A CRITICAL APPRAISAL OF THE RELEVANCE AND ADMISSIBILITY OF

ELECTRONICALLY GENERATED EVIDENCE

BY

IBORI TARIBOWEI SUCCESS

MATRIC NO. FLW/LAW/14/03726

FACULTY OF LAW,
AMBROSE ALLI UNIVERSITY,
EKPOMA, EDO STATE.

June 26

1
A CRITICAL APPRAISAL OF THE RELEVANCE AND ADMISSIBILITY OF
ELECTRONICALLY GENERATED EVIDENCE

BY

IBORI TARIBOWEI SUCCESS

MATRIC NO: FLW/LAW/11/03334

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, AMBROSE

ALLI UNIVERSITY, EKPOMA, EDO STATE, NIGERIA.

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF

BACHELOR OF LAWS (LL. B) DEGREE.

2
 CERTIFICATION

This is to certify that apart from references to other people’s work which has been
duly credited, this research work is the work of IBORI TARIBOWEI SUCCESS,
matric. No: FLW/LAW/14/03726 under the supervision of PROF. S. E EDEKO and
that this research has neither in whole nor in part been presented for another
degree elsewhere.

_____________________________ 17-07-2019
___________________

IBORI TARIBOWEI SUCCESS DATE

(STUDENT)

_____________________________ 17-07-19
___________________

PROF. S. E EDEKO DATE

(SUPERVISOR)

_____________________________ 17-07-19
___________________

PROF. S. E EDEKO DATE

(DEAN, FACULTY OF LAW)

_____________________________
19-07-19
____________________

EXTERNAL EXAMINER DATE

3
 DEDICATION

This work is dedicated to HIGH CHIEF JAPHET TOBOULAYEFA IBORI (the

Agwo of Agwobiri,) Arogbo, MRS INOJUTARI IBORI and CHIEF MRS
JUSTINAH IBORI (the Ebiyedou-ere of Agwobiri) for making it possible for me to
make my dreams of being a lawyer a reality.

4
 ACKNOWLEDGEMENT

My deepest appreciation goes to God Almighty who has strengthened and

given me the grace to run the race to this level and has also given me the wisdom in
writing this work.

I want to irrevocably appreciate the efforts of my project supervisor Prof. S. E

Edeko (Dean, Faculty of Law) for his assistance to see that this work has life in it
also to see that it materializes. I want to deeply appreciate you for your plausible
contributions and criticisms. I also want to appreciate you for the fatherly role you
played throughout our academic years in the Faculty of Law. Thanks for your
fatherly advice and for making it possible for us to have the best legal training
irrespective of the challenges you had to face in making it a reality.

I want to unequivocally appreciate my one in a million father HIGH CHIEF J.T

IBORRY for his undying support throughout my academic years in the Faculty of
Law, AAU, EKPOMA. The race wouldn’t have been this smooth without you.

My appreciation also goes to MRS INOJUTARI IBORRY and CHIEF

JUSTINAH IBORRY, AUGUSTINE IBORRY, TUOBOWEI IBORRY and other and
members of the family for their undying support and prayers.

Posterity would not forgive me if I fail to appreciate Prof. A. D Badaiki, a man

so sound and vibrant in the legal field. I appreciate your doggedness, astuteness,
vibrancy and for impacting in me the practical knowledge about the law and my
erudite lecturers who took time in making sure that I got the best in my legal training
and academic pursuit. Specific mention must be made of Barr. Dr. Mrs. F. O
Olumese (my academic mother) whom assistance I cannot quantify in words.

5
 I also want to appreciate Barr. Adekanle (Patron, BACC) Barr. B.P. Ojealaro,
Barr. And Barr. Mrs. Agbator, Barr. Mrs. Ehimua, Barr. Philip Oamen, Barr. G.O.
Etose. Barr. O.L. Omoregie, Dr Akhigbe Emmanuel, Barr. Mrs Idiosa.

I also want to appreciate KARINA TUNYAN (SAN) & CO chambers for the
university internship opportunity created for me to inculcate in me the practical
aspect of the legal practice. Specific mention must also be made of Chief N.K
Tunyan (SAN), Barr. Alexander Moro, Barr. M. J. Numa, Barr. Gabriel, Barr. D. D
Tunyan, Barr. Keniebi Ebitibutuwa, Barr. Isioma, Miss Peace Mr. Michael Udenzi
and a host of others. I really appreciate you all for your contributions made during
my stay in the chamber.

My Profound appreciation also goes to Mrs Ogeah Grace for always standing
for and by me each time I needed help. Words alone cannot appreciate you enough
or to say of the favours, sacrifice and assistance you rendered for me. I am indebted
to you. Words cannot quantify my appreciation to you for you have always been
more than supportive pillar in all ramifications of life.

Posterity will fail to forgive me if I don’t acknowledge Mrs. Jane (late), Odiase
Emmanuel Akhigbe (late), Agidigbi Believe, Michael Jeremiah Chineye Okafor,
Prince Obamogie Omorodion, Adebusola Wisdom, Kadiri Edith, Racheal Asine,
Edorhe Princess, Ambode Stella, Johnson, Eugene, Jerry, Miracle, Samuel Titim,
Ikhile Sophia, Isibor Charity, Samuel Ikpele, Esohe Joan, Remi, Egbor Ochuko,
Prospero, Israel and a host of others. You guys actually made my stay in the
Faculty of Law, AAU, EKPOMA a memorable one.

6
IBORI TARIBOWEI SUCCESS

JUNE 26, 2019

FACULTY OF LAW,

AMBROSE ALLI UNIVERSITY,

EKPOMA, EDO STATE.

TABLE OF CONTENTS

TITLE PAGE ……………………………….……………………..……………………………………………….....………….i

CERTIFICATION…………………………………………………………………………………………………………... ii

DEDICATION……………………..…………………………………………………………………

…………………………..iii

ACKNOWLEDGEMENTS………………………………………………………………………………………. ………iv
7
 TABLE OF CONTENTS……………………………………………………………………………….......................vii

TABLE OF

STATUTES……………………………………………………………………………………

………………ix
TABLE OF

CASES………………………………………………………………………………………

…………………...x
LIST OF

ABBREVIATIONS………………………………………………………………………………

………..………xiii

ABSTRACT……………………………………………………………………………………

………………………………..xv

CHAPTER ONE……………………………………………………………………………………………………………………1

INTRODUCTION………………………………………………………………………………

………………………………….1
1.1

INTRODUCTION……………………………………………………………………………

……………………………1

1.2 DEFINITION OF TERMS…………………………………………………………………………………………… 3

1.2.2Meaning of Evidence Under the Act……………………………………………….. …………….5

1.2.3What is a Document Under the Act?......................................................... …………….7

1.2.4 Meaning of Computer Under the Act………………………………………….……………………… 8

1.2.5“Best Evidence Rule’’……………………………………………………………………………….…….. 8

1.3 HISTORICAL DEVELOPMENT OF LAW OF EVIDENCE IN NIGERIA………………………………...…. 10

8
 1.4 COURTS WHERE EVIDENCE ACT IS APPLICABLE………………………………………………………… 20

CHAPTER TWO…………………………………………………………………………………………………………………26
CLASSIFICATION OF EVIDENCE AND COMMON RULES GOVERNING THE ADMISSIBILITY IN

NIGERIA…………………………………………………………………………………………………………………….. 26

2.1 Real or Direct Evidence……………………………………………………………………………………………. 27

2.2 Circumstantial Evidence or Indirect Evidence……………………………………………………………….. 27

2.3 Oral Evidence…………………………………………………………………………………………………...…… 29

2.4 Hearsay Evidence…………………………………………………………………………………………………… 29

2.5 Documentary Evidence……………………………………………………………………………..…………….. 30

2.6 RELEVANCY AND ADMISSIBILITY……………………………………………………………………………… 32

2.7 MODE OF PROOF OF CONTENTS OF DOCUMENTS………………………………………………………. 34

2.7.1Proof of Public Documents…………………………………………………………… …………………..39

2.7.2Proof of Private Documents………………………………………………………….. …………………..41

2.8 ARE COMPUTER PRINT-OUT ORIGINAL?................................................................................... 42

CHAPTER THREE……………………………………………………………………………………………..……………….46

ADMISSIBILITY OF ELECTRONIC GENERATED EVIDENCE………………………………........................ 46

3.1 INTRODUCTION…………………………………………………………………………………........................ 46

3.2 EVIDENTIAL STATUS OF ELECTRONICALLY GENERATED EVIDENCE……………………………. 52

3.3. ELECTRONIC GENERATED EVIDENCE AND ITS ADMISSIBILITY…………………………………….. 54

3.4 PROCEDURE FOR THE ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE………………. 58

3.5 COMPUTER GENERATED EVIDENCE…………………………………………………………………………. 62

9
CHAPTER
FOUR…………………………………………………………………………………………
………………………72

CHALLENEGES POSED TO THE ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE…………. 72

4.1 INTRODUCTION…………………………………………………………………………………………………….. 72
4.2 PROBLEMS AFFECTING THE ADMISSIBILITY OF ELECTRONICALLY GENERATED

EVIDENCE………………………………………………………………………………………………………………….72

4.2.1THE CHALLENGES OF AUTHENTICITY……………………………………………………………... 73

4.2.2THE CHALLENGES OF INTEGRITY…………………………………………………………………... 75

4.2.3THE CHALLENGES OF CONFIDENTIALITY………………………………………………………… 76

4.3 WAY OUT OF THE CHALLENGES………………………………………………………………………………. 76

CHAPTER FIVE……………………….…………………………………………………………………...81
RECOMMENDATIONS AND CONCLUSION…………………………………………………………………........ 81

5.1 RECOMMENDATIONS……………………………………………………………………………………………. 81

5.2 CONCLUSION……………………………………………………………………………………………………….. 87

BIBLIOGRAPHY…………………………………………………………………………………………………………… 89

10
 TABLE OF STATUTES
Evidence Act, 2011

Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2010

Evidence Ordinance, 1943

Evidence Ordinance, 1945

Magistrates Court Ordinance, 1943

Protectorate Courts Ordinance, 1933

Provincial Court Ordinance, 1914

Supreme Court Ordinance, 1943

The Constitution of the Federal Republic of Nigeria, 1963

The Constitution of the Federal Republic of Nigeria, 1979

The Constitution of the Federal Republic of Nigeria, 1999, Cap. C23, LFN, 2010

Laws of the Federation of Nigeria, 2010

Money Laundering Act, 1995, Cap. M18 Laws of the Federation of Nigeria 2010

LIST OF CASE

11
1. A.C.B LTD v. GWAGWADA (1994) 4SCNJ (Pt11) 268@ p 277
2. ADENIJI v. THE STATE (2001) FWLR (Pt 57) p. 809
3. ADEKOLA ALAKE v. H.R.S SAMUEL ABIMBOLA (1978) 2 SCR p.39 @40

4. ADEYEMI OGUNNAIKE v. TAIWO OJAYEMI (1987)1 NWLR, pt. 53.

5. AGBAJE v. IBRU SEA FOOD LTD (1972) 5 Sc. 50

6. AGRI v. OGBEH (2005) 8 NWLR p. 69

7. AGUNBADE v. SAGEGBON (1968) NMLR 223@ p. 226
8. AUGUSTUS W. KINDLEY & ORS v. MILITARY GOVERNOR OF GENGOLA

STATE & 7 ORS (1980) 2 NWLR (Pt. 77) 445 Sc.

9. AHMADU ALAO v. ALHAJI OBA ALABI (1997)6 NWLR Pt, 508, 351,356
10. AINA v. JINADU (1992) 4 NMLR, (Pt 233) p. 9
11. AKINGBADE v. ELEMOSHO (Unreported suit No. FSC 353/62)
12. ALLEN v. FLOOD (1898) AC 1
13. ANYEABOSI v. R. T. BRISCOE (1987) 5 Sc. 15
14. AYO v. NJIDDA (2004) FWLR (Pt. 192) p. 10
15. BRADFORD CORPORATION v. PICKLES (1895) AC 583
16. CARTER v. ROBERTS (1903) & Ch.D 317

17. CHIEKA v. OLUSOGA (1997) 3 NMLR 497 p. 390

18. CHIOMA EJIOFO v. THE STATE (2001) FNLR (Pt 49) p. 1457
19. EDU & ORS v. COMMISSIONER FOR AGRICULTURE, WATER TRESOURCES
AND RURAL DEVELOPMEMT (2000) 12 NWLR (Pt. 681) p. 315 @ P. 333
20. ESSO WEST AFRICA INC. v. T. OYEGBVOLA (1969) NMLR p. 194 @ p. 198

12
21. EMMANUEL M.O. CHUKWU OGOR v. RICHARD OBIGIGBO OBUORA
(1987)3 NWLR, Pt61, 454, 477-478
22. ESSO W. A INCORPORATED v. OLADEJI (1968) NMLR 453
23. F. H. EL-KHALIL v. CHIEF S.T. OREDUN (1989) 3 NWLR (Pt, 12) p. 371 @ p.

380

24. FASHAMU v. ADEKOYA (1974) 6 Sc. 83

25. FEDERAL REPUBLIC OF NIGERIA v. FANIKAYODE Case No.

FHC/L/4/523/08 of 26/3/2009(unreported)

26. FOULKES v. CHADD (1782) 3 DONG KB. 17

27. GARBAR v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 15) p. 550

28. GODWIN NWANKWERE v. ADEWUMI (1961) 1 All NLR p 129, 133 (1961) NMLR
45 @ p. 48
29. GRANT & ANOR v. S-W AND COUNTRY PROPERTIES (1914) 2 All ER p.

455

30. HABIB BANKM LTD v. OPUMULERO (2000) 15 NWLR (690) @ p.315

31. HOLLINGTON v. HEWTHORN (1943) 1 KB 587, p. 64
32. JIMOH ISHOLA v. THE STATE (1978) 9810 Sc. 81, p. 104
33. JOHN BAMIGBOYE v. A.G (W-N) (1966) NMLR p. 266
34. JOSEIN HOLDINGS LTD & ORS v. LORNAMED LTD & ANOR (1995) 1 NWLR
(Pt. 271) 254 @ 265
35. KAJALA v. NOBELE (1982) 75 SR. App. P.149

36. LYON V TAYLOR (1862) 3F & F.731

13
37. MASSACHUSSETE BONDING & INS CO. v. NORWICH PHERMACAL CO.

(1821) 21 Cr.

38. MINISTER OF LAND (W-N) v. DR. NNAMDI & ORS (1969) 1 All NLR p.4

39. MUSA SADAU v. THE STATE (1968) NMLR 208

40. NIGERIAN NATIONAL SUPPLY COM. LTD v. ESTABLISHMENT SEAMAN
OF VADUZ (1990) 7 NWLR (Pt. 526) @ p. 536
41. NTEOGUILE v. OTUA (2001) 6 Sc. P. 200
42. O. A GBERE v. W.B ALLIE OWE (2000) 11 NWLR (Pt. 678) p 294

43. OHI IBUKUN v. OLU IBUKUN (1974) 2 Sc. 41 @ p. 48

44. OJEMEN & ANOR v. MOMO & 2 ORS (1995) 6 NWLR (Pt. 408) p. 583

45. OGUMA ASSOCIATED COMPANY NIGERIA LTD v. I.B.W.A LTD (1988)1

NSCC p. 395 @ 413

46. OKONJI v. NJOKANMA (1999) 1 NWLR 638 @ 250

47. OKPALO v COP (1961) All NLR p. 546
48. ORLY v. GOOGO ABITE (2010) 181 LRCN
49. OMYCHUND v. BARKER, Lord Hardwicke (1945)1 ATK, 21, 49, 26, ER 15, 33.
50. ONYEANIWUSI v. OKPUKARA (1953)14 WACA, 311
51. OSU v. IBOR IGIRI & 3 ORS (19881)1 NWLR, Pt. 69, 221
52. PATRICK MAGIT V. UNIVERSITY OF AGRICULTURE, MARKUDI & 3Ors
(2006) ALL FWLR (pt. 298) 1313, 1345 D-F.
53. PRINCE EDWARD EWEKA &ORS v. ASONMWORIRI LAWSON (ALIAS AAU

EWEKA) & ORS

14
54. PROFESSOR SHYLLON v. UNIVERSITY OF IBADAN (204) 8 NWLR (Pt. 378) p.
544
55. R. v. AGARAGARIGA ITULE (1961)1 All N.L.R. 462
56. R. v. AGWANA 12 WACA 456
57. R. v AGWUNA (1949)12 W.A.C.A., 456 at p. 48
58. R. v. DAYE (1908)2 Db. 340
59. R. v. ELEIJIGBO & ANOR (1964) NMLR Suppl. 20
60. R. v. ITULE (1961) 1 ALL NLR 462.
61. R. v. MANSON (1911) 7 CR. App. R 67

62. R. v. PETTIGREW (1980) Cp. App. R 129

63. R. v SILVER LUCK (1894) 2 QB. 766

64. R. v. ONITERI (1946) 12 WACA p. 58 @ p. 59

65. R. v. SPILBY (1991) Crim. LR 199

66. REX v MASQUD ALI & ASHIQ HUSSEIN AIR (1964) Sc. 72

67. SADAU & ANOR v. THE STATE (1968) 1 All NLR. p. 124
68. SALAMI LAWAL v. COP (WNLR)72

69. TAYLOR v. CHIEF CONSTABLE OF CHESHIRE (1987) 1 All ER 225

70. U.B.A v. SANI ABACHA FOUNDATION FOR PEACE AND UNITY (SAPFU)

(2004) 3 NWLR (Pt.86) p.516

71. ULEGEDE v. MILITARY ADMINISTRATOR OF BENUE STATE & ORS (1996)

6 NWLR (Pt. 547) p. 693

15
72. UNION ELECTRIC CO. LTD v, MANSON HOUSE CENTRE

REDEVELOPMENT COM. (1988) 1NSCC p. 395 @ 413

73. VICTORY MEMORIAL v. RICE 142 App. P.31

16
 LIST OF ABBREVIATIONS
REPORTS

ALL E.R: All England Law Reports

ALL FWLR: All Federation Weekly Law Reports.

All NLR: All Nigerian Law Reports.

C.A. Court of Appeal.

Crim L.R. Criminal Law Reports.

EFCC: Economic and Financial Crime Commission.

FWLR: Federation Weekly Law Report.

LRCN: Law Report of Courts of Nigeria.

NLJ: National Law Journal

NNLR: Nigerian Northern Law Reports.

NMLR: Nigeria Monthly Law Report.

NRNLR: Northern Region of Nigeria Law Reports.

