- Introduction:
The nature of commerce has undergone a radical transformation in recent decades. Business communication, transactions, and record-keeping now occur predominantly through electronic means. Consequently, the litigation that arises from these transactions must adapt to the new realities. Evidence that once existed solely in paper format now appears in emails, databases, text messages, audio recordings, CCTV footage, cloud storage, and blockchain records.
In the modern era of digitization, electronic evidence has become a cornerstone of commercial litigation across jurisdictions, including Nigeria. Emails, electronic contracts, bank records, text messages, CCTV footage, and social media communications now form critical elements in dispute resolution, especially in commercial transactions. The use of such evidence offers numerous opportunities for justice delivery but also presents significant legal and procedural pitfalls. In the digital age, the role of electronic evidence in the administration of justice, particularly in commercial litigation, has become not only indispensable but inevitable. As commercial transactions increasingly rely on digital platforms, email correspondences, online contracts, electronic fund transfers, and social media communications, courts are now routinely required to evaluate and adjudicate on disputes based on electronically stored information (ESI). Technology had eased data retrieval and improved communications all over the world.[1] Technology had also penetrated the judicial systems and redefined the way evidence(s) are obtained, it changed ways of investigating crimes, gradually altering the legal climes all over the world. Changes occasioned by the advent of technology are evident around the globe. Consequently, various legislatures altered their laws to include use of electronic evidence which formed part of the facts in dispute between litigants as evidence in legal proceedings. For instance, in 2000 India amended its Evidence Act 1892 to allow electronic evidence in legal proceedings.[2] In the same breath, Section 84 of the Evidence Act, 2011 permits the use of electronically generated evidence in Nigerian courts. On 12th June, 2023, an Amendment Act on evidence was signed into law.[3] Amongst other things included in the amendment are the admissibility of electronic records and computer simulations, authentication of electronic records, use and proof of digital signature, electronic oath taking, electronic gazette and, also gives the Minister of Justice the power to make regulations governing admissibility when there appears to be a lacuna in the law.[4] However, the Act is not devoid of its own challenges because of difficulties of the complexities of its admissibility in trial.
This article delves into the Nigerian legal framework governing electronic evidence in Nigeria, evaluates its application in commercial litigation, examines judicial attitudes, identifies key opportunities for legal innovation and efficiency, highlights the benefits and challenges of its use, and offers recommendations for effective utilization.
2.0. Definition of Concept
2.1. Evidence
Evidence is the pivot of a court proceeding; it is the basis on which cases are determined in any proceeding. It is the means through which litigants win or lose cases in court.[5] Evidence is what is used by litigants in court to prove an alleged fact,[6] in Tukur v UBA & Ors[7] the Supreme Court defines evidence to include the “means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or approved”. The law of evidence determines what is and what is not admissible as evidence in trials whether in proving or disproving a fact in issue and in what manner a matter can be admitted by the court as evidence.[8] Section 3 of the Indian Evidence Act[9] defines it as:
1) All statements that the court permits or requires to be made before it by witnesses about the matter about witnesses about the matters of fact under inquiry. Such statements are called oral evidence;
2) All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
The Indian courts take cognizance of two forms of evidence i.e., oral and documentary evidence. In contrast, the Nigerian law of evidence[10] recognizes three forms of evidence to wit: oral, documentary and real.[11] The word evidence used in a judicial context tend to take different meanings,[12] for instance, it may mean the process by which the court is notified of the issues from the pleadings and the crux of such process. It is that which was placed before the courts to regulate relevant facts in issues.[13]
Evidence can be said to be that which is brought before the court to prove or disprove a fact in issue, either orally, documentarily, or by way of real evidence. Sometimes, even if relevant, evidence can be required by law or the court to be supported with other evidence before it can be admitted in court. An example of such evidence is electronic evidence which requires a method of authentication and oral evidence from the maker of such document before it can be admitted.
2.2. Electronic Evidence
Electronic evidence or digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial.[14] Electronic evidence is defined broadly as any probative information stored or transmitted in digital form which include emails, databases, text messages, digital video, audio recordings, CCTV footage, computer printouts, web browser histories, cloud storage, and blockchain records, WhatsApp, Telegram, Electronic contracts and signatures, Bank statements and transaction logs, Spreadsheets and business records, smart phones, Social Medial post etcetera[15] has become indispensable in resolving commercial disputes. Its growing significance is acknowledged in Nigeria’s legislative reforms and judicial pronouncements. However, its adoption is not without challenges. The complexities associated with admissibility, authenticity, integrity, and reliability of electronic evidence remain contentious in Nigerian courts.
