Admissibility of Electronically Stored Information (ESI) Evidence Under The Nigerian Evidence Act - Matters Arising Version 1.1

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ADMISSIBILITY
OF
ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE

UNDER THE NIGERIAN EVIDENCE ACT – MATTERS ARISING
BY
IDARA AKPAN
CHIEF HACKING OFFICER & DIRECTOR (BUSINESS DEVELOPMENT)
Email: idara@nichekonsult.com
Telephone: 234 805 547 7646
NICHE KONSULT LIMITED
MARCH 26, 2010
©2010 - Idara Akpan. All Rights Reserved

All company and product names are trademarks or registered trademarks of their respective companies.
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DEDICATION
Dedicated to JEHOVAH, the God of wisdom and the maker of heaven and earth, and
by necessary implication, The Universal Sovereign who always accomplishes
whatever he sets out to do despite all odds and without whom this work would have
had little to no chance of being created in the first place!

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ACKNOWLEDGEMENTS
I am particularly grateful to Mfon Ekong Usoro, OOM, Managing Partner, Paul Usoro
& Co and Paul Usoro, SAN, Principal Partner, Paul Usoro & Co, your support is
invaluable; your contributions cannot be quantified in monetary terms.
I am grateful to Emem Isaac, Etido Isaac, Ima Akpan (Mrs), Ime Akpan, Esq.,
Mboutidem Isaac, Mfon-ido Isaac and Patience Mendinyo for their support, which
enabled me to concentrate on writing this paper.
Justis Publishing – The independent electronic publisher and provider of information

and software services for giving me access to intuitive searchable, full-text case law
and legislation from the UK, Ireland, Europe and International courts gratis!
LexisNexis – For giving me access to the LexisNexis Butterworth’s online service

gratis!
Watch Tower Bible and Tract Society for teaching me research skills and their value.
J. J. Ndana, Esq., for making numerous suggestions for the improvement of this
paper.
And with regard to this paper, I hold myself liable, to the exclusion of all other
persons, for all or any misstatements, misrepresentations, and overstatements,
innocent, negligent or otherwise.

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METHODOLOGY
The methodology adopted in this work consists mainly of an examination of

textbooks, journals, casebooks, articles as well as materials sourced from the
internet and drawing conclusions and analogies to the circumstances in Nigeria.

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TABLE OF CASES
CHAPTER 1
Anthony Okafor v Nwanneka Okpala (1995) 1 NWLR 749

Barkway V South Wales Transport Limited (1949) 1 KB 54A
Bowskill v Dawson (1954) 1 QB 288
Edmonds v. Edmonds (1947) P 67
EFCC v Kayode Thisday March 27, 2009 p6
Elizabeth Anyaebosi v R. T. Brisco Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84
Esso West Africa v Oyegbola (1969) NMLR 194; (1969) NSCC 345 - 355
Evon v Noble (1949) 1 KB 222-225
Francis Idika v Kalu (1993) SCNJ 113
HMS Ltd v First Bank PLC (1991) 1 NWLR 290
Jacob v Attorney General of Akwa Ibom State (2002) 8 FWLR 86 57; (2002) 7 NWLR
(Pt. 765) 18
Jarman v Lambert and Cooke (Contractors) Ltd (1951) 2 KB 937; (1952) ALL ER 355
Johnson v Todd (1843) 5 Beau 597; 49 ER 710
Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661
Olu-Onagoruwa v The State (1993) 7 NWLR (Pt. 309) 49 esp. 81-82
Onyeanwusu v Okpukpara (1953) 14 WACA 21; 311
Paul Ordia v Piedmont (Nig) Ltd (1995) 2 NWLR 519
Peter Ogiogun v Idukpaye (1959) WRNLR 81
R v Itule (1961) ALL NLR 462
R v Lillyman (1896) 2 QB 167
R v Maqsud Ali (1965) 2 ALL ER 464, 471
R v Robson (1971) 56 Cr. App R 450, 456; (1972) 2 ALL ER 699, 703
Re Rowe (1956) P 70
Robinson v Stern (1939) 2 KB 260
Subramanian v The Public Prosecutor (1956) 1 WLR 965
The King v Daye (1908) 2 KB 333
Thrasyvoulou Loannou v. Papa Christo Foros Demetriou 1952 ALL ER 179
Tocker v Axre (1821) 3 PHILL 539; 161 ER 1408
Trade Bank PLC v Chami (2003) 13 NWLR (Pt. 836) 16
UBA v SAFDU (2004) 3 NWLR (Pt. 861) 516
Unity Life and Insurance Co Ltd v IBWA Ltd (2001) 7 NWLR (Pt. 713) 610
Watt v Watt (1909) 10 WLR 699
Yesufu v ACB (1976) ANLP (Pt. 1) 328

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CHAPTER 2
Armstrong v Executive Office of the President [810 F. Supp. 335 (D.D.C. 1993)]
Covad Communications Co v Revonet, Inc [2008 WL 5377698 (D.D.C. Dec 24, 2008)]
Doe v Norwald Community College [2007 WL 2066497 (D.Conn. July 16, 2007)]
Doe v United States [805 F. Supp. 1513, 1517 (D. Hawaii. 1992)]
Garton v Hunter (1969) 1 ALL ER 451
In re Krause [367 B.R. 740 (Bktcy.D.Kan. June 4, 2007)]
In re NFL, Inc. Sec. Litig., [2007 WL 241344 (S.D.N.Y. January 30, 2007)]
In re Sept 11th Liab, Ins, Coverage Cases [2007 WL 1739666 (S.D.N.Y. June 18, 2007)]
Jacob v Attorney General of Akwa Ibom State (2002) 8 FWLR 86 57; (2002) 7 NWLR
(Pt. 765) 18
Lorraine v Markel [2007 US Dist. LEXIS 33020 (D. Md. May 4, 2007)]; 241 F.R.D 534,
546 – 47
Oklahoma ex. Rel. Edmonsson v Tyson Foods, Inc., [2007 WL 1498973 (N.D. Okla.
May 17, 2007)]
Omychund v Barker (1745) 1 Atk, 21, 49, 26; ER 15, 33
R v Governor of Pentonville Prison, ex Parte Osman (1989) 3 ALL ER 701
Williams v Sprint/United Management Co. [230 F.R.D. 640 (D. Kan. 2005)]
CHAPTER 3
H v Schering Chemicals 1978 H. No. 7465

Lords Advocate’s Reference No. 1 of 1992
546 – 47
Subramanian v The Public Prosecutor (1956) 1 WLR 965
United States v Dupre [462 F.3d 131 (2nd Cir. 2006)]
United States v Fujii [301 F. 3d 535 (7th Cir. 2002)]
United States v Hamilton [413 F. 3d 1138, 1142-43 (10th Cir. 2005)]
United States v Lopez-Moreno [420 F. 3d 436 (5th Cir. 2005)]
United States v Robinson [272 Neb. 582, 724 N.W. 2d 35 (Neb. 2006)]
United States v Salgada [250 F. 3d 438 (6th Cir. 2001)]
United States v Saunders [749 F. 2d 195, 198 (5th Cir. 1984)]
United States v Washington [498 F. 3d 225 (4th Cir. 2007)]
CHAPTER 4
Bowman v Hodgson (1867) L.R. 1 P. & D. 362

Coles v Coles (1866) L.R. 1 P. & D. 70
Cooke v Tanswell (1818) 8 TAUNT 450; 129 ER 458
EFCC v Kayode Thisday March 27, 2009 p6

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Egbue v Araka (1996) 2 NWLR (Pt. 433) 688 at 710 paragraph B

Gates Rubber v Bando Chemical Industries [167 F.R.D 90 (D. Colo. 1996)]
Harris v Smith [372 F. 2d 806 (8th Cir. 1967)]
In Re Vinhnee 336 B.R. 437, 444 (B.A.P. 9th. Cir. 2005)
546 – 47
Nathaniel Okeke v Okunkwe Obidife & Others (1965) NMLR 113; 1 ALL NLR 50;
(1965) WNLR 107
Pilkington v Gray (1989) AC 401
R v Harringworth (1815) 4 M. & S. 350; 105 ER 863
Simeon Olusoji Kuforiji & Another v V.Y.B (Nigeria) Ltd (1981) 6-7 SC 40
UBA v SAFPU (2004) 3 NWLR (Pt. 861) 516
United States v DeGeorgia [420 F. 2d 889, 889 n. 11(9th Cir. 1969)]
United States v Paulino [13 F. 3d 20, 22 (1st Cir. 1994)]
United States v Tank [200 F. 3d 627 (9th Cir. 2000)]
United States v Vela [673 F. 2d 86, 90(5th Cir. 1982)]
Unity Life and Insurance Co Ltd v IBWA Ltd (2001) 7 NWLR (Pt. 713) 610
Whyman v Garth (1858) Ex 803; 153 ER 1578
CHAPTER 5
Armstrong v Executive Office of the President [810 F. Supp. 335 (D.D.C. 1993)]
Bowman v. Hodgson (1867) L.R. 1 P & D. 362
Coles v. Coles (1866) L.R. 1 P. & D. 70
Covad v Revonet [2008 WL 5377698 (D.D.C Dev. 24, ]
EFCC v Fani-Kayode- Thisday March 27, 2009 p 6
Elizabeth Anyaebosi v R T Briscoe Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84
Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355
Lorraine v Markel [241 F.R.D 534, 546 – 47 (D. Md. 2007)]
Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661
Pilkington v. Gray (1989) AC 401
R v. Harringworth (Inhabitants) (1815) 4 M. & S. 350; 105 ER 863
Simeon Olusoji Kuforiji & Another v. V.Y.B (Nigeria) Ltd (1981) 6-7 SC 40
Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158
UBA v SAFDU (2004) 3 NWLR (Pt.861) 516
United States v. Tank [200 F.3d 627(9th Cir. 2000)]
Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610
Whyman v. Garth (1858) Ex 803; 153 ER 1578
Williams V Sprint/United Management Co [230 F.R.D 640 (D.Kan.2003)]

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TABLE OF STATUTES
CHAPTER 1
A Bill for an Act to facilitate Electronic Transactions in Nigeria and for related Matters
2009
A Bill for an Act to provide for Electronic Messages, Information and Commerce and
its Admissibility in Evidence and related Matters
Advanced Fee Fraud Act & Other Related Offences Act 2006
Draft Computer Security and Critical Information Infrastructure Protection Bill 2005
Draft Cyber Security and Information Protection Agency (Establishment, ETC) Bill
2008
Electronic Transactions Bill 2009
Evidence Act (Amendment) Bill 2009
Evidence Ordinance No. 27 of 1943
Section 1(2) Evidence Act LFN 2004
Section 1(2)(a) Evidence Act LFN 2004
Section 1(2)(b) Evidence Act LFN 2004
Section 1(2)(c) Evidence Act LFN 2004
Section 10 Provincial Courts Ordinance 1914
Section 100 Evidence Act LFN 2004
Section 12 Provincial Courts Ordinance 1933
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Section 14 Supreme Courts Ordinance 1943
Section 258(1) Draft Evidence Decree 1998
Section 258(1)(a) Draft Evidence Decree 1998
Section 258(1)(b) Draft Evidence Decree 1998
Section 258(1)(c) Draft Evidence Decree 1998
Section 27 Evidence Ordinance 1943
Section 30 Magistrates Courts Ordinance 1943
Section 36(4)(b) Constitution of the Federal Republic of Nigeria 1999
Section 37 Evidence Act 1960
Section 4 Ordinance No. 4 of 1876
Section 4(2) Constitution of the Federal Republic of Nigeria 1999
Section 5(a) Evidence Act LFN 2004

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Section 91(1)(a)(i) Evidence Act LFN 2004
Section 91(1)(a)(ii) Evidence Act LFN 2004
Section 97(1)(h) Evidence Act LFN 2004
Section 97(2)(e) Evidence Act LFN 2004
United States Federal Rules of Evidence Rule 1001 (1)
CHAPTER 2
Federal Rules of Civil Procedure Rule 26(f)

Federal Rules of Civil Procedure Rule 34
Federal Rules of Civil Procedure Rule 34(b)
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Federal Rules of Civil Procedure Rule 37(e)

Section 1500 Evidence Code of California
Section 232(1) Evidence Act (Amendment) Bill 2009
Section 234 Evidence Act (Amendment) Bill 2009
Section 255 Evidence Code of California
Section 8 Civil Evidence Act 1995
Section 8(1)(b) Civil Evidence Act 1995
United States Federal Rules of Evidence Rule 1001(3)
United States Federal Rules of Evidence Rule 1002
CHAPTER 3
Part 1 Civil Evidence Act 1968

Section 1(1) Civil Evidence Act 1995
Section 4 Criminal Evidence Act 1978
Section 4(2)(a) Civil Evidence Act 1995
Section 4(2)(c) Civil Evidence Act 1995
Section 4(2)(d) Civil Evidence Act 1995
Section 4(2)(e) Civil Evidence Act 1995
Section 4(2)(f) Civil Evidence Act 1995
Section 9(2)(a) Civil Evidence Act 1995

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United States Federal Rules of Evidence Rule 801(a)
United States Federal Rules of Evidence Rule 801(b)
United States Federal Rules of Evidence Rule 801(c)
United States Federal Rules of Evidence Rule 801(d)
CHAPTER 4
Federal Rules of Civil Procedure Rule 16(c)(3)

Federal Rules of Civil Procedure Rule 26(a)(3)

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Section 105(1)(a) Evidence Act LFN 2004
Section 105(1)(b) Evidence Act LFN 2004
Section 12(b) Evidence Act LFN 2004
United States Federal Rules of Evidence Rule 104(b)

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United States Federal Rules of Evidence Rule 901(b)(1)
CHAPTER 5

Federal Rules of Civil Procedure Rule 34(2)

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Section 234 of the Evidence Act (Amendment) Bill 2009
Section 240 of the Evidence Act (Amendment) Bill 2009
Section 8 (1) (b) UK Civil Evidence Act 1995
Sections 100 Evidence Act LFN 2004
Sections 232(1) Evidence Act (Amendment) Bill 2009
United States Federal Rules of Evidence 901(b)(10)

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TABLE OF ABBREVIATIONS
All ER – All England Report
ALL NLR – All Nigeria Law Report
CAP – Chapter
CD – Compact Disc
DNA - Deoxyribonucleic Acid
DOJ – Department of Justice of the United States
ESI – Electronically Stored Information
FRCP – Federal Rules of Civil Procedure
FRE – Federal Rules of Evidence
FWLR – Federation Weekly Law Report
KB - King’s Bench
LFN – Laws of the Federation of Nigeria
MD5 – Message Digest algorithm 5 is a widely used cryptographic has function with a
128-bit hash value. Source: http://en.wikipedia.org/wiki/MD5
MR- Master of the Rolls
NCC – Nigerian Communications Commission
NITDA – National Information Technology Development Agency
NWLR – Nigeria Weekly Law Report
PDF- Portable Document Format is a file format created by Adobe Systems in 1993
for document exchange. PDF is used for representing two-dimensional documents in
a manner independent of the application software, hardware, and operating system
Source: http://en.wikipedia.org/wiki/Portable_Document_Format
QB – Queen’s Bench
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SAN – Senior Advocate of Nigeria
SCNJ –Supreme Court of Nigeria Judgement
SHA - The SHA hash functions are a set of cryptographic hash functions designed by
the National Security Agency (NSA) and published by the NIST as a U.S. Federal
Information Processing Standard. SHA stands for Secure Hash Algorithm. The three
SHA algorithms are structured differently and are distinguished as SHA-0, SHA-1, and
SHA-2. The SHA-2 family uses an identical algorithm with a variable digest size which
is distinguished as SHA-224, SHA-256, SHA-384, and SHA-512.
Source: http://en.wikipedia.org/wiki/SHA_hash_functions
TIFF – Tagged Image File Format is a file format for storing images.
Source: http://en.wikipedia.org/wiki/Tagged_Image_File_Format
UK - United Kingdom
US – United States

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SUMMARY OF CONTENTS
DEDICATION ............................................................................................................................................ 2
ACKNOWLEDGEMENTS ........................................................................................................................... 3
METHODOLOGY ...................................................................................................................................... 4
TABLE OF CASES ...................................................................................................................................... 5
TABLE OF STATUTES ................................................................................................................................ 8
TABLE OF ABBREVIATIONS .................................................................................................................... 17
SUMMARY OF CONTENTS ..................................................................................................................... 19
TABLE OF CONTENTS............................................................................................................................. 20
CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................... 26
CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE
.............................................................................................................................................................. 52
CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI)
EVIDENCE .............................................................................................................................................. 71
CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) ......................... 87
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS ....................................................................... 113

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TABLE OF CONTENTS
DEDICATION ............................................................................................................................................ 2
ACKNOWLEDGEMENTS ........................................................................................................................... 3
METHODOLOGY ...................................................................................................................................... 4
TABLE OF CASES ...................................................................................................................................... 5
CHAPTER 1 .......................................................................................................................................... 5
CHAPTER 2 .......................................................................................................................................... 6
CHAPTER 3 .......................................................................................................................................... 6
CHAPTER 4 .......................................................................................................................................... 6
CHAPTER 5 .......................................................................................................................................... 7
TABLE OF STATUTES ................................................................................................................................ 8
CHAPTER 1 .......................................................................................................................................... 8
CHAPTER 2 ........................................................................................................................................ 10
CHAPTER 3 ........................................................................................................................................ 11
CHAPTER 4 ........................................................................................................................................ 12
CHAPTER 5 ........................................................................................................................................ 14
TABLE OF ABBREVIATIONS .................................................................................................................... 17
SUMMARY OF CONTENTS ..................................................................................................................... 19
TABLE OF CONTENTS............................................................................................................................. 20
ABSTRACT.......................................................................................................................................... 25
CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................... 26
CHAPTER SUMMARY ......................................................................................................................... 26
SOURCES OF THE NIGERIAN LAW OF EVIDENCE ............................................................................... 27
ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE AND SECTION 5(a) EVIDENCE ACT ................. 27
THE EFFECTS OF SECTION 5(a) EVIDENCE ACT LFN 2004 .................................................................. 28
APPLICABILITY OF THE EVIDENCE ACT .............................................................................................. 30
SUB-DIVISIONS OF THE LAW OF EVIDENCE ...................................................................................... 30
PRIMARY EVIDENCE .......................................................................................................................... 31
SECONDARY EVIDENCE ..................................................................................................................... 31
DIRECT/TESTIMONIAL EVIDENCE ...................................................................................................... 32
CIRCUMSTANTIAL EVIDENCE ............................................................................................................ 33
PRIMA FACIE EVIDENCE .................................................................................................................... 33

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CONCLUSIVE EVIDENCE..................................................................................................................... 34
REAL EVIDENCE ................................................................................................................................. 34
INSUFFICIENT EVIDENCE ................................................................................................................... 34
HEARSAY EVIDENCE .......................................................................................................................... 34
“ADMISSIBLE”, “ADMISSIBLE EVIDENCE” AND “ADMISSIBILITY” DEFINED ...................................... 35
ADMISSIBLE DEFINED ........................................................................................................................ 35
ADMISSIBLE EVIDENCE (noun) ...................................................................................................... 35
ADMISSIBILITY ............................................................................................................................... 35
“ELECTRONICALLY STORED INFORMATION” (ESI) DEFINED ............................................................. 36
POWERS OF NIGERIAN COURTS WITH RESPECT TO ADMISSIBILITY ................................................. 36
DEFINITION OF “DOCUMENT” UNDER THE EVIDENCE ACT .............................................................. 38
DEFINITION OF “DOCUMENT” AS PROPOSED BY THE NIGERIAN LAW REFORM COMMISSION ...... 38
DEFINITION OF “DOCUMENT” BY BLACK’S LAW DICTIONARY.......................................................... 39
JUDICIAL DEFINITION OF “DOCUMENT” ........................................................................................... 39
DEFINITION OF “DOCUMENT” IN THE UNITED STATES FEDERAL RULES OF EVIDENCE – Rule 1001(1)
.......................................................................................................................................................... 39
DOCUMENTARY EVIDENCE AND THE EVIDENCE ACT ....................................................................... 40
ADMISSIBILITY OF DOCUMENTARY EVIDENCE AS TO FACTS-IN-ISSUE (SECTION 91 EVIDENCE ACT
LFN 2004) .......................................................................................................................................... 40
COMMENTS ON SECTION 91......................................................................................................... 42
WEIGHT TO BE ATTACHED TO DOCUMENTARY EVIDENCE (SECTION 92 EVIDENCE ACT) ................ 45
COMMENTS ON SECTION 92......................................................................................................... 45
DISTINGUISHING BETWEEN ADMISSIBILITY & WEIGHT OF EVIDENCE ..................................... 45
ILLITERACY – A CIRCUMSTANCE THAT CAN INFLUENCE WEIGHT............................................. 46
ONE AFFIRMATIVE OR SEVERAL NEGATIVE WITNESSES – A CIRCUMSTANCE THAT CAN
INFLUENCE WEIGHT .................................................................................................................. 46
CORROBORATION ..................................................................................................................... 46
ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN NIGERIA .............. 47
CONFLICTING PRONOUNCEMENTS OF NIGERIAN COURTS ON THE “PROBATIVE VALUE” OF
ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE............................................................... 49
AMENDMENTS TO THE EVIDENCE ACT ............................................................................................. 50
CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE
.............................................................................................................................................................. 52
CHAPTER SUMMARY ......................................................................................................................... 52
THE BEST EVIDENCE RULE DEFINED .................................................................................................. 53

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THE RATIONALE BEHIND THE BEST EVIDENCE RULE......................................................................... 53

THE BEST EVIDENCE RULE IN THE EVIDENCE ACT ............................................................................. 54
THE BEST EVIDENCE RULE AT PLAY IN A NIGERIAN COURT .............................................................. 55
IS THE BEST EVIDENCE RULE COMPATIBLE WITH ELECTRONICALLY STORED INFORMATION (ESI)
EVIDENCE .......................................................................................................................................... 56
IS THE BEST EVIDENCE RULE RELEVANT TODAY? ............................................................................. 57
THE BEST EVIDENCE RULE UNDER THE US FEDERAL RULES OF EVIDENCE (FRE 1002)..................... 58
THE COMPUTER “BEST EVIDENCE” *RULE FRE 1001(3)+ IN THE US .................................................. 59
WHAT THEN IS AN ACCURATE REFLECTION IN THE SENSE OF RULE 1001(3)? ................................. 60
WHAT THEN IS AN “ACCURATE REFLECTION” IN THE SENSE OF RULE 1001(3)? .............................. 62
THE CIVIL EVIDENCE ACT 1995 AND THE BEST EVIDENCE RULE ....................................................... 62
THE BEST EVIDENCE WITH RESPECT TO ELECTRONICALLY STORED INFORMATION NEED NOT BE A
COMPUTER PRINT-OUT – COVAD V REVONET AS A CASE STUDY..................................................... 63
COMMENTS................................................................................................................................... 65
COMPUTER PRINTOUTS MAY NOT BE BEST EVIDENCE .................................................................... 66
METADATA AND THE BEST EVIDENCE RULE AKA “COMPUTER PRINT-OUTS ARE DEFINITELY NOT
BEST EVIDENCE” ................................................................................................................................ 66
ONE TOOL FOR PROVING THAT ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IS AN
ACCURATE REFLECTION .................................................................................................................... 68
PROPOSED MODIFICATIONS TO THE BEST EVIDENCE RULE IN NIGERIA .......................................... 70
CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI)
EVIDENCE .............................................................................................................................................. 71
CHAPTER SUMMARY ..................................................................................................................... 71
DEFINITION OF HEARSAY .................................................................................................................. 72
ADMISSIBILITY OR OTHERWISE OF HEARSAY EVIDENCE .................................................................. 72
IS THE COMMON LAW RULE AGAINST HEARSAY IN FORCE IN NIGERIA? ......................................... 72
HEARSAY EVIDENCE IN NIGERIAN LAW ............................................................................................ 73
REASONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN NIGERIA ................................................ 74
HEARSAY RULE EXCEPTIONS IN NIGERIAN LAW ............................................................................... 74
THE HEARSAY RULE, ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AND THE UNITED
STATES............................................................................................................................................... 75
EXCEPTIONS TO THE HEARSAY RULE SET FORTH IN FRE RULE 801 (D)............................................. 76
ESI AND THE BUSINESS RECORDS EXCEPTION IN THE US [FRE Rule 803(6)] .................................... 76
ESI AND THE PUBLIC RECORDS EXCEPTION IN THE US [FRE Rule 803(8)] ........................................ 78
ESI EVIDENCE MAY OR MAY NOT BE HEARSAY ................................................................................. 79

