GATHERING AND ADMISSIBILITY OF

ELECTRONICALLY GENERATED
EVIDENCE

PROF. YEMI OSINBAJO SAN

INTRODUCTION
NIGERIAN LAW OF EVIDENCE WAS
REMARKABLY SLOW IN RECOGNISING THE
CHALLENGES OF PROOF OF
ELECTRONICALLY GENERATED EVIDENCE.
THE EVIDENCE ACT 1945 WAS ONLY
AMENDED TO RECOGNISE E-EVIDENCE IN
2011. HOWEVER THE APPELATE COURTS
HAD ALWAYS TAKN A PROACTIVE VIEW
DESPITE THE CONSTRAINTS OF THE LAW.

Nigerian Cases on Electronic Evidence

IN PERHAPS THE EARLIEST CASE ON THE ADMISSIBILITY OF ELECTRONIC
EVIDENCE IN NIGERIA ESSO WEST AFRICA INC. V. T. OYEGBOLA (1969) 1
NMLR 194 THE SUPREME COURT SAID "THE LAW CANNOT BE AND IS NOT
IGNORANT OF MODERN BUSINESS METHODS AND MUST NOT SHUT ITS EYES
TO THE MYSTERIES OF THE COMPUTER".
MORE RECENTLY IN FEDERAL REPUBLIC OF NIGERIA V FEMI FANI-KAYODE
C/A 2009., AT THE TRIAL OF THE RESPONDENT FOR MONEY-LAUNDERING, A
CERTIFIED COPY OF THE COMPUTER GENERATED STATEMENT OF ACCOUNT
OF THE RESPONDENT WAS TO BE TENDERED AS EVIDENCE. THE
RESPONDENT OPPOSED THE APPLICATION ON THE GROUND THAT THE
COMPUTER GENERATED STATEMENT OF ACCOUNT IS INADMISSIBLE UNDER
SECTION 97 OF THE EVIDENCE ACT. THE LEARNED TRIAL JUDGE UPHELD THE
OBJECTION AND REJECTED THE STATEMENT OF ACCOUNT THE COURT
APPEAL HELD THAT THE TERM BANKERS BOOKS TO INCLUDE ALL OTHER
BOOKS USED IN THE ORDINARY COURSE OF BUSINESS IN THE BANK COULD
AS WELL INCLUDE OTHER METHODS AND DEVICES USED TO KEEP RECORDS
IN THE BANK.

THE PAPER-BASED LEGACY

DOCUMENT AS WRITING ON A
SUBSTANCE IN LETTERS , FIGURES OR
MARKS
SIGNATURES AS HANDWRITING OR
FINGER IMPRESSIONS
PRINCIPLES OF EVIDENCE BASED ON
ANALOG CONSIDERATIONS.

DIGITAL OR E-EVIDENCE IS..

INFORMATON STORED OR
TRANSMITTED IN ELECTRONIC OR
DIGITAL FORM WHICH IS THEN SOUGHT
TO BE USED IN EVIDENCE

COMPUTER-GENERATED EVIDENCE
COULD INCLUDE

EMAILS
INSTANT MESSAGING AND HISTORIES
PHONE RECORDS AND LOGS
ATM TRANSACTION LOGS
PRINT- OUTS
SPREADSHEETS
INFORMATION ON SOCIAL MEDIA; FACEBOOK , TWITTER
VIDEOS YOU TUBE
DIGITAL PHOTOGRAPHS
DVDS CDS
FILES SAVED FROM ACCOUNTING PROGRAMS

CHECK-LIST FOR
GATHERING,ADMISSIBILITY AND WEIGHT

RELEVANCE +( LARGELY DETERMINED

BY THE EVIDENCE ACT 2011)- SECTION
1 EA 2011
WAS IT PROPERLY OBTAINED?
HEARSAY OR DIRECT EVIDENCE
ORIGINAL OR COPY
RELIABILITY CERTIFICATE
WEIGHT SECTION 34 EA

IS IT A DOCUMENT?
FOR COUNSEL THE CRUCIAL
QUESTION IN KNOWING WHAT RULES
TO APPLY IS WHAT TYPE OF EVIDENCE
IS THE PARTICULAR E-EVIDENCE? E.G
IS AN EMAIL BEFORE BEING PRINTED
OUT A DOCUMENT?
IS A DVD OR CD A DOCUMENT?
IS A POSTING ON FACEBOOK
DOCUMENTARY?