NSCC: Nigeria Supreme Court Cases.

NWLR: Nigeria Weekly Law Reports.

QLRN: Quarterly Law Report of Nigeria.

S.C: Supreme Court Reports.

UILR: University of Ibadan Law Reports.

17
WACA: West Africa Court of Appeal

WLR: Weekly Law Review.

WNLR: Western Nigeria Law Reports.

OTHERS

Ed. Edition

Vol. Volume.

Supra Above.

P. Page

Pp: Pages.

Para. Paragraph

Pt.: Part.

Ors. Others

Anor Another.

Ibid In the same place.

Op. Cit: in the work cited or quoted.

S. Section.

18
 ABSTRACT

One thing that is pertinent and crucial to note is that communication

technology is growing fast every day. This fast growing communication technology

has made the world a global village and therefore, the Nigerian judicial system

should keep pace with this growing trend to meet up with societal demands and the

technical knowhow. There is no gain-saying the fact that the use of computers in

Nigeria has grown exponentially in the last few years. These days, a lot of activities

are being carried out with the help of computers such as financial transactions,

communication systems, modern automobiles and appliances etcetera all solely

depend on computers.

Similarly, we have also witnessed an astonishing growth in the criminal use of

networked computers, the internet, automated teller machines, wireless devices, on-

line banking, leading to what can be described as ‘’new generation crime’’ or ‘’hi-tech

crime’’ including cybercrimes. Contracts and other business transactions are

concluded electronically, professionals such as lawyers, bankers, accountants and

other allied experts receive instructions for work electronically, accept instructions

electronically and send completed work to their clients via computer and other

electronic devices.Courts are not left behind as they also face serious challenges

foisted on them due to technological advancement and the introduction of

electronically generated evidence.

19
 The court today, therefore, faces a serious challenge to cope with

technological development, especially as regards its treatment of electronically

generated evidence. The issue of admissibility of evidence is crucial to any trial,

whether civil or criminal, as it has the capacity to determine the outcome of a case

one way or the other. And how a particular court treats such evidence is of utmost

significance. A case may be lost or won on the strength of a particular piece of

evidence that has been admitted or rejected, as the case may be. This therefore,

calls for a clear understanding, appreciation and interpretation of electronic

evidence by the court.

Unequivocally, it can be asserted that initially the repealed evidence Act did

not provide for it the admissibility of electronically generated evidence but On 3 June

2011, The National Assembly passed into law A New Evidence Act “2011 Act”, the

new law now permits the admissibility of electronic evidence.

In order to critically examine the subject matter i.e The Relevance and

Admissibility of Electronically Generated Evidence, recourse would be made to

some salient terms which are going to be discussed under the five chapters the

work is divided into.

Chapter one shall deal with the introduction, definition of terms, the historical

development of the Evidence Act in Nigeria, the court where the Evidence Act is

20
applicable, the background of the study, aims and objectives, the focus of the study,

the scope of the study, methodology and literature review.

Chapter Two examines the types and classification of evidence under the Act

and considers the issues of relevancy and admissibility, including the mode of proof

of content of document.

Chapter three shall deal with computer generated evidence, video cassettes

and other related items, the evidential status and the issue of admissibility of

computer and other electronically generated evidence.

Chapter four examines the challenges posed to the admissibility of computer

and other electronically generated evidence such as the challenges bordering on

authenticity, integrity, and confidentiality of the evidence as well as the way out of

the logjam.

Finally, in chapter five, recommendations are proffered and a conclusion is

drawn.

21
 CHAPTER ONE

INTRODUCTION

1.1 INTRODUCTION
Lawyers and parties to a suit always desire that the evidence they bring before
the court are always deemed relevant and admissible, but one should also note that it’s
not all the evidence tendered to the court that will be relevant and admissible to the fact
in issue. But one thing that should be noted is that it is the judges who exercise their
discretion over the admissibility of evidence tendered before the court.

22
 The adversary trial system (a contest between the opposing sides)1 remains the
cornerstone of our civil and criminal processes. Unlike the inquisitorial system (a trial
system where judges plays a vital role in investigating a matter)2 which allows Judges
to play active role and descend into the arena of conflict, the adversary trial process,
limits our Judges to the role of unbiased umpires. A Judge must hold the scale of
justice fairly and must not make a case for either party. The implication of this is that
the task of presenting evidence before the court rests mainly with the parties. The
Judge is like the referee of a boxing or football match; he is expected to ensure that
parties comply with the rules of the game. At the end of the case, he decides who the
winner the contest is.3
Perhaps, the most revolutionary implication of contemporary, technology
development is the evolution of a paperless environment, characterized by three
principal trends, namely; dematerialization of the work place; Omnipresence, and
malleability of electronic devices.4 The term “dematerialization‟ “omnipresence‟
and ”malleability‟ as respectively used above, means the process of the migration of
information from the material world to the electronic world popularly called
Cyberspace,5 a process, where physical or geographical distances have been removed
as if were through the use communication gadgets, the adaptation of computer to the
mutation of IT process from one form to another. 6
With the technology advancement in the world that are being operated by
individuals and corporate bodies in domestic works and financial transactions, these

1
Ese Malemi. The Nigerian Legal Method, 2nd Edition, (Lagos: Princeton 2012) p. 281
2
Ibid at p. 291
3
Professor Taiwo Osipitan (SAN), Head of Public Law, Faculty of Law, University of Lagos, ‘Reflections on the new Evidence
Act 2011’, a paper presented at the Nigerian Bar Association (Ibadan branch) Annual Law Week on 26/10/2011, Page 1
4
Nweze C. C. Contentious Issues And Responses in Contemporary Evidence Law in Nigeria Vol. 2 Enugu , Institute For Devel
opment Studies, 2006 p209, see also Widdison R ‘Electronic Law Practice. An Exercise in Legal Futurology’ The Modern Law
Review, vol. 60 No. 2 143 at 144.
5
Ibid at p. 156
6
Ibid at p. 156
23
devices, the product of technology can be used for legal and illegal acts.7 However, the
judiciary came to the rescue in this area of the law prior to the enactment of the
Evidence act of 2011. It was done by interpreting and applying existing statutory and
common law principles in ways and manners that incorporated the existing social
realities and do justice not only directly to the litigating parties who have gone to court
but also indirectly to the entire society. In playing that wonderful role, the judiciary
clearly demonstrated that indeed whatever the arguments may be in theoretical
jurisprudence on whether or not the courts should make law in developing legal
cultures, they should and actually do make law. As one of Nigeria`s most liberal and
intelligent judges would say,
It is said that the function of the court is to interpret laws made by
the legislature and not to make laws but n theory that is so. But it
must equally be admitted that judges are not robots (or Zombies)
who have no mind of their own except to follow precedents … As
the society is eternally dynamic and with fast changing nature of
things. In the ever changing world and their attendant
complexities, the court should, empirically speaking, situate its
decision on realistic premise regard being had to the society’s
construct and understanding of issues that affect the development
of jurisprudence.8

The issue of admissibility of evidence is crucial to any trial, whether criminal or

civil, as it has the capacity to determine the outcome of a case one way or the other.
Only relevant evidence is said to be admissible in any case. In Nigeria, the 2011

7
Adegboro, A. M. The Relevance of Electronic Evidence in the Nigeria Legal System. Long Essay. Igbinedon University, Okada,
Edo State 2008, p. 45
8
Honorable Justice Pats- Acholonu of the Supreme Court in Patrick Magit V. University of Agriculture, Markurdi and
3Ors (2006) ALL FWLR (pt. 298) 1313, 1345 D-F.
24
Evidence Act,9 is the legislation that contains the rules that deal with the admissibility of
evidence in Nigerian Courts. The relevance and admissibility of electronic generated
evidence before the enactment of the 2011 Evidence Act generated a lot of
controversies, while some authorities endorsed the admissibility of Computer
generated evidence, others insisted on the amendment of the Evidence Act as a
condition for such admissibility.
At the time the old Evidence Act was enacted, the use of computer and other
related gadgets were foreign to Nigeria. However, the use of computer is the order of
the day in the modern day business activities in Nigeria, Africa and the world at large,
thus, turning the world to a global village. With this advancement in the activities of
human beings, there was a need to advance the Nigerian legal jurisprudence so as to
keep up with these developments. And by virtue of Section 84 of the 2011 Evidence Act,
the Act provides for the admissibility of documents produced by a computer. Now, the
question is, when is such evidence admissible, is it when it has proceeded from the
computer or when it is still in the computer? This question will be dealt with in
subsequent chapters. Also, such things like (audio, tape recording, a video tape
recording, electronic mail on computer screen) when presented as evidence and such
things as electronically transmitted mandates in commercial transactions are regarded
as document.

1.2 DEFINITION OF TERMS

We shall now attempt to define some important terms used in this work. Amongst
which are; “evidence” “computer” and “the best evidence rule”.

1.2.2 What is Evidence?

9
Cap E. 14 LFN, 2004
25
 Defining any legal concept in most cases always elicit multiplicity of thoughts and
opinions, flowing from above, germane judicial authorities and applicable statutes
provides solutions to this problem of definition in addition to meaning of legal concepts.

Evidence simply is that which make clear, demonstrates, or helps ascertain the
truth of facts –in-issue. It includes testimony, writing, material objects, and other things
which are tendered in court to provide the existence of a fact.

Evidence is also defined as any matter, verbal or physical, that can be used to
support the existence of a factual proposition10.

The W.B. Best defined evidence as:

Any matter of fact, the effect, tendency, or design of which is to

produce in the mind a persuasion affirmative or disaffirmative of the
existence of some other matter of fact.11

Evidence can also mean information by which facts tend to be proved, and the
law of evidence is that body of legal rules regulating the means by which facts may be
proved in courts of law and tribunals and arbitrations in which the rules of evidence are
applied. It is adjectival rather than substantive law.

According to Black’s Law Dictionary12, Evidence is defined as;

Something (including testimony, documents, and tangible objects) that

tends to prove or disprove the existence of an alleged fact… the
collective mass of things presented before a tribunal in a given dispute.

10
Wigmore Chapter 1, at 3-6
11
Best, W.M., A Treatise or Principle of the Law of Evidence 4th Ed., 1886, P.10
12
Garner B.A. et al 8th ed. (St. Paul Minn: West Publishing Company, (1999) p. 867
26
 From the above definitions, it can be deducted that “fact” is an important element
in the issue of evidence; this is because in every trial, what is sought to be ascertained
and established is fact.

These definitions are not practically the same as the usage of the word in a court
of law.

It can unequivocally be asserted that the law of Evidence is undoubtedly and without
exaggeration one of the most important law subject. This is because in the conduct and
determination of the court, the rule of evidence where the prominent rule is that they
determine which facts are legally admissible and the legal means of attempting to establish
both facts13.

Generally, where a litigant goes to court, the court by the rules of substantive and
procedural law has to conduct an enquiry into the facts of the case, draw inferences from
those facts and in addition listen to the legal argument of the truth; its primary objective is
14
that the court discovers the truth in order to attain justice. Although there is no axiomatic
definition of the concept of Evidence as the subject matter of evidence connotes different
meanings to different author and jurist who have set down various definitions of the concept
of evidence.

According to Phipson15 evidence means “the testimony whether oral, documentary or

real, which may be legally received in order to prove or disprove some facts in dispute”
Cross16 states that evidence is “the testimony, hearsay, documents, things and facts which a
court will accept as evidence of facts in issue in a given case”. The flaw of this definition
according to Dr. K.O Amusa is that it is restricted to those things that the court of law will
13
2011 Evidence Act, Cap E. 14
14
Morgan. Introduction to the American law institute; Model code of Evidence, 1942 @ pages 3-4.
15
Phipson, Evidence 11th Edition, para. 3
16
Cross on Evidence, 4th Edition, page 1
27
accept or act upon. However, this is not necessarily the case. Evidence consists of admissible
and inadmissible evidence. For instance, where a document is held inadmissible, it will not
be returned to the person tendering the document but it will be marked rejected and retained
by the court as part of record proceedings. Also, he said that the definition did not take into
account the fact that evidence consists of facts in proof or disproof of fact in issue.17

Nokes defined judicial evidence as “evidence received by court of justice in proof or

disproof of facts, the existence of which becomes a question before them”18 . The Nigerian
authors defined evidence along the same line with the foreign authors. Akintola Aguda stated
as follows “Judicial evidence is the means by which facts are proved but excluding inferences
and arguments”. It is common knowledge that a fact can be proved by the oral testimony of
person who perceived by the fact or by the production of documents or by the inspection of
things and places. All these come within the meaning of judicial evidence. He says further
that the list can be extended to include other such means of proving a fact as admission,
judicial notice, presumption and estoppels 19. Najim Ijaiya20 sees evidence as

“the means by which any matter of fact of the truth of which is submitted
for investigation may be established or disproved. Evidence is therefore
necessary to prove or disprove an issue or fact”

Nwadialo21 gave his own definition from two legal means of attempt to proof those
facts. Facts that are relevant are admissible.

17
Dr. K.O Amusa, Department of Public law, University of Lagos. “Lecture note on definition of Evidence” given on the 2nd of
August, 2004.
18
Nokes: An Introduction to Evidence, 4th Edition page 6
19
Dr Akintola Aguda; The law of Evidence in Nigeria, 3rd Ed. (Ibadan: Spectrum Law Publishing,1989)
20
Ijaiya N.A.O. Lecture note on Law of Evidence. A University of Ilorin lecturer.
21
4 Fidelis Nwadialo, Modern Nigerian Law of Evidence 2nd Edition
28
 Akintola22 defined evidence as “the legal means by which facts are proved, but
excluding inferences and argument”.

From the foregoing, it is unambiguously clear that there is no singular universally

acceptable meaning and definition of Evidence.

1.2.3 Meaning of Evidence under the Act.

The Act did not defined evidence per se, but certain concepts were defined to
give the meaning of what evidence entails.

Accordingly, facts were defined to include;

a. anything, state of things, or relation of things capable of being perceived by the

senses; and
b. any mental condition of which any person is conscious23.
“Fact in issue” includes any fact from which either by itself or in connection with other
facts the existence, nonexistence, nature, or extent of any right, liability or disability
asserted or denied in any suit or proceeding necessarily follows.

From the aforesaid provision, evidence could be fact or facts in issue which
assists in the determination of an issue before the court.

At this juncture, it is pertinent to say that the apex court in Nigeria has also had
the opportunity to state clearly the meaning of the law of evidence in the case of
EMMANUEL M.O. CHUKWU OGOR v. RICHARD OBIGIGBO OBUORA24 stated thus;

22
Akintola A.L. Nigerian Law of Evidence; A book in honour of Oluwarotimi Akeredolu (SAN). Page1

23
S. 258, Evidence Act (2000)
24
(1987)3 NWLR, Pt61, 454, 477-478
29
“In its broadcast sense, evidence encompasses and includes the means employed for
the purpose of proving a disputed fact.”

From the foregoing, it is obvious that the definition of Evidence is colossal and in
exhaustive.

1.2.4 What is a Document under the Act?

Section 258(1) d of the Evidence Act 2011, defines a document to include; any
device by means of which information is recorded, stored or retrievable including
computer output. The definition also encompasses any disc, in which sounds or other
data are embodied so as to be capable (with or without the aid of some other
equipment) of being reproduced and also any device by means of which information, is
recorded, stored or retrievable including computer output.

In R. v. Daye25, Darling of the King’s Bench expressed this view on the concept of
a document in Evidence law as: “A document is any written thing capable of being
evidenced and it is immaterial on what the writing may be inscribed.” Also, a document
means an official paper or book that gives information about something, or that can be
used as evidence or proof of something26

According to Black’s Law Dictionary,27 document is;

i. Something tangible on which words, symbols and marks are recorded.

ii. The deeds, agreements, title papers, letter receipts and other written
instruments used to prove a fact.

25
(1908)2 Db. 340
26
Oxford Advanced Learner’s Dictionary, 8nd Edition.
27
Garner B.A. et al 9th ed. (St. Paul Minn: West Publishing Company, (2009) p. 555
30
1.2.5 Meaning of Computer under the Act
The Evidence Act 2011 makes provision for the meaning of a computer. Section
258 which is the interpretation section describes computer as;

Any device for storing and processing information and any reference to
information being derived from other information is a reference to its
being derived from it by calculation, comparison or any other process.

1.2.6 Best Evidence Rule

The best evidence rule is a common law rule of evidence, in the case of
OMYCHUND v. BARKER, Lord Harwicke28 stated that evidence was admissible unless
it was “the best that the nature of the case will allow” on the import of this rule, Aguda29
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 latter case, the article itself must be produced.

Where many copies of an agreement are made by the process of typing with
carbon papers and executed at the same time, each copy including the carbon copies
is primary evidence of the agreement.30

This was the court’s position in the case of ESSO WEST AFRICA v. OLADITI31.
In as much as primary evidence is concerned as the best form of evidence, these is
nothing that prevents secondary evidence from being admissible ipso facto, the

28
(1945)1 ATK, 21, 49, 26, ER 15, 33.
29
T.A. Aguda, Aguda: The Law of Evidence, 4th Edition (Ibadan: spectrum Books Ltd, 1999), pg 11
30
Section 86 of the Evidence Act 2011
31
(1968)12 S.C.N.J. 71
31
circumstances under which they are admissible are provided for by the Act in sections
80 and 90.

1.3 HISTORICAL ANALYSIS OF THE DEVELOPMENT OF LAW OF EVIDENCE

The law of Evidence in Nigeria originates as well as derives its authority from
local laws and customs, received English law, to wit; the English common law, the
doctrine of equity, the statute of general application in force in England as at
January 1st, 1900, local legislations and the judicial interpretation based on them,
the law reports textbooks and monographs on Nigerian Laws and Judicial
Precedent.

However, the Evidence Act is the main source of our law of evidence. The Act
contains the greatest bulk of our general law relating to evidence. Prior to 1900, the
received law and native laws and customs co-existed and were sources of Nigerian
law including the law of evidence. On this ground the judicial system consisted
mainly of customary courts system, with unwritten rules of practice and procedure
and evidence. More so, during the administration of “British Common Law of
Evidence’’ were received as part of English law and applied in our various courts.