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ESI EVIDENCE AS HEARSAY............................................................................................................ 79

ESI EVIDENCE AS NON-HEARSAY................................................................................................... 79
THE HEARSAY RULE, ESI EVIDENCE AND THE RULING IN LORRAINE V. MARKEL .......................... 81
THE HEARSAY EVIDENCE RULE, ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AND THE
UK ...................................................................................................................................................... 82
WEIGHT TO BE ATTACHED TO HEARSAY EVIDENCE IN THE UK ........................................................ 83
BUSINESS AND PUBLIC RECORDS EXCEPTIONS TO THE HEARSAY RULE ........................................... 84
JUDICIAL DETERMINATION OF A “RECORD” ..................................................................................... 85
ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AS A EXCEPTION TO THE HEARSAY
EVIDENCE RULE IN THE UK ................................................................................................................ 86
CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) ......................... 87
CHAPTER SUMMARY ..................................................................................................................... 87
NOTES ON AUTHENTICATION – WIKIPEDIA ...................................................................................... 88
AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE ........................ 88
AUTHENTICITY AND RELEVANCY....................................................................................................... 90
CHALLENGES TO AUTHENTICITY ....................................................................................................... 93
AUTHENTICATION, AUTHENTICITY AND THE EVIDENCE ACT ........................................................... 93
AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – STATUTORY PROVISIONS ............. 94
SECTION 100 EVIDENCE ACT LFN 2004 ......................................................................................... 94
COMMENTARY ON SECTION 100 .................................................................................................. 94
SECTION 101(1) EVIDENCE ACT LFN 2004..................................................................................... 94
COMMENTARY ON SECTION 101(1).............................................................................................. 94
COMMENTARY ON SECTION 105 (1) ............................................................................................. 96

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SELF-AUTHENTICATING DOCUMENTS UNDER THE EVIDENCE ACT .................................................. 98
AUTHENTICATION ON NON SELF–AUTHENTICATING DOCUMENTS IN NIGERIA (AUTHENTICATION
PROCEDURES FOR PRIVATE DOCUMENTS) ..................................................................................... 100
AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN NIGERIAN
COURTS – EFCC v. KAYODE ............................................................................................................. 100
COMMENTARY ............................................................................................................................ 101
AUTHENTICATION OF DOCUMENTARY EVIDENCE IN THE US – STATUTORY PROVISIONS ............. 102
SELF-AUTHENTICATING DOCUMENTS UNDER THE US FEDERAL RULES OF EVIDENCE .................. 103
AUTHENTICATION OF NON-SELF AUTHENTICATING DOCUMENTS IN THE UNITED STATES .......... 106
AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN UNITED STATE
COURTS – LORRAINE v. MARKEL .................................................................................................... 107
COURTS – IN RE VINHNEE .............................................................................................................. 109
COMMENTARY ............................................................................................................................ 110
COURTS – UNITED STATES V TANK ................................................................................................. 111
COMMENTARY ............................................................................................................................ 112
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS ....................................................................... 113
SUMMARY OF NIGERIAN CASES INVOLVING ESI EVIDENCE ........................................................... 113
THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................................. 114
DEFINITION OF THE TERM “DOCUMENT”................................................................................... 117
THE BEST EVIDENCE RULE AND ESI ................................................................................................. 117
PROPOSED AMENDMENTS TO THE BEST EVIDENCE RULE ......................................................... 120
HEARSAY EVIDENCE RULE AND ESI EVIDENCE ................................................................................ 120
PROPOSED AMENDMENTS TO THE HEARSAY EVIDENCE RULE .................................................. 121
AUTHENTICATION AND ESI EVIDENCE ............................................................................................ 121
AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – SECTIONS OF THE EVIDENCE ACT
THAT NEED TO BE MODIFIED ...................................................................................................... 122
AUTHENTICATION – THE WAY FORWARD IN RESPECT OF ESI .................................................... 123
“ELECTRONICALLY STORED INFORMATION” (ESI) – MORE THAN JUST COMPUTER PRINT-OUTS . 124
FINAL OBSERVATIONS ..................................................................................................................... 125

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ABSTRACT
Of course, that documentary evidence is admissible in Nigeria in certain

circumstances is a matter of fact. However, the admissibility of electronically stored
information (ESI) evidence is a matter still subject to considerable debate, as is
evident from the conflicting decisions of the Supreme Court, Court of Appeal and the
Federal High Court.
While the Supreme Court has tended to consistently interpret the Evidence Act
liberally to accommodate ESI evidence, its immediate subordinate, the Court of
Appeal, would seem to be less favourably so disposed. Far worse is the Federal High
Court, though supposed to be bound by the principle of judicial precedent, for about
a year ago, in March 2009 precisely, that court sitting in Lagos, ruled against the
admissibility of ESI evidence in a high profile case, demanding that certain conditions
needed to be met for it to be in a position to do so.
Given the pervasiveness of the computer and related technologies and the huge
reliance now placed on them, it is a matter of time before ESI (evidence) becomes a
recurrent decimal in litigation in Nigeria.
This paper aims to briefly discuss some requirements for the admissibility of ESI
evidence.
In particular, the following requirements will be treated.

- The Best Evidence Rule
- The Hearsay Evidence Rule
- Authenticity
In Chapter One, the discussion as to whether the Evidence Act is good enough is
canvassed.
Chapter Two of the long essay discusses the Best Evidence Rule and Electronically
Stored Information (ESI) evidence.
The Hearsay Evidence Rule and Electronically Stored Information (ESI) evidence is
extensively discussed in Chapter Three of this work.
Chapter Four treats authentication and relevancy in relation to Electronically Stored
Information (ESI) evidence.
Finally, a number of recommendations will be made to place the Nigerian legal
system in a better position to permit the admissibility of accurate, authentic and
reliable ESI records into evidence.

26 | P a g e
CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH!
CHAPTER SUMMARY
This chapter will trace the history of the law of evidence in Nigeria, discuss the
admissibility and inadmissibility of evidence under the Evidence Act, treat the various
classifications of evidence applicable to Nigerian law; it will also define key
terminologies used throughout this work like admissible, admissible evidence,
admissibility and electronically stored information (ESI).
Powers of Nigerian courts with respect to admissibility, weight to be attached to

documentary evidence as well as the admissibility of electronically stored
information (ESI) evidence in Nigeria will also be considered.

27 | P a g e
SOURCES OF THE NIGERIAN LAW OF EVIDENCE
Initially, the main source of the law of evidence in force in the Magistrate Courts and
the High Court, (then known as the Supreme Court) during the Colonial days in the
territory that became Nigeria, was the English Common Law of Evidence and the
rules of evidence contained in British legislation such as
 Section 10 Provincial Courts Ordinance 1914

 Section 12 Provincial Courts Ordinance 1933
 Section 30 Magistrates Courts Ordinance 1943
 Section 14 Supreme Courts Ordinance 1943 as well as
 Section 4 Ordinance No.4 of 1876 which provided for the application of
English Common Law, Equity and Statutes of General Application passed on or
before 1900.1
Subsequently the Evidence Ordinance No. 27 of 1943, which was based on the Digest
of the Law of Evidence by Sir James F. Stephen and which became operational in
1945, Notice 618, became the main source of the law of Evidence.
Since October 1, 1960, the Evidence Ordinance came to be known as the Evidence
Act.
That Evidence Act was later incorporated into the Laws of the Federation CAP 112
LFN 1990 and CAP E14 LFN 2004 respectively. The Evidence Act as contained in CAP
E14 LFN 2004 is now the major source of the Nigerian Law of Evidence.2
Section 4 (2) and (3) Constitution of the Federal Republic of Nigeria 1999 as well as
Part 1 of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria 1999
have made Evidence matters the exclusive preserve of the Federal Government.
ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE AND SECTION 5(a)

EVIDENCE ACT
Section 5(a) Evidence Act LFN 2004 however makes provision for the applicability of
other laws (hence our previous consistent use of the term “main source” in respect
of the Evidence Act.)
1
Nwadialo, F. Modern Nigeria Law of Evidence. (1981) Benin City, Nigeria, Ethiope & Publishing Co. (p.7)
2 th
Aguda, T. (1999) Aguda: The Law of Evidence, 4 Edition. Ibadan: Spectrum Books Ltd (p.4)
28 | P a g e
It provides:
“Nothing in this Act shall prejudice the admissibility of any evidence which
would apart from the provisions of this Act be admissible.”
THE EFFECTS OF SECTION 5(a) EVIDENCE ACT LFN 2004
Although the Evidence Act LFN 2004 is the main source of the law of evidence in
Nigeria, the English Common Law of Evidence or, any relevant local statute may be
resorted to for the purpose of supplementing the provisions of the Act where
necessary.
This means that
(1) It is possible to admit in evidence, any evidence which is admissible under any
other Nigerian statutory enactment
(2) Any other evidence which would have been admissible under the Common
Law had the Act not been passed, will still be admissible , i.e., under the rules
as they existed by June 1, 1945
The value of Section 5(a) Evidence Act LFN 2004 is seen where the Act does not
provide for the admissibility of a matter but such a matter is admissible under a
Common Law rule.
The principle in Section 5(a) Evidence Act LFN 2004 was discussed in Onyeanwusi v.
Okpukpara3 in which the West African Court of Appeal observed:
It is the Evidence Act, or if it is silent, the Common Law of England that applies
in this court.
In R v. Itule4, the court in considering whether a confession which goes in favour of

an accused person is admissible as evidence in favour of the accused, Brett Ag C.J.F
said that:
the matter is not dealt with expressly in Sections 27 to 32 of the

Evidence Ordinance and the common law rule therefore applies by
virtue of Section 5(a)
In summary then, where the Act is silent, then the court can make use of the
Common Law to admit the evidence in question, provided that it is relevant.
3
(1953) 14 WACA 21;311
4
(1961) ALL NLR 462
29 | P a g e
However, the principle that evidence admissible under the Common Law is also
admissible under the Act cannot be applied in reverse.
It is not the intention of Section 5(a) Evidence Act LFN 2004 that evidence
inadmissible under the Common Law is also inadmissible under the Act, or under any
other statute applicable in Nigeria.
In practice then, any rules of Common Law governing the exclusion of evidence are
inapplicable in Nigeria, unless such rules have been incorporated into the Act.
And where this is so, Nigerian courts can look up to English decisions as guides to
interpret such Nigerian statutory provisions.
But where the Evidence Act LFN 2004 has declared that a certain piece of evidence is
inadmissible, then such evidence cannot be admitted by any rules of common law.
Another effect of Section 5(a) Evidence Act LFN 2004 is that other sources of
evidence include:
(i) Customs
(ii) The courts through judicial precedents
(iii) The legislature through the promulgation of Acts, Laws and Edicts
Other Nigerian statutory enactments on the admissibility of Evidence include

Sections 36 (4)(b) of the Constitution of the Federal Republic of Nigeria 1999 and the
Advance Fee Fraud Act and other Related Offences Act, 2006.
Proposed statutory enactments either on or related to the admissibility of

electronically generated information (in no particular order) include:
1. A Bill for an Act to Amend the Evidence Act CAP E14 LFN 2004 sponsored by
Senator Sola Akinyede (Ekiti South)
2. A Bill for an Act to facilitate the use of Information represented in Electronic
Form or other Media regardless of the Technology employed for Conducting
Transactions in Nigeria sponsored by the National Information Technology
Development Agency (NITDA) also called Electronic Transactions Bill (2009)
3. A Bill for an Act to facilitate Electronic Transactions in Nigeria and for related
Matters 2009 sponsored by Hon. Uzoma Nkem- Abonta
4. A Bill for an Act to provide for Electronic Messages, Information and
Commerce and its Admissibility in Evidence and related Matters which
according to Paul Usoro, SAN “provides that information shall not be denied

30 | P a g e
legal effect solely on the grounds that it is in the form of an electronic

document.”5
5. The Draft Computer Security and Critical Information Infrastructure Protection
Bill 2005
6. The Draft Cyber Security and Information Protection Agency (Establishment,
ETC) Bill 2008
APPLICABILITY OF THE EVIDENCE ACT
Section 1(2) Evidence Act LFN 2004 has the effect that the Evidence Act will have the
force of law in “all judicial proceedings in or before any court established in the
Federal Republic of Nigeria”
Section 1(2) Evidence Act LFN 2004 also has the effect that the Evidence Act will not
have the force of law in
a) proceedings before an arbitrator

b) proceedings before a field general court martial
Section 1(2)(c) Evidence Act LFN 2004 has the effect that the Evidence Act will not
have the force of law in any civil court or matter before a Sharia Court of Appeal,
Customary Court of Appeal, Area Court or Customary Court unless the Commander-
in-Chief of the Armed Forces or the Military Governor or Administrator of a State
publishes in the Gazette or confers upon any or all of the above courts the power to
enforce any or all the provisions of the Act. (emphasis mine)
Section 1(3) Evidence Act LFN 2004 has the effect that the Evidence Act will have the
force of law before “an Area Court” in relation to “criminal matters before them”
Section 1(4) Evidence Act LFN 2004 has the effect that the Evidence Act, in particular
“the provisions of Section 138 – Section 143”, will bind “the area courts”.
SUB-DIVISIONS OF THE LAW OF EVIDENCE
1. Primary Evidence
2. Secondary Evidence
3. Direct Evidence
4. Circumstantial Evidence
5. Prima facie Evidence
6. Conclusive Evidence
5
Paul Usoro, SAN, November 2007, The Law as it relates to Internet and Internet Activities, paper presented at
the NCC workshop for Judges on Legal Issues in Telecommunications, Abuja
31 | P a g e
7. Real Evidence
8. Insufficient Evidence
9. Hearsay Evidence
PRIMARY EVIDENCE
Primary Evidence means the document itself produced before the court for it
to inspect, read and construe its contents.
This is the best form of evidence as no other form of evidence carries the
weight it possesses.
It is the most certain and overriding proof of an asserted fact.
The original of a document is the primary evidence.6 (See Jacob v. Attorney

General of Akwa Ibom State7) It should be noted that it is usually private
documents that may be proved by primary evidence.
SECONDARY EVIDENCE
Secondary evidence means copy or copies or duplicates of the content of the

original document produced before the courts for it to inspect, read and
construe its contents.
Secondary evidence as the name implies suggests the existence of better

evidence.
Although the general rule is that all documents must be proved by primary
evidence, a number of exceptions exist to this rule.
When a private document cannot be proved by primary evidence, secondary

evidence is admissible8.
Section 95 of the Evidence Act LFN 2004 defines secondary evidence to

include inter alia:
6 th
Nokes, G.D (1967) An Introduction to Evidence.4 Edition London, Great Britain: Sweet and Maxwell
7
2002(8) FWLR (Pt. 86) 57; (2002) 7 NWLR (Pt. 765)18
8 th

32 | P a g e
(a) certified copies given under the provisions hereinafter contained;
(b) copies made from the original by mechanical processes which in

themselves ensure the accuracy of the copy, and copies compared with
such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not

execute them.
(e) oral accounts of the contents of a document given by some person

who has himself seen it.
On the strength of that Section, and the definition of primary evidence in

Section 94 Evidence Act LFN 2004, some Nigerian Courts including the
Supreme Court have defined computer print-outs as secondary evidence.
According to Honourable Justice Iyizoba “computer print-outs cannot be

primary evidence because they are translated from magnetic tapes and other
automated and electronic devices. The magnetic tapes and other electronic
devices are the primary evidence but these cannot be tendered in court
because they are not easily movable and are in machine language not
comprehensible to us. Computer print-outs are therefore secondary
evidence.”9
DIRECT/TESTIMONIAL EVIDENCE
This is an oral statement/assertion on oath in court by a witnesses offered as

proof of the truth of a fact or facts stated by him 10. The one giving direct
evidence must have personally
i) seen the fact

ii) heard the fact
iii) perceived the fact
iv) held the opinion
9
Hon. Justice Chinwe F. Iyizoba, Admissibility of Documentary/Electronic Evidence: Issues,
Challenges and Options. Available from:
“http://nji.gov.ng/index2.php?option=com_docman&task=doc_view&gid=91&itemid=163”*Accessed
22/01/2010]
10 th

33 | P a g e
which he now asserts before the court. (Section 77 Evidence Act LFN 2004)
However in the majority of cases, the term is used in relation to the evidence of one
who actually saw the commission of an act.
CIRCUMSTANTIAL EVIDENCE
This is any fact from which the existence of a fact-in-issue may be inferred.
This sort of evidence is usually oral11. Circumstantial evidence is often a last
resort, i.e., it is used where direct evidence is unavailable.
Evidence is said to be circumstantial (as opposed to direct evidence) when

there are a number of circumstances which, when accepted, make a complete
and unbroken chain of evidence.
In Francis Idika Kalu v. State12 the accused and the deceased were alone in a
room, and the deceased was later found dead while the accused was found
standing beside the deceased with a blood stained matchet. Even though the
accused was not caught killing the deceased, there being no direct evidence to
that effect, the Supreme Court upheld his conviction when it said: “the
evidence adduced, cogently , irresistibly pointed to the appellant as the
murderer.”
PRIMA FACIE EVIDENCE
This phrase is sometimes used to denote evidence which establishes a prima

facie case in favour of the party adducing it to judgement if not
contradicted13. In a criminal trial, when prima facie evidence is adduced, the
court of law loses its competence to convict the accused until the accused
enters his defence. (Olu – Onagoruwa v. The State14)
11 th
Nokes, G.D (1967) An Introduction to Evidence.4 Edition London, Great Britain: Sweet and Maxwell p 11
12
1993 SCNJ 113
13 th
14
1993 7 NWLR (pt.309) 49 esp. 81-82
34 | P a g e
CONCLUSIVE EVIDENCE
This is evidence which cannot be contradicted15. An example is the criminal

culpability of a child under 7 years.
REAL EVIDENCE
Nokes, G.D (1967) defines real evidence as “anything other than a document
which is examined by the tribunal as a means of proof 16.”
INSUFFICIENT EVIDENCE
Evidence is said to be insufficient where, in support of a party case, it is also

inadequate such that a reasonable man cannot give judgement in favour of
such a party. Evidence may be insufficient even if a case is not defended.
HEARSAY EVIDENCE
In Subramanian v. Public Prosecutor the Judicial Committee of the Privy Council

stated
“Evidence of a statement made to a witness by a person who is not

himself called as a witness may or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is to establish the truth of
what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence, not the truth of the
statement, but the fact that it was made.” 17
15 th
16 th
17
1956 1 WLR 965
35 | P a g e
“ADMISSIBLE”, “ADMISSIBLE EVIDENCE” AND “ADMISSIBILITY” DEFINED
ADMISSIBLE DEFINED
A term used to describe information that is relevant to a determination of

issues in any judicial proceeding so that such information can be properly
considered by a judge or jury in making a decision. Evidence is admissible if it
is of such a character that the court is bound to accept it during the trial so
that it may be evaluated by the judge or jury. Admissible evidence is the
foundation of the deliberation process by which a court or jury decides upon a
judgement or verdict. The Federal Rules of Evidence regulate the admissibility
of evidence in federal courts. State rules of evidence determine evidence that
is admissible in state court proceedings18.
ADMISSIBLE EVIDENCE (noun)
Evidence which the trial judge finds is useful in helping the trier of a fact (a jury if
there is a jury, otherwise the judge) and which cannot be objected to on the basis
that it is irrelevant, immaterial or violates the rules against hearsay and other
objections. Sometimes the evidence which a person tries to introduce has little
relevant value (usually called probative value) in determining some fact, or prejudice
from the jury’s shock at gory details may outweigh that probative value. In criminal
cases, the courts tend to be more restrictive on letting the jury hear such details for
fear they will result in “undue prejudice”. Thus, the jury may only hear a sanitized
version of the facts in prosecutions involving violence.19
ADMISSIBILITY
The quality or state of being allowed to be entered into evidence in a hearing, trial,
or other proceeding.20
18
West’s Encyclopaedia of American Law (2009) Admissible, Answers.com Available from:
http://www.answers.com/topic/admissible [Accessed 31/01/2010]
19
Hill, G. and Hill, K (2005) Admissible Evidence. The Free Dictionary [Online] Available from: http://legal-
dictionary.thefreedictionary.com/Admisible+evidence. [Accessed 31/01/2010]
20 th
Black Law Dictionary 1999, 7 Edition, West Publishing Co., Minnesota p48

36 | P a g e
“ELECTRONICALLY STORED INFORMATION” (ESI) DEFINED
The Electronic Discover Working Group of the Conference of Chief Justices uses the
following definition:
1(A) Electronically Stored Information is any information created, stored, or

best utilized with computer technology of any type. It includes but is not
limited to data; word-processing documents; spreadsheets; presentation
documents; graphics; animations; images; e-mail and instant
messages(including attachments); audio, video and audiovisual recordings;
voicemail stored on databases; networks; computers and computer systems;
servers; archives; backup or disaster recovery systems; discs, CDs, diskettes,
drives, tapes, cartridges and other storage media; printers; the Internet;
personal digital assistants; handheld wireless devices; cellular telephones;
pagers; fax machines; and voicemail systems.
(B) Accessible information is electronically-stored information that is easily

retrievable in the ordinary course of business.21
The key point is that ESI covers all forms of electronically store information on a
wide variety of media and equipment. It is not limited to email and Instant
Messages22 and computer printouts. (additions mine)
From the above definition, two kinds of Electronically Stored Information (ESI)
Evidence exist:
(i) Computers-generated records, e.g., log files

(ii) Human-generated but computer stored records, e.g., a spreadsheet
POWERS OF NIGERIAN COURTS WITH RESPECT TO ADMISSIBILITY
This is provided for in Section 6 (1), (2), (5) and (6) of Constitution of the Federal
Republic of Nigeria 1999 which is reproduced below:
6 (1) The judicial powers of the Federation shall be vested in the courts to which this
section relates, being courts established for the Federation.
21
(Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Approved August
2006)
22
AXS-ONE (2007), A Practical Guide to the Litigation Readiness of Electronically Stored Information (ESI) New
Jersey: AXS-ONE page 9
37 | P a g e
6 (2) The judicial powers of a State shall be vested in the courts to which this section
relates, being courts established, subject as provided by this Constitution, for a State.
6 (5) This section relates to:-

(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the high Court of the Federal Capital Territory, Abuja;
(e) the Sharia Court of Appeal of the Federal Capital
Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital
Territory, Abuja;
(f) a Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise
jurisdiction on matters with respect to which the National
Assembly may make laws; and
(k) such other court as may be authorised by law to exercise
jurisdiction at first instance or on appeal on matters with
respect to which a House of Assembly may make laws.
6 (6) The judicial powers vested in accordance with the foregoing provisions of this
section -
(a) shall extend, notwithstanding anything to the contrary
government or authority and to any persons in Nigeria, and to all actions
and proceedings relating thereto, for the determination of any question as
to the civil rights and obligations of that persons;
(b) shall not except as otherwise provided by this Constitution, extend to
any issue or question as to whether any act of omission by any authority or
person or as to whether any law or any judicial decision is in conformity
with the Fundamental Objectives and Directive Principles of State Policy
set out in Chapter II of this Constitution;
(c) shall not, as from date when this section comes into force, extend to
any action or proceedings relating to any existing law made on or after
15th January, 1966 determining any issue or question as to the
competence of any authority or person to make any such law.
Additionally Section 186 (1) Evidence Act LFN 2004 which deals with the powers of a
judge with respect to admissibility of evidence provides that:
186. (1) When either party proposes to give evidence of any fact, the court may ask
the party proposing to give the evidence in what manner the alleged fact, if proved,

38 | P a g e
would be relevant; and the court shall admit the evidence if it thinks that the fact, if
proved, would be relevant and not otherwise.
And Section 140 Evidence Act LFN 2004 makes provision for the burden of proof in
relation to the admissibility of evidence.
140. (1) The burden of proving any fact necessary to be proved in order -
(a) to enable a person to adduce evidence of some other fact; or
(b) to prevent the opposite party from adducing evidence of some other fact, lies
on the person who wishes to adduced, or to prevent the adduction of, such
evidence, respectively.
(2) The existence or non existence of facts relating to the admissibility of

evidence under this section is to be determined by the court.
DEFINITION OF “DOCUMENT” UNDER THE EVIDENCE ACT
Section 2(1) Evidence Act LFN 2004 defines “document” as follows:
In this Act, except as the context otherwise requires:-

