INTERNATIONAL JOURNAL OF ADVANCED SCIENTIFIC RESEARCH

International Journal of (Print): 2579-0986

Scientific Research in Humanities, Legal Studies & International Relations | IJSRHLSIR ISSN (Online): 2579-0994
Vol. 2, No. 1 December, 2017

Admissibility of Electronic and Collins Obioma Chijioke

Faculty of Management, Kogi State
Computer Generated Evidence in University, Ayingba
Nigeria: Issues and Responses

Abstract

T he admissibility of computer generated evidence in Nigerian courts as

introduced by the Evidence Act, 2011, though nascent, must be
considered as a giant step in revolutionalizing the Nigerian
jurisprudence, thus moving away from the absurd stance of non-recognition of
such documentary evidence. Commerce and information have been greatly
advanced by computer base technology and it was only wise that our law was
brought in tandem with the requirements of the age. The business of this paper is
to examine the frontiers of electronic generated evidence in Nigeria, the
conditions for their application and issues raised by some of the conditions; with
a view to responding to the issues.

Keywords: Admissibility, Electronic, Computer centred evidence

Corresponding Author: Collins Obioma Chijioke

http://internationalpolicybrief.org/journals/ijasr-online-journals/intl-jrnl-of-scientific-research-in-humanities-legal-studies-intl-relations-vol2-no1-dec-2017

Page | 58
Background to the Study
The most important innovation of the Evidence Act, 2011 is the introduction of provisions
which have made it possible for the Nigerian Courts to receive electronic and computer
generated evidence, a feat which was impossible under the repealed Act but was left to the
conjecture of our judges.

The Evidence Act, 2011 has not just provided for the admissibility of electronic and computer
generated evidence but has located electronic and computer generated evidence within the
realm of documentary evidence. Thus, like every other documentary evidence, electronic and
computer generated evidence may be proved either by primary or secondary evidence.

Additional value which the Act has added to the reception of this genre of evidence is the
widening of the scope of what constitutes document. The Act defines the word “document” in
relation to electronic and computer generated evidence to include computer print outs,
compact disk, electronic messages, video tapes, sound track or other device in which sounds or
other data (not being visual images) are embodied so as to be capable (with or without the aid of
other equipment) of being produced from it; and any film. Negative, tape or other device in
which one or more visual images are embodied so as to be capable (with or without the aid of
some other equipment) of being reproduced from it and any device by means of which
1
information is recorded, stored or retrievable including computer output .

The vista of electronic and computer generated evidence is probably beyond what we can
envision from the extant provisions of the Evidence Act. This paper seeks to examine some of
the aspects of electronic and computer generated evidence, the conditions for their
admissibility and issues raised by the conditions. Attempt at responding to the issues would be
made.

Admissibility of E-mails, Website Documents, Telephone Messages and Video Tapes

Recalling the words a learned jurist; it cannot be gainsaid that the revolution in information
technology has permeated every sphere of life. The trial process cannot, therefore, be an
exception. Hence, the revolution has “invaded” the three principal means of proving facts
under the Evidence Act, namely:
(a) Oral testimony (viva voce evidence)
(b) Documents and
(c) Material things achieved by physical inspection of things (popularly referred to as visit
to the locus in quo)2

The reality of this truism is what led to the provisions dealing with admissibility of computer
generated evidence in Evidence Act, 2011.

E-mails are generated by computers and as such the conditions for reception of other computer
generated evidence also apply to admissibility of emails. The Court of Appeal was faced with
the issue of whether email was a permissive means of communication as envisioned under

1
Section 258(1), Evidence Act, 2011
2
Hon. Justice C. C. Nweze, “The Evidential Landscape in Cyberspace: Implications of Technological
Developments on the Law of Evidence in Nigeria” in A. I. Chukwumerie (ed) Growing the Law, Nurturing
Justice (Port Harcourt: Law house Books, 2005)

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 Section 76(3) of the English Arbitration Act, 1996, which stipulated that a notice or other
document may be served on a person “by any effective means”. The court discountenanced the
argument which sought to exclude the evidence as not being one of such “effective means”. It
held further, that, e-mail is a form of communication that is set down in writing and the fact that
it is electronic is immaterial, adding that, it can be down loaded and it is as real as a hard copy of
the letter or mail3.

It then follows that once an e-mail satisfies the conditions for admissibility, it would be
admitted in evidence4. Just like e-mails evidence, can also be generated from websites through
the use of computers. The rules for admissibility of documents generated from websites are
virtually the same as the rules guiding admissibility of e-mails. The authenticity of documents
printed from websites may be in issue and from decided authorities; the judicial attitude is
usually to hold it authentic where the person who printed out the document is called as a
witness to testify that the printouts are correct copies of documents downloaded from the
internet5.

The use of Global satellite mobile systems (GSM) in Nigeria is on the increase for ease of
communication. It could rightly be described as the most common form of communication.
Mobile phones constitute specie of computers and as such the rules guiding reception in
evidence of computer printouts also apply to GSMs. The Evidence Act also recognizes the use
of GSMs as a means of communication as well generating evidence.

The definition Section of the Evidence Act6, defines “document to include the following:
(a) Books, maps plans, graphs, drawings, photographs and also includes any matter
expressed or described upon any substance by means of letters, figures or marks, or by
more than one of these means, intended to be used or which may be used for the
purpose of recording that matter.
(b) Any disk, tape sound track or other device in which sounds or other data (not being
visual images) are embodied so as to be capable (with or without) of being reproduced
from it, and
(c) Any film, negative, tape or other device in which one or more visual images are
embodied so as to be capable (with or without the aid of some other equipment) of
being reproduced from it; and
(d) Any device by means of which information is recorded, stored or retrievable including
computer output.

Telephone containing information falls under Section 258(1) (d) of the Evidence Act and can
be tendered as a document. It is also practicable for the contents to be read and recorded by the
court so that the telephone could be returned to the owner. Another option is to print out the
message which would be compared with the message contained in the telephone to ensure that
contents of the printout tallies with the information in the telephone. In this case, the party
3
Continental Sales Ltd v. R. Shipping Inc. (2012) All FWLR (Pt 630) P. 1377
4
Such conditions are whether the e-mail was pleaded, whether it is relevant, whether it was frontloaded and
whether the test of reliability of the computer has been established. See Klifco (Nig) Ltd v. N.S.I.T.F.M.B.
(2005) 6NWLR (Pt 922) P. 44
5
Perfect 10 Inc. v. Cybernet Ventures Inc. 213F. Supp. 2d 1146 (C.D. Cal 2002)
6
Section 258 (1) (d)
7
See the English case of R.V. Neville (1991) Crim LR 288

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seeking to tender the printout has to prove that the enabling computer was working properly as
7
required by law. A party who chooses this option also has to tender the requisite certificate.

Another type of telephone (computer) generated evidence is text messages sent through
telephone. This type of evidence is always met with objection on ground of hearsay. The Court
of Appeal in England has set relevancy as the test for admissibility of text messages in the case
of R. V. TWIST8. In ruling on objection against the tendering of text messages in evidence on
the ground that they constituted hearsay evidence, the court held that the test of admissibility
have to be applied; in which case the fact which it is sought to prove must be a relevant fact,
otherwise the evidence would be inadmissible on grounds of irrelevance. Having found that the
text messages were relevant, the court held that they were not hearsay.