1.3.2 The Evidence Ordinance of 1943

Undoubtedly, the repealed Evidence Act was enacted by the colonial

administration32 in 194333 and it came into force in 194534. The Act witnessed minor
amendments in 1948, 1958 and 1991 and remained substantially the same till 2011.
The provisions of the Act were based

32
The Administration of Sir. John Macpherson enacted the Evidence ordinance.
33
Ordinance No.27 of 1943
34
Gazette No. 33 of 1945, Notice 618
32
Primarily on the book “Digest of the law of Evidence” by Sir. James Fitzgerald
Stephen35

Before 1945 the law of evidence which applied in the magistrate courts and the
High Courts, then known as Supreme Court was the English Common Law of
Evidence. The authorities for the application of this were contained in some of the
legislations enacted in the colonial days36. During the period of passing the Act, the
country had a unitary form of government and therefore was applied throughout the
country. This universal application of the Act continued also after the introduction of
federalism in Nigeria and was brought about in this way. First the Evidence Act,
though in existence before the constitution of 1960, is deemed to have been made
under that constitution.37

1.3.3 Independence Constitution of 1960 and the Republican

Constitution of 1963

Under the Nigerian (Constitution) Order in Council, 1960 as well as in the

constitution of 1963, there were two legislative lists; the exclusive and concurrent.38
The Federal Legislature i.e parliament alone could legislate for the whole country
over any matter in the Exclusive list and its power in this respect also extended to
matters of evidence which were incidental to the subjects under the list.39. In the
case of subjects in the concurrent list, the parliament for the whole country, or the
state legislature, for the state, could legislate on them. Either of these legislatures

35
Published in 1887 as part of effort towards codification of law of evidence. These efforts were unsuccessful in England but Sir.
Stephen’s Digest formed the basis of the Evidence Act of India (1872) and Nigeria (1945).
36
S. 10 Provincial Court Ordinance 1914; S. 12 Protectorate Court Ordinance 1933; Magistrate Court Ordinance 1943; S. 14
Supreme Court Ordinance 1943; Ordinance No 14 of 1876, S. 4, which provided for the application of English Common law,
Equity and Statute of General Application passed on or before 1960
37
S. 3 of The Nigerian (Constitution) Order in Council 1960
38
Part 1 &11 of the schedule of the 1963 Constitution
39
Item 5 of part 1 of the schedule to the 1963 constitution
33
was also empowered to legislate on matters of evidence incidental or
supplementary to those subjects.40 Where, however, there was a conflict between
enactments by the two legislatures on matter under this heading that of parliament
prevailed.41

Thus, as far as subjects under the legislative list were concerned, the
parliament had either exclusive or over-riding power to legislate for the whole
country or evidence in relation to the items under them. For items not included in
these two lists, that is residuary items, section 83 of the constitution of the
Federation of 1963 provided that parliament might make laws for Nigeria or any part
thereof with respect to evidence in regards to them provided however that an Act of
parliament enacted in pursuance of the section should have effect in relation to any
state only to the extent that provision in that behalf was not made by the legislature
of that state.42

Although the state were thus empowered to exclude federal legislation on

evidence relating to the residuary subjects by themselves passing such law, no
state in fact exercised this power. The result therefore is that since any principle of
law of evidence must relate to subjects either in the legislative list or under the
residuary items, the Evidence Act applies throughout the whole country, the federal
structure of the country notwithstanding.

In the 1979 Constitution of the Federation, this universal application of the Act
is firmly consolidated by the inclusion of Evidence in the Executive legislative list.43

40
Item 29 of part 11 of the schedule to the 1963 constitution
41
S. 69(4)1963 Constitution
42
This is the same as section 77 of the Consolidated of Federation of Nigeria, section Schedule to the Nigeria (Constitution) Order
in Council.
43
Item 23 of Part 1 of the Second Schedule of the Constitution as Amended by the Constitution of the Federal Republic of Nigeria
(Amendment) Decree 1979.
34
Some states44 Re-enacted the Act as state laws dropping however only those
provisions that deal with matters purely federal in character such as service of
witness summonses outside the state of issue45. In the case of Northern States, the
Penal Code which applies in those states has been substituted in the section of the
Evidence Act in which references are made to criminal Code.

1.3.4 The Evidence Act by virtue of the Constitution of the Federal

Republic of Nigeria, 1999

The Evidence Act in Nigeria is preserved by part III of the Constitution46 titled
“Transitional Provisions and savings” which is to the effect that laws already existing
before the enactment of the Constitution are not only saved, but are deemed to be
Acts made pursuant to the constitution.

The particular section in this regard is section 315(1) (a) & (b) and subsection
(2) of the 1999 Constitution which provides thus;

(1) Subject to the provisions of this constitution, an existing law shall have with
such modifications as may be necessary to bring it into conformity with the
provisions of the constitution and shall be deemed to be-
a. an Act of the National Assembly to the extent that it is a law with respect to any
matter on which the National Assembly is empowered by this Constitution to
make laws; and
b. a law made by a House of Assembly to the extent that it is a law with respect to
any matter on which a House of Assembly is empowered by this constitution to
make laws.

44
The Eastern States.
45
S. 228 and 229
46
Constitution of the Federal Republic of Nigeria 1999
35
 1. The appropriate authority may at any time by order make modifications in the
text of any existing law as the appropriate authority considers necessary or
expedient to bring that law into conformity with the provisions of this
constitution.
The old Act has about 230 sections which under the old Act, provisions was
made for the application of laws other than the Act to matters relating to the
evidence of a particular significance in section 5(a) of the Act which stipulates that;

Nothing in this Act shall prejudice the admissibility of any

evidence which would apart from the provisions of this Act
be admissible.

This provision has a double-edge purpose; firstly, it makes room for the
admission of evidence which would have been admissible under any other Nigeria
statute. Secondly, it allows the admissibility of any evidence which would have been
admissible in the absence of the Act. The provision in essence renders admissible
evidence which admissible under the common law in the absence of any express
provision on it in the Act. This is aimed at filling lacuna which may exist in the law of
evidence due to the silence of the Act on a matter which is adequately covered by
an inclusionary rule as opposed to an exclusionary rule of the common law. As the
West African Court of Appeal remarked in ONYEANIWUSI v. OKPUKARA47 “it is
the Evidence Act, or if it is silent, the Common law of England that applies in the
High Court”

Thus in R. v. AGARAGARIGA ITULE48 one of the issues before the court was
whether the part of a confession which went in favour of the accused is evidence of

47
(1953)14 WACA, 311
48
(1961)1 All N.L.R. 462
36
the fact alleged, the Federal Supreme Court had to resort to the principle of
Common law on the matter by virtue of section 5(a) of the Evidence Act as the Act
does not deal with it. In the Act49 a confession is defined as an admission made at
any time by a person charged with a crime stating or suggesting the inference that
he committed that crime and admissible as evidence. Whatever the accused says
in his favour cannot therefore be a part of a confession under this definition. But
then under the common law the whole of the account of which a party gives a
50
transaction must be taken together and is admissible It was this principle of
common law that the court invoked in admitting the accused’s statement which was
in part a concession as such and in part assertions favourable to him.

Although by the section, evidence admissible under common law is also

admissible under the Act, evidence is not admissible under the Act because it is so
under the common law. Inadmissibility is governed solely by the Act. In R. v
AGWUNA51 the West African Court of Appeal stated;

It is worthy of note that while section 5(a) of the Act provides

that nothing in the Act shall prejudice the admissibility of any
evidence which would apart from the provisions of the (Act)
be admissible, there is no provision in the (Act) which allows
any evidence in the Act itself.

It is noteworthy that the repealed Evidence Act Cap, E14 laws of the
Federation of Nigeria, 2004 was formerly cap 112 laws of Federation of Nigeria, 1990
and it no longer meet the demands of the changing situations in the polity. Hence

49
Section 27
50
Archold 38th Ed. Paragraph 1392
51
(1949)12 W.A.C.A., 456 at 48
37
clamour for repeal on the erstwhile Evidence Act, which has now been repealed and
has incorporated the omission that generated controversies in our courts.

On June 3rd 2011, Nigeria’s Former president in Person of Dr. Goodluck Ebele
Jonathan signed into law a new Evidence Act (2011) Act No. 1852. The beauty of the
Act is that it made among others the admissibility of electronic generated evidence.
The provision was made admissible by virtue of section 84 of the new Act with
conditions which was inadmissible under the old Act.

1.4 COURTS WHERE EVIDENCE ACT IS APPLICABLE

The clear and copious provisions of section 256 of the Evidence Act 2011
provided the type of courts the Act applies. It is pertinent to state the provisions.

1. This Act shall apply to all judicial proceeding in or before any court established in
the Federal Republic of Nigeria but it shall not apply to;-
c. proceeding before an arbitrator;
d. A field general court martial; or
e. Judicial proceeding in any civil cause or matter in or before any Sharia Court of
Appeal, Customary Court of Appeal, Area Court or Customary Court, unless any
authority empowered to do so under the constitution, by order published in the
Gazette, confers upon or any or all Sharia Court of Appeal, Area Courts or
Customary Courts in the Federal Capital Territory, Abuja or a state, as the case
may be, power to enforce any of all the provisions of this Act.

52
The Evidence Act (2011)
38
2. In judicial proceeding in any criminal cause of matter, in or before an Area court
shall be guided by the provisions of this Act and in accordance with the provisions of
the criminal procedure code law53

3. Notwithstanding anything in this section an Area court shall, in judicial proceeding

in any criminal cause or matter be bound by the provisions of section 134 to 14054

However, the Act applies to all judicial proceedings in or before any court
established in the Federation of Nigeria, section 6(1) of the Constitution of Nigeria
1999, as amended provided that judicial powers of the Federation shall relates,
being court established in the Federation.

Section 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. a High Court of a State
f. 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 the Federal Capital Territory, Abuja;
i. a Customary Court of Appeal of a State;
j. such other courts as may be authorized by law to exercise jurisdiction on
matters with respect to which the National Assembly may make laws; and

53
Section 256(2) Evidence Act 2011
54
Section 256(3) Evidence Act 2011
39
 k. Such other court as may be authorized by law to exercise jurisdiction at first
instance or an appeal on matter with respect of which a House of Assembly
may make law.
The purpose of the provision is that the Act is applicable to all judicial
proceedings in or before any court established in the Federal Republic of Nigeria
except proceedings before an arbitrator and field general court martial or subject to
the exceptions provided by the Act itself and this position could be gleaned from the
words of AMAIZU J.C.A. in NDIDI v. STATE55 that;

The Evidence Act Cap112, laws of the Federation of Nigeria,

1990 (now Evidence Act 2011, Act No. 18) provided for the
law of evidence to be applied in all judicial proceedings in or
before courts in Nigeria.

It is pertinent to examine what a court is with respect to the applicability of

Evidence Act. Section 25656 thus; “Courts include all judges and magistrate and
except arbitrators, all person legally authorized to take evidence”.

It appears from the provisions of the Evidence Act that any body or persons
performing judicial or quasi judicial functions and empowers to take evidence under
the enabling statute would fall within the definition of “a court” within the meaning of
section 258 of the Act and therefore be bound to apply the Evidence Act.

OBASEKI JSC, in the case of ADEYEMI OGUNNAIKE v. TAIWO OJAYEMI57

while concurring with the leading judgment of KAWU J.S.C. on the vexed issue of
the applicability of the Evidence Act to customary Court, laid the argument to rest
thus;
55
(1968)1 All NLR 306
56
Evidence Act 2011, Act No. 18
57
(1987)1 NWLR, pt. 53.760
40
 It is erroneous to argue that the provisions of the Evidence
Act apply to customary court when the Evidence Act has
expressly excepted the application of the Act from judicial
proceedings before a Native Court.

However, BELGORE J.S.C. in OSU v. IBOR IGIRI & 3 ORS58 while delivering
the lead judgment held to the effect that “customary courts by the provisions of
(section 1(4)of the old Act now section 256(1)C of 2011 Act) are not bound by
Evidence Act, unless subsequently so conferred with the power to apply it…’ He
further said that courts should be wary to apply the strict technicalities of procedure
of the Evidence Act in renewing appeals.

However, OGEBE J.C.A. in the case of AHMADU ALAO v. ALHAJI OBA

ALABI59 while delivering the lead judgment, respectfully allowed himself to be misled,
when his lordship held that this section now makes the Evidence Act to apply to all
judicial proceedings in or before a court established in the Federal Republic of
Nigeria. The only exceptions are proceedings before an Arbitrators or a field
General Court martial, the upper Area Court. According to him, that OMU-ARAN is
certainly a court established in Nigeria and the retrial before it started on the 28th of
October, 1992 when the Evidence Act 1990, had already come into operation. The
law as it is now is that Evidence Act applies to all courts established in Nigeria.

In conclusion, it is worthy to note that the amended Evidence Act still

maintains the positions of the old Act that the Act is not applicable to Native Court.
The reason for non-applicability of the Act to these categories of courts is obvious.
These courts are mainly utilized by persons who reside in rural areas, where the

58
(19881)1 NWLR, Pt 69, 221
59
(1997)6 NWLR Pt, 508, 351,356
41
adversarial system of justice is unknown and even if known, would not be
appreciated.

In our view, the imposition of the Evidence Act on these categories of Courts
would be foreign to the existing legal system of those categories of courts.

1.5 BACKGROUND TO THE STUDY

The latter part of the twentieth century was marked by the electronic transistor
and machines and ideas made possible by it. As a result; the world changed from
analogue to digital. Although the computer reigns supreme in the digital/electronic
domain, it is not the only electronic device. An entire constellation of audio, video,
communication and photographic devices are becoming so closely associated with the
computer as to have converged with it. Apart from records produced by stenography
and photocopies, the previous Evidence enactment did not recognize any form of
record produced by more advanced technology that has emerged since the enactment
of that law in Nigeria.60 Finally, as courts like society become more familiar with
digital/electronic documents, they backed away from the higher standard. Courts have
since held in US V SCHOLLE that;
Computer data compilations … should be treated as any other
records. However, if data are stored in a computer … any

60
In the Evidence Act 2011 definition of “document” have envisage writing by software and all such materials – tangible and
intangible – are documents in the contemporary understanding and implication of the word.

42
 printout or other output readable by sight, shown to reflect the
data accurately is an original.

1.5.2 AIMS AND OBJECTIVES

The purpose of this work is to principally examine in full spotlight electronically
generated evidence, what the effects are, what the Nigeria situation is as against what
is the academic view. It will also examine the introduction of technology in our court
system and its legal effect with emphasis on the admissibility of such evidence. Many
countries recognize the usefulness and ubiquity of computer technology by amending
their laws to accommodate evidence obtained from such technological advancement. It
is aimed that adequate recommendations can be made on the importance, admissibility
and potency of electronically generated evidence so as to help in quick dispensation of
justice so that little time would be wasted debating on irrelevancies.
1.5.3 FOCUS OF THE STUDY
This work is aimed at focusing on researching into the effect of technological
innovations as it affects court system and the basic understanding of the application of
electronically generated evidence in both criminal and civil prosecution.

1.5.4 SCOPE OF STUDY

The scope of the study is seen in the way it clarifies the confusion that has
surrounded the admissibility of electronically generated evidence. This thesis will
evaluate the practical application of electronically generated evidence and how it has
been able to fare in the present day court system. Hence, this thesis is able to lay bare
given some rules the situation that must exist for electronically generated evidence to
become admissible or otherwise.

1.5.5 METHODOLOGY

43
 The method to be employed here in carrying out the research for the purpose of
this paper would be mainly Library Based. Information would be sourced from
textbooks, internet, journals written by jurist and public lectures delivered by various
professors if any related to my thesis, studying them and drawing a conclusion and
preferring recommendations.
Also, in illustrating the admissibility of electronically generated evidence, great
reliance would be placed on case law and the Evidence Act will serve as the primary
source of all the provisions to be analyzed.

1.5.6 LITERATURE REVIEW

The importance of the work has been intensified and brought to bear mainly in
pages featuring the practical application of the rules relating to electronically generated
evidence in particular and its relevancy and admissibility of evidence in general.
Although, there is no single textbook on the topic of this thesis, there are related
articles written by lawyers and academics whose style and manner of approach will be
explained below.
Also, Yemi Osinbanjo61 believes amongst other things that computer printouts are
not original. He also dispute with some English decisions even based on statutory
provisions that computer generated evidence is “real evidence”. The learned author
also argues62 that those computer printouts do not qualify as documentary evidence
under section 91 (formerly section 90) of the Evidence Act. He concludes that unless
the Evidence Act is amended, it will be difficult for courts in Nigeria to admit computer
and electronically generated evidence in Nigeria.

61
Yemi Osinbanjo;” Admissibility of Computer Generated Evidence under Nigeria Law”. (1990) jus, vol .1 no 1. p. 260.
62
Ibid at pages 253 – 255.
44
 In my own opinion the learned author was right and I strongly believe that this is
what led to Section 83 in the 2011 Evidence Act. Amupitan J.63 in his article
“Admissibility of Electronically Generated Evidence” stated that;
The Nigeria courts and the world over should at least give liberal
interpretation to the admissibility of electronic evidence if the law is to be
relevant and useful at this computer age of information technology in
order to enhance and strengthen judicial activism.
Also, Fidelis Nwadialo64 seeks to explain why he had decided not to treat
computer generated evidence. He says he deliberately did this because there is no
Nigeria law yet on the subject to have it included in a book on Nigeria law of Evidence,
firmly submitting that any pronouncement on it will either amount to a suggestion or an
opinion more suited for more journals as opposed to formal textbooks on law of
Evidence. yet, while commenting on the “Sources of Nigeria Law of Evidence,” the
learned author65 is of the view, having regard to the then section 5(a) of the Evidence
Act and decision of the West African Court of Appeal, WACA66 and the Federal
Supreme Court67 that;
“any Evidence which would have been admissible under the
common law had the Act not been passed, will still be
admissible”.
Although these writers have voiced the opinion on electronically generated
evidence, they have not gone in depth on the topic.

1.5.7 CONCLUSION

63
J. Amupitan lecture notes on Law of Evidence. A University of Jos Lecturer.
64
Nwadialo F, Modern Nigeria Law of Evidence, 2n d Edition 1999
65
Ibid at page 17
66
Onyeanwusi V Okpukpara (1953) 14 WACA 311.
67
R. V Itule (1961) 1 ALL NLR 462.
45
 Evidence can be the most important part of a trial. It can either convict or set
them free. Our judicial system covers the entire society and the consequence of
incorrect evidence can cause insurmountable damage to a person or a group of people.
There must be a formalized and justice delayed is justice denied means that evidence
produced quickly can assist in the dispensation of justice and the duration it would
have taken before looking for evidence.
On this note, electronically generated evidence should be deemed admissible if
the document containing the statement was produced by the computer during a period
over which the computer was used regularly to store or process information for the
purpose of any activities regularly carried on over that period, whether for profit or not,
by anybody, whether corporate or not, or by any individual.68 There is this fundamental
question that comes to mind if the electronically generated is deemed inadmissible and
it goes thus; What Is The Fate Of The Party Who Only Has His/her Evidence In
Electronic Format?. It can be said that the relevance and admissibility of electronic
Rules of Evidence therefore exist to safeguard injustice as much as possible.
Electronically generated Evidence has an impact in our court system in that its
admissibility or inadmissibility can save or destroy a suspect in the process of
dispensing judgments. It is hoped that the thesis will be of use not only to researchers
and other persons with a general interest in the Nigeria law on the subject but also
those foreigners who are currently litigating or who may soon litigate any claim in
Nigeria.

