How short was the Evidence Act 2011 shot at Electronically Generated Evidence?



On my recent visit to my lecturer and one of my research motivators, Professor Musa Abubakar, the current Secretary of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), our discussion took us to electronically generated evidence and his recently published internationally acknowledged book. After a robust chat, he gave me his article titled: “Admissibility of physical and electronic format documents in criminal proceedings under the Nigerian Evidence Act, 2011” published in The Justice Journal, A Journal of Contemporary Legal Issues, Abuja, Volume 6, Pp. 124-146. Given that the article is in a scholarly journal not many practicing lawyers may have access to it. I will therefore analyse the said article in the light of what I experienced in the court and lectures in recent time. I am not quoting the author, but I will be analysing what I learned from his work and riding on his brain. Having said that, it’s worthy of note that our courts have been admitting electronically generated evidence since 1960s (See: Esso West Africa v. Oyegbola; Fawehinmi v NBA (No.1), (1989) 2 NWLR (Part 105) 494; Eweka v Rawson (2000) 10 NWLR (Pt. 722) 723 CA. The only thing which was lacking was the criteria upon which such electronic documents will be authenticated before admission in evidence.

The breakthrough came in 2011, when the Evidence Act, 2011 took a shot at making the Nigerian legal system to be in tandem with the reality of time, taking into cognizance the development in science and technology or ICT which makes electronically generated documents inescapable but susceptible to adulteration. Section 258 of the Act expanded the definition of documents to include documents sourced from computer output such as video or audio recordings. Section 84 of the same Act sets down basically, 4 conditions which a computer generated document must satisfy  to be admitted in evidence as follows:- It must be shown via a certificate that: 1- the document in question is produced by a computer at a period of regular use; 2- the computer during that time was supplied with documents of the kind contained in the statement; 3- the computer during that period was operating properly 4- the information in the document is derived from the information supplied to the computer in the ordinary course of those activities. The above section gives regards to computer hardware and gives less or no regards to computer software and human agency both of which may be instrumental in altering the originality and authenticity of a computer generated evidence.
Apparently, the only point passive consideration is given by the new Act to safeguarding human threat to electronic documents is contained in section 34(1) (b)(ii) of the Act where the section enjoins the court to consider the weight it will attach to a document produced by a computer if there are reasons to believe that the maker of the document has some incentive to conceal facts. Though it wasn’t an issue because the respondent did not join issue with the petitioners on it, some of the deposition of a star witness of PDP and Atiku, Mr. Osita Chidoka, in the recent presidential case at the Court of Appeal, would have failed section 34 test because he deposed that all the electronically generated evidence in the petition were sourced from the computers of the law firm of Atiku’s wife (Miyetti law firm), which may clearly be seen to have insensitive to conceal facts in favor of the petitioners and will reduce the weight that may be attached to the computer generated evidence if it was in issue. That’s an example by the way.


In other words, sections 84 and 34 of the Evidence Act, 2011 only seek to ascertain the integrity of the computer hardware and the integrity of the person who operates the computer and not the integrity of the document itself.
Another shortcoming is that the Act does not even require the maker of the document or the operator of the computer to appear in court and go through cross examination in order to shake his/her credit and competence before relying on his document. Rather, the it only requires the maker or controller of the electronic device to accompany the document with a certificate stating that the itemized conditions above are satisfied. Even though Prof. Abubakar at the time of writing his academic journal article stated that the Federal High Court in FRN v. Mustapha Umar, FHC/ABJ/CR/13/2014 has interestingly called for an oral evidence on an electronic document, it seems to me that the court is still willing to accept the said certificate as seen in the Supreme Court’s decisions in Kubor v. Dickson (2013) 4 NWLR (Pt. 1345)534; and Dickson v. Sylva (2017) 10 NWLR (Pt. 1573). Even in the Presidential case of Atiku v. Buhari certificates were tendered with electronically generated documents without calling any witness.


Another worrisome shortcoming of the 2011 Evidence Act approach to electronically generated documents is the fact that the law doesn’t address a situation where a document made in a local language is sought to be tendered in court knowing that English is the language of the court as held in Ojegbende v. Esan (2001) 12 SC (Part II) 1. The Author on this point have cited judicial activism of Ademola J. of the Federal High Court handling the Terrorism trial of FRN v. Mustapha Umar, FHC/ABJ/CR/13/2014, where the court invited an interpreter to translate key recorded evidence against the accused from Kanuri to English. This may be in line with the constitutional right of an accused to know the case against him in the language he understands while also keeping the court informed of the evidence in the language of the court.


Going into the United States’ system, the author cited the case of State of Connecticut v. Swinton, 268 Conn. 781 (2004) in which the court took a review of a computer software as to whether by enhancing the quality of the image of an accused person’s teeth has tempered with the authenticity of the picture as an evidence before the court.
In the above case, the Supreme Court of Connecticut re-echoed the reliability test sets down in American Oil Company Ltd v. Valenti 179 Conn. 349 (1979), which are: the reliability of the evidence itself and the reliability of the procedure through which the evidence was produced. It therefore sets down six tests as set out as follows:
The computer is accepted in the field as standard and competent, and was in good working condition.
Qualified operators were employed.
Proper procedures were followed on the output and input of the information.


A reliable software was used.
The computer equipment was programed and operated correctly.
The exhibit is properly identified as the output in question.
The above are similar to the provision of section 84 of the Evidence Act, 2011 except that Swinton Six, as they are been referred, have gone further to assess the competency of the operator of the computer and the reliability of the software utilized which will culminate in making the process of the production of such document reliable.
While attending a webinar on Cybercrime and Electronic evidence organized between 18-19th of June, 2020 by AGA Africa and Nigerian Institute of Advanced Legal Studies (NIALS), I asked the question why the Evidence Act restricts itself only to ascertaining the integrity of the computer hardware and the integrity of the human agent who operates the system without ascertaining the integrity of the document itself. One of the panelists suggested that the defect could be cured by section 68 of the Evidence Act since a defendant is entitled to call a forensic expert to ascertain the authenticity of the document. But why put such a burden on a defendant if the law already hangs the burden of proof on the plaintiff/prosecutor’s neck?
It is the opinion of this writer in agreement with Professor Musa Abubakar that a loophole exists in the Nigerian Evidence Act, 2011 as it is short of checking the reliability of a computer generated document as a condition before admission in evidence.
Hussaini Hussaini is a legal practitioner based in Abuja and can be reached via [email protected]

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