidly changing the way transactions and relationships are carried out in the world over . Almost every aspect of business is contingent on electronic communications and transactions are settled, recorded and reported on complex computer technology platforms. The use of computers and other forms of electronic storage and communications systems has risen sharply in commercial and financial transactions in Nigeria .Cases of electronic evidence have been decided in many courts in various countries.
These cases evolved and emerged when technology develops and people started using the technology to store information or data electronically. Computer is one of the technologies used to store data and information. This data may later be retrieved for specific purposes. Therefore digital evidence or electronic evidence in any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required. The use of digital evidence has increased in the past few decades as courts have allowed the use of e-mail, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories, databases, the contents of computer memory, computer backups, computer printouts, Global Positioning System tracks, logs from a hotel’s electronic door locks, and digital video or audio files .
In order to ensure justice in its judicial system, Islam has laid down golden principles of evidence. The evidence in a broad sense is anything that proves or disproves the fact disputed in court. The main aim of the evidence in Islam is that an innocent must not be punished and a guilty must not escape punishment in criminal cases and compensation in civil matters .
The evidence is a restrainer to false, weak and unsubstantiated claims and complaints. As everyone is presumed to be innocent, only a conclusive and convincing evidence can overcome this presumption. Islam has made it incumbent on the plaintiff to produce clear and convincing evidence in support of his claim. Since the Quran in no way bound the muslim to adopt a particular method in proving a crime or a right, it is absolutely certain that a crime or a right stands proven under the Sharia just as it is in accordance with the universally acceptable methods of legal ethics endorsed by sense and reason. Consequently, if circumstantial evidence, medical check-ups, post mortem reports, fingerprints, testimony of witnesses, confession of criminals or defendant in civil matters, oaths and various other methods are employed to ascertain a crime or right, then this can be acceptable by the sharia .
This research will discuss the idea of electronic or computer evidence as a whole and its admissibility by the courts here in Nigeria and the possibility of its application in the Sharia courts, the extent on which the provisions of the Evidence Act accommodate. Findings on the present state of court proceedings with the provisions of the Evidence Act on electronically generated evidence and finally, recommendations will be made as to the possible ways of fasttracking the system.
1.2 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.
1.3. 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. 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.
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 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 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 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 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 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 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 is of the view, having regard to section 5(a) of the Evidence Act and decision of the West African Court of Appeal, WACA and the Federal Supreme Court 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.
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.