Kubor v Dickson: Admissibility of Electronic Evidence

Introduction

Today, everyday transactions are conducted on electronic platforms. In 2014 Nigeria recorded over $2 million-worth of online transactions per week. Further, the e-commerce market in Nigeria is developing rapidly, with an estimated annual growth rate of 25%.(1) The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life, and the legal system is no exception: in the event of disputes involving transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions.

The recent amendment of the Evidence Act in 2011 was intended to provide for the use of such electronic evidence in court proceedings.(2) Before the amendment, the admissibility of electronic evidence in court proceedings had been controversial due to the absence of specific provisions in the previous act, even in light of Supreme Court decisions in Esso WA v Oyegbola and similar cases in which it held that computer printouts were admissible.(3)

In Kubor v Dickson the Supreme Court examined the provisions of Sections 84, 34(1)(b) and 258 of the Evidence Act 2011 regarding the concept of a ‘document’ and the admissibility of electronic evidence.(4)

Facts

The appellants challenged the election and return of the first respondent as the governor of Bayelsa State in the February 11 2012 governorship election. The documents tendered by the appellants included a computer printout of the online version of The Punch newspaper and another document from the website of the Independent National Electoral Commission (INEC), the third respondent in the appeal. The electronic version of The Punch was admitted and marked as Exhibit D and the document from INEC’s website was admitted and marked Exhibit L. However, the appellants did not satisfy the conditions provided in Section 84(2) of the Evidence Act with respect to the admissibility of electronic evidence.

The matter went to appeal. The respondents claimed that, since Exhibits D and L were public documents, only certified copies thereof were admissible in evidence; the documents were inadmissible as evidence as they had been tendered from the bar without satisfying the conditions set out in Section 84(2) of the Evidence Act.

Decision

The Supreme Court agreed with the respondents. In the leading judgment, the court stated the following:

“There is no evidence on record to show that the appellants in tendering exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held at page 838 of the record thus:-

‘A party that seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.’

I agree entirely with the above conclusion. Since the appellants never fulfilled the pre-condition laid down by law, Exhibits “D” and “L” were inadmissible as computer generated evidence.”

The appellants’ appeal was accordingly dismissed. Concurring with the leading judgment, Justice Ogunbiyi further reasoned that the electronically generated documents were in the nature of secondary evidence and that both documents, being public documents, required certification before tender as evidence.

Admissibility of electronic evidence

The Supreme Court decision underscores two key points. First, it recognises and endorses the use of electronic evidence in Nigeria. Second, it reiterates the conditions for the admissibility of electronic evidence. In determining the admissibility of electronic evidence in Kubor v Dickson, the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Section 84(2) are satisfied.

Stated more simply, the four conditions for admissibility of computer-generated evidence under Section 84(2) are that:

• the statement sought to be tendered was produced by the computer during a period when it was in regular use;
• during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
• the computer was operating properly during that period of regular use; and
• the information contained in the statement was supplied to the computer in the ordinary course of its normal use.

Further, Section 84(4) requires that the party which seeks to tender a computer-generated statement or document shall file a certificate:

• identifying the document or statement;
• describing the manner of its production;
• stating the specifications of the device used in the production of the document; and
• signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.

The definition of ‘document’ in Section 258(1)(d) includes “any device by means of which information is recorded, stored or retrievable including computer output”. Section 258 also defines a computer to mean “any device for storing and processing information”.

This definition appears to be wide enough to cover all handheld phones, tablets, portable music devices, automatic teller machines (ATMs) and other electronic devices that store, process and retrieve information. Under these provisions, the following forms of evidence should no longer present difficulty when tendered in court once the stipulated conditions are met:

• statements from telecommunications companies showing records of call logs and text messages;
• receipts of cash withdrawals and other transactions from ATMs;
• internet banking records; and
• records of online product purchases and bill payments (eg, utility bills and flight bookings).

It should be fairly easy under the provisions to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the Internet. However, it remains to be seen whether the provisions are sufficient to deal with issues such as authorship of online defamatory material – and specifically the question of whether the printout of the alleged defamatory material or the computer-saved file copy constitutes the original evidence.

Nonetheless, with these extensive provisions, controversies about the admissibility of computer-generated evidence will be largely reduced.

Comment

The Supreme Court decision will doubtless increase the confidence of the international business community in the ability of the Nigerian legal system to deal with legal issues arising from commercial transactions conducted via electronic technology. However, more must still be done to develop the practice of the courts in respect of these provisions.

There is a wealth of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in Nigerian law. However, advances in computer technology have also created greater opportunities for fraud and forgery (eg, email hacking, identity theft and photograph manipulation), so the courts must be cautious in admitting electronic evidence.

Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the keywords for courts in this area of evidence. A laudable provision which will help courts greatly is to be found in Sections 34(1)(b)(i) and (ii), prescribing guidelines for the courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted.