Sufuyan Ojeifo
13 July 2009
Abuja — The Senate has begun the process of amending the 1945 Evidence Act to permit the admissibility in court of electronic- and computer-generated evidence. The Act only provides for the admissibility of original of documents pleaded in court.
The Bill for an Act to Amend the Evidence Act was read for the first time (short title of the bill) on the floor of the Senate last Tuesday.
Specific amendments proposed in the Bill (which would be supplementary to the Evidence Act as interpretation) include Section 2 which provides for the interpretation of bankers' books to encapsulate "electronic records, writings and recordings and all other books and documents."
Section 3 on the interpretation of "document" to include electronic document or electronic records," while it seeks to amend Section 4 by adding the following under the interpretation section: "data" means representations, in any form, of information or concepts.
It also seeks to add "duplicate" to include a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
Other proposed amendments cover the interpretations of "electronic record," "electronic record system," "legal proceeding," "original," "photographs," and "writing and recordings."
The Bill is yet to be slated on the order paper or notice paper for second reading (debate of its general principles).
Sponsor of the Bill, Senator Sola Akinyede, explained in a letter to his colleagues that the purpose of the proposed amendment was to bring the Act into conformity with modernity and global best practices.
He said the Amendment Bill was seeking to expand the meaning of the word-"document" to include electronic records; expand the meaning of the phrase "bankers' books" and expand the meaning of the word "original."
Akinyede was ostensibly seeking his colleagues' support for the proposed amendments to sail through, that since the Act was enacted 64 years ago, it had remained unchanged.
According to him, "Since the Evidence Act was enacted 64 years ago, apart from some minor amendments effected between 1948 and 1958 and another minor amendment in 1991, the Act has remained unchanged.
"Since then, there has been technological advancement in all fields of human endeavour particularly in the area of computer technology which was introduced to Nigeria more than 30 years ago."
He said that in recognition of the "ubiquity of computer technology, many countries had moved with technological advancement by amending their laws such that evidence obtained from that technology is admissible under the laws of those countries".
Akinyede painted this scenario: "Mr. A sends an e-mail to Mr. B, asking him to kill Mrs. C, promising that he (Mr. A) will pay a sum of $500,000 to Mr. B and that as an indication of his seriousness, he will pay a first instalment of $250,000 into Mr. B's account by electronic transfer.
"Mr. B sends his account number by e-mail or by text and the sum of $250,000 is wired electronically to Mr. B's account. Fortunately for Mrs. C, someone tips her off and on the appointed day, Mr. B is caught by the police in Mrs. C's compound with a knife, a rope with which he intended to strangle her.
"As our Evidence law stands today, in spite of the overwhelming evidence, the worst that can happen to Mr. B is to be convicted for trespass or at best burglary because the e-mail asking him to kill Mrs. C is not admissible in a court of law in Nigeria by virtue of the provisions of Sections 93, 94, 95 and 96 of the Evidence Act, which state that documents must be proved by primary evidence (and) primary evidence is defined by Section 94 (1) as the document itself produced for the inspection of the court."
He added: "What is the document in a computer system? Is it the word on the monitor? Many people will argue that it is not because what appears on the monitor comes from the hard drive.
"Unfortunately, the information on the hard drive cannot be read by sight and even if it can, are persons expected to carry their computers with hard drives to the court every time they want to prove their cases?
"The text message providing the account number is not admissible. The computer printout evidencing the payment of $250,000 is not admissible because it is not an original and does not qualify as secondary evidence under Section 97 of the Evidence Act.
"Of course, the initiator of the assassination attempt, Mr. A, will go scot-free because his e-mail and printout of the statement of account are inadmissible."
Akinyede said that electronic transfer of funds had become the standard system of global business transaction and wondered how the nation could be clamouring for foreign investments when the nation's justice system did not recognize the standard method.
"Finally, the Federal Government has now determined that all payments to government contractors, etc., will no longer be by cheques but by electronic payment. Does it make sense to transact business by a method which our law does not recognize?" He asked.
He explained that the basic problem with Evidence Act "is that it does not recognise any record except that record is written on a piece of paper; it does not recognise any electronic record. Apart from records produced by stenography and photocopiers, it does not recognise any other form of record produced by more advanced technology that has emerged since the enactment of that law.
"It does not recognise records produced by magnetic impulse e.g. records on a credit card; the records it recognises are what is called 'original' which only related to a piece of paper."
He stated that by virtue of the 1945 definition of the word "original," both the data on the computer monitor and the printout are not original, adding "it is therefore not surprising that in recent times, computer printouts of bank statements have been rejected by our law courts and as unbelievable as it sounds, this is the state of our law in 2009."
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