gathering and admissibility of electronically generated evidence

GATHERING AND ADMISSIBILITY OF ELECTRONICALLY GENERATED EVIDENCE

PROF. YEMI OSINBAJO SAN

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

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

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

DIGITAL OR E-EVIDENCE IS….. •INFORMATON STORED OR TRANSMITTED IN ELECTRONIC OR DIGITAL FORM WHICH IS THEN SOUGHT TO BE USED IN EVIDENCE •

COMPUTER-GENERATED EVIDENCE COULD INCLUDE…… • • • • • • • • • • •

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

CHECK-LIST FOR GATHERING,ADMISSIBILITY AND WEIGHT

• RELEVANCE +( LARGELY DETERMINED BY THE EVIDENCE ACT 2011)- SECTION 1 EA 2011 • WAS IT PROPERLY OBTAINED? • HEARSAY OR DIRECT EVIDENCE • ORIGINAL OR COPY • RELIABILITY CERTIFICATE • WEIGHT – SECTION 34 EA

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

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

WHAT IS A COMPUTER •S. 258 of the Evidence Act 2011 : “Any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation comparison or any other process.” *** PHONES, IPADS, ANDROIDS, MANY ELECTRONIC HAND HELD DEVICES QUALIFY

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

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

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

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

• RECENTLY HOWEVER, THE FEDERAL HIGH COURT IN A RULING DELIVERED BY HON. JUSTICE GABRIEL KOLAWOLE IN F.G.N V. SENATOR MOHAMMED NDUME ADMITTED A DVD TENDERED AS EVIDENCE NOTWITHSTANDING THE PROPONENT’S FAILURE TO SATISFY THE CONDITIONS UNDER SECTION 84(2) (A-D) OF THE EVIDENCE ACT, 2011. IT WILL BE INTERESTING TO SEE IF THE FEDERAL HIGH COURT’S DECISION CAN WITHSTAND APPELLATE

SCRUTINY CONSIDERING THE EARLIER DECISION OF THE SUPREME COURT IN KUBOR V. SERIAKE (SUPRA).

ORIGINAL OR COPY?

•SECTION 88 DOCUMENTS SHALL BE PROVED BY PRIMARY EVIDENCE BUT THERE ARE EXCEPTIONS IN THE ACT.

COPIES OF THESE NEW TYPES OF DOCUMENTS • A TRANSCRIPT OF THE SOUNDS OR OTHER DATA EMBODIED IN AN AUDIO CD IS A COPY(Section . 258)

• A REPRODUCTION OF IMAGES IN A FILM , NEGATIVE , TAPE OR OTHER DEVICE FOR (S. 258) STORING VISUAL IMAGES IS A COPY • ***NOTE THAT IF DOCUMENTS MADE BY ONE UNIFORM PROCESS ALL ARE ORIGINALS ( S.86 EA)

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

capacity

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

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

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

BUSINESS RECORDS EXCEPTONS TO HEARSAY RULE. • S. 41: A statement is admissible when made by a person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind. or of a document used in commerce written or signed by him or the date of a letter or other document usually dated written or signed by him: – Provided that the maker made the statement contemporaneously with the transaction recorded or soon thereafter that the court considers it likely that the transaction was at that time still fresh in his memory

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

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

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

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

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