Call logs of communication is also a method of adducing GSM evidence; especially where a
third party who is not privy to the communication places reliance on such communication.
GSM cannot only be used to prove communication but identity of both the sender and the
receiver of the missive. This is obtainable from the service portal of the network provider other
than a private owned outfit. In this type of situation, the document qualifies as a public
document which can either be tendered by a staff of the service provider; possibly the system
operator or secondary evidence of such document may be adduced by certifying and tendering
a copy of the document in addition to satisfying the conditions laid down in section 84 of the
9
Evidence Act. The decision in the Indian case of R V. Singh , shows that written records kept by
a mobile telephone user are admissible to prove or corroborate the call logs on the said GSM
telephone. In this case, a mobile telephone owner kept record of the numbers stored in his
telephone in a separate notebook. The court held that, the notebook was admissible to show
that the particular telephone number in issue was actually that of the defendant.

Fax Messages
Before the advent of GSM telephones in Nigeria, the use of telex and fax machines were very
common to disseminate information and communication. Fax messages are similar to
messages processed by computers, although the admissibility of fax messages is not guided by
the same principles. By virtue of Section 153(1) of the Evidence Act, the court may presume
that a message forwarded from a telephone office to the person to whom such message purports
to be addressed, corresponds with a message delivered for transmission at the office from which
the message purports to be sent, but the court shall not make any presumption as to the person
by whom such message was delivered for transmission. That falls within the domain of fact to
be proved. Thus the message stored in the machine/computer of the telephone office may be
used to corroborate the message received by the recipient and vise versa. Similarly, by Section
153(2) of the Evidence Act, the court may presume that an electronic message forwarded by the
originator through an electronic mail server to the addressee to whom the message purports to
be addressed corresponds with the message as fed into his computer for transmission but the
court shall not make any presumption as to the person to whom such message was sent.

The presumption here is rebuttable and would be dislodged if the recipient of the message is
able to show that what he received differed from the message stored in the server. The possibility
7
See the English case of R.V. Neville (1991) Crim LR 288
8
(2011) 3ALL ER 1055
9
(2006) 1WLR 1564.In the case of RV.Mawji (2003) ALL ER (D) 285, a print out of text message from a mobile
telephone showing threat to murder must held admissible in evidence. See also RV. Robson (1991) Crim LR 362

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of this happening cannot just be swept under the carpet, especially in view of the fact that it is
possible to hack into a person's electronic account. The process of tendering faxed message is
easier than that of purely computer generated evidence. What is required for admissibility of
fax message is for the document containing the message to be tendered as if it is an ordinary
10
letter. It was held in the case of Idakwo V. Nigerian Army that a faxed message is in the form of
a written document; hence the easiest way to prove its receipt is by tendering the message. The
question of who sent the message is a fact to be proved and not what the court can presume.

Evidence Generated from Automated Teller Machines

Banks generally make use of Automated Teller Machines for payment of customers. It is
electronically generated and also functions like the conventional computers. Its functions
include:
(i) Dispensation of cash
(ii) Arithmetical calculations
(iii) Recording of transactions of money disbursed and posting of accounts accordingly.
(iv) Keeping of video records of transactions.

To lead documentary evidence of records of Automated Transmission Machines, its reliability

must be proved as the conditions applicable to computer generated evidence also applies to it;
mutatis mutandis. It is not unusual for lawyers to raise objection to admissibility of Automated
Transmission Machine Printouts on the ground of hearsay but the judicial attitude leans in
11
favour of admitting same. In the case of R. V. Governor of Brixton Prison, ex-parte Levin , the
tendering of documentary evidence extracted from Automated Transmission Machines for the
purpose of establishing that the defendant committed fraud while using the machine, was
opposed on the ground that it constituted hearsay evidence and therefore inadmissible. The
court over ruled the objection, holding that the printouts were not hearsay but were tendered to
show that the alleged fraudulent transfers actually took place and besides that, the Automated
Transmission Machines did the recording of the transactions themselves. The House of Lords
also likened the printouts to photocopies of forged cheques.

Admissibility of Video Tapes

Most of the objections which usually meet with the tendering and admissibility of video tapes
have always been on the premise of the inquiry; whether the person seeking to tender it; is the
maker and most often than not, no objection is raised once the person tendering the video tape is
the maker. There is dart of judicial authorities in Nigeria as to admissibility of video tapes in
evidence; and as such recourse to foreign authorities becomes more persuasive. The Evidence
12
Act has classified video tapes as “documents ” thus subjecting them to the rules guiding
primary and secondary evidence as the case may be; and must be pleaded and relevant to the
case for them to be admissible in evidence13.

Authentication of a video tape is a condition precedent to its admissibility in the United States
14
while in Nigeria certification is required where the video tape is a public document . In the case
15
of Ezeanuna v. Onyema , the Court of Appeal Enugu Division in resolving the issue; whether
10
(2004) 2NWLR (Pt 857) P. 249
11
(1997) 3ALL ER 289
12
Section 258 (1)
13
See the case of Maduekwe v. Okoroafor (1992) 9NWLR (Pt 263) P. 69. Tape record speech and audio also fall
within the category
14
See Lopez v. United States (CA 1 MASS) 313 F 2d 641
15
(2011) 13NWLR (Pt 1263) P. 36

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video tape of public documents is admissible in evidence held that:
Sections 97, 109 and 111 of the Evidence Act insist that only certified copies of public
documents are admissible in evidence. Thus, the tribunal's rejection of the
appellant's video tape in evidence was proper.16

In India, even though tapes are admissible in evidence as relevant facts under Sections 7 and 8
of the India Evidence Act, caution must always be exercised before relying on tape recorded
conversation17.

Tapes form vital facility for storing information or communication and messages stored in a
tape can be transferred to various tapes18. Where this is the case, the admissible evidence must
19
be the original tape. In the English case of R. V. Stevenson, Hulse and Whitney , it was held
that, tape to be admissible in evidence, it has to be established that the tape is an original tape
recording of the information sought to be proved else the court would have no choice other
than to reject it. The philosophy behind this rule is to guide against the danger of counterfeiting
or altering recorded information. This danger is more pronounced in audio voice recordings.

