Admissibility of Electronically Generated Evidence in Nigeria
CHAPTER ONE
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 technological 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.
CHAPTER TWO
DEFINITION OF EVIDENCE
INTRODUCTION
First and foremost, it is important to recognize the law of Evidence as a course that is very logical and technical. It is your need as far as the practical aspect of law is concerned. Evidence can be the mother and father of procedure as it comes in from the day a case is set down for trail. It is the mastery of the rules of evidence, which is the process of bringing forth proof. Without a good and proper knowledge of the principles of evidence, confusion sets in when a lawyer appears in court15
WHAT IS EVIDENCE?
The law of Evidence is undoubtedly and without exaggeration one of the most important law subject. This is because in the conduct and determination of the court, the rule of evidence where the prominent rule is that they determine which facts are legally admissible and the legal means of attempting to establish both facts16. Generally, where a litigant goes to court, the court by the rules of substantive and procedural law has to conduct an enquiry into the facts of the case, draw inferences from those facts and in addition listen to the legal argument of the truth; its primary objective is that the court discovers the truth in order to attain justice. 17
Although there is no axiomatic definition of the concept of Evidence as the subject matter of evidence connotes different meanings to different author and jurist who have set down various definitions of the concept of evidence.
According to Phipson18 evidence means
“the testimony whether oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute”
Cross19 states that evidence is
Amupitan J. A University of Jos lecture notes.
2011 Evidence Act, Cap E. 14
Morgan. Introduction to the American law institute; Model code of Evidence, 1942 @ pages 3-4. 18 Phipson, Evidence 11th Edition, para. 3
“the testimony, hearsay, documents, things and facts which a court will accept as evidence of facts in issue in a given case”.
The flaw of this definition according to Dr. K.O Amusa is that it is restricted to those things that the court of law will accept or act upon. However, this is not necessarily the case. Evidence consists of admissible and inadmissible evidence. For instance, where a document is held inadmissible, it will not be returned to the person tendering the document but it will be marked rejected and retained by the court as part of record proceedings. Also, he said that the definition did not take into account the fact that evidence consists of facts in proof or disproof of fact in issue.20
Nokes defined judicial evidence as
“evidence received by court of justice in proof or disproof of facts, the existence of which becomes a question before them”21.
The Nigerian authors defined evidence along the same line with the foreign authors. Akintola Aguda stated as follows
“Judicial evidence is the means by which facts are proved but excluding inferences and arguments”.
It is common knowledge that a fact can be proved by the oral testimony of person who perceived by the fact or by the production of documents or by the inspection of things and places. All these come within the meaning of judicial evidence. He says further that the list can be extended to include other such means of proving a fact as admission, judicial notice, presumption and estoppel22.
CHAPTER THREE
ELECTRONICALLY GENERATED EVIDENCE
INTRODUCTION
In order to appreciate the new evidence act, it is important to discuss the controversies of electronic evidence under the old evidence act. Prior to the Evidence Act of 2011 many Nigeria authors and writers believed that the absence of specific provisions of the Evidence Act on the admissibility of computer and other electronically, generated evidence makes such evidence inadmissibility, in or by Nigeria courts, this however laid a lot of confusion as to its admissibility. These controversies laid primarily on the definition of a document under the general law of evidence.
CHAPTER FOUR
CHALLENGES POSED TO THE ADMISSIBILITY OF ELETRONICALLY GENERATED EVIDENCE
INTRODUCTION:
Electronically Generated Materials has faced a lot of challenges lately. This is due to the problem inherent in Electronic gadget. It has not been able to impose its confidence in a lot of people because it can be accessible either legitimately or illegitimately by a third party. It can be hacked and this can affect its integrity and authenticity.
This chapter shall therefore, explain the challenges that Electronically Generated Evidence is posed to and the way out of those challenges to make materials generate through electronic means appealing to individuals and also admissible in out court.
RECOMMENDATIONS AND SUGGESTIONS
It is imperative that the law should give industry and commerce clear guidance on how to make their records acceptable in the courts. As technology develops, evidential practice will need to be evolved to accommodate it. It is arguable that the judiciary themselves might be able to rescue litigants from some of the problems created in the process of tendering of evidence at trials.
It should be noted that for Nigerian courts to really make admissibility of computer generated evidence effective, it is imperative for the courts to be computerized so as to allow for the taking of evidence and writing of Rulings and Judgements electronically as it has been fully done in advanced countries like Britain, South Africa, America etc. Also, the courts should embrace tremendous potentials akin to computer for the purpose of improving the Nigerian judicial system and curb excessive delays and denial of justice which is a norm in the Nigerian judicial system.
CONCLUSION
This work has shown that the evidentiary rule on admissibility of Computer generated evidence is the major achievement of the 2011 Evidence Act which is a right step in the right direction. However, there is still more to do because the provisions on the issue of admissibility of computer generated evidence are not adequate. For instance, on the issue of integrity and confidentiality of computer generated evidence, the Act did not provide for the reception of testimony of data entry operators who entered the information.
It has also shown that though the old Evidence Act did not expressly provide for the admissibility of computer generated evidence, but by virtue of the definition of documents in Section 2(1) of the old Evidence Act which made use of the word “include”, it shows that the categories of documents are not closed. Therefore, documents are not restricted to paper writing alone. Also, by the reason of some judicial pronouncements as far back as in the 1960s and 70s on the issue of admissibility of computer generated evidence which have been discussed in Chapter two of this work, it can be safe to conclude that the courts envisaged the issue of admissibility of computer generated evidence.
BIBLIOGRAPHY
- Nwogu K.C „Affidavit Evidence, An Imperative in the Dispensation of Justice‟(2005) 5UNIZIK Law Journal 1
- Ochem C.E „The Relevance and Admissibility of Electronic Evidence in the legal system‟(2009) 8 Igbinedion Univ. L.J
- Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law. (1990) jus, vol .1 no 1. p. 260.
- Chukwuemerie A.L “Affidavit Evidence and Electronically Generated Materials in Nigerian Courts” <http://www.law.ed.ac.uk/ahicScript-ed/vol3-3/affidavit.asp 4th August 2010.
- Paul W.G “Continuing Legal Education on Electronic Evidence” http://www.Slideshare.net /GeorgetownCLE/ed > accessed on 4 August 2010.
- Professor Taiwo Osipitan (SAN),Head of Public Law, Faculty of Law, University of Lagos, „Reflections on the new Evidence Act 2011‟, a paper presented at the Nigerian Bar Association (Ibadan branch) Annual Law Week on 26/10/2011,