"document" includes books, maps, plans, 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;
DEFINITION OF “DOCUMENT” AS PROPOSED BY THE NIGERIAN LAW

REFORM COMMISSION
The Nigerian Law Reform Commission23 recently reviewed the Evidence Act and came
up with a proposal with respect to definition of a document. This proposed
amendment is in Section 258(1) of the Draft Evidence Decree 1998. The current
definition in Section 2(1) of the Evidence Act LFN 2004 reproduced above was to
become Section 258(1) (a).
23
22/01/2010]

39 | P a g e
Other sub paragraphs are as follows:
258(1)(b) any disc, 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 the aid of some other equipment) of being reproduced from it,
and
258(1)(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.
DEFINITION OF “DOCUMENT” BY BLACK’S LAW DICTIONARY
Black’s Law Dictionary24 defines documents as: something tangible on which words,
symbols or marks are recorded; the deeds, agreements, title papers, letters, receipts
and other written instruments used to prove a fact.
JUDICIAL DEFINITION OF “DOCUMENT”
In The King v. Daye25, Darling J observed “that any written thing capable of being
evidence is properly described as a document and that it is immaterial on what the
writing may be inscribed. So I should desire to guard myself against being supposed
to assent to the argument that a thing is not a document unless it be a paper writing.
I should say it is a document no matter upon what material it be, provided it is
writing or printing and capable of being evidence.”
DEFINITION OF “DOCUMENT” IN THE UNITED STATES FEDERAL RULES OF

EVIDENCE – Rule 1001(1)
The US Federal Rules of Evidence defines “document” as:
Writings and recordings. – “Writings” and “recordings” consist of letters, words, or

numbers, or their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic recording,
or other form of data compilation.
The import of this definition is that under the Federal Rules, documents include
electronic evidence.
24 th
Black’s Law Dictionary 1999, 7 Edition, West Publishing Co., Minnesota, Page 498
25
(1908) 2 KB 333
40 | P a g e
DOCUMENTARY EVIDENCE AND THE EVIDENCE ACT
Part V of the Evidence Act LFN 2004 has 54 Sections and deals with “Documentary
Evidence”. The relevant sections are:
Sections 78 – 90: Affidavit Evidence

Sections 91- 92: Admissibility of Documentary Evidence
Sections 93 – 99: Primary & Secondary Documentary Evidence
Sections 100 – 108: Proof of Execution of Documents
Sections 109 – 113: Public & Private Documents
Sections 114 – 131: Presumptions as to Documents
ADMISSIBILITY OF DOCUMENTARY EVIDENCE AS TO FACTS-IN-ISSUE

(SECTION 91 EVIDENCE ACT LFN 2004)
Following below is a reproduction of Sections 91 and 92 of the Evidence Act LFN

2004:
91. (1) In any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document and tending to establish
that fact shall, on production of the original document, be admissible as evidence of
that fact if the following conditions are satisfied -
(a) if the maker of the statement either -
(i) had personal knowledge of the matters dealt with by the

statement, or
(ii) where the document in question is or forms part of a record
purporting to be a continuous record, made the statement (in so far as
the matters dealt with thereby are not within his personal knowledge)
in the performance of a duty to record information supplied to him by a
person who had, or might reasonably be supposed to have, personal
knowledge of those matters; and
(b) if the maker of the statement is called as witness in the

proceedings:
Provided that the condition that the maker of the statement shall be
called as a witness need not be satisfied if he is dead, or unfit by reason
of his bodily or mental condition to attend as a witness, or if he is
beyond the seas and it is not reasonably practicable to secure his
attendance, or if all reasonable efforts to find him have been made
without success.
41 | P a g e
(2) In any civil proceedings, the court may at any stage of the proceedings,
if having regard to all the circumstances of the case it is satisfied that
undue delay or expense would otherwise be caused, order that such a
statement as is mentioned in subsection (1) of this section shall be
admissible as evidence or may, without any such order having been made,
admit such a statement in evidence -
(a) notwithstanding that the maker of the statement is available but is

not called as a witness;
(b) notwithstanding that the original document is not produced, if in

lieu thereof there is produced a copy of the original document or of the
material part thereof certified to be a true copy in such manner as may
be specified in the order or as the court may approve, as the case may
be.
(3) Nothing in this section shall render admissible as evidence any statement
made by a person interested at a time when proceedings were pending or
anticipated involving a dispute as to any fact which the statement might tend
to establish.
(4) For the purposes of this section, a statement in a document shall not be
deemed to have been made by a person unless the document or the material
part thereof was written, made or produced by him with his own hand, or was
signed or initialled by him or otherwise recognised by him in writing as one for
the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible as

evidence by virtue of the foregoing provisions, the court may draw any
reasonable inference from the form or contents of the document in which the
statement is contained, or from any other circumstances, and may, in deciding
whether or not a person is fit to attend as a witness, act on a certificate
purporting to be the certificate of a registered medical practitioner, and
where the proceedings are with a jury, the court may in its discretion reject
the statement notwithstanding that the requirements of this section are
satisfied with respect thereto, if for any reason it appears to it to be
inexpedient in the interests of justice that the statement should be admitted.

42 | P a g e
COMMENTS ON SECTION 91
Section 91(1) Evidence Act LFN 2004 provides for two distinct situations:
(i) where the maker of the statement

 has personal knowledge of the matters dealt with
 and is called as a witness in the proceedings
(See Anthony Okafor v. Nwanneka Okpala26 )
(ii) where the maker of the statement made it

 in the performance of a duty to record information supplied to him by a
person who had personal knowledge of the matters
 the document in question is, or forms part of, a continuous record
made in the performance of such a duty
 and he is called as a witness in the proceedings
Section 91(1) (a)(i) Evidence Act LFN 2004 is straightforward.
With Section 91(1) (a)(ii) Evidence Act LFN 2004 some difficulties arise chiefly
because of the two conditions given, namely:
(i) The document must form part of a “continuous record”

(ii) where the maker of the statement made it
a. in the performance of a duty to record information supplied to him by a
person who had personal knowledge of the matters
b. and he is called as a witness in the proceedings
Lord Tucker in Thrasyvoulou Loannou v. Papa Christo Foros Demetriou27 handled the
issue of a document forming part of a “continuous record”:
The mere existence of a file containing one or more documents of a similar

nature dealing with the same or a kindred subject matter does not necessarily
make the contents of the file a continuous record within the meaning of the
section.
The difficulty inherent in the second condition was solved in Edmonds v. Edmonds28
where it was held that a witness who swore before a Commissioner as to certain
facts, supplied the Commissioner with those facts.
26
1995 1 NWLR 749
27
1952 ALL ER 179
28
(1947) P 67
43 | P a g e
Also in Barkway v. South Wales Transport Limited,29 Squith L. J said:
If a man dictates a letter giving information to the person to whom he is

writing it is an abuse of language to say that he is engaged in supplying
information to his shorthand typist.
In Section 91(2) Evidence Act LFN 2004 the court has discretion to
(i) Order or allow the admission of a statement mentioned in subsection (1)

(ii) Or a certified true copy of it
under certain circumstances.
However, the provision of this subsection cannot be employed so as to dispense with

the need for a judge to hear the two sides to a dispute.
In Peter Ogiogun v. Idukpaye30 it was held that the record of proceedings before a
former magistrate is clearly inadmissible under Section 91(2) Evidence Act LFN 2004
because of the provision of Section 91(3) Evidence Act LFN 2004.
In Section 91 (2) (b) Evidence Act LFN 2004, if a Court is in doubt as to whether or not
the original of a document is in existence, there is no discretion in the Court to admit
the copy, which will have to be rejected as no question of undue delay or expense
arises.
In Bowskill v. Dawson31 the plaintiff’s action was for damages as a result of negligent
driving. He made a statement which he signed, and a copy of it was later typed. He
died before the trial, and as the original statement could not be found, the typed
copy was tendered in evidence but was rejected, as not being admissible under this
provision.
In Section 91(3) Evidence Act LFN 2004, before a statement can be admitted under
Section 91 Evidence Act LFN 2004 it must not have been made:
(i) by “a person interested”

(ii) Nor “when proceedings were pending or anticipated”
Section 91(3) Evidence Act LFN 2004 can properly be considered as a proviso to the
preceding two sub-sections.
29
(1949) 1 KB 54
30
(1959) WRNLR 81
31
(1954) 1 QB 288
44 | P a g e
The ruling In Bowskill v. Dawson32 states that where a person has been cautioned,
there can be no doubt whatsoever that he must be taken to know that the matter
might end in court. Where a person was not cautioned, there may still be a doubt as
to whether the matter will end in court or not.
In Robinson v. Stern33 the Court of Appeal held that a statement made by a person
interested at a time when a dispute was anticipated was inadmissible and that the
word “anticipated” must be construed as including “likely”.
“A person interested” is not confined to the maker of a document. It means “any

person whatsoever provided that he is interested”. (See Evon v. Noble34)
An employee may be a person interested if his skill or competence is involved or his

conduct in relation to the events which led to the litigation or when his association
with the events is called in question. (See HMS Ltd v. First Bank Plc)35
And with respect to Section 91(3) Evidence Act LFN 2004, in Jarman v. Lambert and
Cooke (Contractors) Ltd36, Evershed MR was prepared to accept the view that by
“proceedings were anticipated” was meant “proceedings were regarded as likely” or
even “proceedings were reasonably probable”.
However, the court distinguished the facts of Robinson v. Stern37 from the facts of
Jarman v. Lambert and Cooke (Contractors) Ltd38 and held that the form filled and
signed by the workman was admissible, for although it was made by a person
interested, no proceedings were anticipated involving a dispute as to any fact which
the statement might tend to establish, whether by the workman or by anyone else at
the time when it was made.
With Section 91(4) Evidence Act LFN 2004, difficulties arise with respect to “… or
otherwise recognised by him in writing as one for the accuracy of which he is
responsible.” The million dollar questions that arise are:
(1) What will amount to a person making a statement if the statement was not
written, made, produced signed or initialled by him? And
(2) What will amount to recognition of a statement in writing by a person making
it?
32
(1954) 1 QB 288
33
1939 2 KB 260
34
(1949)1KB 222-225
35
(1991) 1 NWLR 290
36
(1951)2 KB 937 (1952) ALL ER 355
37
1939 2 KB 260
38
(1951)2 KB 937; (1952) ALL ER 355
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In Re Powe39 securing the services of another to do the actual typing did not matter
provided that the one so securing saw it, checked it and wrote upon it. And, in Paul
Ordia v. Piedmont (Nig) Ltd40 although a document was not signed, provided that:
(i) an individual assembled its contents

(ii) Prepared its contents and
(iii) Holds himself responsible for its accuracy,
he will be deemed its author.
WEIGHT TO BE ATTACHED TO DOCUMENTARY EVIDENCE (SECTION 92

EVIDENCE ACT)
92. (1) In estimating the weight, if any, to be attached to a statement rendered

admissible as evidence by this Act regard shall be had to all the circumstances
from which any inference can reasonably be drawn as to the accuracy or
otherwise of the statement, and in particular to the question whether or not the
statement was made contemporaneously with the occurrence or existence of the
facts stated, and to the question whether or not the maker of the statement had
any incentive to conceal or misrepresent facts.
92. (2) For the purpose of any rule of law or practice requiring evidence to be
corroborated or regulating the manner in which uncorroborated evidence is to be
treated, a statement rendered admissible as evidence by this Act shall not be
treated as corroboration of evidence given by the maker of the statement.
COMMENTS ON SECTION 92
DISTINGUISHING BETWEEN ADMISSIBILITY & WEIGHT OF EVIDENCE
This section lists a number of issues that the court should consider when it has to
estimate the weight to be attached to admissible evidence.
The question of the admissibility of evidence in a trial with a jury is for the judge to
decide. Sometimes, there is no clear distinction between admissibility and weight of
evidence – i.e., there may be an overlap as seem in R v. Maqsud Ali41. This situation is
however rare.
39
(1956) P 70
40
1995 2 NWLR 519
41
(1965) 2 ALL ER 464, 471
46 | P a g e
As Shaw J pointed out in R v. Robson42:
it may be difficult, if not impossible, to draw the philosophical or theoretical

boundary between matters going to admissibility and matters going to weight
and cogency; but it is simple enough to make a practical demarcation and set
practical limits to inquiry as to admissibility especially in a criminal case, “if the
correct principle is that the prosecution are required to do no more than set
up a prima facie case in favour of it”
ILLITERACY – A CIRCUMSTANCE THAT CAN INFLUENCE WEIGHT
Lord Langdale MR in Johnston v. Todd43 observed that the evidence of an illiterate

witness is not to be wholly rejected because a part of it is proved to be in error.
ONE AFFIRMATIVE OR SEVERAL NEGATIVE WITNESSES – A CIRCUMSTANCE THAT CAN

INFLUENCE WEIGHT
It has been said in England Tocker v. Axre44 and in Canada Watt v. Watt45 that one
affirmative witness outweighs several negative witnesses.
CORROBORATION
The effect of Section 92(2) Evidence Act LFN 2004 is that corroboration must be
independent. In effect then, by virtue of Section 92(2) Evidence Act LFN 2004 there
can be no self-corroboration.
Section 92(2) Evidence Act LFN 2004 is at variance with Section 214 Evidence Act LFN
2004. The effect of Section 214 Evidence Act LFN 2004 is that self-corroboration is
ok. (See R v. Lillyman46)
If the witness is consistent in his story, this may lend some weight to his story.
42
(1971) 56 Cr. App R 450,456 (1972) 2 ALL ER699, 703
43
(1843) 5 Beau 597; 49 ER 710
44
(1821) 3 PHIIL 539; 161 ER 1408
45
(1909)10 WLR 699
46
(1896) 2 QB 167
47 | P a g e
ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE IN NIGERIA
According to Hon. Justice J.O.K. Oyewole in his paper “Cybercrime: Challenges before
Judicial Officers” “while there are no express provisions in the Nigerian Evidence Act
to guide the Courts, liberalism in the interpretation of some of the existing provisions
has ensured admissibility. Trial Courts must accordingly follow the leadership given in
this area by the Supreme Court”47.
He states that the combined effect of Section 2(1) Evidence Act [LFN 2004] defining
“document” and the provisions of Sections 5(a) Evidence Act [LFN 2004] and 74(2)
Evidence Act [LFN 2004] is to make electronic documents admissible. However, this
“would not absolve the particular party of the need to provide necessary
foundational evidence before introducing the evidence in question.” 48
Honourable Justice Chinwe agrees when she observed: “it is not in doubt therefore,
that the Evidence Act [LFN 2004] as it is, never contemplated the admissibility of
electronic evidence. This underscores the need for the amendment of our Evidence
Act…”49
Professor Taiwo Osipitan in his critique of the judgement of Honourable Justice A.R.
Mohammed in EFCC v. Fani-Kayode50 observed: “admittedly, the Evidence Act [LFN
2004] makes no specific mention of computerised statement of account, documents
produced through typewriters and other mechanical and electronic devices.” 51
He however stated that “By virtue of Section 2(1 )of the Evidence Act *LFN 2004],
documents are not restricted to pen and paper writings. The scope of document is
wide enough to accommodate computerised statements of account and writings
produced through electronic/mechanical devices. The point should also be made
that there is no provision in the Act, which prohibits the admissibility of
computerised statement of account. It follows that what is not prohibited by the Act
47
Hon. Justice J.O.K. Oyewole, November 2009, “Cybercrime: Challenges before Judicial Officers”, Paper
presented at The 2009 All Nigeria Judges Conference, p 3
48
49
“http://nji.gov.ng/index2.php?option=com_docman&task=doc_view&gid=91&itemid=163 ”*Accessed
22/01/2010]
50
Thisday March 27, 2009 p 6
51
Professor Osipitan, April 2009, Available from:
http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATE
MENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf
[Accessed: 23/01/2010]
48 | P a g e
is admissible in evidence, especially where such unprohibited evidence is admissible

at common law and in other jurisdictions.”52
Professor Osipitan continued “It suffices to state that the fact that the Evidence Act
does not contain express provision on the admissibility of computer-generated
evidence does not justify the outright rejection of computerised statements of
account in evidence, especially when there are no provisions in the Act which
prohibits admissibility of computerised statements of account.” 53
He then went on to refer to Esso West Africa v. Oyegbola,54 Ayeabosi v. R.T. Briscoe
Ltd,55 Trade Bank Plc v. Chami56 all of which were in favour of the admissibility of
electronically stored information (ESI) evidence and concluded:
The above decisions/pronouncements are, by virtue of the doctrine of stare

decisis, binding on his Lordship, Honourable Justice A.R Mohammed. … It is
gratifying that the decision to exclude the evidence is an interlocutory
decision…. It is trite that a wrongly excluded evidence can be admitted at the
stage of final address…. Admittedly, e-specific evidence law is desirable.
However the existence of e-specific legislation/provisions is not a necessary
condition for the admissibility of computerised statements of account and
other electronically generated evidence in Nigeria.57
52
[Accessed: 23/01/2010]
53
[Accessed: 23/01/2010]
54
(1969) NMLR 194; NSCC 354-355
55
(1987) 3 NWLR (Pt. 57-59) 108
56
(2003) 13 NWLR (Pt. 836) 16
57
[Accessed: 23/01/2010]

49 | P a g e
CONFLICTING PRONOUNCEMENTS OF NIGERIAN COURTS ON THE

“PROBATIVE VALUE” OF ELECTRONICALLY STORED INFORMATION (ESI)
EVIDENCE
Under this heading, a total of eight (8) cases cutting across three tiers of the Federal
Judicial System with a bearing on the admissibility of electronically stored
information (ESI) evidence will be considered in this work.
The cases are:
(1) Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355 (Supreme
Court)
The law cannot be and is not ignorant of modern business methods and must
not shut its eyes to the mysteries of the computer. In modern times
reproduction or inscriptions on ledgers or other documents by mechanical
process are common place and section 37 cannot therefore apply only to
“books of account…so bound and the pages… not easily replaced. We think
the ledger cards in this case had been wrongly rejected and they should have
been admitted in evidence. We therefore, so rule.
(2) Yesufu v ACB (1976) ANLP (Pt. 1) 328 (Court of Appeal)

Computer print-outs not admissible
(3) Elizabeth Anyaebosi v R T Brisco Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84
(Supreme Court)
Computer print-out admissible as secondary evidence
(4) Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610
(Supreme Court)
Computer print-out admissible as secondary evidence
(5) Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145)
661 (Court of Appeal)
The admission in evidence by the court of 1st instance of computer print-out
as secondary evidence of entries of a banker’s book was wrong because,
among other things, the relevant provision of Section 97 of the Evidence Act
do not contemplate information stored “other than in a book”
(6) Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 (Court of Appeal)
This Section of the Evidence Act (supra) does not require the production of
‘books of account’ but makes entries in such books relevant for admissibility.
Exhibit 4 is a mere entry in the computer or book of account. Although the law
does not talk of “computer” and “computer print-outs” it is not….Oblivious to
50 | P a g e
or ignorant of modern business world and the technological advancement of

the modern jet age. As far back as 1969, the Supreme Court in the case of Esso
West Africa Inc. v. Oyegbola (1969) NMLR 194, 198 envisaged the need to
extend the horizon of the section to include or cover computer which was
virtually not in existence or at a very rudimentary stage at that time… On this
authority the provisions of S.38 covers, in my respectful opinion, also
electronic process such as computer and the computer print-outs comprised
in Exhibit 4 are admissible. (Pages 216, 217, Paragraphs E, C)
(7) UBA v SAFDU (2004) 3 NWLR (Pt.861) 516 (Court of Appeal)

Computer print-outs of statement of account are only admissible subject to
the fulfilment of the condition listed in Section 97(2)(e) Evidence Act LFN
2004.
(8) EFCC V FANI-KAYODE - ThisDay March 27, 2009 p 6 (Federal High Court)
Computer print-out of statement of account held inadmissible under Section
97(1)(h) and 97(2)(e) Evidence Act LFN 2004 , even if relevant to the
proceedings, since the issue in contention is that the document, i.e., the
statement of account is a computer print-out, therefore, certification of the
statement of account was inapplicable or irrelevant
The ruling in each of four of (4) of the eight (8) cases is in favour of the admissibility
of electronically stored evidence under the current Evidence Act LFN 2004, while the
ruling in each of the remaining four (4) of the cases is against
Three (3) of the cases in favour are from the Supreme Court, one (1) from the Court
of Appeal, while three (3) not in favour are also from the Court of Appeal and the
final case not in favour is from the Federal High Court.
AMENDMENTS TO THE EVIDENCE ACT
According to Senator Akinyede, sponsor of the Bill for an Act to Amend the Evidence
Act CAP E14 Laws of the Federation of Nigeria 2004, “Since the Evidence Act was
enacted 64 years ago, apart from some minor amendments effected between 1948
and 1958 and another minor amendment in 1991, the Act has remained
unchanged”58.
58
Ngex (2009) Senate to Amend Evidence Act to allow Electronic and computer Generated Materials as
evidence Ngex [Online] Available from : http://www.ngex.com/news/public/newsinfo.php?nid=8329
[Accessed 21/01/2010]

51 | P a g e
None of the three minor amendments treated the issue of admissibility of

electronically stored information (ESI) evidence.59
Considering that the Nigerian Evidence Act is senior to the American Federal Rules of
Evidence (FRE) by 30 years and that between 1975 and date there have been several
major amendments to the FRE while there have been just three minor amendments
to the Evidence Act shows that the Evidence Act, in its current state, leaves much to
be desired.60
The purpose of this work is to highlight/pinpoint areas in which the Evidence Act is
very much in need of amendments to accommodate the admissibility of
electronically stored information (ESI) evidence.
This paper will consider the weaknesses of the Evidence Act under the following
headings:
1. The Best Evidence Rule and ESI

2. The Hearsay Rule and ESI
3. Authentication of ESI
4. Conclusion and Recommendations
In doing this, the researcher is guided by the words of Allison Coleman (2000):
“…in the world of high technology it is unduly insular to consider only English
Law, for computers and modern telecommunications links allow information
to be moved around the world and across jurisdictional boundaries in but the
blink of an eye. Lawyers and information managers… need to be familiar with
terms and developments in other countries… for the law is never static and
new concepts introduced into other legal systems often have an impact on
our own.”61
59
Miller,C. (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow Admissibility
of Electronic Evidence. Evidence Prof Blog [Online] Available:
http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com [Accessed 21/01/2010]
56
Miller,C. (2009) (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow
Admissibility of Electronic Evidence. EvidenceProf Blog [Online] Available:
61 th
Reed, C and Davies, L. (2000) Computer Law 4 Edition, London BlackStone Press Ltd p 245

52 | P a g e
CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED

INFORMATION (ESI) EVIDENCE
CHAPTER SUMMARY
This chapter will define the best evidence rule and explain its significance. Next, the
rule and its application in Nigeria will follow.
A consideration of whether or not the best evidence rule is compatible with ESI
evidence; and the relevance of the best evidence rule today will be next in line.
The application of the best evidence rule in the United States, the United Kingdom as
it relates to ESI such as computer printouts and metadata will come next.
The chapter will then conclude with a listing of proposed modifications to the best
evidence rule in Nigeria.