68
A. M Adebayo,” Evidence Act, 2011 ANNOTATED with cases” 4th Edition at Section 84(2)(b)
46
 CHAPTER TWO

CLASSIFICATION OF EVIDENCE AND COMMON RULES

GOVERNING THE ADMISSIBILITY IN NIGERIA
The main division of judicial evidence under the Evidence Act69 is into oral evidence,
real evidence, documentary evidence, circumstantial evidence affidavit.
2.1 Oral Evidence:
This is the viva voce testimony of a person or the assertion of a human being offered as
proof of the truth of what is asserted. It is also the testimony of a witness usually on oath or
by affirmation by his word of mouth in the witness box. This is usually referred to as
testimonial evidence. It is the most credible means of establishing a case in court. Oral
evidence includes sign made by a dumb witness70. Oral evidence is the commonest type of
judicial evidence. One advantage of oral evidence lies in the fact that the court will be able to
watch the demeanour or behavior of the witness and form the impression whether he is a
witness of truth or not. Another advantage of oral evidence is that it will afford the opposite
party the opportunity to cross examine the witness (es)71. It must be the evidence of a witness
who says he saw, perceived or heard such facts.
2.2 Real Evidence
Nokes sees real evidence as material object other than documents produced for the
inspection of the court. It is anything which is produced, and examined by a court or tribunal
as means of proof. It is an objective or demonstrative and it is derived by the court from the
69
Cap E. 14 LFN hereafter referred to as the Act.
70
See Section 176 of the Evidence Act
71
Fidelis Nwadialo Supra p. 10
47
inspection of physical objects other than documents which could be a place, a person, animal
or things. In the case of LYON V TAYLOR72 the court ordered for the production of a fierce
and mischievous dog for the purpose of examination. Therefore, real evidence can be
produced in court for examination if it is portable otherwise inspection can be done outside
the court at the place where the object is73
2.3 Documentary Evidence
This is the statement made in a document which is offered to the court in proof of any
fact in issue. Such statement i.e. documentary evidence may be sub-classified into two
namely; primary and secondary evidence. They are briefly explained below.
I. Primary Evidence: This is the document itself74 i.e. the original documents in which the
fact to prove are stated. It is usually preferred to as the Best Evidence Rule. This rule
emanated from the old rule of the English common law which requires that the best evidence
must be given. The rule was stated by Lord Hardwicke in OMICHUND V BARKER75 where
he said; “The judges and sages of the Law have lain it down that there is but one general rule
of evidence, the best that the nature of the case allow”. Therefore if many duplicates or copies
are made of the same document by the same process e.g. typing with carbon paper each copy
including the copy, is primary evidence of the document as was held in the case of ESSO
W.A INCORPORATED V. OLADIJI76. Section 258 of Evidence Act defines document.
II. Secondary Evidence: This refers to either a copy of the original77 . Secondary evidence
includes:
 Certified copies given under the provisions here in after contained

72
(1862) 3F & F.731.
73
Section 127 Evidence Act 2011 35 (1992) 4 NWLR (pt.233)91.
74
See Section 86 (1) and also 86(2-4) Evidence Act.
75
(1744) Willes 534, 550.
76
(1968) NMLR 453
77
Section 87 Evidence Act 2011.
48
  Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with the original
Copies made from or compared with such copies
 Counterparts of documents as against the parties who did not execute them;
 Oral accounts of the contents of a document given by some person who has himself
seen it‟. See the
 case of AINA V JINADU78

2.4 Circumstantial Evidence

A number of circumstances which when accepted make a complete and unbroken
chain of evidence. By this, it means evidence not the fact in issue but of other facts from
which the fact in issue can be inferred. In most cases it is difficult to get direct evidence thus
recourse may be heard to circumstantial evidence with a view to establishing a case in court.
It is to be noted however that before an accused can be convicted on circumstantial evidence
such evidence must be irresistibly and mathematically point to one direction namely that the
accused committed the offence for which he is standing trail. It is usually contrasted with
direct evidence.
In ADENIYI V. THE STATE79 the accused was the last person seen with those
deceased alive. He was with the deceased car a day after they were both seen together. He
represented to investigation, he led the police to a place where the skull and bones of the
deceased were recovered together with the lose material she wore and a necklace with the
pendant insignia “R” which stands for Regina, the name of the deceased. In that circumstance,

78
(1992) 4 NWLR (pt.233)91.
79
(2001) FW LR pt. 57, p 809
49
he was convicted for the murder of the said Regina. See also CHIOMA EJIOFOR V. THE
STATE80
2.5 Direct Evidence
This is the testimony concerning facts actually perceived by a witness with one of his
senses. It is the evidence of a fact actually in issue. This is also evidence offered by a witness
in proof of the truth of the fact asserted by him. Direct evidence includes real evidence.
Where the direct testimony of eye witness is not available, the court is permitted to infer from
the facts to prove the existence of other facts that may be logically inferred. Direct evidence
is evidence which if believed prove a fact in issue without the court resulting to inference or
presumption.

2.6 Original and Hearsay Evidence

Generally, statements, written or oral, made by persons who are not called as witness
are not admissible in evidence but are relevant and admissible in circumstances mentioned in
section 39 to 55 of the Act. When evidence of such statement is offered only in proof that the
statement were made, irrespective of whether they are true or false, such evidence is called
Original Evidence. But when the statements are repeated by a third party as proof of the
contents of the statement, this will be regarded as hearsay evidence and therefore generally
inadmissible81 .

2.7 RELEVANCY AND ADMISSIBILITY

80
(2001) FNLR pt. 49, p 1457
81
See the judicial committee of the privy decision in Subramanian V Public Prosecutor (1956) IWLR 965; (1956) crim. LR 621
50
 A work of this nature will not be complete without briefly discussing the principle that
is central to Nigerian law of Evidence in Relevancy and Admissible. The general principle is
that all evidence which is sufficiently relevant to an issue before the court is admissible and
all evidence that is not relevant is inadmissible. Therefore, the entire law of evidence is
dependent, in the main, on the rules governing admissibility and inadmissible evidence82. In
other words, the entire law of evidence is dependent mainly on the rules governing
the admissibility of evidence. The 2011 Act83 re-stated the rule that the admissibility
of any piece of evidence is governed by its relevance and this in itself is dependent
on the provisions of the Act. All the provisions of the old Act on relevance and
admissibility are retained but in some cases simplified.

Although whether some evidence is admissible or is dependent upon whether the fact
to be established by the evidence is relevant to the facts in issue, it is important to note that
neither the word relevance nor admissibility is defined in the Act. This Omission even
becomes more glaring having regard to the fact that the Evidence act has been amended and
the cogency of relevancy as the touchstone of inadmissibility i.e. relevancy as the paramount
consideration in the admissibility of evidence84. Although a review of the rules of relevancy
under the Act would seem to reveal some logical relationship, logical is not the determining
factor but, the provisions of the Act. Generally, it is only facts which are relevant to the fact
in issue or some other facts relevant to the fact in issue that can serve as the basis for the
admissibility of evidence85. As state by Olatawura JSC in ACB LTD v. GWAGWADA86,

82
The Law of Evidence in Nigeria P. 23
83
www.google.com/thenewevidenceactofnigeria/articlelitigation,thevidenceact2011/movingwiththetime (accessed 4th April 2016

84
Contentious Issues and Responses in Contemporary Evidence Law of Nigeria P.209
85
The Law of Evidence in Nigeria P.23.
86
(1994)4 SCNJ (pt.11) 268 at p.277
51
 before considering admissibility of any evidence or document in support
of a party, it must be shown that the evidence sought to be led is relevant.
Even if the evidence is admissible and it is not relevant, the admission of
such evidence does not advance the case of the party.

In other words, evidence will be admitted only in proof of facts in issue, fact relevant
to the facts in issue and facts relevant to some other facts which are relevant to the fact in
issue. All irrelevant facts are inadmissible but not all relevant facts are admissible. This is
supported by the dictum of Coker JSC in AGUNBIADE V SASEGBON87 where he said:
“Admissible evidence under the Evidence Act is evidence which is relevant and it should be
borne in mind that what is not relevant is not admissible”.

Admissibility is a relevant rule of evidence and is based on relevancy. It connotes

relevancy and absence of any rule of exclusion88. Relevancy or irrelevancy implies a
relationship between two facts which gives rise to an inference of one fact from the
other fact. There have been a lot of arguments on the exact implication of relevance in
evidence. In order to enhance its comprehension, it has been variously probative. The
use of logic has several connotations, and which is in fact being referred to is not
specified.

Both Stephen89 and Phipson90 apparently regard logical relevance as that

connection between one fact and another or improbable, according to the ordinary
course of events. It would appear that the use of the word “logical” is in the popular
sense because one can observe that the views of Stephen and Phipson on logical
relevance do not necessarily involve an appeal either to law or systematic logic, but to

87
(1968) NMLR 223 at 226.
88
See Sadau and anor v State (1968) I ALL NLR 124
89
Digest of the law of evidence 12th Ed.
90
Manual of the law of Evidence 7th ed. P. 38
52
the uninstructed reasoning process of the lay man.91. Facts which as a matter of
ordinary logic or experience tend to render the existence of other facts probable or
improbable are relevant facts to those other facts. This is supported by the below
provision of the Act that

Facts which, though not in issue, are so connected with a fact in issue
as to form part of same transaction, are relevant, whether they
occurred at the same time and place or at different times and places92

Relevancy is therefore determined under our Law by reference to the Act and not
by logic93. The judge is vested with powers under section 211 of the Act to determine
the admissibility of evidence.

Confusion sometimes results from a failure to appreciate the implications of the

words “admissible” and “inadmissible”. When a fact is said to be admissible, the use of
the word presupposes that the facts is relevant. When a fact is said to be inadmissible,
the use of the word should not involve the supposition that the fact is irrelevant, for a
relevant fact may be inadmissible.

Unfortunately, in legal literature, an inadmissible fact is sometimes described as

irrelevant, as though the two words had the same meaning. Hence, though it would be
tedious to use two adjectives in variably for the sake of clarity, it is occasionally
necessary to describe facts either as irrelevant or inadmissible or as relevant, but
inadmissible. The Act list several situations when facts are relevant. Section 9 of the
Act also enacts as follows:

Facts not otherwise relevant are relevant:

91
Nukes G.D., an Introduction to Evidence 4th. Ed. (London. Sweet and Maxwel,1976), p. 28
92
See Section 4 of the Evidence Act.

93
See R V Agwana 12 WACA 456
53
 If they are inconsistent with any fact in issue or relevant fact.

 If by themselves or in connection with other facts they make the existence or

nonexistence of any fact in issue or relevant fact probable or improbable.

Another provision of the Act provides94 Evidence may be given in any suit or
proceeding of the existence or non-existence of every fact in issue and of such other
fact as are her in after declared to be relevant and of no others:

 The court may exclude evidence of facts which, though relevant or deemed to be
relevant to the issue, appears to it to be too remote to be material in all the
circumstances of the case, and

 This section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force.

This section establishes both the inclusionary and exclusionary rules of evidence.
By the section 1 given above, evidence may be given in only two instances.

(i) Facts in issue

(ii) (ii) Facts relevant to the facts in issue.

The exclusionary rule is contained in the provision by which the court may not
admit a relevant fact of same is considered by the court too remote to be material. Also,
facts which a party is not entitled in law to proof for instance, privilege facts or evidence
amounting to hearsay will not be admissible.

By virtue of section 9, if the issue whether it was the accused who burgled a
house in a named village on a particular date, the fact that throughout that date he was

94
See Section 1 Evidence Act.

54
away from the village in another town is relevant may be proved by evidence. The
absence of the accused from the village on the date of the incident renders it
improbable that he was the culprit and consequently relevant. Relevant facts are in
some sense referred to as circumstantial evidence. This consist of facts not necessarily
occurring at the same time and place as the main fact in issue, but which satisfy the
basic test of relevance by tending to prove the facts in issue.

2.7.2 WHAT IS A FACT?

A fact is defined as: (a) anything, state of things or relation of things, capable of
being perceived by the senses and (b) any mental condition of which any person is
conscious95.

Section 1 of the Act is a very relevant and important section in the admissibility of
electronically generated evidence. For purposes of emphasis, it says; “Evidence may
be given in any suit or proceedings of such other fact as are hereinafter declared to be
relevant and of no other provided that;

(a) The court may exclude evidence of facts which though relevant or deemed to be
relevant to the issue, appears to it to be too remote to be material in all the
circumstance of the case; and

(b) This section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force.

2.7.3 WHAT IS FACT IN ISSUE AND RELEVANT FACT?

A fact in issue is defined in section 258(1) of the Evidence Act as including;

any fact from which either by itself or in connection with other facts the
existence, non-existence, nature or extent of any right, liability or
95
See section 258 of the Evidence Act.
55
 disability asserted or denied in any suit as proceeding necessarily
follow

Fact in issue are therefore those necessary by law for the plaintiff in a civil case
to establish his claim and those the defendant must prove to establish his defence and
which by their pleadings are in dispute between them. In a criminal case, the facts in
issue are those which must be proved or disproved in order to substantiate the change
or to establish any exception or exemption from the offence changed.

Facts in issue are thus determined by substantive law and, in the case of civil
proceedings by pleadings. Thus, in an action for trespass to land, the facts in issue are
primarily act of possession of the land by the plaintiff and wrongful entry there on by the
defendant.

These may however vary depending on the contents of the defence. For instance,
the fact in issue then becomes the existence or otherwise of the alleged license.

Facts relating to motive preparation and conduct are relevant and admissible96.
Any fact is relevant which shows or constitutes a motive or preparation of any fact in
issue or relevant fact. Motive is the reason for an action, love, fear, jealousy, hatred,
etc. All these are of no relevance and importance as far as criminal responsibility is
concerned97.

However, section 6(1) says that “any fact showing the existence of a motive is a
relevant fact as tending to show that a person did the act alleged against him”98. But
where the commission of an offence is sufficiently proved by the evidence as a whole,
it is no answer to say that no motive has been shown99. Fact showing motive are not in

96
See section 6 of The Evidence Act
97
See section 24 of The Criminal Code.
98
See Jimoh Ishola v State (1978) 9 & 10 sc 81, 104
99
See John Bamigboye v A.G (W-N) 1966 NMLR 266
56
the ordinary case to be included among the fact in issue but among the other facts
declared to be relevant100. Motive is also important in deciding upon the credibility of a
witness. It is however important to know the dictum of Lord McNaughton in
BRADFORD CORPORATION V PICKLES101 where he said:

If the act, apart from motive, gives rise merely to damage without legal
injury the motive, however reprehensible it may be will not supply that
element. It is the act not the motive for the act that must be regarded

This was again emphasized by the House of Lords in ALLEN V FLOOD102.

Although this is the general position, in certain exceptional cases, the evil motive of the
defendant, if proved, might tip the scales of liability against him. RELEVANT FACT

The Act fails to define relevant or irrelevant facts. However what constitute
relevant facts can be deduced from different provisions of the Act.103

Section 4 of the Act talks of facts forming part of the same transaction. It provides:

Facts which, though not in issue, are so connected with a fact in issue
as to form part of the same transaction are relevant; whether they
occurred at the same time and place or at different times and places.

Also, according to Phipson104 relevant facts are facts which as a matter of ordinary logic
or experience tend to render the existence of other facts probable or improbable.

Osborn concise law Dictionary defined relevant facts as:

a fact which is so connected directly or indirectly with a fact in issue in

an action or other proceeding, that if tends to prove or disprove the
100
See Godwin Nwankwere v Adewumi (1961) 1 ALL NLR 129, 133(1961) NMLR 45 at 48
101
(1895) AC 587
102
8(1898) AC 1.
103
9 See pt. I & II or Sections 1 – 82, Evidence Act.
104
Manual of the law of Evidence 7th ed. P.28
57
 fact in issue or any other facts so related to each other that according
to the common course of event are either taken by itself or in
connection, with other facts proved or rendered probable, the post,
present, or future existence or nonexistence of the other.

Relevancy is likely based on logic and common sense. It is determined clearly by

the provision, of the Act though this provision may be said to be consistent with
common sense. Relevancy is determined clearly by the provision, of the Act though
this provision may be said to be consistent with common sense and logic. The above
section of the Act explained in subsequent sections facts declared to be relevant to the
other. For evidence to be admissible it must be relevant and what is not relevant is not
admissible to as circumstantial evidence.

In AKINGBADE V ELEMOSHO105 the plaintiff who had sued for declaration of title
tendered in evidence deeds of conveyance executed by his vendor in favour of other
persons who have bought surrounding lands. Plaintiff’s intention was to prove that his
title was valid since his neighbor had acquired theirs from same vendor had long
developed theirs and were occupying than undisturbed. The Supreme Court held that
the procedure adopted by the plaintiff was okay and that these deeds were relevant
and therefore admissible under section 12 of the old evidence Act.

Also, in CHIEKA V. OLUSOGA106 The appellant an Ibo man had fled Lagos
during Nigerian civil war leaving behind his family. He had by a memorandum
authorised his wife to sell his landed property to willing buyers. When he came back
after the war however, he discovered that one Olusoga was in possession of one of his
property claiming he had bought it from the appellant’s wife. On appeal the appellant
contention was that he had not authorised his wife to sell. Evidence was called and

105
Unreported suit no FSC 353/62
106
(1997) 3 NWLR 497 p.390
58
allowed in by the trial learned trial court using sec 12(b) of the repealed Act which is
equivalent to the Section 9(b) of the 2011 Act to show that some memorandum from the
appellant to his wife was the one used in selling other properties of the appellant to
other buyers. This procedure was challenged at the Supreme Court. The supreme held
that by section 12(b) of the evidence Act, it was good practice to produce evidence
showing the circumstances and facts surrounding the sale of appellant other properties
to prove that appellant’s wife had his full authority to sell the property in dispute to the
respondent predecessor in title.

2.7.4 AN EXAMINATION OF THE RELATIONSHIP BETWEEN

RELEVANCY AND ADMISSIBILITY OF EVIDENCE.