Where a video recording was watched by some people before it was deleted, the evidence of
those who watched it constitutes primary evidence of the video recording even to the extent of
20
proving the identity of persons captured in the video recording ; for instance where a crime was
21 22
captured by a video recorder or closed circuit television . In R.V. Kenyon tapes recording
robbery incident from a closed circuit television which captured some images of the suspects
were circulated to the police and members of the public for the purpose of identifying and
arresting the suspected criminals. Although in an earlier case the English Court of appeal had
warned against the use of security camera pictures because of the danger of giving different
impressions of the same person,23 this does not mean that it cannot be relied upon at all as the
court would exercise its discretion to reject the evidence or refuse to attach weight to such
evidence where there is doubt as to the identity of the person apprehended.
24
The case of Taylor V. Chief constable of Cheshire is instructional in this respect. The
appellant was convicted of stealing one Packet of Duracell batteries valued the sum of ₤1.89;
from a shop. His image was captured by two remote cameras fixed in the shop. The images were
viewed by a security officer on two monitors. One of the screens was linked to a video recorder,
which showed a person with his back to the camera who picked up the batteries and slipped
them inside his jacket. He later turned towards the camera, thereby making it possible for the
camera to pick the full view of his face. The video tape was thereafter watched by the shop
manager, some police officers and lawyer to the accused. By the time the case came up for
hearing, the tape had been erased from the video cassette by new security officers. The court

16
Supra at PP. 74 Paras A-B
17
Sebastine Tar Hon (SAN) (2013), S. T. Hon's Law of Evidence in Nigeria, Vol. 1, 2nd Edition; Port Harcourt,
Peal Publishers, P. 522
18
Such messages may be transferred into magnetite tapes, CD-ROM and DOD-ROM amongst others
19
(1971) 1ALL ER 678
20
R.V. Jones (1994) TLR 23
21
Commonly referred to as CCTV
22
(2000) ALL ER 962
23
R.V. Downey (1995) Crim LR 44
24
(1986) 1WLR 1479, (1987) ALL ER 225

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permitted those who watched the tape to testify as to what they saw. The appellate court
affirmed the reliance placed on the evidence as primary evidence that identified the accused and
stated thus:
In substance I accept the contention made for the prosecutor. I can see no effective
distinction so far as concerns admissibility between a direct view of the action of an
alleged shop lifter by a security officer and a view of those activities by the officer on
the video display unit of a camera, or a view of these activities on a camera, or a view
25
of these activities on a recording of what the camera recorded.
26
In the English case of Kajala v. Noble , it was held that the primary evidence rule applied only
to written documents in the strict sense and did not apply to new category of documents-tapes
and films. The court therefore upheld the admissibility of a video recording of the original BBC
news film, which showed the defendant taking part in a riot. The court may decide to look for
corroboration to video tape evidence, so as to accord it the necessary weight and may be
satisfied by evidence of witnesses who are able to identify the accused or any of the accused
persons at large from the video tape instead of insisting on evidence of eye witnesses who saw
27
the accused persons commit the crime .
28
In the case of Innocent Ekeh v. Ukachi Amachi & Ors , the petitioner contested the election
st
into the Imo state House of Assembly on the platform of A.P.G.A. while the 1 respondent was
st
the candidate of People's Democratic Party (P.D.P) at the election. The 1 respondent was
declared and returned as the winner of the election. Aggrieved, the petitioner filed a petition at
the governorship and legislative Houses Election Petition Tribunal in Imo State, challenging
the result of the election. According to him he was declared to be the candidate who scored the
highest number of votes cast at the election and was assured that the result sheet and certificate
st
of return would be issued to him later but the electoral body instead, later announced the 1
st
respondent as the winner and ascribed bogus scores to her. He also contended that the 1
respondent was not qualified to contest the election. The tribunal dismissed the petition for
lacking in merit thus resulting in the petitioner's appeal to the Court of Appeal. The Court of
Appeal could not find corroboration to video tape evidence either in the picture recording itself
or even in the viva voce evidence before the tribunal as to strengthen the weight of the evidence.
The Court of Appeal noted:
rd
The appellant's case was that he was declared elected by the 3 respondent at the
conclusion of collation at the Local Government Headquarters Umuguma and was
issued Form EC8B(1)-exhibit I. That one Emeka Nnodim-PW3 was engaged to
film the collation exercise. The video clip was admitted as exhibit 2. Nothing else was
tendered that he won the election in question. I agree too that his evidence is against
the appellant's case, because PW1 and PW2 said it was the appellant that was
declared as winner of the election and used exhibits 1 and 2 to support his claim.
However, in the video clip, a man purported to be DW3 was seen announcing results
which allegedly declared the appellant as the winner of the election. The same video
man stated oath under cross-examination that exhibit 2 covered the declaration of
the 1st respondent as the elected candidate. Nowhere in the video clip was the said
declaration of the 1st respondent seen. The Tribunal made a definite finding that the
25
Per Ralp Gibson LJ at 326
26
(1982) 75 Cr. APPR. 149
27
Bowie v. Tudhope (1986) SCCR 205
28
(2010) ALL FWLR (Pt. 512) P. 1132

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 video was neither clear nor reliable… The tribunal also accepted the DW3's
evidence that the voice of the person seen in the video clip was not his. This further
lends credence to the overwhelming evidence of the respondents' witnesses that
29
exhibit 2 was heavily doctored.

This case also highlights the dangers of placing so much reliance on video tapes as same is
possible to be doctored by simulations. It is very possible to manipulate video recording
especially with respect to voice recording. This is more of the reason why the courts should
securitize video recordings and take into account findings from cross-examination before
attaching weight to such video recording; while not losing sight of the importance of videos,
and computer-generated displays as emergent and effective mode of presentation of evidence
in contemporary court proceedings. It must be pointed out that, advancement in technology
have now made possible the reception of testimonies of experts through live video
30
conferencing link , and the Evidence Act, 2011 has strengthened the possibility of this being
practiced in our today courtrooms rather than excluding it. The international tribunals are
31
taking advantage of this technology, thus in the case of Prosecutor v. Tadic , the international
criminal tribunal for Yugoslavia was faced with lack of co-operation in the area of evidence,
especially from the Republic of Srpska. The tribunal therefore, set up a video conference link
from a secure location in the territory of the former Yugoslavia to allow numerous defense
witnesses otherwise unable or unwilling to give evidence to be able to do so.

One of the issues submitted for the determination of the appeal in the case of Barrister Sullivan
32
Chime & Anors v. Hon. Dubem Onyia & 2798 Ors was whether the trial tribunal rightly
directed itself on the evidential value of the VCD recording exhibit P7.

At the Governorship election conducted by the Independent National Electoral Commission

at Enugu State on 14th and 18th April, 2007, the appellants having polled the highest number of
votes at the election were duly returned and declared the Governor and Deputy Governor of
Enugu State by INEC. Dissatisfied with the return, the respondents petitioned the
Governorship/Legislature Houses Election Petition Tribunal at Enugu on grounds inter alia
st
that the 1 appellant was not validly elected and that the election was not conducted in
substantial compliance with the provisions of the Electoral Act, 2006. The appellants' reply
was struck out on the ground that the documents pleaded in the reply were not filed along with
it. The appellants were thus unable to call witnesses in defense of the petition and as such the
tribunal nullified the return of the appellants as Governor and Deputy Governor of Enugu
State. The appellants appealed to the Court of Appeal. After consolidating three appeals
arising from the decision of the tribunal, two of the appeals were upheld and one dismissed.
Although the Court of Appeal found that since the issue of breach of fair hearing was raised
and established it would amount to a wasteful academic exercise to proceed to determine the
33
rest of the issues , the court however, held with respect to the issue reproduced above as
follows:

29
Per Galadima, J.C.A., as he was; at P. 1153 Paras C-H
30
R. Widdison, “Electronic Law Practice. An Exercise in Legal Fulurolo in the modern Law Review, Vol 60 N0. 2, 161
31
Case No IT-94-1
32
(2009) ALL FWLR (Pt. 480) P. 673
33
Supra at P. 731 PARAS B-CJ

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 Exhibit P7 is a video compact Disc (VCD) tendered by the petitioner as i.e. (1st
respondent herein) as a recording of events at the C.B.N. in the morning of Election
th
Day 14 April 2007. It was stated by learned senior counsel for the appellants that
when exhibit P7 was played at the trial it turned out that the recording related to two
different locations and dates. One scene being Central Bank of Nigeria (CBN)
premises in the morning of 14th April 2007 i.e. election day and the other scene being,
vicinity of INEC (Enugu) office on 15th April, 2007 i.e. a day after the
election….learned counsel for the 1st respondent submitted that after the incident
occurred at CBN, it behoved the appellants to show that the materials were shared out
in the presence of the polling agents and that election had taken place even after the
incident. Exhibit P7 in my view, did not contain any evidence capable of voiding the
34
election.