Although the Evidence Act failed to define the term electronically generated evidence, it did refer to what constitutes electronic evidence.[16] For instance, section 84 refers to “statements contained in a document from a computer”, while the interpretation section defines a computer to mean any device for storing and processing information.[17] In summary, electronic evidence can be taken to be any raw fact stored in a device of electronic manner which can be presented before the court as evidence to disprove or prove a relevant fact in issue.
3.0. Legal Framework for Electronic Evidence in Nigeria
3.1. Evidence Act, 2011.
The primary legislation governing the admissibility of evidence in Nigeria is the Evidence Act, 2011. A significant innovation of the Act was its formal recognition of electronic evidence. Section 84 of the Evidence Act provides the statutory foundation for the admissibility of computer-generated documents. Under Section 84(1), any statement contained in a document produced by a computer is admissible as evidence of the fact stated therein, if certain conditions are met.
3.2. Admissibility of Electronic Evidence in Legal Proceedings in Nigeria
As discussed above, the Act governing evidence in Nigeria came into force in 2011.[18] Although to the laymen, the enactment of a new evidence Act may not appear as jubilatory, however, among lawyers, it was something that called for celebration as the Act addressed many of issues the old Evidence Act[19] failed to resolve. The old Act did not provide for use of electronic documents in legal proceedings and thus could not meet up with modern requirements of admissibility in trial. As technological advancements brought about the existence of compact discs as a means of storing files as opposed to the old method of storing files in hardcopy in a paper document; Point of Sale (POS) transactions instead of the old method of cash payment, the internet and other modern technological advancements. There was a need to establish a system that will meet up with the modern requirement of admissibility in trial and in order to address the challenges, the new Act was enacted and it made provision for the admissibility of electronic evidence.[20]
The 2011 Act addressed the issue of electronic documents. This was necessary as documents of electronic nature were quite different from the traditional documentary evidence. Due to this, documents of electronic nature could not be tendered as evidence as the old Evidence Act did not provide for such. Under the Act, the meaning of a document includes evidence generated from electronic devices and so on[21] The main issue relevant to this study that the new Evidence Act resolved is the issue governing the admissibility of electronically generated evidence in Nigeria. In addition to this, the Act was amended in 2023 to further address issues affecting electronically generated evidence in Nigeria. The Act permits the use of electronically generated evidence in legal proceedings so far as the conditions and requirements stated in the amended Section 84[22] have been complied with. The conditions and other requirements dealing with authentication and relevancy will be expatiated below.
3.3. Conditions for Admissibility of Electronically Generated Evidence in Nigeria
The conditions for admissibility are contained in Section 84 of the Evidence Act, 2011, from the title of the section “admissibility of statements in documents produced by computer”, it addresses issues relating to the use of electronic evidence in trials. The drafters of the Act appear to have drawn inspiration for this section from Section 65B of the Indian Evidence Act, 1892 (as amended) and the repealed Section 69 of the Police and Criminal Evidence (PACE) Act, 1984. The section contains five sub-sections; the sub-sections permit use of electronically generated evidence in “any proceeding”[23] in Nigeria as long as the conditions stipulated in subsection two has been fulfilled.[24] The conditions as stipulated in section 84(2) of the Evidence Act are:
- that the statement contained in the document seeking to be tendered was produced by the computer during its regular course of usage;
- ii) that the kind of statement contained in the document was supplied to the computer during its regular course of usage;
- iii) that the computer operated properly during the period of its regular use; and
- iv) that statement contained in the document was supplied to the computer during its ordinary course of usage.
Notably, in this landmark decision in the case of Kubor v. Dickson[25] the Supreme Court affirmed that electronically generated documents such as printouts of online newspapers and emails could be admitted in evidence once the requirements of Section 84 are met. The Supreme Court reiterated its position on the strict requirement of a certificate of compliance, emphasizing that failure to meet the Section 84 threshold renders the evidence inadmissible.
Additionally, Section 84(2) – (4) requires the party seeking to tender the electronic evidence to produce a certificate of compliance detailing the conditions under which the document was generated and verifying the accuracy of the process.[26]
3.4. Relevancy in Authenticating Electronically Generated Evidence
The general rule of admissibility of documents is to the effect that before evidence can be adduced in court, it must be relevant. Thus, it will not be sufficient to prove that a document is admissible without first linking the document to a relevant fact in issue.[27] Notwithstanding Section 84 of the Evidence Act, Section 1[28] governing the relevancy and admissibility of evidence shall apply. Consequently, it is not enough to lay necessary foundations and present a certificate of authentication, or an authenticated electronic evidence before the court to admit it. The party presenting electronic document as evidence before the court is to establish a link between the evidence and a fact in issue. Thereafter, the electronic evidence becomes relevant and admissible. As a result, the electronic evidence would have satisfied the relevancy test and it becomes admissible in court.
3.5. Challenges of Admissibility of Electronically Generated Evidence in Nigeria
3.5.1 Vulnerability of Electronic Records
The 2011 Evidence Act fails to address the vulnerability of electronic records. There are common problems accompanying the advancement of technology in the modern era, where messages could be interfered with and altered before it gets to the receiver. Which may be as a result of hackers or system malfunction, alterations might even occur during electoral processes. An example of this arose during the 2014 Ekiti governorship election campaign where the software app “Photoshop” was used to portray pictures of contestants negatively.[29] Another instance of alteration that occurred in Ekiti was when the electronic recording of the conversation between a military officer and one of the contestants leaked to the public. Arguments have followed that the recording was doctored and fake, showing that with technological advancements, electronic recordings can be manipulated and conversations altered electronically.[30]
In addition, criminals have been known to use fake names and aliases to avoid being detected.[31] The court in Shell International Petroleum v. Allen Jones[32] held that a person using the web may easily change their identity and under aliases which makes it hard for people to know “you are a dog”.[33] To further add, some researchers believe that Nigeria lacks adequate laws to combat cybersecurity.[34] Aguda believes cybersecurity laws should have been in place before the advent of the Evidence Act, 2011 which would have prevented a scenario of putting the cart before the horse which is the reality in Nigeria.[35]
The new amendment also did not wholly address issue of vulnerability but instead introduced digital and electronic signatures and created a safe path to ensure their integrity. It did not discourse the vulnerability of electronic evidence which do not have a digital signature affixed to it.
3.5.2 Lack of Recognition of Self-Authenticating Electronic Evidence
The Act failed to recognize self-authenticating electronic evidence thereby leading to a waste of time and resources. Idhiarhi believes that computers can become proficient if simulations can be shown to the satisfaction of the court, thus, the computer self-authenticates itself. In his words, “Simulations are computer generated models or reconstructions based on scientific principles, created by entering data and engaging in computer-assisted analysis by widely accepted methodology”.[36] Thus, instead of relying on video evidence in court, the court can resort to simulation as it draws opinions from raw data that the court may rely on. In comparison, this form of authentication saves time and money to be spent on authenticating electronic evidence and calling an expert to court. However, Act does not provide for the use of such cost-effective methods in court which had posed a challenge to the admissibility of electronically generated evidence in Nigeria.
3.5.3 Misunderstanding between Weight and Admissibility of Electronic Evidence
The vulnerability of electronic evidence sparked uncertainties among judges as to its weight and admissibility. The fact that electronic evidence can be manipulated or altered should not ordinarily make the courts exclude it, this is because any sort of evidence including paper-based evidence, as well as oral evidence can be altered. This will only affect the weight of such evidence and not its admissibility.[37]
In Germany, electronic evidence is considered preliminary evidence, and its admissibility and weight are to be decided at the Judge’s discretion. Accordingly, putting such conditions in place for electronic evidence to be admissible and dismissing electronic evidence for lack of sufficient authentication only evades the difference between the weight to be attached and the admissibility of the evidence.[38] In China, a survey led by 69 Judges had shown that some judges do not distinguish between the admissibility and weight to be attached to electronic evidence due to a lack of awareness and inability to evaluate electronic evidence.[39]
3.5.4 Lack of Technical Know-How among Judges
Some Judges have more knowledge in some areas of law than others which are reflected in their decisions. For instance, it will likely not appear as a surprise when a Judge who has little to no knowledge of electronic evidence makes some decision per incuriam. Therefore, whether or not cases on electronic evidence can be decided appropriately will depend on the Judge[40] sitting on the matter and also on the lawyers handling the matter.[41]
3.5.5 Interpreting Data from Electronic Evidence can be too Expensive
Interpreting electronic evidence such as highly coded messages may sometimes prove too expensive and this has posed a problem to the admissibility of electronic evidence in Nigeria. For example, before highly coded electronic records can be interpreted in court, the court may need to engage the services of an expert to examine and decode the electronic evidence before its admissibility. Challenge arises as to the costs for the services of the expert engaged. The party tendering the evidence may refuse to engage the services of an expert, making his evidence not admissible. The court may admit the evidence without expert opinion, rendering such evidence(s) for all intent and purposes irrelevant before the court.[42]
4.0. Prospects of Electronically Generated Evidence in Nigeria
4.1. Ensures Speedy Dispensation of Justice
Section 84, Evidence Act 2011 helps in ensuring prompt dispensation of justice by allowing the use of electronically generated evidence in courts. Electronic evidence when compared to the traditional evidence ensures faster means of proving a case in court and ignites zeal of litigants in the court system.[43] Under the Evidence Act, 2004 admissibility of electronically generated evidence was complex as the law then did not expressly provide for it which made a lot of cases drag longer than necessary. In some instances where the crux of the matter is centred on electronic evidence, litigants find it difficult to prove their case in court.