53 | P a g e
THE BEST EVIDENCE RULE DEFINED
There are several definitions of the best evidence rule and to present a holistic view,
here are a few of them from a variety of sources:
According to Wikipedia, the Free Encyclopaedia:
The best evidence rule is a common law rule of evidence which can be traced
back at least as far as the 18th century. In Omychund v. Barker62, Lord
Harwicke stated that no evidence was admissible unless it was “the best that
the nature of the case will allow”. The general rule is that secondary evidence,
such as a copy or facsimile, will not be admissible if an original document
exists, and is not unavailable due to destruction or other circumstances
indicating unavailability. 63
The EnCase Legal Journal defines the best evidence rule in this way:
“The Best Evidence Rule is a doctrine of evidentiary law in the United States,
Canada and certain other countries that essentially requires that absent some
exceptions, the original of a writing must be admitted into evidence in order
to prove its contents”64
In Scheindlin, SA and Capra, DJ (2009), we are told that the:
Best evidence rule states that when a party is trying to prove the contents of a
writing, recording, or photograph, the proponent must introduce the original.
.… But the best evidence rule has two important exceptions:
(1) Duplicates are acceptable unless the opponent raises a genuine
question as to the authenticity of the original or the use of the
duplicate in lieu of the original is unfair for some other reason; and
(2) The proponent can forego the original – or a duplicate – if there is a
good reason for not having it.65
THE RATIONALE BEHIND THE BEST EVIDENCE RULE
Wikipedia, the Free Encyclopaedia throws some light on the motivation for this rule:
62
(1745) 1 Atk, 21,49,26, ER 15, 33
63
Wikipedia (2009) Best Evidence Rule, Wikipedia [online] Available from:
http://en.wikipedia.org/wiki/Best/best evidence rule [Accessed 1/02/2010]
Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p48
64
65
Scheindlin, S. and Capra, D. (2009). Electronic Discovery and Digital Evidence: Cases and Materials -
Minnesota: West Publishing Co p 522/3
54 | P a g e
The rationale for the best evidence rule can be understood from the context
in which it arose: in the eighteenth century a copy was usually made by hand
by a clerk (or even a litigant). The best evidence was predicated on the
assumption that, if the original was not produced, there was a significant
chance of error or fraud in relying on such a copy. 66
On the import of this rule, Aguda states:
This rule was made use of in excluding copies or counterparts of agreements
and in excluding oral evidence of articles in dispute. In the former case the
original agreement was required to be produced and in the later case, the
article itself must be produced.67
THE BEST EVIDENCE RULE IN THE EVIDENCE ACT
Section 77 Evidence Act LFN 2004 provides:

77. Oral evidence must, in all cases whatever, be direct -
(a) if it refers to a fact which could be seen, it must be the

evidence of a witness who says he saw that fact:
(b) if it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a
witness who says he perceived that fact by that sense or in
that manner;
(d) if it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who
holds that opinion on those grounds:
Provided that -
(i) the opinions of experts expressed in any treatise

commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such
treatise if the author is dead or cannot be found, or has
become incapable of giving evidence, or cannot be called as
a witness without an amount of delay or expense which the
court regards as unreasonable,
66
67 th
Aguda, T. (1999) Aguda: The Law of Evidence 4 Edition, Ibadan, Spectrum Books Ltd p11
55 | P a g e
(ii) If oral evidence refers to the existence or condition of any

material thing other than a document, the court may, if it
thinks fit, require the production of such material thing for
its inspection, or may inspect or may order or permit a jury
to inspect any movable or immovable property, the
inspection of which may be material to the proper
determination of the question in dispute and in the case of
such inspection being ordered or permitted, the court shall
either be adjourned to the place where the subject matter of
the said inspection may be and the proceedings shall
continue at that place until the court further adjourns back
to its original place of sitting or to some other place of
sitting, or the court shall attend and make an inspection of
the subject matter only, evidence, if any, of what transpired
there being given in court afterwards; in either case the
accused, if any, shall be present.
According to Nwadialo, F (1981), “Although Section 77 deals with oral evidence, its
underlying principles govern documentary evidence too.” 68
Hearsay evidence applies also to documents. Where it is required to establish the

truth of the statements in a document, the maker must be called as witness unless
the document is one of the types exempted from the operation of the hearsay
evidence rule.
THE BEST EVIDENCE RULE AT PLAY IN A NIGERIAN COURT
In Jacob v. Attorney General Akwa Ibom State69, the plaintiff sought to tender in
evidence as an exhibit a photocopy of a document which he referred to as a
duplicate copy. He did not serve on the defendant notice to produce the original. The
Court of Appeal (Calabar Division) observed:
…In the instant case, the bill sought to be admitted in evidence at the trial is a
photocopy. Being a photocopy, it is secondary evidence of the original
document. There was no evidence at the trial that notice to produce the
original document was given to the respondent, or to her Counsel before the
appellant’s Counsel sought to tender the photocopy of the bill for admission in
evidence…
68
Nwadialo, F (1981) Modern Nigeria Law of Evidence. (1981) Benin City, Nigeria, Ethiope & Publishing Co. (p.
98)
69
(2002) 8 FWLR (Pt.86) 57; (2002) 7 NWLR (Part 765) 18
56 | P a g e
The combined effect of Section 94(1) to (4) Evidence Act LFN 2004 is that a
photocopy, not being “primary evidence”, cannot constitute an original.
When technology has advanced to the point that some copies are as good if not
better than the original, and a layman sees no distinction between a photocopy and
an original, but lawyers do, there might be a problem.
Paul, G. L. (2008) put it this way: “Lawyers have a special role in society. When you
really want to know what happened – in a dispute in business, or in a marriage, or in
a government scandal – you call the lawyers, and they pore over information,
including the writings involved…. Lawyers must understand the workings of
informational records better than any other social group. If not, they lose their
effectiveness – their status and power in society. ”70
IS THE BEST EVIDENCE RULE COMPATIBLE WITH ELECTRONICALLY

STORED INFORMATION (ESI) EVIDENCE
One source on the best evidence rule says an “original document is a document that
was “the first one prepared, signed, recorded or a negative of a picture”.71
About the current Nigerian legislation, a journal of a notable law firm observed:
It is hardly practicable to tender electronic documents in their original

versions as stored in a computer memory. This invariably means that the
printed versions of computer created files that can be tendered in courts are
copies or even secondary copies of the original version. 72
This is affirmed by Bamodu:
Electronic documents do not really have an ‘original’ in a meaningful sense

being invariably in the visually represented for, copies or even copies of copies
of the initial data output. 73
70
Paul, GL (2008) Foundations of Digital Evidence, Chicago: American Bar Association p16
71
Associated Content (2010) The Best Evidence Rule: What is it? Associated Content [online]. Available from:
http://www.associatedcontent.com/article/227119/the_best_evidence_rule_what_is_it.html?cat=17
[Accessed 01/02/2010]
72
Paul Usoro & Co (2007) Electronic Evidence and the Nigerian Courts PUC Journal June p3
73
Bamodu, “Information Communications Technologies E –Commerce: Challenges , Opportunities for the
Nigerian Legal System and the Judiciary, 2004(2) The Journal of Information. Law and Technology (JILT)
[Online] http://www2.warwick.ac.uk/fac/soc/law/elj/jih/2004_2/bamodu/
57 | P a g e
Bainbridge (2000) is of the opinion that the Best Evidence Rule is dated:
The best evidence rule requires that only an original document can be put in
evidence. This rule has all but disappeared but remnants of it still remain.
The courts have recognised that a rigid adherence to the best evidence rule is
inappropriate in the context of the accuracy with which copies of originals
may now be made. Lord Justice Lloyd said in R v Governor of Pentonville
Prison, ex parte Osman.74
“We accept that it [the best evidence rule] served as an important
purpose in the days of parchment and quill pens. But, since the
invention of carbon paper, and, still more, the photocopier and
telefacsimile machine, that purpose has largely gone.”
A general exclusion on copies of original documents is no longer

fitting.75
It would seem as far as ESI is concerned, “original” in the sense that led to the rule is
no more. One wonders then, its continued retention in Nigerian legislation.
Interestingly, there is an attempt in the National Assembly to amend the law as it
relates to the best evidence rule.
Please see the sub-heading: “Proposed modifications to the Best Evidence Rule in
Nigeria” in this chapter.
The proposed amendment should be compared with the recommendations of the

California Law Revision Commission. It is submitted that Nigeria’s interests would be
better served by abolishing the rule.
IS THE BEST EVIDENCE RULE RELEVANT TODAY?
On the relevance of the best evidence rule in today’s world, Wikipedia, the Free
Encyclopaedia makes this salient point:
In the age of digital facsimiles, etc. the rule is more difficult to justify. The
likelihood of actual error (as opposed to mere illegibility) through copying is
slight. The balance of convenience favours avoiding needless effort and delays
where there is no dispute about the fairness and adequacy of a digital
facsimile. Further it is by no means clear what the ‘original’ of an electronic
74
(1989) 3 All ER 701
75 th
Bainbridge, D. (2000) Introduction to Computer Law. 4 Edition, London: Longman p269
58 | P a g e
communication such as an e-mail actually is: as a great many electronic

‘copies’ of a message might come into existence from creation to receipt. 76
In the same vein, Blackstone’s Criminal Practice on the Best Evidence rule states that:
The best evidence rule, which was used in the 18th and early 19th centuries as
an exclusionary principle, i.e. to prevent the admission of certain evidence
where better evidence was available, is now all but defunct. 77
It is equally interesting to note Lord Denning’s MR opinion on the best evidence rule
as presented in Garton v Hunter:
The old rule, that a party must produce the best evidence that the nature of
the case will allow, and that any less good evidence is to be excluded, has
gone by the board long ago. The only remaining instance of it is that, if an
original document is available on one’s hands, one must produce it; that one
cannot give secondary evidence by producing a copy. Nowadays we do not
confine ourselves to the best evidence. We admit all relevant evidence. The
goodness or badness of it goes only to weight, and not to admissibility. 78
The California Law Revision Commission recommended that:
The Best Evidence Rule (Evidence Code Section 1500) requires that the
content of a writing be proven by introducing the original.
This recommendation calls for repeal of the Best Evidence Rule and its
exceptions, and adoption of a new rule known as the “Secondary Evidence
Rule.” The new rule would make secondary evidence, (other than oral
testimony) admissible to prove the content of a writing, but require courts to
exclude such evidence if (1) a genuine dispute exists concerning material
terms of the writing and justice requires the exclusion, or (2) admission of the
secondary evidence would be unfair. 79
THE BEST EVIDENCE RULE UNDER THE US FEDERAL RULES OF EVIDENCE

(FRE 1002)
To prove the content of a writing, recording, or photograph, the original

writing, recording, or photograph is required, except as otherwise provided in
these rules or by Act of Congress. FRE Rule 1002
76
77
78
(1969) 1 ALL ER 451
79
Best Evidence Rule, 26, Cal. L. Revision Comm’n Reports 369(1996)
59 | P a g e
Although frequently referred to as the best evidence rule, as Judge Grimm stated in
his ruling in Lorraine v Markel80: ‘The rule is more accurately referred to as the
“Original Writing Rule” because it does not mandate introduction of the “best”
evidence to prove the contents of a writing, recording or photograph, but merely
requires such proof by an “original,” duplicate” or, in certain instances, by
“secondary evidence”– any evidence that is something other than an original or
duplicate (such as testimony, or a draft of a writing to prove the final version, if no
original or duplicate is available.”
Commenting on this rule, Shamos, M says:
A duplicate of the original is ordinarily permitted, but no oral testimony or

other documents referring to the original. The “best evidence” rule is very
limited. It does not mean that the best evidence rule is very limited. It does
not mean that the best evidence must be used to prove each element of the
case. It also has exceptions e.g. if the original no longer exists. 81
THE COMPUTER “BEST EVIDENCE” [RULE FRE 1001(3)] IN THE US
According to The EnCase Legal Journal, “with electronic evidence, the concept of an
“original” is difficult to define”.82
This led to the promulgation of what may be called the Computer “Best Evidence”
Rule in the US, FRE 1001(3):
An “original” of a writing or recording is the writing or recording itself or any

counterpart intended to have the same effect by a person executing or issuing
it. An “original of a photograph includes the negative or any print there from.
If data are stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an “original”.
Please compare Sections 4, 232(1), 232(2), 234(1) and 234(2) of the Evidence Act
(Amendment) Bill 2009.
The EnCase Legal Journal explains that “under the rule and similar rules in state
jurisdictions, multiple or even an infinite number of copies of electronic files may
each constitute an original.” 83
80
[241 F.R.D at 538 (D. Md. 2007)]
81
Shamos, M I (2008) Computer Evidence Lecture Notes distributed at the Institute for Software Research,
School of Computer Science, Carnegie Mellon University in Fall 2008
82
83

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The Treatise Overly on Electronic Evidence in California (1999)§ 9.02;9-3, comments

on California Evidence Code Section 255, an identical statute to Rule 1001(3), noting:
The approach adopted in Evidence Code Section 255 allows for the possibility
that multiple or, even, an infinite number of originals may exist. Each time an
electronic document is printed, a new “original” is created. 84
According to Stephenson, P (2004) although the original in the sense of the common
law rule “is ordinarily required”, courtesy of FRE 1001(3) in relation to Digital
evidence, it need not be tendered in evidence.85
Kerr, O (2001) states “According to the Advisory Committee Notes that accompanied
this rule when it was first proposed, this standard was adopted for reasons of
practicality… practicality and usage confer the status of original upon any computer
printout.”86
WHAT THEN IS AN ACCURATE REFLECTION IN THE SENSE OF RULE

1001(3)?
While a copy of a physical document made through printing, photostating or

photographing might be “shown to reflect the data accurately”, a copy of an
electronic file will not “unless Windows-supported forensic tools or other viewers are
used to non-invasively create an accurate visual output of the recovered data,
without changing any of the data.”87
Should it be necessary for the ESI to change format from electronic to the physical
realm, “as long as the printout is an accurate reflection of the original data, it is
irrelevant what the operating system does to the file during the printing process”.88
From the foregoing, “the context of the computer data is often as important as the
data itself…Obviously, if the original data is actually compromised, the visual output
84
85
Stephenson, P (2004) Ensuring the Reliability and Admissibility of Digital Evidence, Eastern Michigan University [online]
Available from:
http://people.emich.edu/pstephen/my_presentations/Ensuring%20the%20Reliability%20and%20Admissibility%20of%20Di
gital%20Evidence%20-%201%20hr.ppt [Accessed 16/11/2009]
86
Kerr, 0. (2001) Computer Records and The Federal Rules of Evidence. United States Attorneys’ USA Bulletin,
49(2)
87
88

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will not be accurate. It is mandatory that the original data remain unchanged, but
whether that data is compressed, encrypted or converted to a different file format in
its stored state is immaterial as long as the data itself is not compromised. … A
careful reading of Rule 1001(3) proves that Congress did not place probative value
“on the stored state of” the ESI evidence but on the “accuracy of the visual output of
computer data (printout or otherwise) once the image or files are mounted…This is
one of the reasons the MD5 hash and verification processes are so important. Even
though the file format of the data in question may change, the integrity of that data
must remain intact.89
The import of the above analysis is clear from the rulings in the following cases:
In the case In re Sept 11th Liab, Ins, Coverage cases,90 filed by numerous
victims of the September 11, 2001 attacks, the court imposed $1,250,000 in
sanctions for e-discovery violations relating to the non-production of an
essential document. Specifically, the court sanctioned the defendant for
deleting the electronic version of an essential document while possessing
the paper version for over three years before producing it. (emphasis mine)
91
In this class action claim, In re NFL, Inc.Sec. Litig92., the plaintiffs moved for
sanctions against the defendant alleging that the defendant deliberately
destroyed and allowed spoliation of e-mails and other ESI. The court held that
the defendant’s duty to preserve started when litigation was foreseen and
found the defendant grossly negligent in its failure to preserve relevant
documents. The court granted the plaintiffs’ motion for an adverse inference
instruction and ordered the defendant to pay attorneys’ fees and costs.
(emphasis mine) 93
It is therefore clear that once the electronic version of an essential document, as
opposed to the computer print-out is deleted, unless the deleted document is
forensically recovered, there is no way it could be proved, as required by Rule
1001(3) that the “printout or other output readable by sight” could be “shown to
reflect the data accurately”.
However, since Congress realized that it was necessary to “protect organisations

from sanctions for the destruction of data resulting from routine good faith
operation of an information management system”, it enacted the ‘safe harbour’
89
90
[ 2007 WL 1739666 (S.D.N.Y. June 18, 2007)]
91
Shogren,J. and Lange,M (2008) THE FRCP amendments- Here’s how we did:2007 Year in Review, Law
Technology, January 2008 p13/18
92
[2007 WL 241344 (S.D.N.Y. Jan 30, 2007)]
93
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principle in Rule 37(e) of FRCP. Although this rule places the burden on the
defendant to prove that there was no malice aforethought in its actions and that its
information technology infrastructure was being operated reasonably.94
For example, the court in Doe v. Norwald Community College95, , refused to
allow the defendant to claim the protections of Rule 37(e) because it failed to
suspend its deletion policy upon notice of litigation. Another court refused to
grant protection in In re Krause96, since the hard drive wiping was not
discontinued once the duty to preserve attached. The court in Oklahoma ex.
Rel. Edmonsson v. Tyson Foods, Inc.97, went as far as to warn the parties to be
“very cautious in relying upon any ‘safe harbor’ doctrine as described in new
Rule 37(e). (emphasis mine)98
WHAT THEN IS AN “ACCURATE REFLECTION” IN THE SENSE OF RULE

1001(3)?
In Lorraine v. Markel 200799 it was held by Majistrate Judge Paul W. Grimm that
“under Rule 1003, duplicates can be admitted into evidence unless there are issues
of authenticity of the original. This is of particular concern with electronically stored
evidence, as it is often difficult to share or make an exhibit if it is displayed on a
screen.” 100
THE CIVIL EVIDENCE ACT 1995 AND THE BEST EVIDENCE RULE
Section 8 Civil Evidence Act 1995 states:
8. (1) Where a statement contained in a document is admissible as evidence in civil

proceedings, it may be proved –
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the production of
a copy of that document or of the material part of it, authenticated in
such manner as the court may approve.
94
95
[2007 WL 2066497 (D.Conn. July 16, 2007)]
96
[367 B.R. 740 (Bktrcy.D.Kan. June 4, 2007)]
97
[2007 WL 1498973 (N.D. Okla. May 17, 2007)]
98
99
[US Dist. LEXIS 33020 (D. Md. May 4, 2007)]
100
LexisNexis [2007] Electronic Evidence 101, LexisNexis [online]. Available from:
http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf
[Accessed 04/02/2010]
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(2) It is immaterial for this purpose how many removes there are between a
copy and the original.
Thus the UK rule in civil matters makes no distinction between copies and originals.
The effect of the above is that in civil proceedings, there is no original or duplicate.
No party is under obligation to produce an original in the sense of “Best Evidence
Rule” and an “nth generation copy”101 is admissible as evidence.
THE BEST EVIDENCE WITH RESPECT TO ELECTRONICALLY STORED

INFORMATION NEED NOT BE A COMPUTER PRINT-OUT – COVAD V
REVONET AS A CASE STUDY
In Covad v Revonet102, Covad Communications Company (“Covad”), i.e., the Plaintiff

brought this action against the defendant Revonet, Inc. (“Revonet”) alleging that
Revonet misappropriated and converted confidential, proprietary and trade secret
information – namely, sales leads generated by or for Covad – and breached its
contract with Revonet.
Covad served its First Set of Requests for Production of Documents on April 27, 2007.
Revonet responded on June 15, 2007 with a limited number of hard copy documents
and represented that “[n]ot all documents have been obtained as Revonet has
retained the assistance of an outside consultant to assist in collecting electronic
documents ... other responsive documents will be produced as soon as they become
available.
On August 4, 2008, Revonet advised Covad that it had additional responsive

documents available for inspection and copying.
In an August 20, 2008 conference call, Revonet stated that it would make the 35,000
pages of e-mails that are responsive to Covad's request available in hard copy at
Revonet's office for inspection and copying…. Covad took issue with Revonet's offer
to produce the documents in hard copy as hard copy is not the documents' native
format. A few weeks later, on September 3, 2008, Revonet offered to make the e-
mails available in electronic format as TIFF files, but only on condition that Covad
agree to pay for the fees incurred by having one of Revonet's legal assistants delete
privileged or otherwise non-responsive documents from the electronic production
set.
101 th
Reed, C and Davies, L. (2000) Computer Law. 4 Edition, London: Black Store Press Ltd p 306
102
Covad Communications Co v Revonet, Inc [2008 WL 5377698 (D.D.C. Dec 24, 2008)]
64 | P a g e
In other words, Revonet will not produce the e-mails as they were originally created,
i.e., in their “native format” as that important term is defined … by The Sedona
Conference Glossary.
Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party
may designate the form in which the electronically stored information should be
produced, and (2) if the request does not specify, then it should be produced in a
form in which it is ordinarily maintained, or in a reasonably usable form
…the parties' view of the preliminary inquiry here is whether Covad designated the
form in which the documents should be produced….Rule 26(f), as amended,
specifically requires the parties to discuss the form that production of electronically
stored information should take.
….This controversy predates that provision, and underscores its importance….It does
not appear that Covad and Revonet ever discussed what form this (or any other)
production should take. Instead the parties seem to be making assumptions based
on each others' behavior: Covad expecting its documents in electronic form because
Revonet hired a company to collect electronically stored information, and Revonet
assuming that they should produce 35,000 pages of e-mails in hard copy because
Covad produced its documents in that format. As there is no agreement, the parties
invite me turn to to the language of the requests themselves to determine whether
Revonet can produce the e-mails other than in their native format.
….More importantly, I do not need to parse words because no one is pretending that
Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no
matter how ephemeral, meaningless or trivial their content…Therefore, though
Covad’s instruction is hopelessly imprecise and Revonet could colorably argue that it
should be interpreted to include several different formats, no reasonable person can
honestly believe that hard copy is one of them. For hard copy to be an acceptable
format, one would have to believe that Revonet, in its day to day operations, keeps
all of its electronic communications on paper. There is no evidence in the record that
Revonet operates in this manner, and no suggestion that such a practice would be
anything but incredible. Therefore, even though I can't say I know what Covad has
asked for, I can say what they have not asked for, and that is what they got.
…A much more fruitful use of the broad powers I unquestionably have to supervise
discovery is to focus on the quickest and cheapest solution to the problem
presented. I will assume that the e-mails at issue exist in what I have called their
native format and can be copied onto a CD with a couple of keystrokes. Obviously,
printing them or converting them to TIFF files probably (and ironically) costs more so
Revonet is hard pressed to claim that producing them now in their native format is
unfairly burdensome…. Moreover, by converting the data from its native format to
TIFF and producing it in hard copy Revonet ran the risk of what has now come to

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pass-that it would nevertheless have to produce the data in its native format. ….But,
there is authority in at least 2000 that indicated that a party could be required to
produce data in an electronic format even though it had already produced it in hard
copy.….Revonet's producing the e-mails only in hard copy played with fire.… With
justification, Revonet points out that Covad produced its data in hard copy and
accepted the first delivery from Revonet in hard copy without protest…. Since both
parties went through the same stop sign, it appears to me that they both should pay
for the crash…I will require them to share the cost of the paralegal removing
privileged e-mails, as I have described it, to a cost of no greater than $4,000.00, i.e.,
$2,000.00 each. I expect Revonet to keep a careful record of the time spent and to
alert me if there is any risk that the cost will exceed $4,000.00. At that point (which I
hope will not be reached) I will ask Revonet to estimate what it will cost to finish the
job and seek the views of counsel as how to cover it.….This whole controversy could
have been eliminated had Covad asked for the data in native format in the first place
or had Revonet asked Covad in what format it wanted the data before it presumed
that it was not native.
COMMENTS
Imagine having to read 35,000 pages of email in order to prepare for a case. When
the technology exists to help one find the smoking gun in ESI evidence without all
that trouble!
However, given the emphasis on computer printout by the definition of “original” in

Section 4 of the Evidence Act (Amendment) Bill 2009 and the wordings of Section
234 of the same bill, the unfortunate scenario in the above case will sooner or later
raise its ugly head in litigation in Nigeria.
This scenario can be avoided if proposed law can be amended to permit the parties
to decide the form of production as obtains under the American system. In that
regard, Rule 34 of the Federal Rules of Civil Procedure should be most helpful since
they provide that the requesting party can specify the form in which the ESI should
be produced, and if that were not done, then that the ESI should be produced in a
form in which it is ordinarily maintained, or in a reasonably usable form. 103
103
Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5. In this article, the author, a legal
consultant at electronic and paper-based evidence services provider Kroll Ontrack observed that
“sophisticated technology exists to enable legal teams to filter electronic documents for relevance and
significantly reduce their document collection to a more manageable review set.
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COMPUTER PRINTOUTS MAY NOT BE BEST EVIDENCE
According to Sommer, P (1997),
…a computer is not necessarily “just like” a filing cabinet and as a result

computer “documents” may not be “just like” the paper equivalent. Again, it
is not necessarily the case that computer errors are nearly always manifest in
that the result is either no read-out or print-out of any kind or gross nonsense.
Depending on circumstances, a computer print-out can look plausibly correct
but nevertheless be misleading or be misinterpreted. Increasingly too, the
courts are being presented with configuration, logging and other system files
which would not normally be viewed by the ordinary computer user-indeed
such a user may not even know of their existence – but which investigators
and prosecutors are tendering as evidence of an accused’s activities or
intentions.(emphasis mine) 104
Hence Rule 1001(3) in the United States, made “accurate reflection” an issue while
the Section 8 (1) (b) of the UK Civil Evidence Act 1995 spoke of “the production of a
copy of that document or a material part of it, authenticated in such manner as the
court may approve.”
METADATA AND THE BEST EVIDENCE RULE AKA “COMPUTER PRINT-OUTS