Video tapes or recordings like any other documentary evidence may be impeached on the
ground that it was made in anticipation of litigation or that it was made by a person interested in
35
a legal proceeding .

In India there is move to insert a new section to the Indian Evidence Act to make the video tape
or other statement of a minor complainant of sexual assault admissible in evidence as follows:

In any trial or inquiry related to the sexual assault of a minor under Section 375, 376
and 509 of the Indian Penal Code, the videotaped statement of the minor made to a
magistrate is admissible in evidence if the complainant while testifying adopts the
36
contents of the videotaping.

This development is persuasive and ought to be followed in Nigeria. The Court may also seek
37
corroboration of recorded voice or recorded telephone conversion from an expert , especially
in view of the fact that telephone conversations are not subject to strict application of the
hearsay rule. A person who eave drops into a conversation can competently give evidence of
what he heard so long as he is able to prove the identity of the person whose voice he heard. This
he can do either by direct oral evidence or by circumstantial evidence which must be compelling
enough to establish such assertion38. In R.V. Deenik39, a custom officer impersonated the voice
of the wife of a suspect in some telephone conversations. Upon the apprehension and
questioning of the suspect, the officer who was passing by recognized the voice of the suspect
from the answers he was giving. The prosecution sought to rely on the evidence of the officer
identifying the voice of the suspect, the defense strenuously opposed it but the Court of Appeal
rejected the argument in opposition to the admissibility of the officer's evidence and held
admissible the officer's evidence.

Although one may tend to agree, that the evidence of the police officer was prejudicial and that
he enticed the suspect to further cage himself in the web of the crime with which he was charged
but the fact remains that, in criminal prosecution illegally obtained evidence is admissible in
40 41
evidence . Similarly, R.V. Neville , in a charge of stealing against the accused, telephone
34
Supra at PP 709 -710 Per Bada J.C.A
35
Supra at P. 710 Paras F-G. See also Chinwuba v. ModupeAlade (1997) 6NWLR (Pt. 85)
36
Legal, India Admin, Miscellaneous Legal Articles, http.www.assessed on 28/7/2008 at about 3:00pm
37
See R.V. Robb (1991) 93G. APP R. 161
38
See Planter's Cotton Oil Co. v. Weston Telephone C. 126 GG 621
39
(1992) CRM LR 578
40
See also Sections 14 and 15 of the Evidence Act, 2011
41
(1991) Crim LR 288

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account relating to his mobile telephone was held to be admissible in evidence.

Evidence of call log recorded in a machine of the service provider is direct evidence and
admissible, in evidence. In the case of R.V. Robson42, the accused was charged with robbery and
the prosecution sought to tender computer print outs of telephone calls made on his mobile
telephone linking him with the robbery. Objection was raised by the defense on the ground that
the print outs are pieces of hearsay evidence. The court rejected the objection and admitted the
print outs; on the ground that since the machine observed and recorded the facts, the record was
not hearsay and since there was no human intervention such as programming the information.
The court also held that the prosecution proved proper use of the computer and that the
computer was at all materials times operating properly.

On the contrary where there is no proof that the print out came from the call recording machine
but a mere assertion that a number of calls were made by the accused to certain telephone
number the court would require corroboration either by requiring the tendering in evidence of
43
the other telephone or calling its owner to testify.

It is submitted that a mobile telephone containing call identity facility capable of identifying
any registered caller even when the caller has hidden his number, can also serve as proof of the
identity of the caller. This technology is also helpful to the Economic and Financial Crimes
Commission in the discharge of their duties.44

Electronic Signatures
Section 93 of the Evidence Act has provided the needed Succor for e-commerce thus bringing
our law to intentional standards. The Section provides thus:
93(1). If a document is alleged to be signed or to have been written wholly or in part
by any person the signature or the handwriting of so much of the document as
is alleged to be in that person's handwriting must be proved to be in his writing
person, the signature or the handwriting of so much of the document as it
alleged to be in that person's handwriting must be proved to be in his writing.
(2). Where a rule of evidence requires a signature, or provides for certain
consequences if a document is not signed an electronic signature satisfies the
rule of law or avoids those consequences.
(3). An electronic signature may be proved in any manner, including by showing
that a procedure existed by which it is necessary for a person in order to proceed
further with a transaction to have executed a symbol or security procedure for
the purpose of verifying that an electronic record is that of the person.

In the case of Forsythe v. Afilaka45 signature was defined as either the name of a person or some
written contraption not easily decipherable. To sign also means to affix one's name to writing or
instrument, for the purpose of authenticating or executing an instrument as one's act. In the
46
case of Tsalibawa v. Habiba , it was defined as, any mark which identifies it as the act of the
42
(1991) Crim LR 362
43
See R.V. Burke (1990) Crim LR 401
44
Section 13 o the Advanced Fee Fraud and other Related Offences Act, 2004 makes it mandatory for all persons
who in their course of business provide telecommunication or internet services etc to register with the Economic and
Finances Crimes Commission
45
(2000) 1LHCR 123 at 129
46
(1991) 2NWLR (Pt 1740 P. 461 at P. 481

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 47
party making it. It has also been defined as, the act of signing one's name to something .

Electronic signature is defined in Section 7(2) of the English Electronic Communications Act
2000 as, being so much of anything in electronic form as is incorporated into or otherwise
logically associated with any electronic communication or data; and purports to be so
incorporated or associated for the purpose of being used in establishing the authenticity of the
communication or data, the integrity of the community or data or both.

This simply means the identification of a maker of a document which is peculiar to the maker
of the document either on a document or by electronic means. The demand of e-commerce
makes the requirement very imperative; that maker of any electronic document authenticates
the document by indicating that he is the maker and adopts the contents of the document; thus
making it legally binding on him.

Hon has quoted an online explanation of the word “signature” which seeks to draw a distinction
between a digital signature and an electronic signature thus:
A digital signature (standard electronic signature) takes the concept of traditional
paper based signing and terms into electronic “fingerprint” or coded message, is
unique to both the document and the signer and binds both of them together. The
digital signature ensures the authenticity of the signer. Any changes made to the
document after it is signed invalidate the signature, thereby protecting against
signature forgery and information tempering. Digital signatures help organizations
sustain signer authenticity, accountability, data integrity and non-repudiation of
48
electronic documents and forms.