Therefore, section 84 of the Evidence Act 2011 played a key role in ensuring speedy dispensation of justice and paved the way for the use of computerized storage in Nigerian courts. For instance, the Federal High Court and the High Court both sitting at Abuja allow for a computerized method of tendering evidence, thereby reducing the need to testify as an eye witness when electronic evidence can be employed.
4.2. Reduce the Malleability of Electronic Records through Self-Authentication
There is the likelihood of admissibility of electronically generated evidence in Nigeria via the use of self-authentication. By employing self-authentication, the simulation of the data stored in the computer is displayed in court and how the data was gotten and stored is also displayed to the satisfaction of the court. This is a better way of authentication as it will not give room for electronic records brought to the court to be altered in any form. Furthermore, self-authentication ensures that authentication is done to the satisfaction of the courts and litigants leaving no room for unreasonable doubts.
4.3. Ensure the Dynamism of Law and its Conformity with Modern Systems
The use of electronically generated evidence in court will keep evolving as it is a system that relies on continuous research in order to achieve ease of the administration of justice. Through research, policies are formulated and implemented to further enhance the growth of the admissibility of electronically generated evidence in Nigeria.[44] The 2023 amendment of the Act further ensures dynamism as the Minister of Justice has now been vested with powers to make regulations affecting the admissibility of electronic evidence when there is a lacuna in the law.126
5.0. Other Relevant Laws
Beyond the Evidence Act, several other laws intersect with the use of electronic evidence in commercial litigation:
5.0.1 Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 – This Act provides mechanisms for preserving and retrieving electronic data, especially in cases involving cyber fraud or electronic transactions.
5.0.2 Companies and Allied Matters Act (CAMA), 2020 – Allows for electronic filings and recognizes electronic resolutions, contracts, and communications as valid.
5.0.3 Central Bank of Nigeria (CBN) Guidelines – Regulate the use of digital banking records which frequently form the basis of evidence in banking and finance disputes.
6.0 Conclusion
While electronic evidence offers numerous benefits in Nigerian commercial litigation, it also presents significant challenges that need to be addressed. A comprehensive understanding of the Evidence Act, 2011, coupled with increased digital literacy and robust cybersecurity measures, will be crucial for maximizing the opportunities and mitigating the pitfalls associated with electronic evidence in Nigerian courts. There is no doubt that section 84 of the Evidence Act 2011 and its amendment had increased admissibility of electronic evidence in Nigeria, however, the law appears to be insufficient. The insufficiency stems mostly from the lack of procedural law on the admissibility of electronic evidence which forces the courts into using its discretion in most cases. Thus, there is need for the legislature to amend the sections on electronic evidence in the Act in order to meet international best practices. In addition, it is hoped that the new Evidence Act 2023 will soon be tested in courts to guarantee certainty in the law.
[1] Guz Gultan, Electronic Evidence, Privacy Concerns Relating to the Collection of Electronic Evidence: Under Turkish Legal System and Cybercrime Convention (Master Thesis, University of Oslo)
[2] The inclusion of section 65B in the Indian Evidence Act, 1892 permitted for the use of electronically generated evidence in legal proceedings in India. However, before the inclusion of section 65B in the Indian Evidence Act, the courts had found a solution to admit electronically in legal proceedings as secondary evidence. Thus, with the inclusion of the section electronic evidence is now considered is a primary evidence or best evidence in India
[3] Evidence (Amendment) Act, 2023.
[4] Ibid, Sections 2, 3 & 9
[5] Chris C. Wigwe, Introduction to Law of Evidence in Nigeria, (Mounterest University Press, 2016) 1.
[6] Oxford Advance Learners Dictionary, (9th Edn, Oxford University Press 2015) 527.
[7] (2012) LPELR – 9337 (SC).
[8] Simon Cooper et al, Cases and Materials on Evidence, (4th Edn, Blackstone Press Limited 1997) 1.
[9] 1872 as amended (whose model The Nigerian Evidence Act 2011 follows).
[10] Evidence Act, 2011.