The requirement that admissibility is predicated on relevancy has led to the

practice of treating the two as synonymous. This is not correct as there are distinctions
between the two. The distinctions between the two are as follows;

1. It should be borne in mind that when it is said that a place of evidence is admissible,
what is meant is that the evidence is relevant and is one which can be admitted in
judicial proceedings because it does not offend any exclusionary rule.

Accordingly, while all admissible facts are relevant not all relevant fact are admissible.
As in HOLLINGTON V. HEWTHORN107 A fact which is ordinarily admissible may
become inadmissible because a statute declared it inadmissible or the fact is too
remote to be material.

107
(1943) I K.B 587 64
59
2. Admissibility is a matter of law, relevancy is usually though not invariably a matter of
logic and commonsense. In MUSA SADAU V. THE STATE108 the court of appeal held
that:

(1) Where a fact his relevant it could not be excluded at law except by virtue of a
specific statutory provision of rule of law

(2) There is no general rule of law in civil as well as in criminal cases that evidence
which is relevant is excluded, nearly by the way in which it has been obtained.

2.8 MODE OF PROOF OF CONTENTS OF DOCUMENTS.

Where a party seeks to rely on the contents of a document in proof of any fact
in issue before the court, it is the duty of such party to tender, such document.
Unless the document is tendered and admitted, it cannot form part of the evidence
before the court and the court cannot take same into consideration in its decision.

The Supreme Court has also stated in Okonji v. Njokanma109 that it is the duty
of any party who intends to rely on any document to lay the evidentially foundation
to warrant the admissibility of the document bearing in mind the appropriate section
of the Evidence Act under which the document is sought to be admitted in
contravention of the Act should be expunged. This position was given support in the
case of ORLY v. GOGO ABITE110 where Oguntade J.S.C. stated that;

The usual method of proving a public document is by the

provision of a certified copy of it. Once it is certified as such
copy, it is unnecessary to call a witness to verify it.

108
(1968) NMLR 208
109
(1999)1 N.W.L.R. 638, 250
110
(2010) 181 LRCN
60
 It is also undisputed that, section 85 of the 2011 Act provided that contents of
document may be proved either by primary or secondary evidence. However,
section 88 of the same Act insists that contents of a document must be proved by
primary evidence except for the limited instances where secondary evidence is
admissible under the Act.

The exceptional cases where secondary evidence of the content of a

document is admissible are listed in section 89 of the Act. If a document does not
come within any of the exceptions, proof of it must be by primary evidence. More
importantly it is the duty of a party seeking to adduce secondary evidence of a
document to lay proper foundation by showing that any of the exceptions listed in
section 89 of the Act applies. Unless such foundation is laid, secondary evidence
will not be admissible.

According to section 89 of the 2011 Act, the exceptions where the law allows
secondary evidence in place of primary evidence are;

1. Secondary evidence may be given of the existence, condition of contents of a

document in the following cases;
a. when the original is shown or appears to be in the possession or power.
i. of the person against whom the document is sought to be prove or
ii. of any person legally bound to produce it and when after the notice
mentioned in section 91 such person does not produce it.111
b. when the existence, condition or contents of the original have been proved to
be admitted in writing by the person against whom it is proved or by his
representative in interest.112

111
Section 89(1)(a) of The Evidence Act 2011
112
Section 89 (1)(b) of The Evidence Act, 2011
61
 c. When the original has been destroyed or lost and in the latter case all possible
search has been made for it, any secondary evidence of the contents is
admissible.113
Thus, in OKPALO v. C.O.P114 the prosecution led evidence to show that the
accused destroyed the document by chewing and swallowing it up. It was held that
proper foundation for the admissibility of secondary evidence of the document had
been established.

d. when the original is of such a nature as not to be easily moveable, any

secondary evidence of the contents is admissible.115
e. When the original is a public document within the meaning of section 102 of
the Act, secondary evidence by way of certified true copies will be
admissible116
f. When the original is a document of which a certified copy is permitted by this
Act or by any other law in force in Nigeria, to be given in evidence. In such a
situation, a certified copy of the document but no other kind of secondary
evidence of it is admissible21
g. When the original consists of numerous accounts or other documents which
cannot conveniently be examined in court and the fact to be proved is the
general result of the documents by any person who has examined them, and
who is skilled in the examination of such documents.117
h. When the document is an entry in a banker’s book.118
In the situations mentioned in (h) above, section 90(1) provides that
113
Section 89(1)(c) of The Evidence Act, 2011
114
(1961) ALL NLR 546
115
Section 89 (1)(d) of The Evidence Act 2011
116
Section 89(1)(e) of The Evidence Act 2011
21
Section 89(i)(f) of The Evidence Act, 2011
117
Section 89(i)(f) of The Evidence Act, 2011
118
Section 89(i)(h) of The Evidence Act, 2011
62
 the copies cannot be received unless it first proved that the book in
which the entries copies were made was at the time of making one of
the ordinary books of the bank and that the entry was made in the usual
and ordinary cause of business and that the book is in the custody and
control of the bank which proof may be given orally or by affidavit by a
partner or office of the bank and that this copy has been examined with
the original entry and is correct which proof must be given by some
persons who have examined the copy with the original entry and may
be given orally or by affidavit119.
It must however be stressed that entries in books of account kept by banks
are not sufficient evidence to charge any person with liability without more.

2.8.2 Proof of Public Documents.

Under the law of evidence, documents are classified into public and private
documents. The classification is important as different conditions of admissibility
apply to each class of documents.

According to section 102 of the Evidence Act, 2011, the following documents
are public documents;

a. documents forming the official acts or records of the official acts of;
i. the foreign authority;

ii. Official bodies and tribunal

iii. Public officers, legislative, judicial and executive whether of Nigeria or elsewhere;
and

119
section 90(i) (c) and (h) of The Evidence Act, 2011
63
b. public records kept in Nigeria of private document
It was in accordance with this provision that a judgment of a court was held to
be a public document in the case of A.C.B. v. AKPAGU120. It is however important to
state that section 102 of the 2011 Act is formerly section 109 of the Evidence Cap
E14 LFN 2004. In the case of AYO v. NJIDDA121 it was held that a primary school
certificate issued by Adamawa state Ministry of Education is a public document
within the meaning of the Evidence Act.

Fundamentally, in PROFESSOR SHYLLON v. UNIVERSITY OF IBADAN122,

the court of Appeal stated the attributes of a public document are that it is created
over a public matter, preserved for the good of the public and open for public
inspection and use. A public document must be brought into existence; it should not
only be available for public inspection but should have been brought into existence
for that purpose.

Nevertheless, the Supreme Court has thus distinguished public document

from private document. In the case of NTEOGUILE v. OTUA123 the court defined
private document “as being all documents other than public document’’.

2.8.3 Proof of Private Documents.

Section 103 of the Evidence Act 2011 provides that all documents other than
public documents are private document. Section 93(1) provides that if a document is
alleged to be signed or have been written wholly or in part by any person, the
signature or the handwriting must be proved to be his handwriting.

120
(1995)6 NWLR (pt. 399), p. 165
121
(2004) FWLR (pt. 192)10
122
(2004)8 NWLR pt. 378, P. 544
123
(2001)6 SC 200

64
 Subsection (2) states that, where a rule of evidence requires a signature, or
provides for certain consequences, if a document is not signed, an electronic
signature satisfies that rule of law or avoids those consequences.

Subsection (3) also states that; an electronic signature may be prove in any
manner, including by showing that it proceeds further with a transaction to have
executed a symbol or security procedure for the purpose of verifying than an
electronic record is that of the person.

2.8.4 ARE COMPUTER PRINT-OUT ORIGINAL?

One of the issue that often arise with admissibility of document is whether
computer print-out can be regarded as an original for primary evidence of the
contents of the document or secondary evidence as the case may be, since the
Evidence Act 2011 does not contain reference of such. Where a print-out is
regarded as being secondary evidence, it would mean that it is prima-facie
inadmissible until satisfactory foundation evidence is adduced.

In Nigeria, the “Best Evidence” rule requires the person tendering evidence to
tender the best evidence possible which in relation to the documents means the
original document or that which is closest to it. Also, it is of importance to note that
which amounts to credible evidence”. In the case of AGBRI v. OGBEH124; where
evidence was described as evidence of “worthy of belief” and a piece of evidence is
worthy of belief only when it proceeds from credible source and is natural,
reasonable and probative having regard for the transaction which is described or to
which it relates electronic documents do not really have an “original” in the
meaningful sense being invariably, in the usually represented form, copies of the

124
(2005)8 NWLR 69

65
initial data input. The hearsay rule, subject to permitted exceptions, presents the
use of the second hand information.

Thus, a document purporting to represent the statement of a person who is

not called as a witness to tender the document and be cross-examined on it is likely
to be caught by the hearsay rule. Courts would also need to be satisfied by the
reliability of the document in the sense that it is what is purported to be and of its
integrity in the sense that it has not been tampered with or modified from its original
state unless of course it is being tendered as a modified version.

The Evidence Act allows the contents of the documents to be proved by

primary or secondary evidence125. Though it also provides curiosity at first sight that
documents (not mentioning the contents in this particular respect) must be proved
by primary evidence except as mentioned in the Act.

The appellant disparity is resourced, however by section 89 of the 2011 Act

which provides that secondary evidence may be given in the existence, condition or
contents of a document in the circumstances listed within the provision primary
evidence of a document includes the document itself or each counterparts of each
part or in parts.

The secondary evidence that is admissible in the circumstances listed within

section 89 of the Act, includes a written admission of the original document in some
specific circumstances, any secondary evidence of the contents of the original
presumably including oral testimony, a certified copy of the original public document
or of a document of which the Act or any other law permits the use of a certified
copy. Specific case of a document which is an entry in a bankers book, copies could

125
section 85 of The Evidence Act, 2011

66
be permissible as secondary evidence provided that the book in which were made
was at the time of making, one of the ordinary books in the custody and control of
the bank

There has been some academic debate in Nigeria Supreme Court126whether a

computer which stores information in a bank could be deemed as “books of
account”, from which a printout containing ‘copies’ of entries made becomes
admissible as primary evidence or should always be secondary evidence127

Interestingly, in the above mentioned cases the status of the original data of
which print-out was admitted was termed secondary.

2.8.5 DESCRIPTION OF AFFIDAVITS; AFFIDAVIT AND EXHIBITS

Generally, the commonest way of proving a fact before a court is by means of

oral evidence.128 One of the exceptions to the general rule for all proceedings in court,
proof of facts must be by oral evidence is that a fact may be proved by affidavit
evidence. The law of evidence enjoins the court where it so pleases to order proof by
affidavits.129 In litigation process, the affidavit plays an important role. Although there is
no rule regulating or stipulating the cases in which the courts may require the proof of
facts by affidavit evidence, affidavits are mainly, used in interlocutory applications
where they are usually the primary evidence.130

126
Anyeabosi v. R.T. Briscoe (1987) 6 SC 15
127
Osipitan, I, Legal Impact of Technological Litigation of Evidence in Banking and Commercial Litigation, 21, 1998 in Babalola,
A.I. ed. Law and Practice of Evidence in Nigeria, (Ibadan, Sibon 2007). Pg 15
128
Section 76, Evidence Act, Cap 112, Laws of the federation 1990
129
Section 78 of The Evidence Act.
130
Nwogu, K.C. “Affidavit evidence: An imperative in the Dispensation of justice”. 2005 UNIZIK Law Journal, Vol. 5, No. 1. P.
456
67
 It is however not unusual for the courts to decide substantive actions in civil suits
on affidavit evidence alone131. Where the questions or issues for resolution are wholly
on law. Hence, affidavits are employed in civil suits initiated by originating summons,
applications for the prerogative orders of certiorari, prohibition, mandamus and that of
enforcement of fundamental human rights. The rules of court also allow the V3 of
affidavit in interlocutory applications in civil proceedings.
There is no formal definition of the term affidavit. It has been defined as a written
statement of evidence, sworn by the person making it who is called the deponent,
before a person authorised to take affidavits.132
In JOSIEN HOLDINGS LTD AND OTHERS V. LORNAMED LTD AND
ANOTHER133 the Supreme Court defined an affidavit as a statement of fact which the
maker or deponent swears to be true to the best of his knowledge, information or belief.
Similarly, an affidavit can be said to contain nothing more than facts, which the person
swearing to it believes to be true, even though not necessary the truth, and as such not
law but facts.134
An affidavit, when used in a proceeding, is taken as evidence of the truth of the
facts deposed to, and except the court in its discretion fetes otherwise, the deponent is
not generally required to give oral evidence of the facts therein deposed to. Hence, an
affidavit is by law evidence upon which a court in the absence of anything to the
contrary can rely on. Affidavit evidence is a form of documentary evidence.135 It is
receivable evidence and to his extent rules of admissibility of evidence applicable to
other forms of evidence essentially as regards relevancy equally apply to affidavits.
Having regard to the provision of the Evidence Act, however, it is different from oral
evidence and other forms of
131
The Law and Practice relating to evidence, P.217
132
Atkin’s Encyclopedia of court forms in civil proceedings 2nd ed. Vol. 3 (London: Butterworth’s, 1990), p. 355.
133
(1995) 1NWLR (pt271), 254 at 265 per Kutigi Jsc; see also Edu and others V. commissioner for Agriculture, water resources and
Rural Development (2000) 12 NWLR (pt 681) 316 at 333 where the court of Appeal Calabar Division defines it in the same vein
134
Nigeria National Supply Com.Ltd v Establishment Sima of Vaduz (1990) 7 NWLR (pt. 526) at 536
135
Habib Bank Ltd v Opomulero (2000) 15 NWLR (pt. 690) at 315
68
documentary evidence.
Generally, in cases where affidavit evidence is accepted by the court, oral
evidence is normally not allowed, unless in exceptional circumstances where there are
irreconcilable facts in the affidavits from both parties.136 Where an affidavit or counter
affidavit is duly sworn to, any annexure duly Incorporated thereto forms part of the
affidavit or counter-affidavit.137
In establishing the content of an affidavit, the court can adopt any of the following;
(1) where there is only one affidavit and no counter affidavit has been filed, the position
of the law is that the facts deposed to are not challenged nor disputed138 And where a
respondent does not challenge or contradict a deposition in his counter affidavit he will
be deemed to have accepted the truth of the deposition, unless it is obviously false to
the knowledge and experience of the court139
(2) Where there is a counter-affidavit before the court but the content is not in conflict
with the affidavit in support of the application, in law it is deemed as an admission and
the court would accept the content of the affidavit as the true state of things.140
(3) Where there is a counter-affidavit and the contents conflict with the affidavit, that is
where there is irreconcilable conflict; oral evidence can be called by the court in
resolving the conflict and establishing the truth141
(4) Where there is conflict in the affidavit but there is documentary evidence to resolve
it, then the court need not call oral evidence.142 Furthermore, where the area of conflict
is narrow and insignificant, the court may dispense with oral evidence.143

136
R v Elejigbo of Ejigbo and Another (1964) NMLR suppl. 20.
137
F.H. EL- Khalil v Chief S.T. Oredun (1989) 3 NWLR (pt. 12) 371 at 380.
138
Adekola Alake v HRS Sam Abimbola (1978) 2 SCR 39 at 40
139
Ojeme and Another v momoh 11 and others (1995) 6 NWLR (pt 408) 583
140
Agbaje v Ibru Sea Foods Ltd (1972) 5 sc 50
141
Olu-Lbukun v Olu-Ibukun (1974) 2 sc 41 at 48.
142
Ulegede v Military Administrator of Benue State and Others (1996) 6 NWLR (pt 457) 693.
143
Garba v University of Maiduguri (1986) 1 NWLR (pt 18) 550.
69
 The need and rationale to obviate the discrepancy occasioned, by the conflicts in
affidavits through oral evidence is a matter of ex-debito justice. It is however not the
duty of the court to supply evidence to resolve whatever conflict it perceives in the
affidavits.144 Thus, this part of the thesis will show the nature of affidavits in Nigeria and
that any document or material. Electronically generated or not-attached to an
affidavit automatically becomes part of the affidavit and gets entitled to the waivers and
exemptions from certain rules of evidence which affidavits and their exhibits are entitled
to. One is the waiver of the rule that requires only originals of exhibit and not cases. We
shall be seeing below that such waivers and exemptions in some cases even worsen,
as it were, the problems of authenticity and integrity of electronically generated
materials that are attached to affidavits as exhibits.
An understanding of “affidavits” which is gaining a very fast and wide acceptance in
Nigeria is that it is;
A signed and sworn or affirmed voluntary statement, made before a
judge or other person authorised to administer oaths, of facts within
the maker’s knowledge or belief he derived at stated times, place
and circumstances from a stated person or persons whom he
believes.145
Clearly, the statement in an affidavit must be in writing. This immediately
distinguishes affidavits evidence from oral evidence.146
Many of the affidavits forms in the country in court or arbitral proceedings have
exhibits attached to them. The exhibits are mostly documents. Sometimes one of the
documentary exhibits is itself an affidavit. As I shall state subsequently, such things as
information in computer memory or in diskettes, CD ROMs, video and audio tapes,
movies, as well as telefaxes, computer printouts or printouts of electronic mails can be
144
Affidavit Evidence. An Imperative in the Dispensation of Justice P. 461
145
Andrew Chukwumerie, The Law and practice of Affidavit Evidence Law house books, Harcourt Nigeria, 2004 Para 1.01.
146
The requirement of writing is not stated but presumed by the evidence, Act, which at section 79 provides that “the original
shall be filed in court, and the original or an offence copy shall alone be recognized” for any use in court
70
called document. So also can GSM text messages, bank electronic transfers, or of
other internet transactions text message and voice mails on GSM telephones be called
documents, even finger prints. They can, therefore, be attached to affidavits as
documentary exhibits. They, like other document, can even be attached to affidavits as
objects and not documents when the aim is to prove not their written or language
contents but of their physical nature or state.147
Other materials are also sometimes attached as exhibits. Damaged sunglasses,
torn dresses etc have been tendered before courts through affidavit evidence in
fundamental rights enforcement, proceedings, where the plaintiff or claimant was
assaulted and his/her belongings damaged by the Defendant. In the same vein it is
possible to have such things as audio and video tapes, computer diskettes, flash disc
or drives, cd ROMs, dud etcetera as material exhibit. They can also be tendered
through affidavits as documentary exhibits as we shall be seeing. Subject to the rules
on admissibility of documents, generally a document-electronically generated and
attached to an affidavit as an exhibit forms part of the affidavit, and should be
considered together with the affidavit148 as a document it is even of greater evidential
value and persuasive potential than the ordinary, depositions in the affidavit. If there
is a conflict between the depositions and the document, the document takes priority in
matters of weight. It thus becomes a hanger from which the depositions may be
assessed.149 In viva voce evidence of a photocopy or other copies of a document are
generally inadmissible.150
In affidavit evidence however photocopies, are routinely used. It is mainly a
matter of convention, and common sense since no meeting enabling statutory provision
exists on the point. Affidavits are typically filed in interlocutory proceedings and it is
147
The Law and Practice of Affidavit Evidence Law: Poro. 2.12.
148
O.A Gbere V.W.B Allie-Owe (2000) II NWLR (p. 678) 294, CA. CF for English law, Byrne, in carter v Roberts (1903) & ch. D
317
149
Fashanu v Adekoya. (1974) 6 sc 83; Augustus W. Kindley & 11 Ors. V Military Governor of Gongola State & 7 Ors (1980) 2
NWLR (pt.77) 445.sc.
150
Under ss. 96 of The Evidence Act which deal elaborately with secondary copies of the document
71
only sensible that photocopies be useable while the original will be tendered during the
substantive trial. Even where affidavit, constitutes pleadings for substantive trial it is
normally filed in several copies, enough for the court and all the parties to the case and
at least an extra copy for endorsement and return in proof of service on each party.
There is no way the original can be attached to all these copies except by photocopy.
Again if the document must be preserved for other purposes after the court
proceedings, it is necessary to save it from being stamped with the insignia or
imprimatur of court which filing an exhibit involves.
In affidavit evidence however photocopies are routinely used. It is mainly a
matter of convention and common sense since no enabling statutory provision exists
on the point.
Affidavit is typically filed in interlocutory proceedings and it is only sensible that
photocopies be useable while the original will be tendered during the substantive trial.
Even where affidavit constitutes pleadings for substantive trial it is normally, filed
in several copies, enough for the court and all the parties to the case and at least an
extra copy for endorsement and return in proof of service on each party. There is no
way the original can be attached to all these copies except by photocopy. Again if the
document must be preserved for other purposes after the court proceedings, it is
necessary to save it from being stamped. With the insignia or imprimatur of court which
filing an exhibits involves, it is only with respect to public documents that the same rule
on admissibility applies to affidavit and viva voce evidence, to the effect that only a
certified true copy is admissible and generally, even a photocopy of a certified copy is
not admissible.151

