Critical Appraisal of the Relevancy and Admissibility of Electronically Generated Evidence in Nigeria.

AN APPRAISAL OF THE LIABILITIES OF A COMPANY FOR THE ACTS OF ITS DIRECTORS
March 10, 2021
THE RIGHT OF AN ACCUSED PERSON UNDER THE NIGERIAN LEGAL SYSTEM.
March 10, 2021

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ABSTRACT

In an attempt to address this fundamental issue regarding the admissibility ofelectronically 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 avery vital point or issue in court. This point can be proved through the use of electronicgenerated 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 andfinancial transactions in Nigeria and the world over which makes businesscommunication greater in use. It would therefore be wrong for these electronic devicesnot 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 generatedevidence and the challenges bothering on authenticity, integrity, and confidentiality of theevidence and offers solutions to the problems or challenges that electronically generatedevidence is facing. The essence of the foregoing is basically to give a detailed and sufficient analysis of thesubject matter. As we know tendering and taking of evidence is inevitable in courtproceedings and this thesis is set to focus on the electronically generated evidence; itsimportance and effect in our judicial system.

CHAPTER ONE

INTRODUCTION

1.0 Introduction

Technology can be used as a medium to communicate, store and transmit information in civil practice and criminal activity.[1]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.[2]

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.[3] Which can often assist to prove or disprove a fact or a point of law.[4] Electronic evidence is a valuable and abundant source of evidence in legal proceedings.[5]

In view of the rapid technological developments, it is common that there is a gap between technology and the law.[6]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.[7] 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.[8] 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.[9] 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 waytransactions and relationships are carried out in the world over[10]. 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 electronicstorage and communications systems has risen sharply in commercial and financial transactions in Nigeria[11].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 thetechnology 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 courtwill determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether acopy is acceptable or the original is required. The use of digital evidence has increased in thepast few decades as courts have allowed the use of e-mail, digital photographs, ATM transactionlogs, word processing documents, instant message histories, files saved from accountingprograms, spreadsheets, internet browser histories, databases, the contents of computer memory,computer backups, computer printouts, Global Positioning System tracks, logs from a hotel’selectronic door locks, and digital video or audio files[12].

In order to ensure justice in its judicial system, Islam has laid down golden principles ofevidence. The evidence in a broad sense is anything that proves or disproves the fact disputed incourt. The main aim of the evidence in Islam is that an innocent must not be punished and aguilty must not escape punishment in criminal cases and compensation in civil matters[13].

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 overcomethis presumption. Islam has made it incumbent on the plaintiff to produce clear and convincingevidence 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 rightstands proven under the Sharia just as it is in accordance with the universally acceptablemethods 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 toascertain a crime or right, then this can be acceptable by the sharia[14].

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 Shariacourts, the extent on which the provisions of the Evidence Act accommodate. Findings on thepresent 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 fasttrackingthe 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 isthe academic view. It will also examine the introduction of technology in our courtsystem 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 technologicallyadvancement.

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 ofjustice 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 electronicallygenerated 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 thepractically application of electronically generated evidence and how it has been able tofare 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 becomeadmissible or otherwise.

1.5. 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. Informationwould be sourced from textbooks, internet, journals written by jurist and public lecturesdelivered by various professors if there is any related to my thesis, studying them anddrawing a conclusion and preferring recommendations.Also, in illustrating the admissibility of electronically generated evidence, great reliancewould be placed on case law and the constitution will serve as the primary source of allthe provisions to be analyzed.

1.6 Literature Review

The importance of the work has been intensified and brought to bare mainly in pagesfeaturing the practical application of the rules relating to electronically generatedevidence 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[15] 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 countriessuch 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[16]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[17]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[18] 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[19] 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 submittingthat any pronouncement on it will either amount to a suggestion or an opinion moresuited for more journals as opposed to formal textbooks on law of Evidence. yet, whilecommenting on the “Sources of Nigeria Law of Evidence,” the learned author[20] is of theview, having regard to section 5(a) of the Evidence Act and decision of the West AfricanCourt of Appeal, WACA[21]and the Federal Supreme Court[22]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 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 evidencecan cause insurmountable damage to a person or a group of people. There must be aformalized 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 producedquickly 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 dispensingjudgments.

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 arecurrently litigating or who may soon litigate any claim in Nigeria.


[1] South African Law Reform Commission Issue Paper 27 (Project 126) Electronic Evidence in Criminal and Civil Proceedings: Admissibility and Related Issues (2010) 7. 

[2] Law Reform Commission of Ireland Consultation Paper 57 (Project 7) Documentary and Electronic Evidence (2009) 71. In this consultation paper, the Law Commission of Ireland dealt extensively with the law in regard to electronic evidence in the United Kingdom, particularly the law of England and Wales. For comparative purposes, Ireland is not relevant to this research. 

[3] Watney M ‘Admissibility of Electronic Evidence in Criminal Proceedings: An Outline of the South African Legal Position’ 2009 (1) Journal of Information, Law and Technology 2. 

[4] Watney M (2009) 2. 

[5] SALRC Issue Paper 27 (2010) 4. 

[6] SALRC Issue Paper 27 (2010) 4. 

[7] Watney M (2009) 1. 

[8] Van der Merwe D et al Information and Communications Technology Law (2008) 104. 

[9] LR CI Consultation Paper 57 (2009) 72. 

[10]Charles C.A., An examination of the Concept of Electronic Funds Transfer System, in Electronic Banking and the

Law, (

[11]Ajomale M.A., The emergence of Computerized Banking Transactions- A case for Legislative Control in Banking

and Other Financial Malpractices in Nigeria, (Awa Kalu ed, Malthouse Press, 1990), .

[12]Muzaffar S.M. “The admissibility of Modern Electronically Evidence in Criminal Cases under Islamic Law”

Public Lecture Series, delivered at Faculty of Sharia & Law, Sains Islam University, Malaysia (USIM) 2013.

[13]Ibid

[14]Ibid

[15]Chief Afe Babalola, a Senior Advocate of Nigeria and is book “Law and Practice Evidence in Nigeria

2001”

[16]Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1

no 1. p. 260.

[17]Ibid at pages 253 – 255.

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

[19]Nwadialo F, Modern Nigeria Law of Evidence, 2nd Edition 1999.

[20]Ibid at page 17

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

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

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