The Nigerian Evidence Act has not drawn any distinction between a digital signature and on
electronic signature, they mean the same thing and each can be proved by any of the means
stipulated in Section 93(3) of the Evidence Act, as against the English Law, which has classified
electronic signatures into:
(a) Typing of a name into a document
(b) Email address
(c) Checking the “I accept” icon
(d) Personal identification number (PIN)
(e) Biodynamic signature
(f) Scanned signature and
(g) Digital signature49

The question arose in the case of SM Integrated Transware Pte Ltd v. Schenker Singapore (Pte)
Ltd50, as to whether e-mail communications constituting the terms of lease were signed by the
parties, since Section 6(d) of the Singaporean Civil Law Act requires documents evidencing
interest in land such as a lease to be duly executed. The court held that Section 8 of the
Electronic Transactions Act did not apply since a lease is a contract for the sale or other
disposition of immovable property or any interest in land and has been excluded from the

47
Merriam-Webster Dictionary, (2014), Merriam Webster Inc.
48
Op cit P. 517 Footnote 72
49
Ibid P. 519.
50
(2005) 2SLR

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scope of Electronic Transactions Act. The court further held that, a type written or printed
term of the party originating the message was sufficient even if this took the form of e-mail
address of the originating party.

It is humbly submitted that since the court held expressly that documents of title or interest in
land are not covered by the Act, it was of no use to add that the email address suffices. The
email correspondences can only represent intention to enter into a lease which must be done in
51
accordance with statutory requirement .

The Indian jurisprudence empowers a court to form an opinion as to the digital signature of
any person by relying on the opinion of the certifying authority which has issued the digital
signature certificate52. This provision takes care of contentious cases, such as issues relating to
digital signatures on credit card, smart cards, ATM cards, password etc as against mere
reference to an e-mail address. In a situation like that, authentication of the signature by the
53
service provider becomes relevant. The cases of United States of America v. Siddiqui ,
54 55
Zealand Services Inc.v. Lozen International, LLC and Mcguren v. Simpson are
distinguishable in this respect. In the case of United States of American v. Siddiqui56, a
combination of an email address and a user password of the internet service provider were held
to be an electronic signature by an American Court; while in another American case57, it was
held that an internal company email address was admissible evidence of electronic signature.
58
McGauran v. Simpson is a decision of an Australian Court in which a name in an email
address was held to be a signature for the purpose of Section 54(4) of Australian Limitation Act
1969.The issue of authentication of electronic signature may also arise, where for instance; an
unauthorized withdrawal is made from a customer's account with a bank; probably through
unauthorized use of the customer's Automated Teller Machine card. The machine is capable
of blocking an intended withdrawal where the intruder has wrongly signed the electronic
signature of the actual owner (i.e. personal identification number-PIN) but the situation would
be different where the intruder successfully signed the proper electronic signature of the actual
owner.

It is submitted that for Nigerian Courts to fully appropriate the advantages of Section 93(3) of
the Evidence Act, recourse must be had to foreign authorities until our case law authorities are
fully developed with respect to admission into evidence, of electronic evidence.

Electronic Evidence by Expert Witnesses

The major area of documentary proof that the Nigerian Evidence Act has left in the domain of
expert witnesses is as provided by Section 68 of the Act. The Section provides thus:
68 (1) When the court has to form an opinion upon a point of foreign law,
customary law or custom or of science or art, or as to identity of handwriting or
51
In Nigeria, where a statute has prescribed a particular mode for doing an act, no other mode can be
resorted to. See the case of Malah v. Kachalla (19990 3NWLR (Pt. 594) P. 309
52
Section 47A Indian Evidence Act 1872 (As amended)
53
235 F.3d 1318 (11thCor 2000) US
54
258 F. 3d 808; 2002 WL 496943 (9thCor 2002)
55
(2004) NSWSC 35
56
Supra. See also Tribuimate v. Mondovi 7Guinna2004 n.375(deer)
57
Sea-Land Services Inc. v. Lozen International LLC, Supra
58
Supra

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 finger impressions, the opinions upon that point of persons specially skilled in
such foreign law, customary law or custom, or science or art or in questions as to
identity of handwriting or finger impressions, are admissible.
(2). Persons so specially skilled as mentioned in subsection (1) of this Section
are called experts.

There is no doubt that an expert may demonstrate his opinion through the use of computer or
electronic evidence; for instance where the expert is faced with the determination of series of
handwritings or finger prints. Experts are in most cases required to assist the court unravel the
mysteries and complexities of obtaining and presenting computer desired evidence that require
special skill. In explaining to the court the evidence being adduced, the expert may need to
support his demonstration with electronic or computer generated documentary evidence since
much computer-derived evidence is unintelligible to the ordinary person who does not possess
such skill. According to Lord Mansfield in Folkes v. Chadd59, an expert essentially acts as an
interpreter addressing those matters likely to be outside the experience of and knowledge of a
judge or jury.

Since the court is not bound to rely on and ascribe weight to the evidence of an expert, it then
follows that the usefulness of his evidence would most depend on how impartial he is, given the
fact that in Nigeria a party may out of his own volition pay and bring an expert to testify for him
especially in election matters. In civil law systems such as France and Germany an official
expert will be nominated by the court, and has a different status from an ordinary witness.
Evidence of finger impression is said to be one of the strongest evidence of identifying a person
in that, the chance of two individuals bearing the same continuation of papillary ridges on
fingertips or bulbs is negligibly small.

Identification by finger print impressions is very useful in criminal prosecution and this point
was underscored by Rose L.J; in R.V. Buckey60, in the following words:

Fingerprint evidence, like any other evidence, is admissible as a matter of law if it

tends to prove the guilt of the accused. It may so tend even if there are only a few
similar ridge characteristics but it may, in such a case, have little weight. It may be
excluded in the exercise of judicial discretion, if its prejudicial effect outweighs
its probative value.

The fact that an expert's finger print evidence is admissible does not therefore mean that it must
be accorded weight simpliciter rather; the courts have always made it their practice as in
admission and ascribing weight to confessional statement; to require corroborative evidence.
61
The English court stated clearly in the case of R.V. Court that, opinion of an expert on finger
print or thumb impression is not conclusive proof of that fact.
62
Evidence of Blood Samples
This is yet another form of evidence that may be obtained by forensic proof; born out of the
experiment which has proved that the blood composition of a child can show proof of its

59
(1782) 2Dough 157
60
(1999) 13 JP 561
61
(1960) 44 Cr. APP. R. 242
62
Commonly referred to as “DNA”

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paternity. Thus, blood sample test is admissible. In the Nigerian case of Adeyenu v. Abayonu63,
three ladies claimed the maternity of a baby girl. The police obtained their consent to subject
themselves to DNA test which was conducted in the United Kingdom with their blood samples.
The result eventually revealed that the baby belonged to the 3rd defendant. The plaintiffs in this
suit were dissatisfied with the result of the DNA and therefore brought the suit that led to the
appeal in the instant case; contending that the test was not foolproof. The action was dismissed
rd
and the counter-claim granted in favour of the 3 defendant who was granted the maternity of
the child.

The Child Rights Act offers a useful guide concerning DNA test as it empowers the courts to
rely on results of scientific tests when tendered and admitted in evidence. Section 63 thereof
provides as follows:
63 (1) In any civil proceedings in which the paternity or maternity of a
person fails to be determined by the court hearing the proceedings, the
court may, on an application by a party to the proceedings, give a direction
for -
(a) The use of scientific tests, including blood tests and Deoxyribonucleic
Acid tests, to ascertain whether the tests show that a party to the proceedings is or is
not the father or mother of that person; and
(b) For the taking within a period to be specified in the direction, of blood or
other samples from that person, the mother of that person, the father of that person
and any party alleged to be the father or mother of that person or from any two of
those persons.

