Critical Appraisal Of The Relevancy And Admissibility Of Electronically Generated Evidence In Nigeria

Project and Seminar Material for Law

Critical Appraisal Of The Relevancy And Admissibility Of Electronically Generated Evidence In Nigeria


Abstract


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.


Chapter One


General Introduction

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. 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, 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.

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.”

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. Developments in such area as information, technology have gone way beyond what that statute could 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 evidence 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. 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. 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 a computer … any printout or other output readable by sight, shown to reflect the data accurately is an original.”


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.


1.3.0: 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.

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Conclusion


This work has elucidated and made an x-ray on the position of electronically generated evidence as well as its admissibility under or status of electronically generated evidence is hanging in the balance i.e. uncertain. Electronically generated evidence has no express provision relating to it under the evidence Act.

However, provisions dealing with the admissibility of document are well elucidated in the evidence Act. The bold steps token by the judiciary in judicial pronouncement is highly commendable; certainly our courts cannot sit back and watch the mysteries of computer technology without taking judicial notice thereof. The challenges facing electronically generated evidence as regards their admissibility has been analysed and the problems pose to the courts in the way forward. What the litigants can do is to keep close vigilante to documents intended to be adduced by either of the adversary.

It is my humble view that the Nigerian courts and the world should at least give liberal interpretation, to the admissibility of electronically generated evidence, if the law is to be relevant and useful at this computer age of information technology in order to enhance and strengthen judicial activities. In Esso with section 37 of the evidence Act hold that

The law cannot be and is not ignorant of modern business methods and must not shut its
eyes to the mysteries of the computer.

Therefore, electronically generated materials have as it were, become indispensable in life and business and it is extremely commendable that the court now admit and act on them in relevant cases. It will be wrong to argue that they should be excluded from evidence because they may sometime unscrupulous parties.


Recommendation


As a result of the absence of express provision in respect of electronically generated evidence, it has forced the courts to find ways of sneaking this specie of evidence in but with little or no success. It is in this regard that I tender my recommendation.

It is hoped that if information technology make new devices available, Nigeria courts would confirm their admissibility at the earliest opportunity. This streak of judicial activism in the face of legislative inertia in a dizzyingly dynamic age should continue. In addition, the judges also have a role to play. They don’t have to lag behind in the course of Global technological advancemen5t being witnessed presently in the world. Therefore, the judges must not allow life and business of the courts to be stifled by the insensitivity of electronic evidence in which they have little o. no knowledge about.

All said and done, there is an urgent need for the national Assembly to give quick attention to the evidence Bill, 1998 and other revised version that may soon be presented to it. Such a new legislation should incorporate necessary modifications. In the light developments that have taken place since the Bill’s drafting in the second half of the 1990’s. statutory reform is the far better way of providing for the specific peculiarities of each of the kinds of bred by information technology. Some of them like e-mails, electronic funds transfers especially through the use of personal identification Numbers (PIN), and even the run-off-the- mill computer typesetting and book keeping are very susceptible to manipulations and fraud which need to be specifically provided for.

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