ARE DEFINITELY NOT BEST EVIDENCE”
The following quotations have been reproduced in support of the contention that
computer print-outs are not necessarily always best evidence in the sense that
prompted the creation of the Best Evidence Rule in the first place.
Noted and notable Judge Shira Scheindlin asked and answered the following
questions:
What is metadata in the first place? Must it always be produced? “It’s the
electronic equivalent of DNA, ballistics and fingerprint evidence, with a
comparable power to exonerate and incriminate. Metadata sheds light on the
context, authenticity, reliability and dissemination of electronic evidence, as
well as providing clues to human behaviour. All sorts of metadata can be
found in many locations. Some is crucial evidence; some is digital clutter. But
because every active file stored on a computer has some associated
metadata, it’s never a question of whether there’s metadata, but what kinds
of metadata exist, where it resides and whether its potential relevance
104
Sommer, P [1997] Digital Footprints: Assessing Computer Evidence PMsommer.com [online] Available from:
http://www.pmsommer.com/CrimLR01.PDF [Accessed 02/02/2010]
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demands preservation and production.” See Craig Ball, “I Never Metadata I

Didn’t Like” (January 2006) (unpublished manuscript, on file with author). See
also Williams v. Sprint105, (sanctioning a party for “scrubbing” the metadata in
a document production, finding that the producing party should have known
that the metadata in that particular case was relevant).106
The following excerpt is presented because it summarizes the case Judge Scheindlin
refers to above. This excerpt treats the triad of metadata, Rule 34 and ESI:
Is Metadata within the scope of Rule 34? Williams v. Sprint/United

Management Co. is an employment class action suit alleging age
discrimination in layoffs. The defendant produced Excel spreadsheets showing
reduction-in-force calculations in a static image format, which eliminated the
mathematical formulae behind the spreadsheets, text that exceeded cell size,
and metadata. Referring to The Sedona Principles as well as proposed Rule
34(b), the judge determined that the defendant should have preserved and
produced the spreadsheets “as they are kept in the ordinary course of
business” – that is, in native format – or taken other measures to preserve
and produce non-apparent information contained within the electronic files,
as it was reasonable to assume that the calculations, text, and metadata
would be relevant and material to the claims raised in the lawsuit.107
The United States DOJ Guidelines on Searching and Seizing Computers states that “an
accurate printout of computer data always satisfies the best evidence rule.” 108
The EnCase Legal Journal in discussing Armstrong v Executive Office of the President
noted that ‘the court correctly ruled that a “hard copy” paper printout of an
electronic document would not “necessarily include all the information held in the
computer memory as part of the electronic document” and that the court further
noted that without the retention of a complete digital copy of an electronic
document such as an e-mail message, “essential transmittal relevant to a fuller
understanding of the context and import of an electronic communication will
simply vanish.” (emphasis mine)109
105
[230 F.R.D. 640 (D. Kan. 2005)]
106
Judge Shira A. Sheindlin, S.D.N.Y FAQ’s of E-Discovery Federal Judges Association Newsletter November 29,
2006 [online] Available from: http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf
[Accessed 02/01/2009]
107
4 Nw.J.of Tech & INtell. Prop 171 at http://law.northwestern.edu/journals/njtip/v4/n2/3
108
United States DOJ Guidelines on Searching and Seizing Computers, Section V.D.I citing Doe v. United States
[805 F.Supp. 1513, 1517 (D.Hawaii.1992)]
Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p5 0
109

68 | P a g e
This might well explain Krause, J (2008)’s comments below:
Experts say the best way to avoid problems is to always ask for the original,
electronic version of a file, or to at least make sure that the original is
available for study if any authenticity questions arise… Experts also say
litigants need to make sure they have a process in place for collecting
information so that if authenticity is challenged in court, they can quickly
demonstrate their good-faith efforts to protect the integrity of the data.110
Thus in Lorraine v. Markel111, Magistrate Judge Paul W. Grimm held that in the case
of ESI, if metadata is at issue, TIFFs or PDFs might not be considered duplicates. 112
ONE TOOL FOR PROVING THAT ELECTRONICALLY STORED INFORMATION

(ESI) EVIDENCE IS AN ACCURATE REFLECTION
That tool for establishing the integrity of ESI evidence is hash values. A hash value is
defined as:
“A unique numerical identifier that can be assigned to a file, a group of files,

or a portion of a file, based on a standard mathematical algorithm applied to
the characteristics of the data set. The most commonly used algorithms,
known as MD5 and SHA, will generate numerical values so distinctive that the
chance that any two data sets will have the same hash value, no matter how
similar they appear, is less than one in one billion. ‘Hashing’ is used to
guarantee the authenticity of an original data set and can be used as a digital
equivalent of the Bates stamp used in paper document production.” 113
Purposes served by hash values/algorithms include:
(i) Ensuring “that the examined copy has not been altered” 114 during a
forensic examination
(ii) Authenticating evidence introduced in court under FRE 901(b)(4)
Lorraine v. Markel115
110
Krause, J (2008) Moving ESI as Real Evidence, Incisive Media[online] Available from:
http://www.law.com/jsp/legaltechnology/pubArticleLT [Accessed 27/01/2009]
111
[US Dist. LEXIS 33020 (D. Md. May 4, 2007)]
112
Mark,M. and Kiker, D. (2009) Implications of Lorraine in Authenticating Evidence for e-Discovery,
Findlaw.com[online]. Available from: http://blogs.findlaw.com/cgi-bin/mt/mt-tb.cgi/1079 [Accessed
15/01/2010]
113
“Managing Discovery of Electronic Information: A Pocket Guide for Judges” Federal Judicial Center, at
24(2007)
114
“ Federal Evidence *2010+ Using “Hash” Values in Handling Electronic Evidence”. FederalEvidence.com
[Online] Available from: http://federaevidence.com/blog/2008.seotenber/using-
%E2%80%9Chash%E2%80%9D-values-handling-electronic-evidence [Accessed 01/02/2010]
69 | P a g e
(iii) Courtesy of FRCP 26(f) some courts require that the use of hash
values/algorithms be included as an issue to discuss at pre-trial meet
and confer116
According to Salgado, RP (2005):
Examiners use hash values throughout the forensics process, from acquiring
the data, through analysis, and even into legal proceedings. Hash algorithms
are used to confirm that when a copy of data is made, the original is unaltered
and the copy is identical, bit for bit. That is, hashing is employed to confirm
that data analysis does not alter the evidence itself. Examiners also use hash
values to weed out files that are of no interest in the investigation, such as
operating system files, and to identify files of particular interest. 117
Hashing is the process of taking an input data string (the bits on a hard drive,
for example), and using a mathematical function to generate a (usually
smaller) output string. 118
Because hash values uniquely identify the underlying data, a technician who
generates an image can use a hash algorithm to ensure that the copying was
done accurately, to the bit.119
Although examinations are not necessarily flawed without hashing, the tool
provides a reliable and inexpensive means to address critical data acquisition
and examination goals. 120
Hashing can greatly speed up forensic analysis by acting as assorting

mechanism. When a technician uses hashing to exclude files, not only can the
examination conclude more efficiently, but it is also less intrusive. 121
A technician can also match the media hash list against a known-file hash list
to find particular files. This could include looking for evidence that the
115
241 F.R.D. 534, 546-47 (D. Md 2007)
116
“ Suggested Protocol for Discovery of Electronically Stored Information (“ESI”) U.S District Court for the
District of Maryland, at 20-21
117
Salgado R P (2005)Fourth Amendment Search and the Power of the Hash, E-evidence.info [online]. Available
from: http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf [Accessed 14/01/2010] p38
118
119
120
121
from: http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf [Accessed 14/01/2010] p 43
70 | P a g e
computer had been compromised by malicious code, such as a worm, virus, or

Trojan horse.122
PROPOSED MODIFICATIONS TO THE BEST EVIDENCE RULE IN NIGERIA
Sections 232(1), 232(2), 234(1) and 234(2) of the Evidence Act (Amendment) Bill
2009 contain the proposed amendments and are reproduced below:
Section 232 (1) Evidence Act (Amendment) Bill 2009:

This Act does not modify any common law or statutory rule relating to the
admissibility of records, except the rules relating to authentication and best
evidence
Section 232(2) Evidence Act (Amendment) Bill 2009:

The court may have regard to evidence adduced under this Act in applying any
common law or statutory rule relating to the admissibility of records
In any legal proceeding, subject to subsection (2) of this section where the
best evidence rule is applicable in respect of electronic record, the rule is
satisfied on proof of the integrity of the electronic records system in or by
which the data was recorded or stored

In any legal proceeding, where an electronic record in the form of a printout
has been manifestly or consistently acted on, relied upon, or used as the
record of the information recorded or stored on the printout, the printout is
the record for the purposes of the best evidence rule.
122
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CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED

INFORMATION (ESI) EVIDENCE
CHAPTER SUMMARY
In this chapter, Hearsay will be defined. Next, the hearsay evidence rule at common
law and in Nigerian law will be considered.
The hearsay evidence rule as it relates to electronically stored information (ESI)

evidence in the United States, the United Kingdom and Nigeria will then take centre-
stage.
Finally, the chapter will provide instances where ESI can be treated as exceptions to
the hearsay evidence rule.

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DEFINITION OF HEARSAY
Mozley & Whiteley’s Law Dictionary defines hearsay evidence as the “evidence of a
fact not actually perceived by a witness with one of his own senses, but proved by
him to have been stated by another person.”123
In other words, hearsay evidence is a repetition to the court of a statement by a
witness of what someone had told him, or an evidentiary statement made by a non
witness but restated in court by a witness if the object of the restatement is to
establish the truth of what is contained in that statement.
ADMISSIBILITY OR OTHERWISE OF HEARSAY EVIDENCE
The general rule is that hearsay evidence is inadmissible, however, according to

Mozley & Whiteley’s Law Dictionary “the law has from early times allowed several
exceptions.”124
In Subramaniam v. Public Prosecutor125 the Judicial Committee of the Privy Council
stated:
Evidence of a statement made to a witness by a person who is not himself
called as a witness may or may not be hearsay. It is hearsay and inadmissible
when the object of the evidence is to establish the truth of what is contained
in the statement. It is not hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the statement, but the fact that it
was made.
IS THE COMMON LAW RULE AGAINST HEARSAY IN FORCE IN NIGERIA?
This common law against hearsay is not per se part of Nigerian law; this is so because
the rule deals with inadmissibility of evidence while the incorporation of the English
common law rule of evidence into our laws is only in regards to the admissibility of
evidence.
123 th
Mozley & Whiteley’s Law Dictionary 1997, 9 Edition,Buterworths, London p 156
124 th
Mozley & Whiteley’s Law Dictionary 1997, 9 Edition,Buterworths, London p 156
125
1956 1 WLR 965
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Section 5 Evidence Act LFN 2004 which deals with admissibility of evidence states:
Nothing in this Act shall:
(a) prejudice the admissibility of any evidence which would apart from the
provisions of this Act be admissible, or
(b) enable documentary evidence to be given as to any declaration relating to
a matter of pedigree, if that declaration would not have been admissible as
evidence if the Act had not passed.
The effect of Section 5(a) Evidence Act LFN 2004 is that evidence admissible under
the common law is also admissible under the Act. However, the above principle
cannot be applied in reverse.
That is, it is not the intention of Section 5(a) Evidence Act LFN 2004 that evidence
inadmissible under the common law is also inadmissible under the Act, or under any
other statute applicable in Nigeria.
In practice then, any rules of common law governing the exclusion of evidence are
inapplicable in Nigeria, unless such rules have been incorporated into the Act.
And where this is so, Nigerian courts can look up to English decisions as guides to
interpret such Nigeria statutory provisions.
But where the Evidence Act LFN 2004 has declared that a certain piece of evidence is
inadmissible, then such evidence cannot be admitted under or by virtue of any rules
of common law.
HEARSAY EVIDENCE IN NIGERIAN LAW
Section 76 Evidence Act LFN 2004 states

All facts, except the contents of documents, may be proved by oral evidence
Section 77 Evidence Act LFN 2004 states
Oral evidence must, in all cases whatever, be direct
(a) If it refers to a fact which could be seen, it must be the evidence of a

witness who says he saw that fact
(b) If it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard that fact

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(c) If it refers to a fact which could be perceived by any other sense or in any
other manner, it must be the evidence of a witness who say she perceived
that fact by that sense or in that manner
(d) If it refers to an opinion or to the grounds on which that opinions held, it
must be the evidence of the person who holds that opinion on those
grounds
In effect, Section 77 Evidence Act LFN 2004 also called Best Evidence Rule is stating
that the type of evidence which is to be tendered in our courts must be direct
evidence, which means hearsay evidence is contrary to this section.
REASONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN NIGERIA
1. Such statements are not made on oath or affirmation and may therefore be
untrustworthy
2. The party against whom the evidence is tendered is absent from the court and
therefore is not subject to cross-examination so as to test the veracity of the
statement
3. The exclusion of hearsay evidence has been cited as a device to enforce the
best evidence rule
4. The admissibility or the exclusion of hearsay evidence which often generates
arguments on both sides tends to protract litigation
5. In hearsay cases, the court cannot see the demeanour of the original party
who is absent from the court.
6. A tale told is a tale altered.
HEARSAY RULE EXCEPTIONS IN NIGERIAN LAW
The recognised exceptions include:

 Admissions in civil cases
 Voluntary confessions in criminal cases
 Declarations in the course of duty (Section 91 Evidence Act LFN 2004)
 Declarations against interest
 Declarations as to pedigree
 Declarations as to public and general rights
 Declarations as to bodily or mental conditions
 Dying declarations where murder or manslaughter is the subject of the
charge
 Declarations as to contents of wills
 Evidence given in former proceedings
 Statements in public documents

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THE HEARSAY RULE, ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE AND THE UNITED STATES
According to Scheindlin, S.A., & Capra, D.J., (2009):

Generally speaking, hearsay problems are treated the same whether they are
in hardcopy or digital records. In federal courts, hearsay issues are addressed
by Federal Rules of Evidence 801 (defining hearsay, and creating exemptions
for, inter alia, admissions by a party–opponent and prior statements of
testifying witnesses):126
The United States Federal Rules of Evidence Rule 801 is reproduced below:
The following definitions apply under this article:
(a) Statement. — A “statement” is (1) an oral or written assertion or (2)

nonverbal conduct of a person, if it is intended by the person as an
assertion.
(b) Declarant. — A “declarant” is a person who makes a statement.
(c) Hearsay. — “Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
(d) Statements which are not hearsay. — A statement is not hearsay if —
(1) Prior statement by witness. — The declarant testifies at the trial or
hearing and is subject to cross examination concerning the statement,
and the statement is (A) inconsistent with the declarant’s testimony,
and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition, or (B) consistent with
the declarant’s testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper
influence or motive, or (C) one of identification of a person made after
perceiving the person; or
(2) Admission by party-opponent. — The statement is offered against a
party and is (A) the party’s own statement, in either an individual or a
representative capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a statement by a
person authorized by the party to make a statement concerning the
subject, or (D) a statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment, made during
the existence of the relationship, or (E) a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy. The
126
Minnesota: West Publishing Co p 520

76 | P a g e
contents of the statement shall be considered but are not alone

sufficient to establish the declarant’s authority under subdivision (C),
the agency or employment relationship and scope thereof under
subdivision (D), or the existence of the conspiracy and the participation
therein of the declarant and the party against whom the statement is
offered under subdivision (E).
EXCEPTIONS TO THE HEARSAY RULE SET FORTH IN FRE RULE 801 (D)
The United States Federal Rules of Evidence Rule 801(d) is reproduced above.
In United States v. Dupre127 the question that arose for determination was “under
what circumstances can emails of non-testifying witnesses be admitted?”
The e-mails from the non-testifying investors were accepted as non-hearsay
evidence for three purposes:
 First, the e-mails supplied “context for defendants’ messages sent in

response to them”
 Second, the e-mail messages also “served to rebut defendants’
argument that they had no reason to know the Roberta Project was
fraudulent.”
 Finally, the e-mail “messages demonstrated that defendants had
received communications detailing the project’s likely bogus nature.”
While the introduction of e-mails of non-testifying witnesses normally is subjected to
a hearsay challenge, the United States v. Dupre case demonstrates some
circumstances in which the e-mails may be admitted for a non-hearsay purpose in a
fraud case. 128
ESI AND THE BUSINESS RECORDS EXCEPTION IN THE US [FRE Rule 803(6)]
The United States Federal Rules of Evidence Rule 803 (6) is reproduced below:
The following are not excluded by the hearsay rule, even though the declarant
is available as a witness: …
127 nd
[462F.3d 131 (2 Cir. 2006)]
128
Federal Evidence Review (2009) Fraud Case E-mails of Non-Testifying Investors admitted in Non-Hearsay.
Federal Evidence Review [online] http://federaleavidence.com/blog/2009/february/fraud-case-e-mails-non-
testifying-investors-admitted-non-hearsay [Accessed 01/02/2010]

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(6) Records of regularly conducted activity. — A memorandum, report,

record, or data compilation, in any form, of acts, events, conditions, opinions,
or diagnoses, made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity to
make the memorandum, report, record or data compilation, all as shown by
the testimony of the custodian or other qualified witness, or by certification
that complies with Rule 902(11), Rule 902(12), or a statute permitting
certification, unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. The term “business” as used in
this paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit.
In United States v. Fujii129 the question that arose for determination on appeal was
 whether an airlines check-in and reservation computer records were made in

the ordinary course of business
 Whether there were trustworthy.
In the trial court, the above records were used to convict the defendant. The Seventh
Circuit concurred with the trial court's admission of the records as business records
under FRE 803(6) noting:
computer data compiled and presented in computer printouts prepared

specifically for trial is admissible under Rule 803(6), even though the printouts
themselves are not kept in the ordinary course of business.
And observed that based on the testimony of the airlines' witness, in the instant
case, those records were made in the ordinary course of business. It went on to say
that the defendant did not prove that the record could not be trusted and the fact
that the records were printed at the request of an IRS agent did not alter the
character of the business record.130
Kerr, O.S (2001) commented on the business records exception thus:
Notably, the printout itself may be produced in anticipation of litigation

without running [a]foul of the business records exception. The requirement
that the record be kept “in the course of a regularly conducted business
129 th
[301 F.3d 535 (7 Cir. 2002)]
130
Federal Evidence Review (2009) Fraud Case E-mails of Non-Testifying Investors admitted in Non-Hearsay.
Federal Evidence Review [online] Available at: http://federalevidence.com/blog/2009/june/admitting-airline-
computerized-business-records [Accessed 21/01/2010]
78 | P a g e
activity” refers to the underlying data, not the actual printout of that data. See
United States v. Saunders131. The business record exception is the most
common hearsay exception applied to computer records.132
In United States v. Salgada133 a case involving the application of the hearsay evidence
rule (and the business records exception) to digital evidence, it was held that:
A business record must satisfy four requirements in order to be admissible

under Rule 803(6):
1) It must have been made in the course of a regularly conducted business

activity;
2) It must have been kept in the regular course of that business
3) The regular practice of that business must have been to have made the
memorandum; and
4) The memorandum must have been made by a person with knowledge
of the transaction or from information transmitted by a person with
knowledge.134
ESI AND THE PUBLIC RECORDS EXCEPTION IN THE US [FRE Rule 803(8)]
The United States Federal Rules of Evidence Rule 803 (8) is reproduced below:
(8) Public records and reports. — Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and proceedings and against the
Government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information
or other circumstances indicate lack of trustworthiness.
In United States v. Lopez-Moreno135 the question that arose for determination was
"whether it was permissible for government deportation records to be admitted
131 th
[749 F.2d 195, 198 (5 Cir. 1984)]
132
Kerr, O. S. (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 42(2)
133 th
[250 F.3d 438 (6 Cir. 2001)]
134
Minnesota: West Publishing Co p544

79 | P a g e
under public records hearsay exception." At the trial court, a Bureau of Immigration
and Custom Enforcement computer printout served as the basis on which the
defendant was convicted.
On appeal, the Fifth Circuit concurred with the decision of the trial court and noted:
"Under Rule 803(8), records, including computer records, made by a public

agency are admissible, regardless of whether they would otherwise be
excluded as hearsay."136
ESI EVIDENCE MAY OR MAY NOT BE HEARSAY
ESI EVIDENCE AS HEARSAY
If the electronically stored information (ESI) evidence which is generated on a

computer by a human being and is stored on a computer is presented as evidence,
the court has the discretion to consider it hearsay.
According to Kerr, O.S (2001)
When a computer record contains the assertions of a person, whether or not

processed by a computer, the record can contain hearsay. In such cases, the
government must fit the record within a hearsay exception such as the
business records exception, FRE 803(6). Computer-stored records that contain
human statements must satisfy an exception to the hearsay rule if they are
offered for the truth of the matter asserted. Before a court will admit the
records, the court must establish that the statements contained in the record
were made in circumstances that tend to ensure their trustworthiness. 137
ESI EVIDENCE AS NON-HEARSAY
If the electronically stored information (ESI) evidence is computer-generated without

any human input at all, then it is not hearsay.
135 th
[420 F. 3d 420 (5 Cir. 2005)]
136
Lopez - Moreno, 420 F.3d at 436 Available at: http://federalevidence.com/blog/2008/october/computer-
records-admitted-under-public-records-hearsay-exception [Accessed 21/01/2010]
137
Kerr, O.S (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 49 (2)
80 | P a g e
According to Kerr, O.S (2001)
When a computer record contains only computer-generated data untouched

by human hand, however, the record cannot contain hearsay. In such cases,
the government must establish the authenticity of the record, but does not
need to establish that a hearsay exception applies for the records to be
admissible… By definition, an assertion cannot contain hearsay if it was not
made by a human being. Can we just the word person? See Federal Rules of
Evidence 801(a) (“A ‘statement’ is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an
assertion.”) (emphasis added); Federal Rules of Evidence 801(b) (“A declarant
is a person who makes a statement.”) (emphasis added).138
In the Nigerian context, examples of computer-generated ESI would be SMS
notifications of banking transactions as well as SMS delivery reports.
In United States v Hamilton139, the Tenth Circuit explained when electronically stored
information (ESI) evidence is not hearsay when it said:
Of primary importance to this ruling is the uncontroverted fact that the
header information was automatically generated by the computer hosting the
newsgroup each time Hamilton uploaded a pornographic image to the
newsgroup. In other words, the header information was generated
instantaneously by the computer without the assistance or input of a person.
As concluded by the district court, this uncontroverted fact clearly places the
header information outside of Rule 801(c)’s definition of “hearsay.” In
particular, there was neither a “statement” nor a “declarant” involved here
within the meaning of Rule 801.140
In United States v Washington141, the question that arose for determination was
whether machine-generated information was subject to a hearsay challenges. The
Fourth Circuit concluded that “raw data generated by the machines do not constitute
‘statements,’ and the machines are not ‘declarants.’”142
138
Kerr, O.S (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 49 (2)
139 th
[ 413 F. 3d 1138, 1142-43 (10 Cir. 2005)]
140
Federal Evidence Review (2009) Computer Generated Evidence May be Non-Hearsay. Federal Evidence
Review [online] http://federalevidence.com/blog/2008/september/computer-generated-evidence-may-be-
non-hearsay [Accessed 04/02/2010]
141 th
[498 F. 3d 225 (4 Cir. 2007)]
142
Federal Evidence Review (2009) Machine-Generated Data was Not a Statement and Raised No Hearsay or
Confrontation Clause Issues. Federal Evidence Review [online]
http://federalevidence.com/blog/2008/december/machine-generated-data-was-not-statement-and-raised-
no-hearsay-or-confrontation-c [Accessed 01/02/2010]

81 | P a g e
To this, the Editor of the Federal Evidence Review commented: “The position of the
majority in Washington may be applied to other evidentiary contexts involving
machine-generated information. For example, a similar result has been used for
machine-generated information by computers.”
The court in United States v Robinson143 failed to take heed of the above distinction
between computer-generated and computer-stored ESI.
THE HEARSAY RULE, ESI EVIDENCE AND THE RULING IN LORRAINE V. MARKEL
Unless the 5 step analysis proposed by Judge Grimm in Lorraine v Markel144 and
reproduced below is followed, the court will make the mistake of treating all ESI
equally when in practice and in law, there should be a distinction between computer-
stored and computer-generated electronically stored information (ESI) evidence.
In the words of Judge Grimm:

Whenever ESI is offered as evidence, either at trial or in summary judgment,
the following evidence rules must be considered: (1) is the ESI relevant as
determined by Rule 401 (does it have any tendency to make some fact that is
of consequence to the litigation more or less probable than it otherwise
would be); (2) if relevant under 401, is it authentic as required by Rule 901(a)
(can the proponent show that the ESI is what it purports to be); (3) if the ESI is
offered for its substantive truth, is it hearsay as defined by Rule 801, and if so,
is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the
form of the ESI that is being offered as evidence an original or duplicate under
the original writing rule, or if not, is there admissible secondary evidence to
prove the content of the ESI (Rules 1001-1008); and (5) is the probative value
of the ESI substantially outweighed by the danger of unfair prejudice or one
of the other factors identified by Rule 403, such that it should be excluded
despite its relevance.145
Humans makes statements; computers do not, at least not in the sense of the
hearsay evidence rule. Judge Grimm then zeroes in on how the court should apply
the hearsay evidence rule in respect of ESI:
The fourth “hurdle” that must be overcome when introducing electronic

evidence is the potential application of the hearsay rule. Hearsay issues are
143
[272 Neb. 582, 724 N.W. 2d 35 (Neb. 2006)]
144
[241 F.R.D at 538 (D. Md. 2007)]
145
Lorraine v Markel [241 F.R.D at 538 (D. Md. 2007)]
82 | P a g e
pervasive when electronically stored and generated evidence is introduced. To

properly analyze hearsay issues there are five separate questions that must be
answered: (1) does the evidence constitute a statement, as defined by Rule
801(a); (2) was the statement made by a “declarant,” as defined by Rule
801(b); (3) is the statement being offered to prove the truth of its contents, as
provided by Rule 801(c); (4) is the statement excluded from the definition of
hearsay by rule 801(1); and (5) if the statement is hearsay, is it covered by
one of the exceptions identified at Rules 803, 804 or 807. It is critical to proper
hearsay analysis to consider each of these questions.146
Following which he groups the 29 exceptions to the hearsay rules into three
classes147 and examines those having a bearing on electronically stored information.
He finally warns that it is the course of wisdom to “…pay attention to exhibits offered
by an opponent, as much as to those records that you need to introduce. A failure to
raise a hearsay objection means that the evidence may be considered for whatever
probative value the finder of fact chooses to give it.”148
In the context of Rule 801(a), computer-generated ESI cannot be hearsay.
THE HEARSAY EVIDENCE RULE, ELECTRONICALLY STORED INFORMATION

(ESI) EVIDENCE AND THE UK
Section 1 Civil Evidence Act 1995 abolished the common law hearsay evidence rule in
the UK. It is reproduced below:
1. (1) In civil proceedings evidence shall not be excluded on the ground that it is
hearsay.
146
147
According to Grimm, P.W., Zicardi, M.V., Major, A.W., (2008-2009)Back to the Future: Lorraine v Markel
Insurance Co. and New Findings on the admissibility of electronically Stored Information. Akron Law Review,
42 (2) p 402 The three classes are: (1) those dealing with perception, observation, state of mind, intent and
sensation; (2) those involving documents, records and other writings; and (3) statements dealing with
reputation.
148
[Accessed 04/02/2010]

83 | P a g e
BAINBRIDGE, D (2000) made this comments in relation to the triad of the hearsay
evidence rule, electronically stored information (ESI) evidence and the UK:
In relation to civil proceedings, this rule has all but been abolished but it
remains firmly in place in criminal cases … in the case of computer documents
there has to be some exception to the hearsay rule as, in many cases, it will
not be possible to identify the person or persons who entered the information
in question… it must also be recognised, however, that computers are not
infallible and some fundamental requirements have to be satisfied before
computer documents can be admitted in evidence in criminal proceeding
under an exception to the hearsay.149
WEIGHT TO BE ATTACHED TO HEARSAY EVIDENCE IN THE UK
Section 4 Civil Evidence Act provides as follows:
4.(1)In estimating the weight (if any) to be given to hearsay evidence in civil
proceedings the court shall have regard to any circumstances from which any
inference can reasonably be drawn as to the reliability or otherwise of the evidence.
4.(2)Regard may be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by
whom the evidence was adduced to have produced the maker of the original
statement as a witness;
(b) whether the original statement was made contemporaneously with the
occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent
matters;
(e) whether the original statement was an edited account, or was made in
collaboration with another or for a particular purpose;
(f)whether the circumstances in which the evidence is adduced as hearsay are

such as to suggest an attempt to prevent proper evaluation of its weight.
149 th

84 | P a g e
And to this, Bainbridge, D(2000) has this to say:
Hearsay may carry little weight unless it would have been admissible under
Part I of the Civil Evidence Act 1968, now repealed. Factors included:
 Regularity – whether the computer was regularly used to store or
process information, for the purposes of any activities regularly
carried out, over a period which includes the time when the
document was made.
 Consistency – during the relevant period information of the kind
contained in the document (or of a kind from which such
information is derived) was regularly supplied to the computer in
the ordinary course of those activities.,
 Reliability – the computer was operating properly during the
material part of that period (or, if not, any malfunction or
breakdown that occurred would not have affected the accuracy of
the material contained in the document)
 Orthodoxy – the information contained in the document reproduces
or is derived from information supplied to the computer in the
ordinary course of the activities regularly carried out over the
period in question. 150
BUSINESS AND PUBLIC RECORDS EXCEPTIONS TO THE HEARSAY RULE
Section 9 Civil Evidence Act 1995 which makes provisions for business and public
records exceptions in the UK is reproduced below:
9.-(1) A document which is shown to form part of the records of a business or public
authority may be received in evidence in civil proceedings without further proof.
9(2) A document shall be taken to form part of the records of a business or public
authority if there is produced to the court a certificate to that effect signed by an
officer of the business or authority to which the records belong.
For this purpose-
(a) a document purporting to be a certificate signed by an officer of a business
or public authority shall be deemed to have been duly given by such an
officer and signed by him; and
(b) a certificate shall be treated as signed by a person if it purports to bear a
facsimile of his signature.
150 th
Bainbridge, D. (2000) Introduction to Computer Law. 4 Edition, London: Longman p270/1

85 | P a g e
9(3) The absence of an entry in the records of a business or public authority may be
proved in civil proceedings by affidavit of an officer of the business or authority to
which the records belong.
9(4) In this section –
“records” means records in whatever form
“business” includes any activity regularly carried on over a period of time, whether
for profit or not, by any body (whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible position in relation to the

relevant activities of the business or public authority or in relation to its records; and
“public authority” includes any public or statutory undertaking, any government
department and any person holding office under Her Majesty.
9(5)The court may, having regard to the circumstances of the case, direct that all or
any of the above provisions of this section do not apply in relation to a particular
document or record, or a description of documents and records.
Reed, C. and Davies, L. (2000) gave the following analysis:
Section 9 Civil Evidence Act 1995 provides that documents which form part of
the records of a business (defined very widely) are automatically admissible
and the absence of an entry in those records can be prove by an appropriately
signed certificate.151
JUDICIAL DETERMINATION OF A “RECORD”
For the judicial definition of record, our authority is H v. Schering Chemicals152, a case
involving an application for an order to admit certain documents as evidence at the
trial of the action in which Bingham J held that:
A record for the purposes of Section 4 of the Criminal Evidence Act 1978 was
either a document that gave effect to a transaction or contemporaneous
register of information supplied by those with direct knowledge of the facts
supplied; that the documents sought to be introduced by the plaintiffs were
digests or analysis of records which existed or had existed, and therefore, the
documents were not records and were not admissible in evidence under the
provisions of Section 4….The intention of that section was, I believe to admit
in evidence records which a historian would regard as original or primary
151 th
Reed, C. and Davies, L. (2000) Computer Law. 4 Edition London: Blackstone Press Limited p306/307
152
1978 H. No. 7465
86 | P a g e
sources, i.e., documents which either give effect to a transaction itself or

which contain a contemporaneous register of information supplied by those
with direct knowledge of the facts… The documents in the present case, I
think, are not records and are not primary or original sources. They are a
digest or analysis of records which must exist or have existed, but they are not
themselves records.
According to Reed, C. and Davies, L. (2000), the effect of the above ruling in the light
of the Civil Evidence Act 1995 is that: “… the majority of computer records will all
under Section 8 rather than the more familiar Section 9.”153
ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AS A EXCEPTION

TO THE HEARSAY EVIDENCE RULE IN THE UK
In Lord Advocate’s Reference,154 the court had to determine amongst other issues,
“whether evidence of the content of entries in the computer records from the
computer operations controller in the circumstances was competent and
admissible.”
The court held
That as it was well-recognised that hearsay evidence was admissible when it

became the best evidence and the law did not compel people to do that which
was impossible, there was no fundamental objection in principle to
recognition of the application of an exception to the case of computer
records, provided always that the evidence established that, due to the
manner of the operation of the computer or the method of organisation by
which information was put into it, it was not only not reasonably practical, but
impossible, to identify the authors of the entries which required to proved so
that the evidence of the computer operations controller was competent and
admissible in the circumstance of this case; and questions answered
accordingly.155
153 th
Reed, C. and Davies, L. (2000) Computer Law. 4 Edition London: Blackstone Press Limited p306/307
154
No. 1 of 1992
155
Lord Advocate’s Reference No. 1 of 1992
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CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED

INFORMATION (ESI)
CHAPTER SUMMARY
This chapter will attempt to define authentication, authenticity, prove that there is a
relationship between authentication and relevance, discusses requirements for
authenticating ESI in Nigeria and the United States.

88 | P a g e
NOTES ON AUTHENTICATION – WIKIPEDIA
Authentication, in the law of evidence, is the process by which documentary

evidence and other physical evidence is proven to be genuine, and not a forgery.
Generally, authentication can be shown in one of two ways.
First, a witness can testify as to the chain of custody through which the evidence
passed form the time of discovery up until the trial.
Second, the evidence can be authenticated by the opinion of an expert witness

examining the evidence to determine it has all the properties that it would be
expected to have if it were authentic.156
AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE
According to Paul, G (2008):
The questions usually asked to determine authenticity are either: “Is this
object what people claim it to be?” or “Is this object what it purports to be on
its face?”
If the finder of a fact, from all the evidence, concludes that the answer is no,
the object is not authentic.… Authenticity … highlights that objects are
themselves “facts”, with attributes, or characteristics, tying them to the
circumstance of a case in the form of explicit or implied statements…
Accordingly, when we discuss objects, there is not only information carried by

the object, but also a kind of “meta-information”, or information about the
object itself, which are the assertions about the objects attributes. Whether
these assertions about the objects attributes are true determines
authenticity.157
In the analysis of authentication in relation to electronically stored information (ESI)

evidence, the following questions are pertinent:
 What is the identity of the person(s) behind the birth/creation of the

ESI record?
 Has the state of the ESI record remained static or inert over time?
 When was the ESI record created?
156
Wikipedia (2010) Authentication, Wikipedia [online]. Available from:
http://en.wikipedia.org/wiki/Authentication-(law) [Accessed 01/02/ 2010]
157
Paul, GL (2008) Foundations of Digital Evidence Chicago: American Bar Association Publishing p33
89 | P a g e
 Was the identity of the person connected/associated with the ESI

record at the point of creation/birth or subsequently?
 Is the connection/association between the object and the identity of its
creator alterable or unalterable? If alterable, can such alterations be
detected?
 Does the passage of time, without any sort of external influence change
the ESI record?
 Can the ESI record be associated with a place, e.g., Abuja, Nigeria or a
thing e.g., an Internet Protocol address or cell phone number? Is the
association trustworthy? Or can the association be forged?
Answers to these questions are provided by one or a combination of:
1. Circumstantial evidence: According to the EnCase Legal Journal, “a

document may be authenticated through circumstantial evidence. A
computer forensic examination is often an effective means to authenticate
electronic evidence through circumstantial evidence. The examiner must
be able to provide competent and sufficient testimony to connect the
recovered data to the matter in question.”158
2. Oral/direct evidence: (Section 77 Evidence Act LFN 2004)
3. Inbuilt technological features: of the system or record159 if they are

particularly specifically designed with this in mind or through embedded
features of the record itself such as digital signatures
The answers to these questions are important because ESI evidence unlike paper
evidence is very volatile, and by that is meant that its unique features include:
 ease of undetectable alteration

 alteration through routine handling
 “unintentional” spoliation
 Gates Rubber v. Bando Chemical Industries160
 automatic overwriting and recycling161
Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p11.
158
Please compare Sections 57(1) and (2) as well as 60 of the Evidence Act LFN 2004 which provides for expert
testimony and opinion.
159 th
Reed, C. and Davies, L. (2010) Computer Law. 4 Edition London: Blackstone p308
160
[167 F.R.D 90 (D. Colo.1996)]
161
Withers, K.J., June 2002 Electronic Discovery presented at the National Workshop for US Magistrates p 12
Available online at http://www.kenwithers.com/articles/minneapolis/index.html [Accessed 13/08/2009]
90 | P a g e
AUTHENTICITY AND RELEVANCY
The whole of the law of evidence hangs primarily on admissibility and inadmissibility
of evidence.
Whether a particular piece of evidence is admissible or not is dependent upon

whether or not the fact to be established by the evidence is relevant to the facts-in-
issue.
According to Nokes, G. D. (1967) “the question whether proferred evidence is

admissible or inadmissible may involve four … questions,” 162 the first of which is
relevant in this context and therefore is stated below:
“First, are the facts sought to be proved admissible as being facts in issue, or
relevant to the facts in issue, or relevant on any other ground?”
Hence the United States Federal Rules of Evidence 401 defines “relevant evidence”
to mean “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
without the evidence”.
From the FRE Rule 401’s definition, the weight of evidence is inextricably tied to the
relevance or relevancy of the evidence concerned.
Thus, the effect of FRE 402 is that if evidence is relevant, it admissible, but if
evidence is irrelevant, it is inadmissible.
Section 2(1) Evidence Act LFN 2004 agrees in principle with Nokes, G.D (1967)
because it defines fact in issue as follows:
includes any fact from which either by itself or in connection with other facts
the existence, non-existence , nature or extent if any right, liability or disability
assented or denied in any suit or proceeding necessary follows.
Facts in issue are those things which a plaintiff must prove to establish his claim or
those things which a defendant will have to proof to establish his defence.
For a fact to be a fact-in-issue depends on the law and the pleadings of the parties. It
is only facts which are relevant to the fact(s)-in-issue that can serve as the basis for
the admissibility of a piece of evidence.
162 th

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Evidence is admissible only to prove fact(s)-in-issue and facts relevant to fact(s)-in-

issue.
Section 7 Evidence Act LFN 2004 which is the Nigerian statutory enactment of the
Common Law doctrine of Res Gestae provides for the admissibility of relevant facts
that might not be facts in issue.
See also Sections 8, 9(1), 9(2), 9(3), 9(4), 10, 11(1), 11(2) and 12 Evidence Act LFN
2004 which discuss the issue of relevancy and which have been reproduced below:
8. Facts which are the occasion, cause or effect, immediate or otherwise, of

relevant facts or facts in issue, or which constitute the state of things under
which they happened, or which afforded an opportunity for their occurrence or
transaction, are relevant.
9. (1) Any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any proceedings, in
reference to such suit or proceeding, or in reference to any fact in issue therein
or relevant thereto, and the conduct of any person an offence against whom is
the subject of any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it was previous or
subsequent thereto.
(3) The word "conduct" in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this provision
shall not affect the relevancy of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in
his presence and hearing which affects such conduct is relevant.
10. Facts necessary to explain or introduce a fact in issue or relevant fact, or

which support or rebut an inference suggested by a fact in issue or relevant fact,
or which establish the identity of any thing or person whose identity is relevant,
or fix the time or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.
11. (1) Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or actionable wrong anything said,
done or written by any one of such persons in execution or furtherance of their
common intention, after the time when such intention was first entertained by

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any one of them, is a relevant fact as against each of the persons believed to be
so conspiring, as well for the purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person was a party to it; but
statements made by individual conspirators as to measures taken in the
execution or furtherance of any such common intention are not deemed to be
relevant as such as against any conspirators, except those by whom or in whose
presence such statements are made.
(2) Evidence of acts or statements deemed to be relevant under this section may
not be given until the court is satisfied that, apart from them, there are prima
facie grounds for believing in the existence of the conspiracy to which they relate.
12. Facts not otherwise relevant are relevant -
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or
non existence of any fact in issue or relevant fact probable or improbable.
According to Paul, GL (2008), “evidence can have debatable authenticity because a

record is claimed to be associated with a person or entity other than the truthful
entity, or it can be debatable because the content of a record could have changed
over time, or the record could have been created or signed at a time other than what
is stated on or about the record… authenticity means that things are as they are
claimed to be. Authenticity is considered a subset of relevance because, unless and
object is authentic, it does not have proper evidentiary weight.” 163
It can thus been said “that whether a piece of evidence is indeed authentic is almost
always a question of circumstantial evidence that can implicate facts intrinsic to the
record (such as handwriting, signatures, or perhaps metadata), or facts extrinsic to
the record (such as where the record is found, what the record replied to, or what a
person testifies about a record).164
163
164
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CHALLENGES TO AUTHENTICITY165
 Were the records altered, manipulated or damaged after they were created?
(a challenge to the authenticity of both computer-generated and computer-
stored records)
o Courts are sceptical of unsupported claims of alteration
 Reliability of the computer program that generated the records (a challenge to
the authenticity of computer-generated records)
o Program routinely relied upon in the normal course of business
 Identity of the author of the records (a challenge to the authenticity of
computer-stored records)
o Corroborate with circumstantial evidence
AUTHENTICATION, AUTHENTICITY AND THE EVIDENCE ACT
The word “authentication” does not exist in the current “Evidence Act”, i.e., Evidence
Act LFN 2004.
However, its cousin “authenticated” appears in Section 81 Evidence Act LFN 2004 in
relation to affidavit, it also appears twice in Section 118 Evidence Act LFN 2004 in
relation to powers of attorney.
In Section 91(4) Evidence Act LFN 2004, there is an implied reference but no express
mention is made of it.
However, the proposed Section 233 Evidence Act (Amendment) Bill 2009 states:
The person seeking to introduce an electronic record in any legal proceeding

has the burden of proving its authenticity by evidence capable of supporting a
finding that the electronic record is what the person claims it to be.
This above section needs to be read with Section 232(1) and 232(2) of the same Bill
which states:
232.- (1)This Act does not modify any common law or statutory rule relating to
the admissibility of records, except the rules relating to authentication and
best evidence.
(2) A court may have regard to evidence adduced under this Act in applying
any Common Law or statutory rule relating to the admissibility of records
165
Stephenson, P (2004) Ensuring the Reliability and Admissibility of Digital Evidence, emich.edu [online] .
Available from:
http://people.emich.edu/pstephen/my_presentations/Ensuring%20the%20Reliability%20and%20Admissibility
%20of%20Digital%20Evidence%20-%201%20hr.ppt [Accessed 09/06/2009]
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AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – STATUTORY

PROVISIONS
Sections 100 to 108 of the Evidence Act LFN 2004 treats the Authentication of
Documentary Evidence in Nigeria, under this sub-heading those sections relevant to
Electronically Stored Information (ESI) evidence will be analysed.
SECTION 100 EVIDENCE ACT LFN 2004
100. 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 handwriting.
COMMENTARY ON SECTION 100
Section 100 Evidence Act LFN 2004 treats authentication via signature i.e., signing
and authentication via handwriting. Simeon Olusoji Kuforiji & Another v. V.Y.B
(Nigeria) Ltd166.
The above section as currently worded does not and cannot be made to apply to ESI
evidence of any kind by any stretch of the imagination. 167 ESI is in general not
handwritten (an example of handwritten ESI is using a stylus or tablet pen). ESI can
be signed in the case of digital signatures. [See Section 240 of the Evidence Act
(Amendment) Bill 2009]
SECTION 101(1) EVIDENCE ACT LFN 2004
101. (1) Evidence that a person exists having the same name, address, business or
occupation as the maker of a document purports to have, is admissible to show that
such document was written or signed by that person.
COMMENTARY ON SECTION 101(1)
It was the application of similar principles in the Federal Rules of Evidence 901(a)
that led to the conviction in United States v. Tank168
This sub-section as currently worded is applicable to ESI.
166
(1981) 6-7 SC 40
167
Of course, it can be argued that using a digital stylus with a pen-enabled tablet PC which accepts writing
directly to the screen (and saving the same to the disk) means that ESI can be handwritten. Ultimately, this is
an issue which the judiciary will have to settle. But see http://en.wikipedia.org/wiki/Microsoft_OneNote
168
[200 F.3d 627(9th Cir. 2000)]
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101 (2) Evidence that a document exists to which the document the making of which
is in issue purports to be a reply, together with evidence of the making and delivery
to a person of such earlier document, is admissible to show the identity of the maker
of the disputed document with the person to whom the earlier document was
delivered.
The wording makes it applicable to ESI provided that the definition of “document” in
Section 2(1) Evidence Act LFN 2004 includes ESI.
See also Section 3 of the Evidence Act (Amendment) Bill 2009.
102. (1) Evidence that a person signed a document containing a declaration that a
seal was his seal is admissible to prove that he sealed it.
This section is anti-ESI as currently worded. But see Section 240 Evidence Act
(Amendment) Bill 2009
103. (1) In any proceedings, whether civil or criminal, an instrument to the validity of
which attestation is required by law may, instead of being proved by an attesting
witness, be proved in the manner in which it might be proved if no attesting witness
were alive;
Provided that nothing in this section shall apply to the proof of wills or other
testamentary documents.
(2) If no attesting witness is alive, an instrument to the validity of which attestation is

required by law is proved by showing that the attestation of one attesting witness at
least is in his handwriting, and that the signature of the person executing the
documents is in the handwriting of that person.

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Oral evidence can authenticate a non self-authenticating document. See Whyman v.