The court is vested with discretion to either specify the person or persons who would undergo
the test or to give such direction where it considers that it would be inappropriate to give such
specification where such would be contrary to any provision of the regulations made under
Section 65 of the Act or for any other reason. It is submitted that the court may in reliance on
this provision, order an expert to conduct the test on a child and the contestants for the child or
may direct the contending parties to submit themselves and the child to test to an expert of their
choice. The most important thing to the court is that a documentary evidence of the result of
the test be submitted to it. The result is to state the following:
(I) Whether the party to whom the report relates is or is not indicated by the
results as the father or mother of the person whose paternity or maternity, as the case
may be, is to be determined; and
(ii) If the party is so indicated, the value, if any, of the results in
determining whether that party is actually the father or mother of that person.

The maker of the report may also make additional written statement or document explaining
the contents of his report where any party to the proceedings has sought such explanation with
leave of the court or where the court Suo Motu directs. Such, document shall also be admitted as
forming part of the report of the tests already tendered and admitted.

The Act prohibits a party from calling as a witness any expert, who has conducted test pursuant
to court's directive, in which case such a witness would be treated as a neutral witness and not a
witness to any of the parties. Section 63(8) makes the provision thus:
63
(2002) FWLR (PT. 132) P. 136

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 63(8) Where a direction is given in any proceedings, a party to the proceedings
shall not, unless the court otherwise directs, be entitled to call as a witness.
(a) The person who carried out the tests taken for the purposes of giving
effect to the direction; or
(b) Any person who did anything necessary for the purpose of enabling
those tests to be carried out, unless within fourteen days after receiving a copy of the
report that party serves notice on other parties as the court may direct of his intention
to all that person, and where a person is called as a witness the party who called the
person shall be entitled to cross-examine that person.

The party on whose application the court made the direction authorizing the conduct of the
blood sample test is the person to pay the cost of conducting the test and any expenses
reasonably incurred, not only by the expert but also any person who had taken any step required
of him by the court order. Nobody shall be compelled to submit to such test.The law requires
that any person to be so tested gives his consent before he could be subjected to test.

Section 64 provides:
(1) Subject to the provisions of subsections (3) and (4) of this Section, scientific sample
which is required to be taken from any person for the purpose of giving effect to a
direction under Section 63 of the Act shall not be taken from that person except with his
consent.

(2) The consent of a child who has attained the age of sixteen years to the taking from
himself of a scientific sample shall be as effective as it would be if he had attained the
age of majority and where a child has by virtue of this subsection given an effective
consent to the taking of a scientific sample, it shall not be necessary to obtain any
consent for it from any other person.

(3) A scientific sample may be taken from a child under the age of sixteen years, not being a
child as is referred to in subsection (4) of this Section, if the person who has the care and
consents.

Similarly, scientific sample may be taken of a child who is suffering from mental disorder and is
incapable of understanding the nature and purpose of scientific tests, if the person who has the
care and control of the child consents and the medical practitioner in whose care he is, has
certified that the taking of the scientific sample from the child shall not be prejudicial to his
proper case and treatment. The result of test obtained pursuant to the consent given by the
person who gave his consent or the person on whose behalf consent was obtained becomes
admissible documentary evidence.

Forensic analysis is also useful in criminal trials though it entails a higher level of burden of
proof. It then follows that a blood stained glove or short found in possession of an accused is not
conclusive evidence that he committed the crime or that the blood belongs to him except same is
subjected to forensic analysis and so proved.

The trend of match probability of DNA in many sampled subjects operated to reduce the
weight that may be attached to the result where such probability is very possible. In this case, the

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court would caution itself of the danger of misjudging a person's blood component with that of
another person with similar blood component. This situation creates a doubt that must be
resolved in favour of the accused.

Proof of Handwriting by Expert Evidence

Where handwriting or signature is in issue, it may be proved by the court requiring that
signature or writing be reduced on a piece of paper for purposes of comparison without calling
evidence of handwriting expert. A judge has some limitations in matters of comparing
signatures or handwriting in that, where the comparison is not very obvious but involves matters
which are within the competence of an expert, it would not be proper for the judge to constitute
himself an expert and proceed to form his own opinion on a handwriting issue. Where a judge
causes a witness to write on a piece of paper for comparison, such piece of paper would be
admitted in evidence and if found similar to the writing or signature with which it is being
compared, it becomes conclusive proof of same. The Supreme Court cautioned in the case of
64
Ezeonwu v. Onyechi , that, mere dissimilarity in signature is neither conclusive evidence nor a
rational basis to ground a finding that such signatures were in fact not made by one and the same
person.

Another mode of proving signature or handwriting is by calling evidence of an expert as

provided in Sections 68, 72 and 93-101 of the Evidence Act.
Section 68(1) provides that:
When the court has to form an opinion upon a point of foreign law customary law, or
custom, or of science or art or as to identity of handwriting or finger impressions, the
opinions upon that point of persons skilled in such foreign law, customary law or
custom or science or art, or in questions, as to identity of handwriting or finger
impressions are admissible

Subsection 2 of the Section describes such persons as expert. Mere Claim by a witness that he is
an expert or handwriting expert is not enough, there has to be proof that he is qualified to be
rated an expert in a particular field. In the case of Fashugba v. I.G.P.65, the appellant was
convicted on the evidence of a police officer who claimed to be a handwriting analyst. There
was no proof that he has ever analyzed handwritings or that he had such training. The
Magistrate relied on his evidence and convicted the appellant. The conviction was eventually
quashed on appeal, as the appellate court did not find enough proof to regard the evidence of
the police officer as expert evidence.

The opinion of a handwriting expert may be in form of documented report; although a court is
not bound to accept or ascribe weight to the evidence of an expert but then, the court cannot
discountenance such evidence without first evaluating it, so as to test its veracity or authenticity
and then determine whether or not to ascribe weight to it.

By virtue of Sections 72 to 76 of the Evidence Act, the court may also rely on opinions of non-
experts. When such opinion relates to handwriting, the court may rely on the evidence of a
person who is acquainted with the handwriting of the person by whom it is supposed to be
written or signed. The evidence or opinion of such a witness may be that the writing is or is not
that of the person who is alleged to have made it.

64
(1996) 3NWLR (Pt. 438) P. 499
65
. (1964) 2 ALL NLR 15

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A person can only be said to be acquainted with the handwriting of another person when he has
seen that person write or when he has received documents written by that person in answer to
documents written by himself or under his authority and addressed to that person, or when in
the ordinary course of business, documents purporting to be written by that person have been
habitually submitted to him. In the case of Salami Lawal v. C.O.P.66, a witness gave evidence to
the effect that he was conversant with the appellant's signature having worked together with
him. He identified the signature in issue as that of the appellant; although he is not an expert,
the trial court relied on his evidence; on appeal, it was held that the trial court was right to have
relied on the evidence of the witness.