WHAT IS A DOCUMENT
SECTION 258 EA: includes:
.any disc, tape, sound track,or other device in
which sounds and other data( not visual images)
are embodied so as to be capable of being
reproduced.
Any film, negative, tape or other device in which
one or more visual images are embodied
ANY DEVICE BY WHICH INFORMATION IS
RECORDED, STORED OR RETRIEVABLE
INCLUDING COMPUTER OUTPUT.- PHONES,
IPADS

WHAT IS A COMPUTER
S. 258 of the Evidence Act 2011 :
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 process.
*** PHONES, IPADS, ANDROIDS, MANY
ELECTRONIC HAND HELD DEVICES
QUALIFY

Computer - Generated Documents

RELEVANT STATEMENTS IN DOCUMENTS
PRODUCED BY COMPUTERS ARE
ADMISSIBLE SUBJECT TO CONDITIONS
PRECEDENT BEING MET, ( S. 84 of the
Evidence Act of 2011). THIS PROVISION
APPLIES TO EMAILS, TEXT MESSAGES,
POSTINGS ON FACEBOOK, TWITTER ETC

 IN THE MORE RECENT CASE OF F.R.N V. FANI-KAYODE, THE

COURT OF APPEAL, FOLLOWING THE EARLIER SUPREME COURT
DECISIONS IN YESUFU V. ACB AND ANYAEBOSI V. R. T. BRISCOE
HELD THAT THE COMPUTER PRINTOUT OF A BANK STATEMENT
WAS ADMISSIBLE UNDER SECTION 97 (1) AND (2) OF THE OLD
EVIDENCE ACT. (2010) 14 NWLR PART 1214 P.481, SEE
PARTICULARLY THE OPINION OF SALAUWA JCA AT PAGE 506-507.

CONDITIONS PRECEDENT:
A CERTICATE PRODUCED BY PARTY SEEKING TO
TENDER COMPUTER GENERATED DOCUMENT
IDENTIFYING THE DOCUMENT AND DESCRIBING HOW IT
WAS PRODUCED
GIVING PARTICULARS OF THE COMPUTER USED
REGULAR USE OF COMPUTER DURING RELEVANT
PERIOD TO PROCESS & STORE INFORMATION.
SIMILAR INFORMATION WAS STORED AND PRODUCED
OPERATING PROPERLY
ORDINARY COURSE OF ACTIVITIES- (INFORMATION
WHICH WAS SUPPLIED TO THE COMPUTER)
SIGNED BY PERSON OCCUPYING RESPONSIBLE
POSITION IN RELATION TO THE COMPUTER OR
RELEVANT ACTIVITIES

THIS TREND OF NIGERIAN CASE LAW IS

PREDICTABLE FROM THE RECENT SUPREME
COURT DECISION IN DR. IMORO KUBOR &
ANOR V. HON. SERIAKE HENRY DICKSON &
ORS. (2012) LPELR-SC.369/2012.
THE DOCUMENTS IN THIS CASE WERE TWO
PRINTOUTS FROM THE WEBSITE OF AN
ONLINE NEWSPAPER. THE SUPREME COURT
PER ONNOGHEN J.S.C HELD THAT THE
DOCUMENTS
WERE
INADMISSIBLE
FOR
FAILURE TO SATISFY THE FOUR CONDITIONS
STATED UNDER SECTION 84(2) OF THE
EVIDENCE ACT, 2011.

 RECENTLY HOWEVER, THE FEDERAL HIGH COURT IN A RULING

DELIVERED BY HON. JUSTICE GABRIEL KOLAWOLE IN F.G.N V.

SENATOR MOHAMMED NDUME ADMITTED A DVD TENDERED AS
EVIDENCE NOTWITHSTANDING THE PROPONENTS FAILURE TO
SATISFY THE CONDITIONS UNDER SECTION 84(2) (A-D) OF THE
EVIDENCE ACT, 2011. IT WILL BE INTERESTING TO SEE IF THE
FEDERAL HIGH COURTS DECISION CAN WITHSTAND APPELLATE
SCRUTINY CONSIDERING THE EARLIER DECISION OF THE
SUPREME COURT IN KUBOR V. SERIAKE (SUPRA).

ORIGINAL OR COPY?

SECTION 88 DOCUMENTS SHALL BE

PROVED BY PRIMARY EVIDENCE BUT
THERE ARE EXCEPTIONS IN THE ACT.