[11] Oral evidence is the evidence given by mouth in court usually by a witness; Documentary evidence as the name implies refers to all documents including electronic records produced in court for inspection (s.3.Indian Evidence Act, 1872 as amended); while real evidence includes anything other than documentary or oral evidence brought to court for the purpose of proofing or disproving a relevant fact in issue S258, Evidence Act, 2011).
[12] Phipson, Evidence, (13th edn, Sweet & Maxwell 1982) 2.
[13] Ibid.
[14] Casey, Eoghan (2004). Digital Evidence and Computer Crime, Second Edition. Elsevier. ISBN 0-12-163104-4.
[15]https://www.google.com/search?q=electronic+evidence&rlz=1C1GCEA_enNG1158NG1158&oq=Electronic+Evidence&gs_lcrp=EgZjaHJvbWUqBwgAEAAYgAQyBwgAEAAYgAQyBwgBEAAYgAQyBwgCEAAYgAQyBwgDEAAYgAQyBwgEEAAYgAQyBwgFEAAYgAQyBwgGEAAYgAQyBwgHEAAYgAQyBwgIEAAYgAQyBwgJEAAYgATSAQsxMzc4MDkyajBqNKgCALACAA&sourceid=chrome&ie=UTF-8
[16] Alaba Omolaiye-Ajileye, Electronic Evidence, (Rev. Edn, Jurist Publications Series 2019) 12.
[17] Ibid. 76
[18] This Act is known as Evidence Act, 2011.
[19] Cap E14, LFN 2004.
[20] Alaba Omolaiye –Ajileye, (n.12) 156 – 157.
[21] Section 258 (1) Evidence Act, 2011.
[22] This section of the evidence act permits the use of electronic evidence in legal proceedings and stipulates the conditions to be followed before they can be admitted.
[23] Exceptions to this are arbitral proceedings, court martial proceedings, the sharia court of appeal and customary court of appeal proceedings as well as area courts and customary courts proceedings. Also, by section 12(2)(b) of the National Industrial Court Act, 2006 the court may do away with applying the rules of the evidence act for the purpose of attaining justice
[24] Section 84(1), Evidence Act, 2011
[25] (2013) 4 NWLR (Pt. 1345) 534,
[26] Section 84 (2)-(4), Ibid.
[27] S.J Apochi, ’Admissibility of Electronically Generated Evidence under the Nigerian Evidence Act, 2011: Challenges and Prospects’ [2021], JETIR (8) (3) 2680.
[28] It provides that Evidence which is relevant admissible, except such evidence is governed by the exclusionary rules provided under the Evidence Act.
[29] 103). 110 A.O. Akanle, A Legal Analysis of Electronic Evidence: The Challenges and Prospects of its Admissibility in Nigerian Courts (6-7) (1) 147 at 161.
[30] Ibid.
[31] Ibid. 112 O.K. Onu and A.A. Ikpinyang, ‘The Use of Electronic Evidence in Trial Advocacy in Nigeria: Benefits and Challenges’ [2019], ULJ (15) 24.
[32] D2003-0821.
[33] Ibid.
[34] Lawrence Atsegbua, Law of Evidence (Justice Law Printing & Publishing Global, Benin-City, 2012) 319-320.
[35] T.A. Aguda, The Law of Evidence (5th and, spectrum law publishing 2018) n.6, 196.
[36] Samuel E. Idhiarhi, Evaluation of Electronically Generated Evidence: Practice and Procedure, (Being a paper delivered at an Orientation Course for newly Appointed Magistrates at the National Judicial Institute, Abuja, on the 10th July, 2019).
[37] Onu and Ikpinyang, (n. 82) 24.
[38] Ibid. 25.
[39] Alexander Duuisberg and Henriette Picot, “Germany” in International Electronic Evidence, British institute of International and comparative law, (2008) 337.
[40] Bo Liu, ‘Problems on Admissibility of Electronic Evidence in the Chinese Context’, Digital Evidence and Electronic Signature Law Review, 2008.
[41] This is because sometimes lawyers who are vast in knowledge in a particular area of law have been known to be very sound when giving evidence and explaining that area of law in court. Therefore, by this method the lawyer makes that area of law clear to the Judges and other lawyers in court.
[42] Akanle, (n. 80) 164.
[43] Ibid. 165-166.
[44] This can be achieved by not constricting the words of the law particularly dealing on electronic evidence to leave space for new meanings and future innovations in electronic evidence. Also, from time-to-time review of the laws on electronic evidence to make sure that such laws are up to standard will go a long way in ensuring dynamism of the law and its conformity with modernity as far as electronically generated evidence is concerned.