Electronic Evidence "thrashed" in Nigerian Court
Yesterday, the Federal High Court in Lagos with Justice Ahmed Mohammed presiding, rejected the computer printout of a statement of account at the ongoing trial of former Minister of Aviation, Chief Femi Fani-Kayode. The printout of the statement of account belonging to Chief Fani-Kayode was ruled to be inadmissible when sought to be tendered by a bank manager. Justice Mohammed, in his ruling, said a statement of account produced by way of computer printout was not admissible in evidence under the Sections 97(1)(h) and (2)(e) of the Evidence Act even if the said statement of account was relevant to the proceedings.
According to Section 97(1) of the Nigerian Evidence Act, secondary evidence of the details of a bank account can only be given if the document is an entry in a banker's book. Copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.Relying on previous ruling of the Court of Appeal and the Supreme Court in Nigeria, (in the case of UBA Plc vs S. A. F. P. U and supported by Supreme Court decision in Yesufu vs ACB Ltd ) the judge ruled that computer printout document cannot be admissible on evidence as an entry in a banker's book.
Justice Mohammed said that the issue of certain certification of a statement cannot also apply because what is in contention is that document i.e. statement of account is a computer printout. He urged the National Assembly to urgently amend the Evidence Act to accommodate computer printout since it forms part of the day-to-day activities in e-business transactions, particularly in banking circle.
Chief Fani-Kayode, is facing a 47-count charge of money laundering preferred against him by the Economic and Financial Crimes Commission (EFCC), and is accused of receiving cash in excess of N500,000 and paying same into his personal investment account, totalling over N231 million (about 2 Million USD). He is also accused of paying the money into his personal investment account for 90 days, through one of his associates, Mark Saviour Ndifreke (now at large).
As far as technology is concerned the focus in the law of evidence is primarily the admissibility of records generated from technology based transactions, manner of admissibility and their weight in evidence. The issue here is what is the status for the admissibility of technologically generated evidence in Nigerian courts?
The logical point to commence this discuss is the primary law of evidence in Nigeria, the Evidence Act. As a source of rules, the Evidence Act has been around for more than sixty years without any significant reform. Various forms of digitally generated evidence have emerged over the years as a result of the radical advancement of technology. Information which normally would be stored on paper are now being encoded and stored in media such as hard dives, compact discs, flash drives etc; which makes them sometimes unintelligible until processed and produced in paper form.
A close look at the Evidence Act does not disclose any section which expressly provides for the admission of these kinds of materials. Some authors have argued that certain sections of the Evidence Act could be used to admit digital evidence in Nigerian courts. However the same authors admit that myriad issues concerning the conditions laid down in these sections may make it difficult to apply the sections for the admissibility of digital evidence. It therefore means that there is still a whole lot of uncertainty as regards the admissibility of digital evidence in Nigerian courts. Generally there is no conclusive legal authority for the admissibility of digital evidence in Nigeria.
Proof of evidence is vital for judicial proceedings in any legal system. Since the legal system is designed for the benefit of the society it could be argued that the legal system must adapt to the trends in the society to enable it perform its functions adequately. In some common law jurisdictions the courts have held that computer printouts of digital evidence are real evidence and not documentary evidence. This position however may create problems when there is a need of proof of content. As the world goes digital, more evidence necessary for adjudication would be generated and stored in the digital form. It is therefore the duty of legal practitioner to ensure that this evidence are admissible in court and should retain the same functionality as paper documents. This can only be achieved by proper legislation.
However it appears that the legislators Nigerian Legislators are not prepared for this direct intervention.
According to Section 97(1) of the Nigerian Evidence Act, secondary evidence of the details of a bank account can only be given if the document is an entry in a banker's book. Copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.Relying on previous ruling of the Court of Appeal and the Supreme Court in Nigeria, (in the case of UBA Plc vs S. A. F. P. U and supported by Supreme Court decision in Yesufu vs ACB Ltd ) the judge ruled that computer printout document cannot be admissible on evidence as an entry in a banker's book.
Justice Mohammed said that the issue of certain certification of a statement cannot also apply because what is in contention is that document i.e. statement of account is a computer printout. He urged the National Assembly to urgently amend the Evidence Act to accommodate computer printout since it forms part of the day-to-day activities in e-business transactions, particularly in banking circle.
Chief Fani-Kayode, is facing a 47-count charge of money laundering preferred against him by the Economic and Financial Crimes Commission (EFCC), and is accused of receiving cash in excess of N500,000 and paying same into his personal investment account, totalling over N231 million (about 2 Million USD). He is also accused of paying the money into his personal investment account for 90 days, through one of his associates, Mark Saviour Ndifreke (now at large).
As far as technology is concerned the focus in the law of evidence is primarily the admissibility of records generated from technology based transactions, manner of admissibility and their weight in evidence. The issue here is what is the status for the admissibility of technologically generated evidence in Nigerian courts?
The logical point to commence this discuss is the primary law of evidence in Nigeria, the Evidence Act. As a source of rules, the Evidence Act has been around for more than sixty years without any significant reform. Various forms of digitally generated evidence have emerged over the years as a result of the radical advancement of technology. Information which normally would be stored on paper are now being encoded and stored in media such as hard dives, compact discs, flash drives etc; which makes them sometimes unintelligible until processed and produced in paper form.
A close look at the Evidence Act does not disclose any section which expressly provides for the admission of these kinds of materials. Some authors have argued that certain sections of the Evidence Act could be used to admit digital evidence in Nigerian courts. However the same authors admit that myriad issues concerning the conditions laid down in these sections may make it difficult to apply the sections for the admissibility of digital evidence. It therefore means that there is still a whole lot of uncertainty as regards the admissibility of digital evidence in Nigerian courts. Generally there is no conclusive legal authority for the admissibility of digital evidence in Nigeria.
Proof of evidence is vital for judicial proceedings in any legal system. Since the legal system is designed for the benefit of the society it could be argued that the legal system must adapt to the trends in the society to enable it perform its functions adequately. In some common law jurisdictions the courts have held that computer printouts of digital evidence are real evidence and not documentary evidence. This position however may create problems when there is a need of proof of content. As the world goes digital, more evidence necessary for adjudication would be generated and stored in the digital form. It is therefore the duty of legal practitioner to ensure that this evidence are admissible in court and should retain the same functionality as paper documents. This can only be achieved by proper legislation.
However it appears that the legislators Nigerian Legislators are not prepared for this direct intervention.
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