A person who witnessed the signing of a document is also competent to testify as to the
handwriting or signature of any of the persons who signed the document; especially when the
witness was the person who prepared the document. In the case of Adenle v. Olude67, one of the
issues submitted to the Supreme Court for the determination of the appeal was:
Whether the Court of Appeal was right in making comparison between exhibits A, B
and C and thus coming to the conclusion that DWI was a signatory to both exhibits
A and C.

The action was instituted by the respondent who claimed that a parcel of land was sold to him
from the layout made by Iyade family of their land in Ikeja, Lagos. He relied on the purchase
receipt (EXHIBIT 'A') showing that accredited representatives of the family including the
DW1 (MomoduIlo, the Olu of Ikeja, who duly conveyed the land to him by virtue of EXHIBIT
“C” -registered deed of conveyance). The respondent claimed that he bought the land through
one Odunsi who also had a conveyance of a parcel of land from the family (EXHIBIT D). The
lawyer who prepared the conveyance testified that he prepared EXHIBIT “C” for the
respondent and EXHIBIT “D” for Odunsi. According to the lawyer the deeds of conveyance
were executed before a magistrate; because the vendors were illiterate persons. He also gave
evidence to the effect that Oba MomoduIlo (DW I) signed the deeds as the head of the family
with other vendors and principal members of the family, although, DW I. denied signing the
deeds. The appellant claimed that the land was sold to him and that a purchase receipt
(EXHIBIT “E”) and a deed of conveyance (EXHIBIT “F”)were executed in his favour by the
family.

The trial court believed the evidence of the DW I that he did not sign EXHIBIT “C”and
dismissed the case on the ground that the respondent ought to have called a handwriting analyst
to show that the signature on EXHIBIT “Which was alleged to have been signed by the DW I
was actually signed by him. The judgment was upturned by the Court of Appeal and being
dissatisfied with the judgment the appellant appealed to the Supreme Court which upheld the
appeal.

On how to ascertain the authenticity of signature alleged to be forged; the apex court stated as
follows:
In resolving the issue of the due execution of a document where the alleged maker
denies the signature, the course or options opened to the court would be the following-
(a) To receive evidence from the attesting magistrate if there is such an
attestation and if it is still possible to call the magistrate.
66
(1988) 3NWLR (Pt. 85) P. 670
67
(2003) FWLR (Pt. 157) P. 1074

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 (b) To hear evidence from a person familiar with the signature of the alleged
signatory or who saw him write the signature.
(c) To compare the signature admitted by the alleged signatory to be his own
with the one under contention…..
(d) To direct the person to sign his signature for the purpose of enabling the court
to compare the signature alleged to have been written by him.

Conditions for Admissibility under Section 84

Section 84 of the Evidence Act deals with the conditions for the admissibility of computer
generated evidence in both civil and criminal proceedings. The provision is strictly on
admissibility of statements in documents produced computer and should not by any means be
construed to cover other electronic generated evidence which gadget does not fall within the
ambit of the definition of “Computer” if statement is to be strictly construed as on paper output
from a computer. For ease of clarity the Act defines computer to mean any device for storing
and processing information, and any reference to information being derived from other
information is a reference to its being derived from it by calculation, comparison or any other
68
process.

What constitutes a computer therefore depends on the ability of the device to manifest the
characteristics stated in the provision. Such devices as calculator, mobile telephone handset,
camera etc cannot be ignored as qualifying as computers in the definition of the Evidence Act;
but they can only fall within the scope of Section 84 of the Act, if they are capable of producing
the information stored in them, in documentary form.

The conditions spelt out by S-84 (2) of the Evidence Act relate to the documentary statement
produced by the computer and the state of the computer itself.

The conditions are:-

84 (2) (a). that the document containing the statement was produced by the computer
during a period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that
period, whether for profit or not, by anybody whether corporate or not,, or by
any individual;
(b). that over that period there was regularly supplied to the computer in the
ordinary course of those activities information of the kind contained in the
statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating
properly or, if not, that in any respect in which it was not operating properly or
was out of operation during that part of the period was not such as to affect the
production of the document or the accuracy of its contents; and
(d). that the information contained in the statement reproduces or is derived from
information supplied to the computer in the ordinary course of those activities.

The summary of the conditions listed above is that, a party seeking to rely on such document
must prove that the document was stored in the computer which produced it in the ordinary
course or usage of the computer for such purpose and that the computer was in good condition,

68
Ibid

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reliable and that the output correctly represents what was stored in the computer. Further
threshold requirements for admissibility of computer generated document are as found in sub
sections (3) and (4) of Section 84 of the Act. While subsections (3) permits the treatment of
combinations of computers responsible for the output sought to be tendered, as a single
computer, subsection (4) requires the corroboration of the Section 84 (2) conditions by a
certificate; which must identify the document, state how it was produced and giving particulars
of the device used or involved in the production. The certificate is to be signed by the producer
or any person whose position is relevant to the production of the document. This certificate
which has attracted the judicial reference of the word “certificate” may be made on oath or the
maker stating that he made the certificate to the best of his knowledge and belief. These
provisions have been put to rest by the Nigerian courts of record including the apex court.

Like every other documentary evidence, computer generated evidence may be proved either by
primary or secondary evidence. It is also classified into private and public document. When
any computer generated evidence is sought to be tendered, the law requires the tendering of the
primary evidence of it except where secondary evidence is permissible; for instance a copy of
public document that is computer generated must be certified to make it admissible. This issue
69
was discussed at length by the Supreme Court in the case of Kubor V. Dickson . The appellants
in this case presented petition before the Governorship Election Tribunal, Holden at Yenagoa,
st
against the respondents. The appellant's case was that the 1 respondent was not qualified to
contest the election into the office of Governor of Bayelsa State which was held on 11th
February, 2012 because prior to and up to the date of the election there was a pending litigation
in court over the question of who was the candidate of the 2nd respondent for the election. In
reaction to the pleaded facts in the petition, the 3rd respondent filed a reply in which it pleaded,
st rd
inter alia, that on the 1 day of January, 2012, the Federal High Court, Abuja ordered the 3
st nd
respondent to restore the name of the 1 respondent as the 2 respondent's (PDP) candidate for
rd
the Governorship election of Bayelsa State, which order was complied with by the 3
respondent (INEC). The order of the Federal High Court was admitted as exhibit “N”. The
tribunal in dismissing the petition for lacking in merit rejected exhibits “D” and “L” which
were internet print outs of punch newspaper and list of candidates posted on INEC's website
respectively tendered from the bar and admitted in evidence. The appellant's appeal to the
Court of Appeal was dismissed and on further appeal to the Supreme Court, the appeal was
unanimously dismissed. On the admissibility of computer generated document or document
downloaded from the internet the Supreme Court pointed out that the governing provision is
section 84 of the Evidence Act, 2011; and the conditions listed under that Section must be
satisfied before the document would be admitted in evidence. Reacting to the conditions
stipulated under Section 84 of the Evidence Act, 2011 the Supreme Court stated emphatically
that:
A party that seeks to tender in evidence a computer generated document needs to do
more than just tendering same from the bar. Evidence in relation to the use of the
computer must be called to establish the above conditions. In the instant case, there
was no evidence on record to show that the appellants in tendering exhibits “D” and
70
“L” satisfied any of the above conditions .