151
Minister of Lands, Western Nigeria v Dr. Nnamdi Azikwe and Ors (1969)1 All NLR 4

72
2.9. CONCLUSION
A careful reading of all the provisions of the Act given in this chapter will reveal
that the admissibility of electronically generated evidence can flow under the rules of
relevancy and admissibility. In addition, it follows that photocopies or other copies, not
necessarily originals of electronically generated documents are admissible. This is
particularly important for such things as computer printouts which are sometimes
difficult to classify other than as copies of the “original” in the computer memory,
diskette or flash drive disk. It is in fast as secondary copies that even direct or original
printouts have been held admissible as we shall see in the cases discussed herein
after. Attaching their photocopies therefore amounts to attaching photocopies of copies
(i.e. secondary copies of secondary copies) of a document. It can therefore be asserted
evidence provided they are either in issue or relevant to the fact in issue are prima-
facie admissible under the Act.

CHAPTER THREE
ELECTRONICALLY GENERATED EVIDENCE
3.1 INTRODUCTION
By a way of appreciate the new evidence act, it is important to discuss the
controversies of electronic evidence under the old evidence act.
Prior to the Evidence Act of 2011 many Nigeria authors and writers believed that
the absence of specific provisions of the Evidence Act on the admissibility of computer
and other electronically, generated evidence makes such evidence inadmissibility, in or
by Nigeria courts, this however laid a lot of confusion as to its admissibility. These
controversies laid primarily on the definition of a document under the general law of
evidence.

73
 Wharton’s Law Lexicon152 defines a Document as records, writing precepts,
instructions or directions.
It would be noted that documents are not confined to books; but includes films,
tape recording of conversations, inscriptions on wall or a tombstone etc153.
Section 2(1) of the old Evidence Act defined documents to include:
Books, maps, plan, drawings, photographs, and also include any
matter expressed or described upon any substance by means of
letter, figure or by more than one of these means intended to be
used or which may be used for the purpose of recording that matter.
Therefore, documents are not restricted to paper writing alone and it is humbly
submitted that the various output of a computer may also be regarded as documents
as they are also used to record.
A peep into some cases decided by superior courts of record in Nigeria will show that
such evidence is was admissible in Nigeria even before the inclusion of Section 84 of
the new act154 save in limited cases, like admissibility of computer printouts, of banker’s
statements, were under section 155 of the old Evidence Act admissible.
For instance, Yemi Osinbanjo156 believes, amongst other things, that computer
printouts are not original. He also disputes93 with some English decisions, even based
on statutory provisions, that computer-generated evidence is “real evidence”.
In addition, computer and electronically generated evidence will now be
admissible in Nigeria under Section 84 the Evidence Act 2011. For the purpose of
emphasis, I quote;

152
Wharton’s law lexicon;14th Ed. P. 342
153
Longman dictionary of English Language & Culture, New Edition p.374
154
The Evidence Act 2011.
155
The Evidence Act, 2011
156
Yemi Osinbanjo, Electronically Generated Evidence, in Afe Babalola: Law and practice of Evidence in Nigeria, 2001, pg 243

74
 In any proceeding a statement contained in a document produced by a
computer shall be admissible as evidence of any fact stated in it of
which direct oral evidence would be admissible, subject to some
conditions94
The computer or electronically generated evidence are not automatically
admissible, it first has to be relevant to the facts in issue of a particular case, then they
will be admissible in evidence without much ado.

3.2 EVIDENTIAL STATUS OF ELECTRONICALLY GENERATED

EVIDENCE.
At this point, it is pertinent to understand what computer printouts are, since
these have always generated a lot of controversy when it comes to the issue of
admissibility of Computer generated evidence.
A computer printout has been defined as:
“Hard-Copy output from a computer, such as selected information
from or analysis of computer files or simply a printout of the
information currently on the computer screen. Some printouts,
such as statistical analysis, require special programs to tell the
computer how to produce them. Others, such as a printout of the
screen, are produced by the basic operating system programs’’157
Computer printouts include printouts of computer simulations and graphics. These
simulations or graphics usually consist of materials produced expressly for litigation.
These Computer simulations are used in a manner similar to traditional demonstrative
evidence.
Electronically generated evidence can also be defined as the use of electronically
controlled machines or equipment either by wave of satellite or through cables

157
http://www.answers.com/computer20%printouts (last accessed on 12th February, 2012)
75
computers and other forms of electronic storage and communication systems as
evidence in the court of law.
Such evidence could be derived from telephone or telex, computers, disks, tapes,
microfilms, telegrams, forensic machines, ledger cards, vouchers, video machines etc.
As for electronically generated evidence, the main issue before the
commencement of the 2011 act in Nigeria was whether printouts are admissible in
evidence in civil or criminal trials. If they are, are they primary or secondary
evidence?158 Or are they to be tendered as one of the hearsay exceptions? Expectedly,
the problems have arisen in most cases in Nigeria especially in financial or commercial
transactions and electoral matters.

3.3 ELECTRONICALLY GENERATED EVIDENCE AND ITS ADMISSIBILITY.

The best evidence rule requires the introduction of the original writing in the court
unless it is shown to be unavailable.159Where the original document cannot be
produced, a copy of the original will be admissible if it sufficient trustworthy and proper
foundation is laid by the proponents of the documents.160 The question that whether
computer diskette and printouts are documents under the rules and whether they are
secondary or primary evidence, the new evidence act provided in addition to the
definition of evidence in the repealed act that;
Any disk, tape, soundtrack 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 any film, negative, tape or other device in which one or more visual
images are embodied so as to be capable (with or without the aid of
some other equipment) of being reproduced from it and any device by

158
Section 85 of The Evidence Act. It dictates mode of proof of document either by primary or secondary.
159
The Law of Evidence p. 11
160
Introduction to the American Law Institute Model Code of Evidence p 294.
76
 means of which information is recorded, stored or retrievable including
computer output .161
Having known what computer printouts are and the absence of the above
quotation in the repealed evidence act, it is then safe to discuss the different judicial
decisions under the pre-2011 Evidence Act.
To appreciate the provision on electronic evidence it becomes important to look
at some authorities during the Pre-2011 Evidence Act era which endorsed the
admissibility of Computer generated evidence, others insisted on the amendment of the
Evidence Act as a condition for such admissibility.
In the case of ESSO WEST AFRICA INC. V. T. OYEGBOLA162, it is
interesting to note that the apex court had a foresight when it stated as that:
The law cannot be and is not ignorant of the modern business
methods and must not shut its eyes to the mysteries of computer.
In modern times reproduction and inscriptions on ledgers or other
documents by mechanical process are common place and section
37 cannot therefore only apply to books of account 163
Also, in the case of ANYAEBOSI & ORS V. R.T. BRISCOE NIG. LTD164, the
Supreme Court endorsed the admissibility of computer printout as secondary evidence.
The court held that computerized statements of account, after all are not in the class of
evidence which are completely excluded by the Evidence Act. Therefore, the
computerized statement in issue in that case was rightly admitted as secondary
evidence.
In the above case, the plaintiff entered into an agency agreement with the
defendant for the sale of some goods. The only means of proof or record of sales
transactions was some computer printout certified by the official who was in charge of
161
Section 2. The Evidence Act Cap E14 LFN 2004.
162
(1969) NMLR 194 at 198
163
Pp. 216-217.
164
(1987)2NSCC 805.
77
recording such transactions. In an action for the recovery of various sums of money,
which were the proceeds of the sales of the goods, the plaintiff presented the computer
printout as evidence without any objection by the defendant and the court admitted it in
evidence.
However, on appeal by the defendant, it was contended that the computer
printouts were wrongly admitted as evidence on the basis that they were prepared by a
person interested at the time in anticipation of the proceedings. At the Supreme Court,
it was argued that the evidence i.e. the computer printout was wrongly admitted in
evidence contrary to section 96(2) of the old Evidence Act. It was held that the
computer printout i.e. statement of account does not fall within the category of evidence
absolutely inadmissible by law as it is admissible as secondary evidence under Section
96(2) of the Evidence Act in respect of the documents stated in Section 96(1)(d) or (g).
However, in the case of YESUFU V. ACB165, the Supreme Court in an obiter
highlighted the need to amend the then Evidence Act in order to allow the admissibility
of computerized statements of account. The court said inter alia:
… while we agree that for the purpose of Sections 96(1) (h) and 37
of the Act, bankers’ books and books of account could include
ledger cards, it would have been much better, particularly with
respect to a statement of account contained in document produced
by a computer, if the position is clarified beyond doubt by legislation
as had been done in England in the Civil Evidence Act…”
Also, in the case UBA V. SANI ABACHA FOUNDATION FOR PEACE AND UNITY
(SAPFU),166 the Court of Appeal held that a statement of account contained in a
document produced by a computer could not be admitted in evidence under the old
Evidence Act until certain sections of the Act were amended. The court, while adding to
the dictum of the Supreme Court YESUFU V ACB (Supra) said that:
165
(1976)1 All NLR (Prt.1) 328.
166
(2004) 3 NWLR (Prt. 861) 516.
78
 It is quite unfortunate that in Nigeria no clarification has yet been
done by way of amendment or promulgation of an Act to exempt
the statement of account contained in a document produced by a
computer from the conditions stated in Section 97 of the Evidence
Act 1990. Hence, I will not deviate from my primary function in
interpreting the laws as made by the legislature to that of law
making. I therefore hold that the lower court was in error when it
admitted Exhibit D2 in evidence in this case.167
In the most recent case of THE FEDERAL REPUBLIC OF NIGERIA V. FEMI
FANIKAYODE168, it was an interlocutory ruling in which a Federal High Court in Lagos,
rejected, as in admissible, the computer printouts tendered by the Prosecution in the
trial involving a former Minister of Aviation on an allegation of laundering a sum of
N4billion. The computer print-outs of the accused statement of accounts which the
prosecution tendered as evidence were rejected by the trial Court as inadmissible.
Applying the Court of Appeal decision in UBA V. SAPFU (Supra), the court held that
the provisions of Section 97 (1) (b) and (2) (c) of the old Evidence Act do not cover the
admissibility of computer printout even if they are duly certified and relevant. In a way,
the court allowed the prosecution to lead evidence that the accused opened the
accounts but at the same time, disabled the same prosecution from proving how the
accounts were operated or how the accused laundered the money through the
accounts by rejecting the computerized statement of accounts on the ground that the
Evidence Act did not recognize same. The Court then concluded that:
I must also express the view that there is the urgent need for an
amendment of the Evidence law to cover admissibility of document
made by means of computer printout since it is clear that those
167
Page 543
168
Case No. FHC/L/523C/08 of 26/3/2009 (unreported). *Note that this decision has been set aside by the Court of Appeal in a
Judgement delivered on Thursday 27th May, 2010. The Court held that the document in question was admissive. The Supreme
Court has also affirmed the judgement of the Court of Appeal recently.
79
 technological methods of producing document now form part of the day
to day business transactions and particularly, in banking circle.169
In the case of GRANT AND ANOR V SOUTH WESTERN AND COUNTRY
PROPERTIES170 Where the court held that a tape recording is a document if what was
recorded was information or evidence and tape recording of a conversation could
properly be describe as documentary of necessity of an instrument disciplining, the
information makes no difference in principle.
In the words of a learned legal commentator171, any documents or materials
electronically generated as not attached to an affidavit and gets entitled to the heaven
and exemptions from certain rules of evidence which affidavit and their exhibits are
entitled to. One is the rules that require that only the originals of the exhibits and not
copies to be rare cases. Many of the affidavit filed in the courts or arbitral proceeding
have exhibits attached to them, the exhibits are mostly documents. Subject to the
rules of advisability of document generated attached to an affidavit as an exhibit forms
part of that affidavit and should be considered together with the affidavit. This is one-
way electronic evidence could have been admissible prior to the 2011 act.
It can therefore be seen that electronically generated evidence was
admissible under repealed section 5 (a) if the evidence Act. Moreover, the supreme
court of Nigeria172 had held that electronically generated evidence to be admissible.

3.4 ELETRONICALLY GENERATED EVIDENCE ADMISSIBLE WHETHER

AS PRIMARY OR SECONDARY EVIDENCE
Primary documentary evidence is the original document itself produced for
the inspection of the Court. Secondary evidence is the direct opposite of primary

169
Pages 6-7
170
(1974) 2 all ER 455.
171
Affidavit Evidence & Electronically Generated in Nigerian courts p. 169-177
172
In Anyaebosi V R.T Briscoe Nigeria Ltd (1987)
80
evidence. In Nigeria Section 85 of the evidence act dictates mode of proof of
documents as follows
The contents of the document may be proof either by primary
or secondary evidence. Primary means the document itself
produce for inspection of the court that original document‟173.
The advent of technology, has supplanted the logic of that historical exigency.
The development has prompted a liberal approach through the interpretation of the
primary evidence rule.
Thus, in KAJALA V. NOBLE174, the divisional court held that “the primary
evidence rule only applies to written documents in the strict sense and did not apply to
new category of documents, Tapes and films” In this case, the court upheld the
admissibility of a video recording of the original BBC news film which show the
defendant taking part in a riot.
In the Nigerian case of ANYAEBOSI R.T BRIOSCOE (NIG LTD (supra)
Uwais Jsc (as he then was ) who read the lead judgment is of the view that computer
printout is admissible as secondary evidence if the condition in section 97 subsection
(1) and (2) of the repealed Evidence Act which is equivalent of the section 89 & 90 of
the 2011 act are satisfied. The consequence of thus as stated by Taiwo Osipitan is that;
…Foundation evidence will normally be required for its admissibility
in other words, the objection had been taken in the admissibility of
the computer printout the one it was sought to be tended in
evidence, the printout would have been in admissible unless the
required foundation was laid for its admissibility by the proponent.
The decision of his lordship has continued to generate serious scholastic
response. On the other hand, it has been argued by Nweze C.C. argues that when the
opportunity presents itself again, the Supreme Court will be minded to adopt the
173
Section 94 (1)
174
(1982) 75 CR APP R. 149
81
current liberal approach of the English courts on the interpretation of primary Evidence
as exemplified in KAJOLA V NOBLE (Supra). The South African computer printout is a
primary Evidence. This liberal approach is also deciphered from the authorities coming
from the United States of America175.
The 2011 Evidence Act has introduced a new type of primary evidence to
include a number of documents made by one uniform process which includes
computer or other electronic or mechanical process.
Section 86 (4) of the Evidence Act 2011 provides that where a number of
documents have all been produced by one uniform process as in the case of printing,
lithography, photography, computer or other electronic or mechanical process, each of
such documents shall be the primary evidence of the contents of all the documents so
produced by this one uniform process.
However, where they are all copies of a common original, they shall not be
primary evidence of the contents of the original.176
Before the enactment of the 2011 Evidence Act, admissibility of computer
generated evidence used to create problems because evidentiary rules require the
content of a document to be proved by tendering the original document, the reason for
this is the fact that electronic evidence in its original form may be found on floppy disc,
flash drives, mobile phones, hard disks, tapes, iPads, iPods, etc. to mention a few.
These forms in which computer generated evidence are found are machine readable
only documents which can only be copied into a computer or other electronic
equipment for processing, interpretation and printout or for transmission unto the
electronic display screen since it will be unreasonable to bring magnetic disks to court
for tendering as the contents can only be read by a machine and any printout from the

175
Victory Memorial V. Rice 142 App 3 0d. 021
176
Section 86 (4)
82
device was deemed to be a copy and not original. The printout is now admissible as
evidence by virtue of the definition of documents in Section 258 of the Evidence Act.177

3.5 COMPUTER GENERATED EVIDENCE

Kofi Annan fundamentally stated that “The ICT Age has dawned but not for all”178
The inestimable benefits of the various advancements in information and
communication technologies have until the enactment of the new Evidence Act in 2011
remained a matter of much debate and judicial uncertainty.
The enactment of the Evidence Act, 2011 has attempted to correct some of
the difficulties that the admissibility of Computer generated evidence do encounter in
Nigerian Courts. For instance, the definition of a document under the 2011 Evidence
Act is more comprehensive unlike its definition under Section 2 of the 1945 Evidence
Act.179
Also, the 2011 Evidence Act provided for the definition of a Computer which
was not included in the 1945 Evidence Act. Under the Act, a Computer is defined as
any device for storing and processing information, and any
reference to information being derived from other information is a
reference to its being derived from it by calculation, comparison
or any other process.180
Section 84 (1) of the Evidence Act 2011 provides that;
in any proceeding, a statement contained in a document
produced by a computer shall be admissible as evidence of any

177
Professor Taiwo Osipitan, Reflections on Evidence Act 2011, being a paper presented at the Law week of the Nigerian Bar
Association, Ibadan Branch on 26th October, 2011. Page 15.
178
Former Secretary General, The United Nations; Forward to E-Commerce and Development Report 2001 (Internet version) at
http;//www.ro.untad.org/ecommerce/docs/edr01_en/edr 01pt 0_en.pdf (accessed 07/10/04 by Mr. Omiunu Ohiocheoya, Assistant
lecturer of the Department of Business law, Faculty of law University of Benin, benin City in his article titled Information and
Communications Technology and The Nigerian Rules of Evidence.)
179
Ibid at page 4 118 Section 258 evidence Act.
180
Section 258 evidence Act.
83
 fact stated in it of which direct oral evidence would be admissible,
if it is shown that the conditions in subsection (2) of this section
are satisfied in relation to the statement and computer in
question.” Section 84 (2) further provides that a statement
contained in a document produced via a computer, which
statement is relevant to the facts in issue, is admissible as
evidence on the fulfillment of the following conditions precedent;
(a) The computer from which the document was produced was used regularly
during the material period to store electronic information or to process information of
the kind stated in the document;
(b) The computer from which the document was produced also had stored in
it other information of the kind contained in the document or of the kind from which the
information contained in the document was derived;
(c) That throughout the material period, the computer was operating properly;
and where it was not, evidence must be provided to establish that during the period
when the computer was not operating properly, the production of the document or the
accuracy of its contents were not compromised or affected;
(d) That the information in the statement is reproduced or derived from the
information supplied to the computer in the ordinary course of the activities in question.
Section 84(4) of the Evidence Act 2011, provides that where it is desirable to
give a statement in evidence by virtue of Section 84 of the Evidence Act 2011, a
Certificate identifying the document containing the statement and describing the
manner in which the document was produced, with the particulars of any device
involved in the production of the document, signed by a person occupying a
responsible position in relation to the operation of the electronic device, shall be
primary and sufficient evidence of the matters stated in the Certificate.

