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CRITICAL APPRAISAL OF THE RELEVANCY AND ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE IN NIGERIA
CHAPTER ONE
1.0.0: INTRODUCTION
Perhaps, the most revolutionary implication of contemporary, technology development is the evolution of a paperless environment, characterized by three principal trends, namely; dematerialization of the work place; Omnipresence, and malleability of electronic
devices.1 The term ‘dematerialization’ ‘omnipresence’ ‘malleability’ as respectively used above, means the process of the migration of information from the material world to the
electronic world popularly called Cyberspace,2 a process, where physical or geographical distances have been removed as if were through the use communication gadgets, the adaptation of computer to the mutation of IT process from one form to another.
With the technology advancement in the world that are being operated by individuals and corporate bodies in domestic works and financial transactions, one cannot help but wonder why the Act does not provide for such. These devices, the product of technology can be used for legal and illegal acts.4
Nweze C C Contentious Issues And Responses in Contemporary Evidence Law in Nigeria Vol. 2 Enugu , Institute For Development Studies, 2006 p209, see also Widdison R ‘electronic law practice. An exercise in legal futurology’ the Modern Law Review, vol. 60 No. 2 143 at 144.
Adegboro, A M the Relevance of Electronic Evidence in the Nigeria Legal System. Long Essay. Igbinedon University, Okada, Edo State 2008, p45
However, the judiciary has come to the rescue at least in some area of the law. It has done this by interpreting and applying existing statutory and common law principles in ways and manners that incorporate the existing social realities and do justice not only directly to the litigating parties who have gone to court but also indirectly to the entire society. In playing that wonderful role, the judiciary clearly demonstrates that indeed whatever the arguments may be in theoretical jurisprudence on whether or not the courts should make law in developing legal cultures, they should and actually do make law. As one of Nigeria’s most liberal and intelligent judges would say,
“It is said that the function of the court is to interpret laws made by the legislature and not to make laws. In theory that is so. But it must equally be admitted that judges are not robots (or Zombies) who have no mind of their own except to follow precedents … As the society is eternally dynamic and with fast changing nature of things. In the ever changing world and their attendants, complexities, the court should, empirically speaking, situate its decision on realistic premise regard being had to the society’s construct and understanding of issues that affect the development of jurisprudence.”5
While the Evidence Act made by the British colonial government in 1945 continues in
operation as about the only source of the law of Evidence in the country.6 Developments in such area as information, technology have gone way beyond what that statute could Honorable Justice Pats- Acholonu of the Supreme court in Patrick Magit V University of Agriculture, Markurdi and 3Ors (2006) ALL FWLR (pt. 298) 1313, 1345 D-F. His Lordship recently passed on.
It is now in Cap E14, LFN 2004. An Evidence Bill prepared, even belatedly in 1998 has failed to be enacted into law by the successive government that have ruled the country ever since.
have envisaged at its enactment. For instance, when information recorded or stored in the memory of a computer is printed out in paper if it is not easy to say that the version in the memory is a document. Nor is it easy to assert that the print out is an original or a copy.
In the face of such a worrisome situation the Nigeria courts have been very alert in interpreting, the Act complimentary case law or common law principles in away that, it principally solves the problem of admissibility of pieces of evidence generated information technology. In effect, they have fashioned out rules and principles by which all electronically generated evidence can be admitted and acted upon by Nigeria courts. As we shall see hereafter however, some challenges attend the admission and use of those electronically generated materials, which challenges the courts have not even discussed talk the less of finding solution for.
Also, even if such things (audio, tape recording, a video tape recording, electronic mail on computer screen) when presented as evidence and such things as electronically transmitted mandates in commercial transactions can be regarded as document.
1.1.0: BACKGROUND TO THE STUDY
The latter part of the twentieth century was marked by the electronic transistor and machines and ideas made possible by it. As a result; the world changed from analogue to digital. Although the computer reigns supreme in the digital / electronic domain, it is not the only electronic device. An entire constellation of audio, video, communication and photographic devices are becoming so closely associated with the computer as to have converged with it.
Also, a motion was moved by a former Senator to permit admissibility of electronic and computer generated evidence7 and it was read for the first time at the senate last year. It was opined that since the Evidence Act was enacted 64 years ago, apart from some minor amendments effected between 1948 and 1958 and another minor amendment in 1999, the Act has remained unchanged. The problem of the Act is that it does not recognize any record except one written on a piece of paper.8 Apart from records produced by stenography and photo copies, it does not recognize any form of record produced by more advanced technology that has emerged since the enactment of that law in Nigeria.9
Finally, as courts like society become more familiar with digital / electronic documents, they bucked away from the higher standard. Courts have since held in US V Scholle that
“Computer data compilations … should be treated as any other records. However if data are stored in acomputer … any printout or other output readable by sight, shown to reflect the data accurately is an original.”
The Motion was moved by Senator Sola Akinyede, titled “A bill for an act to amend the Evidence Act”.
Section 2 Evidence Act.
In the Evidence Act’s definition of “document” they are definitely not documents. The Act did not envisage writing by software or any such thing. It is however the thesis of this work that all such materials
– tangible and intangible – are documents in the contemporary understanding and implication of the word.
1.2.0: 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.
1.4.0: 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.
1.5.0: 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. 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.
1.6.0: 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 10 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 11believes 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 12also 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 13 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.
Chief Afe Babalola, a Senior Advocate of Nigeria and is book “Law and Practice Evidence in Nigeria 2001”
Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1 no
Amupitan lecture notes on Law of Evidence. A University of Jos Lecturer.
Also, Fidelis Nwadialo14 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 author15 is of the view, having regard to section 5(a) of the Evidence Act and decision of the West African
Court of Appeal, WACA16 and the Federal Supreme Court 17 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.
1.7.0: 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 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.
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