COPIES OF THESE NEW TYPES OF

DOCUMENTS
A TRANSCRIPT OF THE SOUNDS OR OTHER DATA
EMBODIED IN AN AUDIO CD IS A COPY(Section . 258)
A REPRODUCTION OF IMAGES IN A FILM ,
NEGATIVE , TAPE OR OTHER DEVICE FOR (S. 258)
STORING VISUAL IMAGES IS A COPY
***NOTE THAT IF DOCUMENTS MADE BY ONE
UNIFORM PROCESS ALL ARE ORIGINALS ( S.86 EA)

Electronic Signatures
Electronic signatures are admissible.
They can be proved in any manner or
where it is shown that a procedure was
followed by the person executing a symbol or
followed some other security procedure for the
purpose of verifying that an electronic signature
was made to an electronic record.
s. 93 (1-3) of the Evidence Act 2011
capacit
y

THE HEARSAY OBSTACLE

A WRITTEN OR ORAL STATEMENT MADE BY
A PERSON NOT CALLED AS A WITNESS IS
HEARSAY AND INADMISSIBLE
ALSO A STATEMENT CONTAINED IN A BOOK,
DOCUMENT OR RECORD OF ANY KIND
WHICH IS TO BE TENDERED TO PROVE THE
TRUTH OF THE CONTENTS BUT WHICH IS
NOT DECLARED ADMISSIBLE UNDER THE
EVIDENCE ACT IS HEARSAY AND
INADMISSIBLE (SECTION 37 & 38 EA)

Electronic business records (exception to

the hearsay Rule)
S. 51:
Entries in books of accounts or electronic records regularly kept
in the course of business are admissible whenever they refer to
a matter into which the court has to inquire but such statements
shall not alone be sufficient evidence to charge any person with
liability.
S. 52:
An entry in any public or other official books, register or record,
including electronic record stating a fact ill issue or relevant fact
and made by a public servant in the discharge of his official duty,
or by any other person in the performance of a duty specially
enjoined by the law of the country in which such book, register
or record is kept, is itself admissible.

I REPORTERS EVIDENCE
IT APPEARS THAT A VIDEO
RECORDING ON A PHONE CAMERA BY
A BYSTANDER WOULD NOT HAVE THE
BENEFIT OF THE BUSINESS RECORDS
EXCEPTION. THE BYSTANDER MUST BE
CALLED AS A WITNESS TO TENDER
THE DOCUMENT.

BUSINESS RECORDS EXCEPTONS TO

HEARSAY RULE.
S. 41:
A statement is admissible when made by a person in the ordinary course of business and in particular when it
consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of
business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the
receipt of money, goods, securities or property of any kind. or of a document used in commerce written or
signed by him or the date of a letter or other document usually dated written or signed by him:

Provided that the maker made the statement contemporaneously with the transaction recorded or
soon thereafter that the court considers it likely that the transaction was at that time still fresh in his
memory

S. 51:
Entries in books of accounts or electronic records regularly kept in the course of business are admissible
whenever they refer to a matter into which the court has to inquire but such statements shall not alone be
sufficient evidence to charge any person with liability.

S. 52:
An entry in any public or other official books, register or record, including electronic record stating a fact ill
issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person
in the performance of a duty specially enjoined by the law of the country in which such book, register or record
is kept, is itself admissible.

WAS THE EVIDENCE PROPERLY

OBTAINED?
THE COURTS NOW HAVE A DISCRETION
TO REJECT EVIDENCE OBTAINED
IMPROPERLY N IN CONTRAVENTION OF
THE LAW. THE COURT IN EXERCISNG ITS
DISCRETION WILL WEIGH THE
DESIRABILITY OF ADMITTING AGAINST
THE UNDESIRABILITY OF ADMITTING
EVIDENCE OBTAINED IN THAT MANNER.
( S.14 EA)

WEIGHT OF COMPUTER GENERATED

EVIDENCE
IN ESTIMATING WEIGHT COURT MUST
CONSIDER ALL CIRCUMSTANCES WHICH
MAY AFFECT ACCURACY.
WAS THE PROPOSED EVIDENCE SPPLIED
TO COMPUTER CONTEMPORANEOUSLY
WITH THE FACTS IN ISSUE?
DID THE SUPPLIER OF THE INFORMATION
HAVE INCENTIVE TO CONCEAL OR
MISREPRESENT FACTS? ( S. 34 EA )

CONCLUSION
THE NEW EVIDENCE ACT HAS TO A LARGE
EXTENT CLARIFIED NIGERIAN LAW ON
ELECTRONICALLY GENERATED EVIDENCE.
IT HAS ALSO INTRODUCED MANDATORY
TECHNICALITIES WHICH MUST BE
ADVERTED TO BY COUNSEL OR RISK
REJECTION OF EVIDENCE. IT MIGHT BE
THAT THE FLEXIBLE APPROACH OF THE
COURTS PRE- EA 2011 WAS A MUCH
BETTER FOR ADMISSIBILITY.