84
 The provision of Section 84 (2) is very similar to the position in England on
the admissibility of computer generated evidence. This is not surprising since most of
our legislations take a cue from that of England. Thus, in
R V SPILBY181 the Appellant was convicted of being knowingly concerned in the
unlawful importation of cannabis. The prosecution sought to link him guest (z) at a
hotel Cherbourg. It relied on the hotel’s computer which metered guest’s call,
recorded numbers, date and duration and also worked out the charge. The printout
showed that (z) had made a number of calls to the appellant home. The manager, who
tendered the printout, gave evidence that he was familiar with function of the machine
that it has been working well and the hotel had not received any complaint on guest’s
bills. The evidence was challenged on the grounds that the manager was not a
specialist. Familiar with the types of the machine in question, and such an expert
should have been called to testify that would be the position if section 68 and 69 of the
police and criminal evidence Act 1984 are read together. The lower court rules that the
printout were admissible as real evidence. The court of Appeal held that the print-out
were real evidence as they did not depend for their content on anything that had
passed through the human mind. All that happened was that when a guest picked up
the receivers and pressed certain buttons, the machine recorded what was done and
printed it out. In the opinion, it would have been different if a telephone operator at the
hotel had to gather the information and types into a computer bank before it was
printed. In such a case section 68 and 69 would have applied since human mind would
have been involved and the evidence would have been hearsay.
On the question of the reliability of the computer their lordships held that if the
instrument was one of a kind as to which it was common knowledge that they were
more often than not in working orders in the absence of evidence to the contrary, the
courts would presume that the mechanical instrument were in working orders at the

181
R.V Spilby (1991) Crim LR 199
85
material time. Thus decisions of English courts in R.V SPILBY (supra) to give effect
that computer printouts are “real evidence run counter and must give way to the
position of the Supreme Court of Nigeria. In ANYEABOSI V. BRISCOE, supra, which
is to the effect that such printouts are secondary documentary evidence. Similar fate
will befall such English decisions182 which are to the effect that computer printouts are
hearsay.
183
In R V BLACKBURN, R V WADE. the time the English Court of Appeal
held the view that where the computer is used for word processing, a document
produced thereby should be regarded as having been produced by a human being
with the aid of a computer.
Thus, in YUSUF V ACB LIMITED184, although the supreme court was called
upon to decide on the admissibility of the books of account produced from a bank’s
machinist (computer), the supreme court observed as follows
The law cannot and must not shut its eyes to the mysteries of the computer
or ledgers or other documents by mechanical process are common place.
This dictum has definitely added filling to the admissibility of computer and
other electronically generated evidence in or by Nigeria courts.

3.5.2 INTEGRITY AND CONFIDENTIALITY ISSUES IN RELATION TO

ELECTRONIC EVIDENCE
Since it is very easy to manipulate or tamper with information gotten
electronically without the knowledge of the author, it is very important to protect the
original electronic document. Electronic evidence may be edited and improved. It is
easy to super impose images on Compact Discs and hard disks. Also, computers may

182
R v Pettigrew (1980) CR APP R 129
183
(1992) crim. LR 204
184
(1976) 4 Sc. 1 at 16. UBA Plc V Sani Abacha Foundation for peace and unity (2003) FWLR (pf. 178) 978 C. A
86
be hacked and an intruder may unlawfully gain access to confidential and sensitive
information.
These challenges have however been addressed by Section 82 and 84 of the
2011 Evidence Act185. For instance, a party producing a computer generated evidence
is expected to produce a certificate identifying the document and describing the
manner in which it was produced; describing any device involved in the production of
the evidence; showing compliance with Section 82; and signed by a responsible
person with the knowledge of the processed works.186
It should be noted that by virtue of section 84 (3) of the Evidence Act, where
there is a network of computers used for the production of the electronic evidence,
either operating together or in succession over a material time, such computers will be
treated for the purposes of admissibility of computer generated evidence, as one.187

3.5.3 BOOKS OF ACCOUNT AND EVIDENCE

The Court in the case of UNION ELECTRIC CO. V. MANSION HOUSE CENTRE
REDEVELOPMENT COMPANY188 observed that;
“it is common knowledge that computerized record keeping is
rapidly becoming normal procedure in the business world.”
Also admissible under the new Evidence Act, 2011 are entries in books of
accounts or electronic records of such books of accounts regularly kept in the ordinary
course of business. However, Section 51 of this Act provides the caveat that such
statements alone shall not be sufficient evidence to discharge any person of liability. It
provides thus,
Entries in books of accounts or electronic records regularly kept
in the course of business are admissible whenever they refer to a
185
Supra Pg. 18
186
Ibid
187
Ibid
188
494 SW.2d 309 (no 1973)
87
 matter into which the court has to inquire, but such statements
shall not alone be sufficient evidence to charge any person with
liability.
Section 52 provides that any entry in any public or other official books, register
or record including electronic records made by a public servant in the discharge of his
official duties, stating a fact in issue or a fact relevant to a fact in issue, are admissible
evidence under the Evidence Act, 2011.
However, it must be noted that before the enactment of the 2011 Evidence Act,
there was an obiter by the Supreme Court in the case of OGUMA ASSOCIATED
COMPANIES (NIG.) LTD V. I.B.W.A LIMITED,189 where the Nigerian Supreme Court
said that;
Nigerian Courts need to become circumspect in interpreting Section
96 of the 1945 Evidence Act in the light of modern day banking
procedures and gadgets such as computers which are now
increasingly used by businesses. The Supreme Court also said obiter
that there are certain types of evidence such as hearsay evidence,
unstamped and unregistered documents which are inadmissible in
Law and which cannot be admitted by consent of the parties.
It was held in the Oguma Associated Companies case that while the correctness
of whether the statement of account was rightly or wrongly rejected by the lower Court
as there was no cross appeal on this point, other admissible and contradicted
evidence were provided to entitle the Respondent Bank to judgment. This appeal was
accordingly dismissed.

3.5.4 ELECTRONIC SIGNATURE AND PROOF OF EXECUTION OF DOCUMENT

189
(1988) 1 NSCC 395 at 413
88
 An electronic signature will satisfy the legal requirement that a document must
be signed where the electronic signature shows that a procedure was followed
whereby the person that executed a symbol or followed some other security procedure
for the purpose of verifying that an electronic signature was made to an electronic
record, actually followed such an established procedure. There are no judicial
pronouncements on this aspect of Electronic Evidence yet however, Section 93 (1) of
the 2011 Evidence Act provides that;
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.
Subsection (2) provides that;
where a rule of evidence requires a signature, or provides for
certain consequences if a document is not signed, an electronic
signature satisfies that rule of law or avoids those consequences.
Subsection (3) of Section 93 further states that “an electronic signature may be
proved in any manner, including by showing that a procedure existed by which it is
necessary for a person, in order to proceed further with a transaction, to have
executed a symbol or security procedure for the purpose of verifying that an electronic
record is that of the person.”

3.5.4 HEARSAY EVIDENCE AND ELECTRONIC EVIDENCE

As a general rule, by virtue of 38 of the Evidence Act, Hearsay evidence is not
admissible. However, there are exceptions to this rule and by virtue of Section 41 of

89
the 2011 Evidence Act, electronic evidence has been included to be one of the
exceptions to hearsay evidence.
Section 41 is to the effect that statement made in the ordinary course of
business is admissible when it consists of any entry or memorandum made by him in
books, and electronic device kept in the ordinary course of business. This provision
will allow for the admissibility of electronic evidence which were formerly inadmissible
such as ATM records, emails, electronic bank records, etc.
The only proviso is that the maker must make the statement contemporaneously
with the transaction recorded or so soon thereafter that the court considers it likely that
the transaction was at the time still fresh in the memory.

3.5.5 EVIDENCE OF THINGS SEEN THROUGH TELESCOPES AND

BINOCULARS
Under the Evidence act 2011 there is provision for this and it is called “copy of a
document”190. However, even though there were also no such provisions on this in the
Indian Evidence Act, 1872 as amended. The Supreme Court of that country (Indian)
established admissibility of these matters in the case of REX V. MASQUD ALI &
ASHIQ HUSSEIN AIR191, in the following words:
We think that time has come when this court should state its views of
the law on a matter which is likely to be increasing raised as time
passes. For many years now photographs have been admissible in
evidence on proof that are relevant to the issues involved in the case
and that the prints as seen represent situations that have been
reproduced by means of mechanical chemical devices. Evidence of
things seen through telescopes or binoculars which otherwise could not
be picked up by the naked eyes have (also) been admitted….
190
Section 258 Evidence Act 2011. Copy of document; paragraph (d)
191
(1964) Sc. 72.
90
 Also, under section 68 of the Act, a court may rely on the opinion of an expert on
a matter of science. In a relevant case, therefore, the expert opinion of a person well
knowledgeable in the field of the science of telescope and binoculars may be admitted
in evidence in proof of facts in issue or facts relevant to the issue.

3.5.6 TAPES, MOVIES, TELEPHONE CONVERSATION TELEFAX AND OTHER

SOUND RECORDINGS AS EVIDENCE.
Concerning audio and video (and, therefore, other visual) tapes, the existing
authorities are suggestive of a favourable disposition towards such classes of
evidence.
In PRINCE EDWARD EWEKA AND ORS V. ASONMWONRIRI LAWSON
(ALIAS AAU EWEKA) AND ORS192. The dispute was whether or not the 1st
Respondent was indeed a son of the late Enogie and if so whether or not he was
acknowledged as such by the late Enogie. To prove those facts, he tendered at the
trial a tape recording in which the late man acknowledged him as the first son, which
tape was admitted in trial without opposition. On appeal, the Appellants contended that
the tape was inadmissible but the court of Appeal easily dismissed the argument. It
was obvious that the trial judge had placed reliance on the tape in holding that the 1st
Respondent was indeed accepted by the late Enogie as the Enogie’s first son. There
was no other evidence of that fact other than that contained in the tape. Ba;’aba, JCA
refrained from a detailed discussion of the matter because there was no appeal on the
particular point no doubt, at that time there was hardly an express provision in the Act
under which a video recording, a movie or other visual tape such as compact disk or
video compact disk could have been admitted. They are now admissible on the same
pedestal on which photographs and computer print outs are admissible in evidence193.

192
(2000) 10 WLR (pt. 722) 723 CA.
193
Section 84 Evidence Act.

91
 A photograph is still an image. A video recording of actions (with or without
voices) of an event or of participants, or actors, just like a movie, is simply a series of
still images. Each still image is simply recorded one immediately after its predecessor
in time and because every second is captured all add up to a series of pictures in
motion. It is of no moment that, unlike in the case of a photograph, equipment may be
needed in court for the recording or movie to be seeable or intelligible to the court.
It has been held about tapes generally in GRANT V. SOUTHWESTERN AND
COUNTRY PROPERTIES194. That the mere imposition of necessity of an instrument
for deciphering the information cannot make any difference in principle. The
Instrument does not add or remove from the action or event. The instrument only
helps the court to see the recorded action or event exactly as it took place.
In ESSO JOSEPH OGOLA V. ANYEABUSI supra it was held at a point where
there was no express provision in the Evidence Act that Nigerian courts cannot shut
their eyes to (but should rather take judicial notice of) new useful scientific devices.
In conclusion, videos and tape-recordings, are admissible upon the procedure
stated herein before195. Oral evidence of persons who overheard a recorded
conversation and the tape recording are on equal footing as primary evidence. One
is not superior to the other.

Similarly, the video recording and the evidence of persons that had watched it
while it has played both constitute primary evidence and are admissible as such.
Thus, in TAYLOR V. CHIEF CONSTABLE OF CHESHIRE196, oral evidence of
persons who overheard a recorded conversation and the tape recording are on
equal footing as primary evidence. One is not superior to the other.

194
(1972) 2 ALL E.R 465
195
Law of Evidence, P. 576
196
(1987) 1 All ER 225
92
 Similarly, the video recording and the evidence of persons that had
watched it while it has played both constitute primary evidence and are admissible
as such. Thus, the video tape that contained (and could clearly show) the fact of the
accused stealing from a shop had been accidentally deleted. It was, however, held
by the divisional court that police officers that had previously watched the video
could be allowed to state orally what they saw on the video when played. The video
tape that contained (and could clearly show) the fact of the accused stealing from a
shop had been accidentally deleted. It was, however, held by the divisional court
that police officers that had previously watched the video could be allowed to state
orally what they saw on the video when played197

In the United States of America, it is generally accepted that evidence

contained in a sound recording is admissible, if properly authenticated198

3.5.7 Telegraph Transfer, Electronic Mails, other internet Transactions etc

The most popularly mode of transferring funds internationally in Nigeria

remains telegraphic transfer or telexes. The use of tested telexes has been
dominant mode. Telexes are unsigned instructions the same way as the various
forms of Electronic fund transfers. The absence of signatures which are the
traditional form of authentication of documents may not only open this mode of
transfer to fraud, but also complicates its proof in court.

With respect to a dispute as to the contents of instruction sent, section 153 of

the Act would appear to tilt the burden of proof against the receiver who claims to
have received an instruction other than that delivered by the sender for transmission.
The section states that i.e Section 153(1)

197
Although admissible, the weight to be attached to such oral evidence will be a different thing entirely.
198
Lopez v. United States, 373 11 S. 427; United State v. Littwui (CA 6Tee) 388 2d 141
93
 The court may presume that a message forwarded from a
telegraph office to the person to whom such message purports to
be addressed corresponds with a message delivered for
transmission at the office from which the message purports to be
sent: but the court shall not make any presumption as to the person
to whom such message was delivered for transmission.

It is possible to argue that the presumption only arises when the message is
sent from a telegraph office or post office (NIPOST OFFICE). And not when a telex
message is sent from a private office. An answer to this may be in the provisions of
the telegraph Act which does not appear to create a distinction between an official
telegraph company and a private one, so long as the use of telegraph facilities duly
licensed under the Act.

3.5.8 Electronic mails:

Section 153199 provided for Electronic mail otherwise known as e-mails, they
are sent from one person to another or several recipients as the case may be by
electronic means through the use of computer device is sent from a computer, it will
pass on to a number of Message Transfer Agents (MTAs) which acts as the post
office. A major characteristic of an e-mail is that it carries the name by which the
senders identifies himself in his e-mail address of the internet services provides
through whose medium the computer system, from which the e-mail was sent, was
linked online. It will also add the current time and date, the name of the MTA,
together with additional information at the top of the message.

This implies that e-mails contain more information than it is ordinarily imagined.
Even where the sender does not keep a draft of the e-mail records would not reveal
199
Evidence Act, 2011
94
a copy of the mail in question, linkages could be provided by the internet protocol
addresses displayed on the mail received. This could be a vital lead to other
discoveries.

For purpose of admissibility, the first question that arises is “what is the best
evidence available that would be produced in court? In other words, what is the
primary evidence and what is the secondary evidence n this case and whether the
primary evidence will be available in tangible form? When a mail is sent, the original
written by the sender leaves his domain unless he saves a draft thereof. Once he
fails to save the draft of his, it is lost to him unless the recipient replies it.

The original and primary evidence therefore is what the recipient of the mail
receives in his mail box. Without the recipient of the mail safeguarding his password
and thereby lifting all protection of privacy, the mail in question cannot be readily
accessed by the court and counsel and this also depends on availability of online
facilities. The mail in question to be in a tangible and accessible form must be print
out, which printed version may, for now be treated as secondary evidence.

Finally, it is pertinent to note that statement form telecommunications

companies showing records of call logs and text messages and other computer
generated materials have, as it were become indispensable in life and business and
is extremely commendable that the legislature has taken a bold step to make sure
they are now admissible in court. It would be lame to argue that they should be
excluded from evidence just because they may sometimes be tempered with.
Nonetheless, with the above examination of computer and other electronically
generated evidence, the controversies about the admissibility of computer-
generated evidence will be largely reduced.

95
 CHAPTER FOUR

CHALLENGES POSED AT OR CONFRONTING ELECTRONICALLY

GENERATED EVIDENCE

4.1 INTRODUCTION

Electronically Generated Materials has faced a lot of challenges lately. This is

due to the problem inherent in Electronic gadget. It has not been able to impose its
confidence in a lot of people because it can be accessible either legitimately or
illegitimately by a third party. It can be hacked and this can affect its integrity and
authenticity.