Garth169, Bowman v. Hodgson170 and Coles v. Coles171. At least one attesting witness
will do unless none is available. See R v. Harringworth (Inhabitants).172
This Section appears to be Pro-ESI.
104. The admission of a party to an attested document of its execution by himself

shall be sufficient proof of its execution as against him, though it be a document
required by law to be attested.
This Section appears to be Pro-ESI.
105. (1) A person seeking to prove the due execution of a document is not bound to
call the party who executed the document or to prove the handwriting of such party
or of an attesting witness in any case where the person against whom the document
is sought to be proved -
(a) produces such document and claims an interest under it in reference to the
subject matter of the suit; or
(b) is a public officer bound by law to procure its due execution, and he has dealt
with it as a document duly executed.
COMMENTARY ON SECTION 105 (1)
To authenticate non self-authenticating documents, the Section provides for
(1) Calling the person who executed it

(2) Calling the person who made the writing as a witness
169
(1858) Ex 803; 153 ER 1578
170
(1867) L.R. 1 P & D. 362
171
(1866) L.R. 1 P. & D. 70
172
(1815) 4 M. & S. 350; 105 ER 863
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The only exceptions are where secondary evidence is permissible (Section 97

Evidence Act LFN 2004) and with respect to ancient documents (Section 123
Evidence Act LFN 2004).
This section is anti-ESI.
106. If the attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence.
See Bowman v. Hodgson173, Pilkington v. Gray174 Circumstantial evidence can

authenticate ESI.
This section is Pro-ESI.
108. (1) In order to ascertain whether a signature, writing, seal or finger impression is
that of the person by whom it purports to have been written or made, any signature,
writing, seal or finger impression admitted or proved to the satisfaction of the court
to have been written or made by that person may be compared with the one which
is to be proved although that signature, writing, seal or finger impression has not
been produced or proved for any other purpose.
(2) The court may direct any person present in court to write any words or figures or
to make finger impressions for the purpose of enabling the court to compare the
words, figures or finger impressions so written with any words, figures or finger
impressions alleged to have been written or made by such person:
Provided that where an accused person does not give evidence he may not
be so directed to write any words or figures or to make finger impressions.
(3) After the final termination of the proceedings in which the court required any
person to make his finger impressions such impressions shall be destroyed.
This section is anti-ESI.
173
(1867) LRIP & D 362
174
(1989) AC 401
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SELF-AUTHENTICATING DOCUMENTS UNDER THE EVIDENCE ACT
Section 113 Evidence Act LFN 2004 lists them as including:
(a) Acts of the National Assembly or Laws of a State legislature, proclamations,

nominations, appointments and other official communications of the Government of
Nigeria or of any State thereof or of any Local Government -
(i) which appear in the Federal Gazette or the Gazette of a State, by the
production of such Gazette, and shall be prima facie proof of any fact of a
public nature which they were intended to notify,
(ii) by a copy thereof certified by the officer who authorised or made such
order or issued such official communication,
(iii) by the records of the departments certified by the heads of those

departments respectively or by the Minister or in respect of matters to which
the executive authority of a state extends by the Governor or any person
nominated by him, or
(iv) by any document purporting to be printed by order of Government;
(b) the proceedings of the Senate or of the House of Representatives - by the

minutes of that body or by published Acts or abstracts, or by copies purporting to be
printed by order of Government;
(c) the proceedings of a State House of Assembly - by the minutes of that body or by
published Laws, or by copies purporting to be printed by order of Government;
(d) the proceedings of a municipal body in Nigeria - by a copy of such proceedings,

certified by the legal keeper thereof, or by a printed book purporting to be published
by the authority of such body;
(e) Acts of Parliament of the United Kingdom and other statutes thereof enacted
including proclamations, orders or regulations issued by Her Majesty or by the Privy
Council, or by any department of Her Majesty's Government - by copies or extracts
contained in the London Gazette, or purporting to be printed by the Queen's printer;
(f) the acts or Ordinances of any other part of the Commonwealth, and the subsidiary
legislation made under the authority thereof - by a copy purporting to be printed by
the Government printer of any such country;

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(g) treaties or other acts of State of the United Kingdom or proclamations, treaties or
acts of State of any other country- by journals published by their authority, or
commonly received in that country as such, or by a copy certified under the seal of
the country or sovereign;
(h) books printed or published under the authority of the Government of a foreign
country, and purporting to contain the statutes, code or other written law of such
country, and also printed and published books of reports of decisions of the courts of
such country, and books proved to be commonly admitted in such courts as evidence
of the law of such country, shall be admissible as evidence of the law of such foreign
country;
(i) any judgment, order or other judicial proceeding outside Nigeria, or any legal
document filed or deposited in any court -
(i) by a copy sealed with the seal of a foreign or other court to which the
original document belongs, or, in the event of such court having no seal, to be
signed by the judge, or, if there be more than one judge, by any one of the
judges of the said court, and such judge must attach to his signature a
statement in writing on the said copy that the court whereof he is judge has
no seal, or
(ii) by a copy which purports to be certified in any manner which is certified by

any representative of Nigeria or if there is no such representative appointed
then by any representative of the United Kingdom in or for such country to be
the manner commonly in use in that country for the certification of copies of
judicial records;
(j) public documents of any other class elsewhere than in Nigeria -
For the documents so listed, there is no need to identify or authenticate since upon
admittance into evidence they may be said to auto-authenticate themselves,
provided that as the Section recommends: “… the original, or … a copy certified by
the legal keeper thereof, with a certificate under the seal of a notary public, or of a
consul or diplomatic agent that the copy is duly certified by the officer having the
legal custody of the original, and upon proof of the character of the document
according to the law of the foreign country.”
The class of documents that self-authenticate in Nigerian law are known as “public
documents”. (See Section 109 Evidence Act LFN 2004)
The class of documents that do not self-authenticate in Nigerian Law are known as
“private documents”. (See Section 110 Evidence Act LFN 2004)

100 | P a g e
AUTHENTICATION ON NON SELF–AUTHENTICATING DOCUMENTS IN

NIGERIA (AUTHENTICATION PROCEDURES FOR PRIVATE DOCUMENTS)
(1) Prove that it was signed by the person by whom it purports to have been
signed
(2) If duly executed is admitted by the parties, the document self-authenticates at
that point
(3) Document self-authenticates if the documents is in the possession of the
other party who refuses to produce it even after notice to produce. See Cooke
v. Tanswell175
(4) Self authenticates if parties waive the need to follow authentication process
(applicable to civil proceedings only)176
AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE IN NIGERIAN COURTS – EFCC v. KAYODE177
On March 26, 2009 the Federal High Court, Lagos presided over by Justice Ahmed
Ramat Mohammed rejected the computer print-out of a statement of account which
the EFCC had tendered before the court as evidence in the alleged money laundering
trial of former Aviation Minister, Femi Fani Kayode holding that it was inadmissible
under Section 97(1)(h) and Section 97(2)(e) Evidence Act LFN 2004.
In the words of the learned Justice Mohammed “… even if the said statement of
account was relevant to the proceedings, it was inadmissible under Section 97(1)(h)
and Section 97(2)(e) Evidence Act LFN 2004”178
A few days later, the EFCC filed a notice of appeal and raised the following issues:
 That the learned trial judge erred in law when he relied on UBA v. SAFPU 179
and supported by the Supreme Court ruling in YESUFU v. ACB180 to hold
that the certified true copy (CTC) of a computer print-out of the
respondent’s statement of account was inadmissible under any
circumstances by virtue of the provisions of the Evidence Act LFN 2004.
 That the statement of account produced in Court by the Manager of the
bank at the time was admissible under Evidence Act LFN 2004
175
(1818) 8 TAUNT 450 ; 129 ER 458
176
Nathaniel Okeke v Okunkwe Obidife & Others (1965) NMLR 113; 1 ALL NLR 50; WNLR 107
177
178
Thisday (2009) Archaic Law Threatens Anti-graft war. AllAfrica Global Media. Available from:
http://www.allafrica.com/stories/200903270059.html [Accessed 22/01/2010]
179
(2004) 3 NWLR (Pt. 861) 516
180
(1976) ANLP (Pt. 1) 328
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 That UBA v. SAFPU181 is a Court of Appeal decision “whereas the Supreme

Court had held in cases like Unity Life and Insurance Co Ltd v. IBWA Ltd182
and others that a computer print-out is admissible as secondary evidence.”
 That “relying on Egbue v. Araka183 “a certified document in that it is a true
copy made from and compared with the original” which “satisfies the
requirement of admissible secondary evidence provided for in the
Evidence Act”
 “that the learned trial judge erred in law when he held that the statement
of account sought to be tendered, though relevant is not admissible,”
noting “that the position of the law, especially in criminal trial, in that,
once a document is relevant, it is also admissible.”184
 That the decision of the Federal High Court “delivered on Thursday, March
26, 2009” be set aside.185
 That “the electronic statement of account” be admitted as evidence 186
According to Emmanuel, E., an Abuja based legal practitioner, the issue in contention
from the point of view of the Justice was “that the document, i.e., the statement of
account is a computer print-out, therefore, certification of the statement of account
was inapplicable or irrelevant.”187
COMMENTARY
In Harris v Smith188 the court held that
…*N+o court could fail to notice the extent to which business today depends
on computer for a myriad of functions. Perhaps the greatest utility of a
computer … is its ability to store large quantities of information which may be
quickly retrieved on a selective basis. Assuming that properly functioning
computer equipment is used, once the reliability and trustworthiness of the
information put into the computer has been established, the computer
181
(2004) 3 NWLR (Pt 861) 516
182
(2001) 7 NWLR (Pt 713) 610
183
(1996) 2 NWLR (Pt 433) 688 at 710 paragraph B
184
Thisday (2009) Fani-Kayode – EFCC Appeals Ruling, AllAfrica Global Media [Online] Available from:
http://allafrica.com/stories/200904010244.html [Accessed 07/01/2010]
185
186
187
Edet, E (2009) Electronic Evidence Thrashed in Nigerian Court Blogspot [online] Available from:
http://www.ictlegal.blgspot.com/2009/03/electronic-evidence-thrashed-in-html [Accessed 21/01/2009]
188 th
[ 372 F.2d 806 (8 Cir. 1967)]
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printouts should be received as evidence of the transactions covered by the

input.
In EFCC v Kayode189, the EFCC failed to establish the reliability and trustworthiness of
the computer or the information that was put in it, instead it established the
reliability and trustworthiness of the information retrieved from it and so the Judge
decided rightly.
AUTHENTICATION OF DOCUMENTARY EVIDENCE IN THE US – STATUTORY

PROVISIONS
Under the Federal Rules of Evidence, there is no specific rule demanding evidential
records to be authentic, but this is implied.
According to Paul, G. L. (2008):
There is however, a wealth of case law holding that documentary evidence

must be authentic… (in) … United States v. Paulino190, (it was held that)
documentary evidence must be authentic, authentication is a condition
precedent to admissibility.191
Scheindlin, S.A and Capra, D.J (2009) concur:
The question of authenticity is discussed as one of conditional relevance:

proferred evidence is only relevant if it is what the proponent says it is … The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claim.” Federal Rules of Evidence
901(a). See 5 Saltzburg, Martin & Capra, Federal Rules of Evidence Manual
Section 901.02(1). E 901 – 5 (8th ed. 2002)”192
Thus, in American Law, to meet the requirements of authentication one must offer
evidence “sufficient to support a finding that the [electronically stored information
evidence+ in question is what its proponent claims.” Federal Rules of Evidence 901(a)
Federal Rules of Evidence 901(b)(1) to (10) lists some ten (10) non-exhaustive
examples of how authentication can be achieved.
189
190 st
[13 F. 3d 20, 22 (1 Cir1994)]
191
192
Scheindlin, SA. AND Capra, DJ (2009), Electronic Discovery and Digital Evidence: Cases and Materials
Minnesota: Thomson/ Reuters (West Academic Publishing) p 519 & 532
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Federal Rules of Evidence 902 treats self-authenticating documents listing twelve

(12) categories of these. The documents listed in Federal Rules of Evidence 902 do
not require extrinsic evidence of authenticity as a condition precedent to
admissibility.
In Lorraine v Markel193, Judge Grimm noted that: “*r+esolution of whether evidence is

authentic calls for a factual determination by the jury and admissibility, therefore, is
governed by the procedure set forth in Federal Rule of Evidence 104(b) ‘relating to
matters of conditional relevance generally.”
SELF-AUTHENTICATING DOCUMENTS UNDER THE US FEDERAL RULES OF

EVIDENCE
According to Wikipedia:
A self-authenticating document, under the law of evidence in the United

States, is any document that can be admitted into evidence at a trial without
proof being submitted to support the claim that the document is what it
appears to be.”194
The US Federal Rules of Evidence Rule 902 which treats self-authenticating

documents is reproduced below:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not

required with respect to the following:
(1) Domestic public documents under seal. — A document bearing a seal purporting
to be that of the United States, or of any State, district, Commonwealth, territory, or
insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the
Pacific Islands, or of a political subdivision, department, officer, or agency thereof,
and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. — A document purporting to bear
the signature in the official capacity of an officer or employee of any entity included
in paragraph (1) hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer or employee
certifies under seal that the signer has the official capacity and that the signature is
genuine.
193
[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)]
194
Wikipedia (2010) Self-Authenticating Document, Wikipedia [online]. Available from:
http://en.wikipedia.org/wiki/self-authenticating-document [Accessed: 04/02/2010]
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(3) Foreign public documents. — A document purporting to be executed or attested

in an official capacity by a person authorized by the laws of a foreign country to make
the execution or attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness of signature
and official position relates to the execution or attestation or is in a chain of
certificates of genuineness of signature and official position relating to the execution
or attestation. A final certification may be made by a secretary of an embassy or
legation, consul general, consul, vice consul, or consular agent of the United States,
or a diplomatic or consular official of the foreign country assigned or accredited to
the United States. If reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents, the court may, for
good cause shown, order that they be treated as presumptively authentic without
final certification or permit them to be evidenced by an attested summary with or
without final certification.
(4) Certified copies of public records. — A copy of an official record or report or

entry therein, or of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data compilations in any form,
certified as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or (3) of this rule or
complying with any Act of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.
(5) Official publications. — Books, pamphlets, or other publications purporting to be

issued by public authority.
(6) Newspapers and periodicals. — Printed materials purporting to be newspapers

or periodicals.
(7) Trade inscriptions and the like. — Inscriptions, signs, tags, or labels purporting to
have been affixed in the course of business and indicating ownership, control, or
origin.
(8) Acknowledged documents. — Documents accompanied by a certificate of

acknowledgment executed in the manner provided by law by a notary public or other
officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. — Commercial paper, signatures

thereon, and documents relating thereto to the extent provided by general
commercial law.

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(10) Presumptions under Acts of Congress. — Any signature, document, or other

matter declared by Act of Congress to be presumptively or prima facie genuine or
authentic.
(11) Certified domestic records of regularly conducted activity. — The original or a

duplicate of a domestic record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written declaration of its custodian
or other qualified person, in a manner complying with any Act of Congress or rule
prescribed by the Supreme Court pursuant to statutory authority, certifying that the
record —
(A) was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide
written notice of that intention to all adverse parties, and must make the record and
declaration available for inspection sufficiently in advance of their offer into evidence
to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. — In a civil case, the
original or a duplicate of a foreign record of regularly conducted activity that would
be admissible under Rule 803(6) if accompanied by a written declaration by its
custodian or other qualified person certifying that the record —
(A) was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the
maker to criminal penalty under the laws of the country where the declaration is
signed. A party intending to offer a record into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance of their offer
into evidence to provide an adverse party with a fair opportunity to challenge them.

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According to Judge Grimm in Lorraine v Markel195, Rule 902(5), Rule 902(7) and Rule
902 (11) have been used in the courts to authenticate electronically stored
information.
However, the above three rules should not be considered the only means of
authenticating ESI given that “one court has held that any documents produced in
discovery are presumed to be authentic, that is, that a party cannot produce
information in discovery and then claim that the opposing party must prove
authenticity”. Furthermore, “Authentication can also be established by judicial
notice; by taking advantage of Federal Rules of Civil Procedure 36 (requesting
opposing party admit to genuineness of documents); via stipulation at a pretrial
conference pursuant to Federal Rule of Civil Procedure (FRCP) 16(c) (3), and pursuant
to FRCP 26, which gives a party 14 days to file objections to opposing party’s Rule 26
disclosures. Failure to do so waives all objections except under rules 402 and 403.” 196
AUTHENTICATION OF NON-SELF AUTHENTICATING DOCUMENTS IN THE

UNITED STATES
Here is how West’s Encyclopedia of American Law looks at authentication:
In the law of evidence, the act of establishing a statute, record, or other

document, or a certified copy of such an instrument as genuine and official so
that it can be used in a lawsuit to prove an issue in dispute. 197
As it relates to non-self authenticating documents, the most relevant sections of the

US Federal Rules of Evidence are: 901 (b) (1),(2),(3),(4),(7),(8),(9) and (10) but with
respect to electronically stored information (ESI) evidence, the most relevant
sections are those reproduced below:
(b) Illustrations. — By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming with the
requirements of this rule:
(1) Testimony of witness with knowledge. — Testimony that a matter is what it is

claimed to be.
195
[Lorraine v Markel 241 F.R. 534, 2007 WL 1300739 (D.Md.2007)]
196
[Accessed 04/02/2010]
197
The Gale Group, Inc (1998) Authentication, Answers.com [online] Available from:
http://www.answers.com/topic/authentication [Accessed 05/02/10]
107 | P a g e
(3) Comparison by trier or expert witness. — Comparison by the trier of fact or by

expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. — Appearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances
(7) Public records or reports. — Evidence that a writing authorized by law to be

recorded or filed and in fact recorded or filed in a public office, or a purported public
record, report, statement, or data compilation, in any form, is from the public office
where items of this nature are kept.
(9) Process or system. — Evidence describing a process or system used to produce a

result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. — Any method of authentication or

identification provided by Act of Congress or by other rules prescribed by the
Supreme Court pursuant to statutory authority.

EVIDENCE IN UNITED STATE COURTS – LORRAINE v. MARKEL
In Lorraine v Markel198, Judge Grimm summarized the role of authentication as

follows:
In essence, determining whether ESI is authentic, and therefore relevant, is a

two step process. First,“*b+efore admitting evidence for consideration by the
jury, the district court must determine whether its proponent has offered a
satisfactory foundation from which the jury could reasonably find that the
evidence is authentic.” Then, “because authentication is essentially a question
of conditional relevancy, the jury ultimately resolves whether evidence
admitted for its consideration is that which the proponent claims.
Judge Grimm explains why specific steps as contained in his judgement have to be
followed to admit ESI into evidence:
Very little has been written, however, about what is required to insure that
ESI obtained during discovery is admissible into evidence at trial, or whether it
constitutes “such facts as would be admissible in evidence” for use in
summary judgment practice. Federal Rules of Civil Procedure 56 (e). This is
unfortunate, because considering the significant costs associated with
198
[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)]
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discovery of ESI, it makes little sense to go all the bother and expense to get
electronic information only to have it excluded from evidence or rejected
from consideration during summary judgment because the proponent cannot
lay a sufficient foundation to get it admitted. The process is complicated by
the fact that ESI comes in multiple evidentiary “flavours” including e-mail,
website ESI, internet postings, digital photographs, and computer-generated
documents and data files.199
In his ruling, he made it very clear that ESI would not be admitted into evidence
without more simply because they were computer print-outs.
To be admissible, ESI must meet the standards for admission under the Federal Rules
of Evidence. In Lorraine v Markel200, the parties failed to authenticate the emails but
merely attached them to motions as exhibits, as has been a common practice in civil
litigation motion practice.
Judge Grimm opined that
The inability to get evidence admitted because of a failure to authenticate it

almost always is a self-inflicted injury which can be avoided by thoughtful
advance preparation. If it is critical for the success of your case to admit into
evidence computer stored records, it would be prudent to plan to
authenticate the record by the most rigorous standard that may be applied. 201
Truss, JMM and Headley, TC (2007) commented on possible methods for

authentication of ESI:
Because there is no one-size-fits-all approach for the authentication of

ESI, counsel should look to Rules 901 and 902 for the least
burdensome, but most reliable, method of authenticating a particular
piece of ESI….even before addressing the potential methods of
authentication set forth in Rules 901 and 902, counsel should explore
other options afforded by the Federal Rules of Civil Procedure to
ensure authentication of ESI, including asking the opposing party to
stipulate to the authenticity of documents at the pre-trial conference
pursuant to Federal Rule of Civil Procedure 16(c)(3); asking the
opposition party to admit the “genuineness of any documents”
pursuant to a properly served request for admission under Federal Rule
of Civil Procedure 36; and making timely pretrial disclosures of
documents and exhibits in accordance with Federal Rule of Civil
199
Lorraine v. Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)]
200
Lorraine v Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)]
201
Lorraine v Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)]
109 | P a g e
Procedure 26(a)(3), thereby requiring the opposing party to file

objections to such documents with 14 days – the failure to do so results
in a waiver of all objections except relevance.202

EVIDENCE IN UNITED STATE COURTS – IN RE VINHNEE
In Re Vinhnee203, Vinhnee did not discharge his credit card debts and American
Express Travel Related Services, Inc set in motion steps to recover the money due to
it.
Unfortunately, Vinhnee did not make an appearance which meant that the case had
to be heard and decided in his absence.
At the trial court, when it became clear that the court would have to rely on the
depositions of American Express to determine the case, the trial court sought to
“assure the continuing accuracy of the records.”
When American Express could not adequately authenticate its computerized

business records, the court rejected the same but gave it the chance to cure the
foundational defects in a post-trial submission.
American Express failed to provide a proper authentication foundation on the second

opportunity and so the trial court decided against it, but noted that it would have
decided in its favour if it had succeeded in providing a proper authentication
foundation.
On appeal, the issue was whether the court erroneously refused to admit computer-
generated records as not properly authenticated.
The Appeal Court held that by virtue of FRE 104 the court acts as a gatekeeper on the
admissibility of evidence.
According to Judge Klein, C:
“*a+uthenticating a paperless electronic record, in principle, poses the same

issue as for a paper record, the only difference being the format in which the
record is maintained, one must demonstrate that the record that has been
retrieved from the file, be it paper or electronic, is the same as the record that
202
Truss, JMM and Headley, TC (2007) What Good Is it If You Can’t Use it? – Admissibility and Authenticity of
ESI. Business Torts Journal 15(1) pp1, 20, 21
203
[336 B.R. 437 (9th Cir. BAP 2005)]
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was originally placed into the file. Hence, the focus is not on the
circumstances of the creation of the record, but rather on the circumstances
of the preservation of the record during the time it is in the file so as to assure
that the document being proferred is the same as the document that was
originally created…. *t+he paperless electronic record involves a difference in
the format of the record that presents more complicated variations on the
authentication problem than for paper records. Ultimately, however, it all
boils down to the same question of assurance that the record is what it
purports to be…the increasing complexity of ever-developing computer
technology necessitates more precise focus.…what has, or may have,
happened to the record in the interval between when it was placed in the files
and the time of the trial.
In the light of the above analysis, it was held that the trial court’s decision was
affirmed since the trial court acted within its rights in requesting for the
establishment of a proper evidential foundation before admitting the computerized
business records and did not abuse its discretion.
COMMENTARY
The trial court did not only fail to admit the computerized business records, but it
provided assistance to American Express by referring its council to Prof.
Imwinkelried’s treatise Evidentiary Foundations which gave American Express a
chance to correct its error.
The court also reproduced the 11 tests described in that treatise in relation to ESI
evidence:
 The business uses a computer.

 The computer is reliable.
 The business has developed a procedure for inserting data into the computer.
 The procedure has built-in safeguards to ensure accuracy and identify errors.
 The business keeps the computer in a good state of repair.
 The witness had the computer readout certain data.
 The witness used the proper procedures to obtain the readout.
 The computer was in working order at the time the witness obtained the
readout.
 The witness recognizes the exhibit as the readout.
 The witness explains how he or she recognises the readout.
 If the readout contains strange symbols or terms, the witness explains the
meaning of the symbol or terms for the trier of fact.