69
(2013) 4NWLR (Pt. 1345) P. 534
70
Supra at PP: 577-578 PARAS D-E

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The Supreme Court went ahead to consider the type of secondary evidence of public document
that is admissible in respect of computer generated document, and stated as follows:
The only admissible secondary evidence of a public document is a certified true copy
of same. In the instant case, exhibit “D” which was an internet print out of the
public newspaper was by nature a secondary evidence of the original by reason of the
provisions of Section 85 and 87(a) of the Evidence Act 2011. On the authority of
Sections 90(1) (c) and 102(b) of the Evidence Act, it is only the certified true copy of
the document as secondary evidence and non-other that was admissible. Therefore
the absence of certification rendered exhibit “D” a worthless document and
inadmissible. Similarly, exhibit “L” which was a computer/internet generated
document allegedly printed by the appellants from the website of the 3rd respondent
was by Section 102(ii) of the Evidence Act, classified as a public document and only a
certified true copy of same was admissible in law.71

The numerous conditions attached to computer generated documents as well as its subjection
to the classification of private and public document is unfortunate and cumbersome. The law
would have been better if every internet generated document was made admissible in evidence.
The likelihood of wrongful refusal by concerned authorities to certify documents generated
from their websites cannot be ruled out.

Mere satisfaction of the conditions stipulated in Section 84 of the Evidence Act, does not
automatically entitle the document to be ascribed weight by the court but, the hurdle posed by
Section 34 (1) (b) of the Act must be passed. The said provision requires the following to be
considered, in the determination of whether or not weight should be ascribed to a document
produced by a computer:
(a) The question whether or not the information which the statement contained,
reproduced or is derived from, was supplied to it, contemporaneously with the
occurrence or existence of the facts dealt with in that information; and

(b) The question whether or not any person concerned with the supply of
information to that computer or any equipment by means of which the
document containing the statement was produced it; had any incentive to
72
conceal or misrepresent the fact . Failure to comply with these conditions
would result in the evidence being expunged.

Issues raised by admissibility of electronic and computer generated Evidence and

Responses.
Electronic Evidence and the Hearsay Rule
Electronic evidence is viewed as specie of documentary evidence and as such the rule against
admissibility of hearsay evidence also applies to electronic generated evidence. Thus direct
electronic generated evidence must be given by the maker. If it is a record compiled and fed into
a computer, the person who computed the record is the maker for purposes of tendering and
admissibility of the document.

71
Supra at P. 579 PARAS B-F, 593 PARAS E-H
72
Dickson v. Sylva (2017) 8 NWLR (Pt 1567) 167 at P. 209 Paras A-B

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Computer generated evidence is therefore said to be hearsay evidence where:
The document or printout sought to be tendered is not what the computer stored and
processed itself in an automatic manner or produced at the trial by the maker and the
veracity of such a document is in issue.
73
In the English case of Rv. Patel , a computerized immigration record tendered in proof of the
fact that the accused was an illegal entrant was rejected in evidence. The court regarded the
document as hearsay evidence since the officer who compiled the list was not called as a
witness. The court also observed that, the document did not fall within a class of document
which is made admissible in criminal proceedings as evidence of fact contained in them.

Electronic evidence can also be made in the ordinary course of business. This is common with
banks and big corporate bodies. The condition for the admissibility of this kind of evidence is
that, the maker must have made the statement contemporaneously with the transaction
recorded or so soon thereafter that the court, considers it likely that the transaction was at that
74
time still fresh in his memory .

Section 84(5) (a) and (c) of the Evidence Act, 2011 has made a remarkable shift from the
distinction between when there is human intervention in storage of information into computer
and when the information is automatically stored by the computer itself. The said provision
applies the phrase “with or without human intervention”. The effect of the provision is that the
possibility of documentary hearsay of computer generated documents or evidence has been
minimized to a large extent.

The issue of who satisfies the conditions stipulated in Section 84 of the Act calls for discussion.
There is no doubt that some judges and lawyers alike, misinterpret the purport of that provision.
The said conditions are guidelines for proof to the party who has the onus of proof. Apparently,
the onus lies on the party who wants to tender and rely on a computer output. But, situation may
arise where a party would wish to tender a computer output issued him by the opposing party,
for instance, where a customer to a bank wishes to tender a statement of account issued to him
by a bank which is a party to the suit. The question is whether the customer is required to satisfy
the conditions led down in Section 84 (1), (2) and (4) of the Evidence Act, 2011. It is the writer's
view that the customer has no onus to prove the conditions afore-said. This is common sense,
the customer does not know anything about the computer that printed output, how it has been
used over time, the state of the computer and authenticity of the information contained in the
output. As a matter of fact, the customer may even be challenging the accuracy of the computer
and the authenticity of the information. Would it then be reasonable to expect him to give
evidence against himself and in favour of his opponent who manned the computer that
produced the statement? Not to talk of requiring him to issue a certificate authenticating the
information. That cannot be the intention of those who drafted the provision. It is then
erroneous for any court to require a party under such situation to satisfy the conditions or
require him to state that he believe in the accuracy of such an output, if the party is not the
maker of the document and the operator of the computer. The English example appears more
helpful and less confusing.

73
(1981) 3ALL ER 94
74
See Section 41 Evidence Act, 2011

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The law in England does not require the satisfaction of any condition before an electronic or
computer generated evidence is received in evidence, the rule remains that of relevance, except
75
in criminal proceedings.

It is further submitted that, the Act ought to be amended to state specifically who has the onus
of proving the conditions contained in Section 84 of the Evidence Act, 2011; by specifically
apportioning the onus to the maker of the document or operator of the computer which
produced the statement.

The conditions spelt out in section 34(1) (b) of the Act ought to have been the only condition for
admissibility of electronic and computer generated evidence. Section 84 requirements are not
just cumbersome but unnecessary surplus sage to Section 34(1) (b); which aptly captures the
essence or grounds for scrutinizing electronic and computer generated evidence.

The conditions contained in Section 84 of the Evidence Act, 2011 also raises the question
whether, the type of evidence required to enable admissibility of electronic and computer
generated evidence is expert evidence or a non-expert evidence, merely to satisfy all
righteousness. If the evidence required by that provision is not meant to be probed then it is
devoid of any seriousness. If for instance a person occupying a reasonable position in relation
to the operation of the device, does not possess any technical knowledge of the device, would
he be taken as a witness of truth if he merely signs a certificate authenticating the device from
which the output sought to be admitted is produced? It is therefore submitted that for any
credible evidence to be given concerning the operation and condition of a device, such
evidence has to come from an expert witness. Granted that some litigants may not afford the
cost of hiring expert witnesses, the way out is for the judiciary to employ independent
computer experts whose services would be easily accessible as those of the bailiffs of the
registry. The alternative to this, is training of more police forensic experts who will come to
court to testify or examine electronic and computer generated documents, upon being
subpoenaed

Conclusion
There is no doubt that the admissibility in evidence of electronic and computer generated
evidence is yet to be fully mastered in Nigeria, the issued raised in this work, as well as the
responses are important to ensuring smooth practice of this new regime. Reliance must also be
placed on persuasive decisions from other jurisdictions; to make our law grow.

75
House of Lords – Science and Technology Committee Fifth Report, accessed from www.parliment.
The stationary – off.co.uk p. hton, visited opn 12/11/2013

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