Therefore, in this angle of the work, we are going to critically look at some of
the problems relation to electronically generated evidence and the way forward
would be provided.

4.2 PROBLEMS AFFECTING THE ADMISSIBILITY OF ELECTRONICALLY

GENERATED EVIDENCE
By their very origin and nature of transmission, storage and usage, electronically
generated evidence pose certain challenges when used in evidence. Problems
bordering on the admissibility, of electronically generated materials have been
identified as Authenticity, integrity and Confidentiality of the piece of evidence.
Problem bordering on the admissibility of electronically generated
materials have been identified as authenticity, integrity and confidentiality of the
piece of evidence.

96
4.2.1 CHALLENGES OF AUTHENTICITY
Narrowly explained, authenticity has to do mainly with whether or not the
material or piece of information actually emanated from the person or source it
purports to emanate from and is correct in what it coveys. In a work place, any person
can enter information into a computer memory, purporting it to be entered by another
person. If such a false enter or massage is presented in the court, there will be hardly
be a way of detecting the false nature. The court can thus be easily misled. Signatures
can be forged on non-electronic documents but a court can be comparing an allegedly
forged signature, with other signature of the same person200 and come to an intelligent
decision on the point. If the court is unable to decide on the water, a signature expert201
can be called in and he can detect any forgery that there is202.
In R V SILVER LUCK203, a solicitor who had given considerable attention for
many years to the study of handwriting and had on several occasions compared
handwriting for purposes of evidence was permitted to testify on the subject as an
expert. Such an opinion can be that of an expert204 or a non-expert205 so far he has the
skill and knowledge or has been acquitted with the person’s signature or handwriting
for a very long time.
Electronically generated materials therefore do not lend themselves to effective
test of authenticity that is normally possible with the conventional documents, the kind
of document presently foreseen by the Evidence Act.

200
See Salami Lawal v The Commissioner of Police. (WNLR 72.
201
R v Oniteri (1946) 12 INACA 58 at 59
202
Ibid
203
(1894) 2 QB 766
204
3 See Lord Mansfield in Foulkes v Chad (1782) 3 Dong KB 17, where it was held that the opinion of men of science on matters
within their own science is admissible. R V Mason (1911) 7 cr. App R67.
205
C.J Carr and S>J Beaumont, Law of Evidence 3rd Ed (London) Butterworth, 1996) P. 178-179.
97
4.2.2 CHALLENGES OF INTEGRITY
Integrity is also in a way a form of the problem of authenticity. It can however be
seen as more of an issue of whether or not the information has got distorted or
tampered with even after it emanated from a correct source. Thus, a message can be
sent from one source but is by some means tampered with such as to have at the
receiver’s end, a different message, substantially or otherwise from the one that was
originally sent out.
An audio or visual tape can be edited or tampered with through the imposition of
images and devices e t c though any such interference, the later form of the contents
is fundamentally different from the first or original form.
Through hacking of computer, crashing through passwords, and kindred wrongdoings,
information stored in computer memories, e-mails etc in transmit can be altered even
without the knowledge of the maker, sender or receiver as the case may be. Telefaxes
can be interpreted and possibly changed just as text messages (SMS) can be
intercepted, listened to and even edited by an unscrupulous operator working for a
GSM network from or through the form which the message or conversation is sent.

4.2.3 CHALLENGES OF CONFIDENTIALITY

Confidentiality is also another problem that electronically generated document is
confronted; with electronically generated materials hardly enjoy confidentiality since
they are legitimately or illegitimately accessible to third parties or
undesirable/unpermitted readers. Any information posted on the internet or used in
processes and e-trial and related procedure in the US for instance is accessible to
many more people than the immediate parties and court staff that directly deal with or
treat the documents.
Lastly, Section 84(4) provides that:

98
 In any proceeding where it is desired to give a statement in evidence by virtue
of this section a certificate -.
(a) identifying the document containing the statement and describing
the manner in which it was produced;
(b) giving such particulars of any device involved in the production of
that document a may be appropriate for the purpose of showing that
the document was produced by a computer:
(b) dealing with any of the matters to which the conditions mentioned
in subsection (2) above relate, and purporting to be signed by a person
occupying a responsible position in relation to the operation of the
relevant device or the management of the relevant activities, as the
case may be shall be evidence of the matter stated in the certificate:
and for the purpose of this subsection it shall be sufficient for a matter
to be stated to the best of the knowledge and belief of the person
stating it.
The implication of this section is that before an electronic document is admitted in
evidence a certificate has to be issued by any person in charge of the operations of the
computer (most appropriately the Head of the IT department). This would create
confusion in the future because if the electronic document which is required in a case
in on the defendant’s computer, his lawyer if very good would however advise his client
to certify that the computers that produced the document was not in good working
condition.

4.3 WAY OUT OF THE CHALLENGES

99
 Much as the Evidence Act under Section 84 allows the admissibility of
electrically generated evidence, it has not cleared at all the challenges identified above.
It simply normally accepts electronic evidence as true, authentic and credible possibly
because the issues of authenticity and integrity have not been raised before the courts.
The problem of authenticity, integrity and confidentiality are not insurmountable
and the courts will be able to deal with them as they are raised. For instance, if a
statement of account in a bank’s computer memory has been tampered in court, its
authenticity and integrity can be successfully changed by tendering the customer’s
copies of deposit slips studs of the cheque leaves etc used for withdrawals. It can only
be impossible to do so if the customer is in league with the bank to conceal the truth
that the tampering with the statement of account set out to conceal of course, the
same would be the case even if non-electronic means were used in keeping the
statement of account such concealments have been attempted in the country. There
has been instance where money laundering206 took place through an account in breach
of the money Laundering (prohibition) act and both the bank and the customer, who
would be jointly and severally subject to conviction and punishment under the Act
were in concert to hide the crime.
With respect to tapes, movies and indeed all the other kinds of materials there
may or may not be such other background pieces of evidence by which to cheek them
the way deposit. Slips and cheque studs would do for computer made statement of
account.
As regards the issue of certification would create more confusion and it is
important to note that the provision was copied verbatim from The Hong Kong
Evidence Act which does not require certification of any kind.207
However, as in all other pieces of evidence it will depend on a party to exercise
appropriate vigilance to ensure that any undesirable piece of evidence, electronically
206
Money laundering (Prohibition) Act, 2004. See also A Tighter Noose (2006) Journal of Money Laundering control (vol. 9. No. 2)
207
Chapter E-4.3 Electronic Evidence Act Hong Kong
100
generated or not is not admitted from the other party. Even if such a place of evidence
is admitted on the ground of relevance, he needs the same vigilance to ensure that it
is not accorded any weight by the court.
Electronically generated materials have as it were become indispensable in life
and business and it is extremely commendable that the law now admits them in
relevant cases. It would be lame to argue that they should be excluded from evidence
just because they may sometimes be tampered with and tendered to mislead the
courts by unscrupulous parties. Every cost benefit analysis would show that the
advantages, of admitting and acting on electronically generated evidence far outweigh
any difficulties they may pose in some cases.
As Lord Denning would also say:
What is the argument on the other side? Only that no case has
been found in which it had been done before. The argument
does not appeal to me in the least. If we never do anything
which has not been done before we shall never get anywhere.
The law will stand still whilst the rest of the world goes on and
that will be bad for both.
This is simply what the Nigerian court have done with respect to the
problem they have solved in this area of the law. In adopting those approaches for
the admission of computer prints-out and tapes, the courts were simply being
pragmatic in order to surmount the problems even in the absence of statutory
provision to that effect.

They were not confirming strictly with theoretical or analytical situation of

those provisions since those brands of evidence (and any other breed by
information technology) could hardly have been admitted on strict analysis of those
provision. It is instructive that in other jurisdictions, the courts are taking similar

101
steps to make law relevant. As the learned commentator point from strict rules and
principle (on authentication, for instance) and would even waive the principle of it is
shown that a strict compliance would be impractical or would not add more to the
evidence. 208

Finally, it is pertinent to state that these challenges of electronically generated

material do not affect their admissibility in Nigerian law they can only go to the
weight attachable to those piece of evidence after been admitted. Admissibility is
truly a function of relevance and relevant piece of evidence will be admitted. In as
much as the Nigerian court have not discussed or address at all the challenges
identified above, they have simply normally acted on the electronic evidence as true,
authentic and credible possible because the issue of authenticity and integrity has
not been raised before them. It will be wrong therefore to argue that electronically
generated evidence should be excluded from evidence because they may sometime
be tampered with and tender to mislead the court by unscrupulous parties.

CHAPTER FIVE
RECOMMENDATIONS AND CONCLUSSION
5.1 RECOMMENDATIONS
We wish to strongly recommend the following:

Section 258 which is the definition section in the evidence Act, in there, the
term document is defined. It is recommended that the definition will be more
embracing when the word “document” is defined by stating its nature or character
rather than listing examples. It is certainly possible that the range of material
accepted as document today (electronic documents included) may soon be

208
Massachusesets bonding and Ins. Co. v. Norwich Pharmacal Co. (1821)2d Cir.
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rendered obsolete by advancement in knowledge and technology. This is bearing in
mind that a major flaw in the old evidence Act was its definition of “document” as

“….book, map, plans….”

thereby conveying the idea that only tangible materials similar to books are covered.
An example of definition that attempts to avoid this situation is found in section 13 of
the United Kingdom Civil Evidence Act of 1

Document means anything in which information of any description is recorded,

and ‘copy’ in relation to a document, means anything onto which information
recorded in the document has been copied, by whatever means and whether
directly or indirectly.

Under the 2011 Act as it stands, it is possible to object the admission of a

computer printout on the ground that it did not meet up with the requirement to
qualify as primary evidence and that proper foundation has not been laid down for
tendering secondary evidence of it under the provision of section 89 (a) to (h).
Faced with such an objection, there is a real possibility that a court following with
strict provisions of the law will refuse to admit the computer printout.

It is suggested as an available alternative to all the above, that section 89 of

our evidence Act which provides instance when document may be proved by
secondary evidence, could be amended to include a paragraph providing for
situation where the original is contained in a computer. For instance, there would be
no controversy about the admissibility of computer printout if section 89 of the
evidence Act contained an additional paragraph providing as follows:

The original cannot easily be examined by the court

because it is an electronic document of any nature or
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 format or is contained in a computer or other device for
processing, storage or retrieval of data.

A provision such as the above will make it clear that the original is an
electronic document residing in a computer and so the party relying on it is entitled
to tender secondary evidence of this, such as print out. It appears, however, that it
will be better to exempt electronic documents from the stringent requirement of
proving the existence or otherwise of the original and tendering secondary evidence
because such rules are not suitable for dealing with this class of documents.

It is expected that the legislature will correct this perceived lacuna in the
provisions on electronically generated evidence; otherwise the effort already
expended in this area of our law of evidence will be incomplete. It is also necessary
for the courts and legal community in their eagerness to be rid of the age old
obstacles to admissibility of computer and other electronically generated evidence,
not to gloss over the requirement of section 89 or assume that the Act permit the
admission of computer printout relying on the provision of section 84 and 258 without
more. More so from the stand point of advancing e-commerce and also prosecuting
financial crimes offenders, who have hitherto taken shelter in technicalities such as
that provided by the inadmissibility of computer printouts, it is best to amend the Act
without procrastination.

Another salient area that needs urgent attention by the legislature is the
incorporation of possible requirement as well as current trends of activities in the
cyber space so as to be able to checkmate a myriad of online crimes happening
almost all the times. Many legal- minded Nigerians are already showing their

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displeasure at the inadequacies in the provision of the Act despite its repeal. MR
BELUOLISA NWOFOR209 particularly miffed by the Act has this to say.

This Act should be amended and in doing that, the national

assembly should not arrogate the powers of knowledge to
themselves alone but seek right contribution from experts in
the field of law and other relevant field the Act would affect.

The Act should also be amended to reflect provisions of defamation on social

networks, this is because the true regulator of online activities in Nigerian is not
known, and on this back drop the Nigerian Communication Commission, NCC,
should step up to the task to hold internet service providers responsible for hosting
social networks that publish defamatory items. It is vital at this juncture to draw
attention to section 255 evidence Act 2011 which reads as follows:

The minister charges with responsibility for justice may, from

to time, make regulation generally prescribing further
conditions with respect to admissibility of any class of
evidence that may be relevant under this Act.

The section reproduced above is a welcome development, but the question

that arises is, how effective is it? The relevant minister might not have ever been
wary enough to exercise such power that has been conferred on him by the Act. In
which case, the admissibility of any other class of evidence will still depend solely
on the discretion of the courts until some of the inadequate provisions in my own
view are drafted in an all-encompassing nature as earlier highlighted in this chapter.

209
Mr. Beluolisa Nwafor SAN on “Lawyers, others fault Evidence Act” available at vanguard newspaper of November 15, 2012

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 I also recommend with approval the conclusion of ZACHARY G. NEW MAN
and ANTHONMY ELLIS210 in their article, to the effect that: electronic evidence is
becoming more and more prevalent lawsuits. Therefore, significant time should be
devoted to identifying and analyzing the authentication and admissibility issues
relative to the electronic data involved in the litigation. Addressing these issues at
the earliest possible phase is critical to a successful evidence evidentiary
presentation on summary judgment, at a hearing or at trial. The ground work for
establishing the authenticity and admissibility should begin as soon as the
information is gathered and reviewed as additional discovery may be required to
ensure that the electronic evidence can be used in court.

It is imperative that the law should give industry and commerce clear guidance
on how to make their records acceptable in the courts. As technology develops,
evidential practice will need to be evolved to accommodate it. It is arguable that the
judiciary themselves might be able to rescue litigants from some of the problems
created in the process of tendering of evidence at trials.

It should be noted that for Nigerian courts to really make admissibility of

computer generated evidence effective, it is imperative for the courts to be
computerized so as to allow for the taking of evidence and writing of Rulings and
Judgements electronically as it has been fully done in advanced countries like Britain,
South Africa, America etc. Also, the courts should embrace tremendous potentials
akin to computer for the purpose of improving the Nigerian judicial system and curb
excessive delays and denial of justice which is a norm in the Nigerian judicial system.
Also, Nigerian Prosecutors, Judges and Lawyers must acquire and develop
necessary skills to be able to deal effectively with the problems that may arise in the

210
Zachary G. Newman and Anthony Ellis, “The Reliability, Admissibility and Power of Electronic Evidence: source:
http:apps.americanbar.org/ligitation/committee/triaevidence/articles/021511-electronic-evidence
106
admissibility of computer generated evidence. As stated by Professor Taiwo Osipitan
in his speech at the NBA Ibadan law week on the 26th of October, 2011, the Attorney-
General of the Federation should utilize the powers vested in him by virtue of Section
255 of the 2011 Evidence Act to from time to time make regulations generally
prescribing further conditions with respect to admissibility of any class of evidence that
may be relevant under the Act.
Finally, it is recommending that the three tiers of government should set up
computer centres in every local government area of the federation with a view to
educate the masses on the issue of computer generated evidence and also train both
public and private computer experts that could be called upon by the courts to
corroborate the evidence before the court whenever the need arises in the course of
the court proceeding.

5.2 CONCLUSION

There is no gainsaying the fact that electronically generated evidence has

been on the increase since the recent advancement in technology. Parties to a suit
both civil and criminal need this class of evidence to rely on in proving their case in
matters where electronic document are involved. Though this category of evidence
suffered legislations denial in our administrative of justice system in Nigeria for
some decades, the judiciary in many decided cases has since given it recognition. It
is commendable that this class of evidence has been statutorily recognized in
Nigeria. Evidence is an integral part of adjudication, thus whether a case is decided
in favour of a particular party to a suit or not depends largely on the probative value
of such a party’s evidence. It is against this backdrop that importance should be
attached to electronic evidence by parties to a suit whenever the need arises.

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 The supreme court of Nigeria on the procedure for the admissibility of

computer generated evidence in the case of IMORU KUBOR V. HON. SERIAKE

HENRY DISKSON211 is a step in the right direction. It is hoped that courts in Nigeria

would sustain such tempo as to ensure the effective and adequate development of

our law (especially the law of evidence) to meet the challenges of contemporary

times.

It is our humble view that the Nigerian courts and the world at large should

give liberal interpretation to the admissibility of electronically generated evidence, if

the law is to be relevant and useful at this computer age of information technology in

order to enhance and strengthen judicial activism.

211
(2013)4 NWLR PT 1345 SC 534
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 BIBLIOGRAPHY
ARTICLES
Nwogu K.C „Affidavit Evidence, An Imperative in the Dispensation of Justice‟ (2005) 5
UNIZIK Law Journal 1
Ochem C.E „The Relevance and Admissibility of Electronic Evidence in the legal
system‟ (2009) 8 Igbinedion Univ. L.J
Yemi Osinbanjo; Admissibility of Computer Generated Evidence under Nigeria Law.
(1990) jus, vol .1 no 1. p. 260.

ARTICLE ON THE INTERNET

Chukwuemerie A.L “Affidavit Evidence and Electronically Generated Materials in
Nigerian Courts” <http://www.law.ed.ac.uk/ahicScript-ed/vol3-3/affidavit.asp 4th August
2010.
Paul W.G “Continuing Legal Education on Electronic Evidence”
http://www.Slideshare.net /Georgetown CLE/ed > accessed on 4 August 2010.
Professor Taiwo Osipitan (SAN), Head of Public Law, Faculty of Law, University of
Lagos, ‘’Reflections on the new Evidence Act 201’’, a paper presented at the Nigerian
Bar Association (Ibadan branch) Annual Law Week on 26/10/2011,
BOOKS
Akintola A.L & Adedeji A.A. Nigerian Law of Affidavit Evidence (Law house books,
Port Harcourt, Nigeria, 2004)
Aguda T. The Law of Evidence in Nigeria (Spectrum Law Pub. Ltd, Ibadan 1989)79
Ijaiya N.A.O Lecture Notes on Evidence (University of Ilorin, Kwara State, Nigeria
2009/2010)
Nokes G.D. An Introduction to Evidence, 4th ed. (Sweet Maxwell, London 1976)

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JOURNALS
University of Ibadan Law Journal VOL 1, NO 2, December 2011

University of Benin Journal of Business Law VOL 1, NO 2 October 2013.

Jos Bar Journal VOL 1, NO 5, 2010

INTERNET SOURCES

http://apps.americanbar.org/ligitation/committee/triaevidence/articles/021511-
electronic-evidence.

http://www.answers.com/computer20%printouts.

http//www.2warwick.ac.uj/fac/soc/laweih

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