Legal Alert – May 2012 – Admissibility of Electronic Evidence

by Oserogho & Associates
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1. May 2012 – Admissibility of Electronic Evidence

2. Copyright and Disclaimer Notices

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Introduction

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.

Tendering of electronic mails (“emails”) for example are usually as contentious and acrimonious as the litigation itself, with the opposite party usually relying on the hearsay rule, among other forms of objections under the old Evidence Act 1945, to prevent the admission of such electronically generated evidence.

The enactment of the Evidence Act, 2011 has attempted to correct some of the difficulties that the admissibility of electronically generated evidence do encounter in Nigerian Courts.

However, is the general perception that all electronic communication and mails are now admissible in Nigeria, correct? This Legal Alert is our contribution to the enlightenment process on the provisions of the 2011 Evidence Act regarding the admissibility or otherwise of electronically generated evidence.

Admissibility of Evidence Generally

Relevant to the admissibility of electronic evidence are the common rules governing the admissibility of evidence generally. Some of these common rules need mention in this Alert.

Under Nigerian Law, facts which are in issue, with the facts which are relevant to the facts in issue, are generally admissible in evidence.

In the 1945 Evidence Act which is now repealed, technologically generated evidence was argued to offend some of the following general rules of evidence:

(i) The issue of the custody and the reliability of the evidence tendered if it is not the original document.

(ii) The best evidence rule which requires that a party must produce the original document during a trial or where the original document is not available, secondary evidence of it in the form of a copy, with other corroborating notes, etc, must be produced.

(iii) The rule against the admission of hear-say evidence which forbids witnesses giving evidence on facts that they do not directly or personally witness or know about.

The underlined words above are for emphasis only.

The general basis for the admissibility of documentary evidence has not radically changed under the Evidence Act 2011 as documentary evidence is still mostly admissible where the original hard copy of such a document is produced in a Court of Law. See Section 83(1) of the Evidence Act 2011. The Evidence Act 2011 has however expanded this basis general rule to enable the admission of electronically generated documents under certain conditions which are enumerated hereunder.

Explanatory Memorandum – Evidence Act, 2011

In its explanatory Memorandum, the Evidence Act, 2011 repealed the 1945 Evidence Act, Cap. E14, Laws of Federation of Nigeria, and enacted a new Evidence Act, 2011 which latter Act applies to all judicial proceedings in or before any Court of Law in Nigeria.

Starting with some definitions, this Alert will follow with some succinct highlights of the provisions of the Evidence Act, 2011 as they relate to electronic communication, electronic information, court processes, decided cases, etc, in Nigeria.

Definitions of “Document, “Computer”, Evidence

Section 258 (1)(d) of the Evidence Act, 2011 describes a document, for the purpose of this Legal Alert, to include “any device by means of which information is recorded, stored or retrievable including computer output’’.

A Computer is in turn described to be “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.’’

Evidence itself has generally been described by authors to be “the means by which facts are proved, excluding inferences and arguments’.

2011 Evidence Act, Hearsay and Electronic Evidence

Under the new Evidence Act 2011, one of the exceptions to the hearsay rule of evidence, which hearsay evidence will otherwise be inadmissible under the old repealed 1945 Evidence Act, is the provision that where even though the maker of the evidence cannot be called to give primary evidence on the “hearsay evidence”, such evidence is established to have been made and kept contemporaneously in an electronic device, in the ordinary cause of business or in the discharge of a professional duty or in acknowledgement, written or signed, of the receipt of money, goods, securities or of property of any kind. See Section 41 Evidence Act, 2011.

Where the statement and the recording of the transaction are not instantly contemporaneous, they must occur such that a Court of Law will consider it most likely that the transaction was at the time of the record,

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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