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In the light of the above decision, the decision of the Federal High Court, Lagos was
not out of order since the issue was that the EFCC failed to lay the proper
authentication foundation. In the words of the learned Judge Klein, C:
There is no information regarding American Express’ computer policy and

system control procedures, including control of access to the pertinent
databases, control of access to the pertinent programs, recording and logging
of changes to the data, backup practices, and audit procedures utilized to
assure the continuing integrity of the records. All of these matters are
pertinent to the accuracy of the computer in the retention and retrieval of the
information at issue.204

EVIDENCE IN UNITED STATE COURTS – UNITED STATES V TANK205
In United States v. Tank, the appellant objected to the government ESI evidence
being admitted into evidence on the grounds of insufficient foundation because:
(1) The chat room logs were not complete

(2) Undetectable “material alterations” such as changes in either the substance or
the name appearing in the chat room logs, could have been made by the
prosecution witness.
The district court held that Tank’s objection went to the evidentiary weight of the
logs rather than admissibility and allowed the logs into evidence.
The appellate court reviewed the district court’s decision in the light of Federal Rules
of Evidence 901(a) and observed that the government need only make a prima facie
showing of authenticity, as the rule requires only that the court admit evidence if
sufficient proof has been introduce so that a reasonable juror could find in favour of
authenticity or identification. The government must also establish a connection
between the proffered evidence and the defendant.
The government made a prima facie showing of authenticity because it presented

evidence sufficient to allow a reasonable juror to find that the chat room log
printouts were authenticate.
The government also established a connection between Tank and the chat room log
printouts.
204 th
In Re Vinhnee [336 B. R. 437 (9 Cir. BAP 2005)]
205 th
[200 F.3d 627 (9 Cir.2000)]
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On the record before us, it is clear that the government made an adequate
foundational showing of the relevance and the authenticity of the chat room log
printouts.
COMMENTARY
(1) Authentication of ESI evidence is no different from non-ESI evidence

authentication.
(2) The same standards apply. (United States v DeGeorgia206 and United States v.
Vela207)
206 th
[420 F.2d 889, 893 n.11 (9 Cir. 1969)]
207 th
[673F. 2d 86, 90 (5 Cir. 1982)]

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CHAPTER 5: CONCLUSION AND RECOMMENDATIONS
SUMMARY OF NIGERIAN CASES INVOLVING ESI EVIDENCE
In this work, a total of eight (8) cases cutting across all tiers of the Nigerian Judicial
System having a bearing on the admissibility of electronically stored information (ESI)
evidence have been considered.
The cases are:
(1) Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355 (Supreme
Court)
The law cannot be and is not ignorant of modern business methods and must
not shut its eyes to the mysteries of the computer. In modern times
reproduction or inscriptions on ledgers or other documents by mechanical
process are common place and section 37 cannot therefore apply only to
“books of account…so bound and the pages… not easily replaced. We think
the ledger cards in this case had been wrongly rejected and they should have
been admitted in evidence. We therefore, so rule.
(2) Yesufu v ACB (1976) ANLP (Pt. 1) 328 (Court of Appeal)

Computer print-outs not admissible.
(3) Elizabeth Anyaebosi v R T Briscoe Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84
(Supreme Court)
Computer print-out admissible as secondary evidence.
(4) Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610
(Supreme Court)
Computer print-out admissible as secondary evidence.
(5) Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145)
661 (Court of Appeal)
The admission in evidence by the court of 1st instance of computer print-out
as secondary evidence of entries of a banker’s book was wrong because,
among other things, the relevant provision of Section 97 of the Evidence Act
do not contemplate information stored “other than in a book.”
(6) Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 (Court of Appeal)
This section of the Evidence Act (supra) does not require the production of
‘books of account’ but makes entries in such books relevant for admissibility.
Exhibit 4 is a mere entry in the computer or book of account. Although the law
114 | P a g e
does not talk of “computer” and “computer print-outs” it is not….oblivious to

or ignorant of modern business world and the technological advancement of
the modern jet age. As far back as 1969, the Supreme Court in the case of Esso
West Africa Inc. v. Oyegbola (1969) NMLR 194, 198 envisaged the need to
extend the horizon of the section to include or cover computer which was
virtually not in existence or at a very rudimentary stage at that time… On this
authority the provisions of Section 38 covers, in my respectful opinion, also
electronic process such as computer and the computer print-outs comprised
in Exhibit 4 are admissible. (Pages 216, 217, Paragraphs E, C)
(7) UBA v SAFDU (2004) 3 NWLR (Pt.861) 516 (Court of Appeal)

Computer print-outs of statement of account are only admissible subject to
the fulfilment of the condition listed in Section 97(2)(e) Evidence Act LFN
2004.
(8) EFCC V FANI-KAYODE - ThisDay March 27, 2009 p 6 (Federal High Court)
Computer print-out of statement of account held inadmissible under Section
97(1)(h) and 97(2)(e) Evidence Act LFN 2004 , even if relevant to the
proceedings, since the issue in contention is that the document, i.e., the
statement of account is a computer print-out, therefore, certification of the
statement of account was inapplicable or irrelevant.
The ruling in each of four of (4) of the eight (8) cases is in favour of the admissibility
of electronically stored evidence under the current Evidence Act LFN 2004, while the
ruling in each of the remaining four (4) of the cases is against
Three (3) of the cases in favour are from the Supreme Court, one (1) from the Court
of Appeal, while three (3) against are also from the Court of Appeal and the final case
against is from the Federal High Court.
THE EVIDENCE ACT IS NOT GOOD ENOUGH!
In Chapter 1, the position that the Evidence Act LFN 2004 is not good enough was
canvassed.
The reasons for arriving at this position include the following:
According to Senator Akinyede, sponsor of the Bill for an Act to Amend the
Evidence Act CAP E14 Laws of the Federation of Nigeria 2004, “Since the
Evidence Act was enacted 64 years ago, apart from some minor amendments

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effected between 1948 and 1958 and another minor amendment in 1991, the
Act has remained unchanged”208.
None of the three minor amendments treated the issue of admissibility of

electronically stored information (ESI) evidence.209
Considering that the Nigerian Evidence Act is senior to the American Federal
Rules of Evidence (FRE) by 30 years and that between 1975 and date there
have been several major amendments to the FRE while there have been just
three minor amendments to the Evidence Act shows that the Evidence Act, in
its current state, leaves much to be desired.210
The above position is supported by at least two Justices.
According to Hon. Justice J.O.K. Oyewole in his paper “Cybercrime: Challenges before
Judicial Officers:” “…there are no express provisions in the Nigerian Evidence Act to
guide the Courts…”211
Honourable Justice Iyizoba put it this way: “… the Evidence Act [LFN 2004] as it is,
never contemplated the admissibility of electronic evidence. This underscores the
need for the amendment of our Evidence Act…”212
208
Ngex (2009) Senate to Amend Evidence Act to allow Electronic and computer Generated Materials as
evidence Ngex [Online] Available from : http://www.ngex.com/news/public/newsinfo.php?nid=8329
[Accessed 21/01/2010]
209
Miller,C. (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow Admissibility
of Electronic Evidence. Evidence Prof Blog [Online] Available:
56
Miller,C. (2009) (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow
Admissibility of Electronic Evidence. EvidenceProf Blog [Online] Available:
211
212
22/01/2010]

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According to Wikipedia, The Free Encyclopedia:
The judiciary interprets how legislation should apply in a particular case as no

legislation unambiguously and specifically addresses all matters. Legislation may
contain uncertainties for a variety of reasons:
 Words are imperfect symbols to communicate intent. They are ambiguous

and change in meaning over time.
 Unforeseen situations are inevitable, and new technologies and cultures make
application of existing laws difficult.
 Uncertainties may be added to the statute in the course of enactment, such as
the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced.
This requires statutory construction. It is a tenet of statutory construction that
the legislature is supreme (assuming constitutionality) when creating law and that
the court is merely an interpreter of the law. In practice, by performing the
construction the court can make sweeping changes in the operation of the law. 213
The Nigerian Supreme Court has consistently relied on the liberal rule of statutory
interpretation to make electronically stored information (ESI) evidence admissible in
under the Evidence Act.
However, this work has repeatedly shown that the liberalism of the Supreme Court
while expedient in the circumstances will in the long run produce more problems
than it will solve since ESI evidence is very different in many respects from paper
evidence.
Sommer, P (1997) echoed the above sentiments in the following words:
…a computer is not necessarily “just like” a filing cabinet and as a result

computer “documents” may not be “just like” the paper equivalent. Again, it
is not necessarily the case that computer errors are nearly always manifest in
that the result is either no read-out or print-out of any kind or gross nonsense.
Depending on circumstances, a computer print-out can look plausibly correct
but nevertheless be misleading or be misinterpreted. Increasingly too, the
courts are being presented with configuration, logging and other system files
which would not normally be viewed by the ordinary computer user – indeed
such a user may not even know of their existence – but which investigators
213
Wikipedia (2009) Statutory Interpreatation (online) Available from:
http://en.wikipedia.org/wiki/Statutory_interpretation (Accessed March 11, 2010)
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and prosecutors are tendering as evidence of an accused’s activities or

intentions.(emphasis mine) 214
Hence Rule 1001(3) in the United States, made “accurate reflection” an issue while
the Section 8 (1) (b) of the UK Civil Evidence Act 1995 spoke of “the production of a
copy of that document or a material part of it, authenticated in such manner as the
court may approve.”
DEFINITION OF THE TERM “DOCUMENT”
Chapter 1 also treated the Definition of “Document” in the current Evidence Act
which is too narrow. However, Section 1 Evidence Act (Amendment) Bill 2009
promises to remedy the situation.
THE BEST EVIDENCE RULE AND ESI
In Chapter 2, which discussed the Best Evidence Rule and Electronically Stored
Information (ESI) Evidence, it was observed that:
… a rigid adherence to the best evidence rule is inappropriate in the context of

the accuracy with which copies of originals may now be made …215
And that ESI presents a situation in which “multiple or even an infinite number of
copies of electronic files”216 could all happen to be originals.
On the other hand, the premise of the use of the word “original” in the Evidence Act
LFN 2004 is that there can only be one original.
Furthermore, since computer print-outs can be altered, the amendments to the
Evidence Act should include:
 Ordering the preservation of Electronically Stored Information (ESI) Evidence

relevant to potential, threatened or pending litigation whenever it should be
reasonably anticipated that litigation is imminent
 Sanctions for the spoliation of ESI evidence
214
Sommer, P [1997] Digital Footprints: Assessing Computer Evidence PMsommer.com [online] Available from:
http://www.pmsommer.com/CrimLR01.PDF [Accessed 02/02/2010]
215 th
216

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 Provisions to exclude from sanction, spoliation of ESI evidence made in good

faith and without malicious or fraudulent intentions [Compare Rule 37 (e)
FRCP]
Unless the Evidence Act LFN 2004 is amended to provide for the preservation of ESI
evidence, the authenticity of ESI evidence intended to be admitted into evidence
cannot be guaranteed, proven or disproved.
However, such provisions must go beyond blanket preservation orders to address
issues such as the format of production, i.e., should ESI evidence be preserved in its
native format? Or in the form in which it is ordinarily maintained? Or in a reasonably
usable form? [Compare Rule 34(2) FRCP]
In the UK, by virtue of the provisions of Section 8 Civil Evidence Act 1995, there is no
distinction between “original” and “copies”.
It would seem that as far as ESI is concerned, “original” in the sense that led to the
rule applies no more. One wonders then, its continued retention in Nigerian
legislation. Interestingly, there is an attempt by the National Assembly to amend the
law as it relates to the best evidence rule; however, the intended amendment
retains the concept of “original” which is like attempting to move forward but failing
to make a clean break from the past.
Interestingly, ESI evidence might actually make it easier to find the smoking gun since
“sophisticated technology exists to enable legal teams to filter electronic documents
for relevance and significantly reduce their document collection to a more
manageable review set.”217
Covad v Revonet218 involved a breach of contract in which misappropriation and

conversion of confidential, proprietary and trade secret information was alleged.
Were the relevant evidence to be produced in paper form, it would have meant the
printing of 35,000 pages of email! However, the court decided that the responsive
documents would be produced in electronic format.
However, given the emphasis on computer printout by the definition of “original” in

Section 4 of the Evidence Act (Amendment) Bill 2009 and the wordings of Section
234 of the same bill, the unfortunate scenario in the above case will sooner or later
rear its ugly head in litigation in Nigeria.
But such a scenario can be avoided if the proposed legislation can be amended to
permit the parties to decide the form of production as obtains under the American
system. In that regard, Rule 34 of the Federal Rules of Civil Procedure should be most
217
Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5
218
[2008 WL 5377698 (D.D.C Dev. 24, ]
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helpful since they provide that the requesting party can specify the form in which the
ESI should be produced, and if that were not done, then that the ESI should be
produced in a form in which it is ordinarily maintained, or in a reasonably usable
form.219
To be comprehensive, amendments to the Evidence Act must also treat metadata

which Judge Shira Scheindlin describes as:
… the electronic equivalent of DNA, ballistics and fingerprint evidence, with a

comparable power to exonerate and incriminate. Metadata sheds light on the
context, authenticity, reliability and dissemination of electronic evidence, as
well as providing clues to human behaviour. All sorts of metadata can be
found in many locations. Some is crucial evidence; some is digital clutter. But
because every active file stored on a computer has some associated
metadata, it’s never a question of whether there’s metadata, but what kinds
of metadata exist, where it resides and whether its potential relevance
demands preservation and production…”220
Of course, hash values can be used to establish the integrity of ESI evidence.
However, hash values can only be used to establish the integrity of ESI evidence only
if the electronic file is available, hence the need to include provisions for the
preservation of ESI evidence in the proposed amendments to the Evidence Act.
In Armstrong v Executive Office of the President it was held that “without the
retention of a complete digital copy of an electronic document such as an e-mail
message, “essential transmittal relevant to a fuller understanding of the context
and import of an electronic communication will simply vanish. (emphasis mine)”221
If adopted by Nigerian courts, the 5 step analysis proposed by Judge Grimm in

Lorraine v Markel222 will ensure that no mistake of treating all ESI equally, will be
made, when in practice and in law, there is a distinction between computer-stored
and computer-generated electronically stored information (ESI) evidence. The five
step analysis is reproduced below:
i. Is the ESI relevant?
ii. If relevant, is it authentic?
219
Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5. In this article, the author, a legal
consultant at electronic and paper-based evidence services provider Kroll Ontrack observed that
“sophisticated technology exists to enable legal teams to filter electronic documents for relevance and
significantly reduce their document collection to a more manageable review set.”
220
Judge Shira A. Sheindlin, S.D.N.Y FAQ’s of E-Discovery Federal Judges Association Newsletter November 29,
2006 [online] Available from: http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf
[Accessed 02/01/2009] Compare the ruling in Williams V Sprint/United Management Co [230 F.R.D 640
(D.Kan.2003)]
221
[810 F. Supp. 335 (D.D.C. 1993)]
222
[241 F.R.D at 538 (D. Md. 2007)]
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iii. If the ESI is offered for its substantive truth, is it hearsay? And
if so, is it covered by an applicable exception?
iv. Is the form of the ESI that is being offered as evidence an
original or duplicate under the original writing rule, or if not, is
there admissible secondary evidence to prove the content of
the ESI?
v. Is the probative value of the ESI substantially outweighed by
the danger of unfair prejudice … such that it should be
excluded despite its relevance?223
PROPOSED AMENDMENTS TO THE BEST EVIDENCE RULE
The Evidence Act (Amendment) Bill 2009 makes provisions for the amendment of the
Best Evidence Rule in Sections 232(1), 232(2), 234(1), 234(2).
Sadly, however, in the light of technological developments and the modifications to

the best evidence rule in the UK (Section 8 Civil Evidence Act 1995) which mandates
non-discrimination between copies and originals; the proposed modification in
California in the USA and the emphasis in Nigeria on “original” prescribed in Section
4 of the Evidence Act (Amendment) Bill 2009, the amendments do not seem to go far
enough, it is submitted!
HEARSAY EVIDENCE RULE AND ESI EVIDENCE
Judge Grimm also proposed 5 separate questions that must be answered if the court
is to properly analyze hearsay issues in relation to ESI evidence. The five questions
are:
1. Does the evidence constitute a statement?

2. Was the statement made by a declarant?
3. Is the statement being offered to prove the truth of its contents?
4. Is the statement excluded from the definition of hearsay?
5. If the statement is hearsay, is it covered by one of the exceptions? 224
223
224
121 | P a g e
PROPOSED AMENDMENTS TO THE HEARSAY EVIDENCE RULE
The Evidence Act (Amendment) Bill 2009 does not offer any modifications to the
hearsay evidence rule. It is submitted that Nigeria should take a cue from the UK
which has abolished the hearsay evidence rule in Section 1 Civil Evidence Act 1995.
The Evidence Act (Amendment) Bill 2009 fails to make a distinction between hearsay-
ESI and non-hearsay-ESI.
Both the United States [in FRE 803(6) and FRE 803(8) respectively] and the United
Kingdom [in Section 9 Civil Evidence Act 1995] have public and business records
exceptions to the hearsay evidence rule.
AUTHENTICATION AND ESI EVIDENCE
In Chapter Four, the analysis of authentication in relation to electronically stored

information (ESI) evidence led to raising the following questions:
 What is the identity of the person(s) behind the birth/creation of the

ESI record?
 Has the state of the ESI record remained static or inert over time?
 When was the ESI record created?
 Was the identity of the person connected/associated with the ESI
record at the point of creation/birth or subsequently?
 Is the connection/association between the object and the identity of its
creator alterable or unalterable? If alterable, can such alterations be
detected?
 Does the passage of time, without any sort of external influence,
change the ESI record?
 Can the ESI record be associated with a place, e.g., Abuja, Nigeria or a
thing e.g., an Internet Protocol address or cell phone number? Is the
association trustworthy? Or can the association be
forged/manoeuvred/doctored?
The answers to these questions are important because unlike paper evidence, ESI
evidence is very volatile.

122 | P a g e
AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – SECTIONS OF THE

EVIDENCE ACT THAT NEED TO BE MODIFIED
Section 100 Evidence Act LFN 2004 treats authentication via signature i.e., signing
and authentication via handwriting. Simeon Olusoji Kuforiji & Another v. V.Y.B
(Nigeria) Ltd225. This section as currently worded does not and cannot be made to
apply to ESI evidence of any kind by any stretch of the imagination. 226 In general, ESI
is not handwritten (an example of handwritten ESI would be using a stylus or tablet
pen). ESI can be signed as in the case of digital signatures. [See Section 240 of the
Evidence Act (Amendment) Bill 2009]
It was the application of principles similar to those contained in Section 101(1)

Evidence Act LFN 2004 in the Federal Rules of Evidence 901(a) that led to a
conviction in United States v. Tank.227 This sub-section as currently worded is
applicable to ESI.
The wording of Section 101(2) Evidence Act LFN 2004 makes it applicable to ESI
provided that the definition of “document” in Section 2(1) Evidence Act LFN 2004
includes ESI. (See also Section 3 of the Evidence Act (Amendment) Bill 2009.)
Section 102(1) Evidence Act LFN 2004 is anti-ESI as currently worded. But see Section
240 Evidence Act (Amendment) Bill 2009
According to Section 103(1) Evidence Act LFN 2004, oral evidence can authenticate a
non self-authenticating document. See Whyman v. Garth228, Bowman v. Hodgson229
and Coles v. Coles230. At least one attesting witness will do unless none is available.
See R v. Harringworth (Inhabitants).231 This Section appears to be Pro-ESI.
Section 104 Evidence Act LFN 2004 Section appears to be Pro-ESI.
To authenticate non self-authenticating documents, Section 105(1) Evidence Act LFN

2004 provides for
(1) Calling the person who executed it

(2) Calling the person who made the writing as a witness
225
(1981) 6-7 SC 40
226
Of course, it can be argued that using a digital stylus with a pen-enabled tablet PC which accepts writing
directly to the screen (and saving the same to the disk) means that ESI can be handwritten. Ultimately, this is
an issue which the judiciary will have to settle. But see http://en.wikipedia.org/wiki/Microsoft_OneNote
227
[200 F.3d 627(9th Cir. 2000)]
228
(1858) Ex 803; 153 ER 1578
229
(1867) L.R. 1 P & D. 362
230
(1866) L.R. 1 P. & D. 70
231
(1815) 4 M. & S. 350; 105 ER 863
123 | P a g e
The only exceptions are where secondary evidence is permissible (Section 97

Evidence Act LFN 2004) and with respect to ancient documents (Section 123
Evidence Act LFN 2004). This section is anti-ESI.
Section 106 Evidence Act LFN 2004 is Pro-ESI. See Bowman v. Hodgson232, Pilkington
v. Gray233 Circumstantial evidence can authenticate ESI.
As a whole, Section 108 Evidence Act LFN 2004 is anti-ESI.
In Lorraine v Markel234, Judge Grimm summarized the role of authentication as

follows:
In essence, determining whether ESI is authentic, and therefore relevant, is a

two step process. First,“*b+efore admitting evidence for consideration by the
jury, the district court must determine whether its proponent has offered a
satisfactory foundation from which the jury could reasonably find that the
evidence is authentic.” Then, “because authentication is essentially a question
of conditional relevancy, the jury ultimately resolves whether evidence
admitted for its consideration is that which the proponent claims.
AUTHENTICATION – THE WAY FORWARD IN RESPECT OF ESI
Sections 100 to 108 Evidence Act LFN 2004 deal with the authentication of
documentary evidence. However, many of its provisions as noted above are anti-ESI,
e.g., Sections 100, 102(1), 105(1), 108(1), 108(2) and 108(3).
The United States Federal Rules of Evidence 901(b)(1) to (10) lists some 10 non-
exhaustive examples of how authentication can be achieved, while case law such as
Lorraine v Markel235 provides additional examples.
While Sections 232(1), 232(2) and 233 Evidence Act (Amendment) Bill 2009 provide
for the authentication of ESI, they do not provide how it is to be achieved. This
shortcoming calls for redress.
It may be recalled that this was the problem in EFCC v Fani-Kayode236 as the following
questions proposed by Paul, G.L. (2008)237, could not be answered:
232
(1867) LRIP & D 362
233
(1989) AC 401
234
[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)]
235
[241 F.R.D 534, 546-47 (D. Md. 2007)]
236
237
Paul, GL (2008) Foundations of Digital Evidence, Chicago: American Bar Association p131 - 133
124 | P a g e
 What do we know about the file before it was printed?

 Who had access to it?
 Does its custodian even know where it came from?
 Is there a trail or history of its evolution?
 Was it edited?
 When was it edited?
 Who edited it?
 Does the company that possesses the record have any information about
these facts?
 If it does not, how can it know its records are authentic?
“ELECTRONICALLY STORED INFORMATION” (ESI) – MORE THAN JUST

COMPUTER PRINT-OUTS
It is also important to note that so far the debates on the deficiencies of the Evidence
Act LFN 2004 have centred on computer printouts. However, it needs to be pointed
out that this is rather short-sighted, as there is more to Electronically Stored
Information (ESI) evidence than just computer printouts. The Electronic Discover
Working Group of the Conference of Chief Justices (of the United States) uses the
following definition:
1(A) Electronically Stored Information is any information created, stored, or

best utilized with computer technology of any type. It includes but is not
limited to data; word-processing documents; spreadsheets; presentation
documents; graphics; animations; images; e-mail and instant
messages(including attachments); audio, video and audiovisual recordings;
voicemail stored on databases; networks; computers and computer systems;
servers; archives; backup or disaster recovery systems; discs, CDs, diskettes,
drives, tapes, cartridges and other storage media; printers; the Internet;
personal digital assistants; handheld wireless devices; cellular telephones;
pagers; fax machines; and voicemail systems.
(B) Accessible information is electronically-stored information that is easily

retrievable in the ordinary course of business.238
The key point to note from the above definition is that ESI covers all forms of
electronically stored information on a wide variety of media and equipment. It is not
limited to email and Instant Messages239 and computer printouts. (Additions mine)
238
(Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Approved
August 2006)

125 | P a g e
Section 4 of the Evidence Act (Amendment) Bill 2009 appears to solve this problem
by amending the Interpretation Section of the Principal Act to include “data” and
“electronic record” which it goes on to define as “representations, in any form, of
information or concepts” and “data that is recorded or stored on any medium in or
by a computer system, mobile phones or other similar device and that can be read
or perceived by a person or by a computer system or other similar device. It includes
a display, printout or other output of that data” respectively.
FINAL OBSERVATIONS
Another observation that needs to be made is that neither the Evidence Act LFN
2004 nor the Evidence Act (Amendment) Bill 2009 has made a distinction between
the two types of Electronically Stored Information (ESI) Evidence, i.e., computer-
generated records, e.g., log files and human-generated but computer stored records,
e.g., a spreadsheet created by an end-user.
It is therefore submitted that although the Evidence Act (Amendment) Bill 2009 is a
good start, it is still a far cry from achieving the desired object of bringing Nigeria’s
Evidence Law in line with current realities, and unless the highlighted shortcomings
are rectified, if the current Evidence Act (Amendment) Bill 2009 is passed into law as
is, it itself will sooner than later have to amended.
239
AXS-ONE (2007), A Practical Guide to the Litigation Readiness of Electronically Stored Information (ESI) New
Jersey: AXS-ONE page 9

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ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE

NICHE KONSULT LIMITED

MARCH 26, 2010

©2010 - Idara Akpan. All Rights Reserved

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Justis Publishing – The independent electronic publisher and provider of information

LexisNexis – For giving me access to the LexisNexis Butterworth’s online service

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The methodology adopted in this work consists mainly of an examination of

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Anthony Okafor v Nwanneka Okpala (1995) 1 NWLR 749

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H v Schering Chemicals 1978 H. No. 7465

Bowman v Hodgson (1867) L.R. 1 P. & D. 362

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Egbue v Araka (1996) 2 NWLR (Pt. 433) 688 at 710 paragraph B

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Section 120 Evidence Act LFN 2004

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Section 6(6) Constitution of the Federal Republic of Nigeria 1999

Federal Rules of Civil Procedure Rule 26(f)

Federal Rules of Civil Procedure Rule 37(e)

Part 1 Civil Evidence Act 1968

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Section 9(4) Civil Evidence Act 1995

Federal Rules of Civil Procedure Rule 16(c)(3)

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Section 103(1) Evidence Act LFN 2004

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United States Federal Rules of Evidence Rule 402

Federal Rules of Civil Procedure Rule 34

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Section 108(1) Evidence Act LFN 2004

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United States Federal Rules of Evidence Rule 901(a)

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All ER – All England Report

ALL NLR – All Nigeria Law Report

DNA - Deoxyribonucleic Acid

DOJ – Department of Justice of the United States

ESI – Electronically Stored Information

FRCP – Federal Rules of Civil Procedure

FRE – Federal Rules of Evidence

FWLR – Federation Weekly Law Report

LFN – Laws of the Federation of Nigeria

MR- Master of the Rolls

NCC – Nigerian Communications Commission

NITDA – National Information Technology Development Agency

NWLR – Nigeria Weekly Law Report

SAN – Senior Advocate of Nigeria

SCNJ –Supreme Court of Nigeria Judgement

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THE RATIONALE BEHIND THE BEST EVIDENCE RULE......................................................................... 53

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ESI EVIDENCE AS HEARSAY............................................................................................................ 79

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SECTION 108 EVIDENCE ACT LFN 2004 ......................................................................................... 97

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